Ruling on Zuma’s choice of Simelane

THE Constitutional Court will today hand down judgment on whether President Jacob Zuma’s appointment of prosecutions head Menzi Simelane in 2009 was lawful.

Mr Simelane has been on special leave since November last year, when the Supreme Court of Appeal set aside his appointment. Today’s judgment will determine whether he can return to work and will provide certainty as to the leadership of the National Prosecuting Authority.

Mr Simelane’s deputy, Nomgcobo Jiba, has been heading the authority in an acting capacity. But Ms Jiba came in for intense criticism when murder charges, based on the doctrine of common purpose, were brought by NorthWest director of prosecutions, Johan Smit, against the 270 people arrested after the Marikana massacre. In the face of the outcry, Ms Jiba beat a hasty retreat and the murder charges were provisionally withdrawn.

The Constitutional Court’s judgment is the last stop in the long court battle between the Democratic Alliance (DA) and the Presidency over the lawfulness of Mr Simelane’s appointment.

In 2009, the DA went to court over the appointment, basing its case largely on the heavy criticism of Mr Simelane by former speaker of Parliament Frene Ginwala in her 2008 report on the fitness for office of Mr Simelane’s predecessor Vusi Pikoli.

The DA argued that Mr Simelane was not fit and proper for the job and that Mr Zuma’s appointment was irrational because he did not consider the report. Instead, the only document he looked at was Mr Simelane’s CV.

Round one of the court battle went to the Presidency when the North Gauteng High Court found in its favour. But round two — at the Supreme Court of Appeal — went to the DA.

Judge Mahomed Navsa said while there was no process set out in the National Prosecuting Authority Act for how the president should assess a candidate, there had to be a “real and earnest engagement” with the fit and proper requirement.