Zuma on horns of NPA dilemma
He will have to ensure that a permanent head will not reinstate corruption charges against him
The president has to fulfil his obligations correctly and expeditiously
PRESIDENT Jacob Zuma will have a tough time trying to convince the Constitutional Court to reject an application to force him to appoint a permanent head for the National Prosecuting Authority (NPA).
This is the view of Constitutional Court legal expert Professor George Devenish, who said that the application by the Council for the Advancement of the South African Constitution was convincing.
“The president has to fulfil his obligations correctly and expeditiously . . . for some time we have not had a permanent head in that position. An acting director does not have the kind of independence that a permanent person would have. The court may very well be persuaded by that argument,” he said.
If the president failed to fulfil his obligations, said Devenish, it was “the function of the court to uphold the constitution. To uphold the constitution is not a violation of separation of powers.”
The NPA has been headed by acting national director of public prosecutions Nomgcobo Jiba since December 2011, and it is understood that she has told those close to her that she is not interested in a permanent appointment.
A senior government official also told the Sunday Times that Jiba was not interested in the position. “She has said so herself. She knows that she would not be able to stand up to scrutiny when her appointment is challenged . . . because of the history of her suspension from the NPA,” said the official.
KwaZulu-Natal magistrate Stanley Gumede confirmed recently that he had been approached by the presidency regarding the job. But Gumede’s situation has been complicated by an ongoing investigation into his courtroom conduct by the Magistrate’s Commission.
A government official, who spoke on condition of anonymity, told the Sunday Times that Zuma was in a quandary in relation to the appointment of a permanent head of the NPA.
“The president has in excess of 700 corruption charges hanging over him and has to make sure that whoever he appoints will not reinstate the charges. At the same time he does not want another embarrassing episode as happened with the appointment of advocate Menzi Simelane,” said the official.
Simelane lost his job after the Supreme Court of Appeal found in 2011 that Zuma had not applied his mind properly in appointing him and that he was not suitable for the position. This was after the DA had challenged Simelane’s appointment — arguing that he was not “fit and proper” for the post given the findings by the Ginwala Commission that he was a dishonest witness.
Zuma’s lawyers have indicated that they will oppose the application and the Constitutional Court has given him until July 24 to file responding papers.
The council’s executive secretary, Lawson Naidoo, said it would not have taken Zuma to court had he responded to its letter — dated May 31 2013 — and had he committed to a time frame to appoint a permanent head for the NPA.
In the letter to Zuma, the council also suggested that he may be stalling the appointment because of the “conflict of interest” presented by the possibility of corruption charges being reinstated against him. The DA has challenged the 2009 decision by then-acting NPA head Mokotedi Mpshe to drop charges against Zuma. The matter is still pending.
Now the council has asked the Constitutional Court to order Zuma to appoint an NPA head within a month, should its application be successful.
“In 2009, when Zuma was seeking to appoint Simelane and the Vusi Pikoli matter had not been resolved at that point . . . Vusi obtained an interdict to stop the appointment of Simelane. The president, in an affidavit, said it was undesirable to have a temporary national director of prosecutions, so he was arguing the argument that I’m putting forward now. It’ll be interesting what he argues this time,” said Naidoo.
Zuma’s spokesman, Mac Maharaj, would not comment on the council’s assertion that Zuma feared that charges could be reinstated against him.
“That’s their belief . . . they are free to think what they want. The matter will be argued if it goes to court,” he said.
Asked whether Zuma was considering anyone and why he had taken so long to make an appointment, Maharaj said he could not comment.
“Once the president decides he will inform you. But the matter is being attended to.” Comment on this: write to tellus@sundaytimes.co.za or SMS us at 33971
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