Sunday Times

Zuma on horns of NPA dilemma

He will have to ensure that a permanent head will not reinstate corruption charges against him

- SIBUSISO NGALWA

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

www.timeslive.co.za

 ??  ?? NOT INTERESTED: Acting national director of public prosecutio­ns Nomgcobo Jiba does not want the job
NOT INTERESTED: Acting national director of public prosecutio­ns Nomgcobo Jiba does not want the job

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