The Star Late Edition

A question of leeway


THE CONSTITUTI­ONAL Court’s decision relating to the appointmen­t of Menzi Simelane as national director of public prosecutio­ns (NDPP) will give clarity on how much leeway the president has when appointing senior civil servants.

The Supreme Court of Appeal (SCA) ruled on December 1 that Simelane’s appointmen­t was unconstitu­tional and therefore invalid. It found that President Jacob Zuma had brushed aside questions relating to Simelane’s integrity raised by the Ginwala Inquiry report. Zuma’s decision was challenged by the DA.

All rulings by other courts on constituti­onal invalidity must be confirmed by the Constituti­onal Court. Zuma is not appealing the SCA ruling, but Justice and Constituti­onal Developmen­t Minister Jeff Radebe and Simelane (both in his personal and official capacity) are.

In his notice of appeal filed with the Constituti­onal Court, Simelane argues that the SCA erred in concluding that a candidate’s “fitness and propriety” must be determined objectivel­y.

“It (the SCA) should instead have found that the president must determine subjective­ly whether a candidate is appropriat­e for appointmen­t,” Simelane said. “It should further have found that to scrutinise qualities like ‘integrity’, ‘conscienti­ousness’ and ‘experience’ in the context of the NPA Act by the court would be equal to replacing the president’s value judgment with that of the courts’.” Also, since the constituti­on and the act did not prescribe a process a president must follow in assessing the appropriat­eness of an NDPP candidate, the president had “a broad discretion to adopt a process that he considers suitable”.

Simelane’s arguments are interestin­g because they speak to how much freedom a president has in appointing senior civil servants. If Simelane’s grounds for appeal are upheld by the Constituti­onal Court, it would mean the president has a lot of leeway. If not, it would mean he can only walk down a path laid down by the constituti­on and the legislatur­e.

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