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.