Constitutional Court set to hear Simelane case
TODAY the Constitutional Court will hear whether the appointment of Menzi Simelane as National Director of Public Prosecutions by President Jacob Zuma was valid.
The state wants the court to overturn the Supreme Court of Appeals' (SCA) decision to strike down Simelane's appointment as National Director of Public Prosecutions.
Last year Judge Mohammed Navsa set aside Simelane's December 2009 appointment by Zuma on the basis that it was "inconsistent with the Constitution, and invalid".
The DA initially challenged Zuma's decision to appoint Simelane in the Pretoria High Court.
The court dismissed the application, concluding that Simelane explicitly stated that he believes in the independence of the NDPP.
The SCA reversed the decision of the high court, finding that the decision was inconsistent with the rule of law, which requires the decision to be rational.
The SCA also found that there were pertinent outstanding questions that go directly to the integrity of Simelane, and Zuma could not have satisfied himself that Simelane was a "fit and proper" person for appointment, as required by the National Prosecuting Authority Act.
The president's decision was found to be irrational, inconsistent with the Constitution and invalid.
The State then filed papers to the ConCourt for its impending review of the SCA's decision.
The DA applied for confirmation of the order of invalidity. Both Justice Minister Jeff Radebe and Simelane oppose the confirmation and are appealing against the findings of the SCA. The president does not oppose the confirmation.
The party supports the decision of the SCA and contends, in addition, that the appointment was made for an ulterior purpose and that Simelane is, in fact, not a fit and proper person to hold the position of NDPP.
It relies on, among other things, the comments made about his behaviour by the Ginwala Commission of Inquiry, a Public Service Commission recommendation that a disciplinary inquiry be held against him, and a pending investigation by the General Council of the Bar against Simelane.
The DA launched its court challenge to Simelane's appointment two years ago.
On December 1 2011 the SCA declared that Simelane's appointment had been not only unconstitutional, but also irrational.
Radebe argues it is impossible to conclude that Simelane is not a fit and proper person for the job, that the decision of the SCA interferes with powers granted to the president, and that the decision violates the separation of powers.
Simelane contends that the president's decision can only be reviewed on very narrow grounds of rationality and legality, neither of which has been established, and that the SCA erred in holding that the president's decision has to be reasonable and procedurally fair.