Political storm fails to rattle new NPA boss

FOR a man supposedly under siege, advocate Menzi Simelane is rather cool. Nothing about him suggests being flustered.

Just last week, the Democratic Alliance argued in its application to prove that he was not worthy of being the head of the National Directorate of Public Prosecutions that Simelane could not spell.

It was the latest of attacks on his person and fitness to be called the country's number one prosecutor.

His detractors say his closeness to President Jacob Zuma and political malleability, rather than his skill, has landed him the job.

They also point to remarks made by Frene Ginwala, who in her commission report accused Simelane of contradicting himself, failing to grasp the essentials of the laws pertaining to handling public finances and taking personal stances against his predecessor Vusi Pikoli.

Whether he can spell or not, Simelane articulates his views very clearly and in a manner that first language English speakers patronisingly call being "well-spoken".

He remains steadfast in his view that the National Prosecutions Authority (NPA), being a division of the Justice Department, must accede to the same accounting principles as other government departments.

"The sooner we do that the better. We should not fudge what is normal government business."

He confesses though to some of the criticism being too much, even though he intends to resist the temptation of descending into the same arena.

"The sad thing about people is that they never think about how you feel (about things they write or say). They marvel at their own creativity. But I understand where it is coming from and where it is going."

The criticism that has followed, including the belief that he will not prosecute ANC-linked personalities should the need arise, is a carry-over from the viewpoints long held.

"The prejudice already existed. There is pretty much nothing I can do about that. In any case, the Criminal Procedure Act makes no distinction between political or not political. We have to make decisions on the facts of the case and on whether the law says something is a crime or not a crime."

Simelane says the public must accept that there will always be cases that are not prosecutable, as a result of insufficient evidence or witnesses who lack credibility.

"We cannot have justice at all cost. It leads to injustice, but we can have integrity at all cost."

Simelane says it is those "who have benefited" from the leaks by prosecutors who are spreading the false rumour that he has clamped down on journalists. These, he says, are journalists and media houses that have been used by parties to advance agendas that are not always limited to the pursuit of justice.

"We are not saying prosecutors should not talk to journalists. We are only saying that they must have the decency to consult with the heads of their jurisdiction. It is a mandatory instruction to consult with the heads of their jurisdictions, not with me."

Simelane says there have been cases where prosecutors have disclosed information to journalists that has had an impact on the fair administration of justice, even prejudicing individuals before they appeared in court.

"I am actually protecting my officials from breaking ethical rules," he says.

Simelane aims to use his tenure to promote the use of plea bargaining.

"I support plea bargaining. But for them to work, they must be understood by everybody alike.

"It must be fair to the accused person as it is to the state. It must never be a way of buying justice.

"We should use plea bargaining in a manner of ensuring that we don't have to go through the inefficiency of a trial. Running a trial should not be an end in itself, it should be a mechanism of getting justice.

"We must think of a trial like you think of surgery. Doctors will tell you that they reserve surgery only for serious cases. You don't get flu and then have surgery. Trials should be the last resort."

He also wants to end the prosecutors' dominance of who gets to have their day in court.

"Prosecutors cannot have the final say. Police have the same rights as accused persons to make representations. We cannot have a situation where once the prosecutor has spoken it is all over."

This situation, he reasons, leads to some prosecutors being open to corruption, a problem he acknowledges exists within the NPA.

"The only way for things to work is to expose the rot. It might hurt our image a little but it is something that will need to be done. It is important to know how far this has gone. Fortunately our people are starting to admit where they have been wrong. People still have consciences."

The storm he has had to face has been about politics rather than about the law.

"The politicisation (of our decision) will be part of the normal public discourse. It will not always be the reflection of the truth but we will retain our independence.

"I don't have an obligation to ensure that people are not political. South Africans are very political and this is a highly political environment. But we have an obligation to be professional lawyers."

For a sceptical public, the message is simple: "In this business you are only as good as your last decision. We should be measured by the decisions we make rather than the preconceptions and prejudiced viewpoints."