Compromised by politics

SHE was glowing when she mentioned to me she had secured the services of a bright young lawyer to lead her department.

I nodded when Brigitte Mabandla, then justice minister, revealed the news in Parliament a few years ago. She was speaking about Advocate Menzi Simelane, a sharp lawyer who gave the Competition Commission real teeth.

Simelane was going to be the new director-general of the Department of Justice. Only the jealous type would fail to acknowledgeSimelane's sharp legal brain.

A few years later Simelane's legal acumen would be shredded to smithereens through political machinations.

He was nudged by politicians - and he relented - to defend the indefensible, to mount a bid to save then police commissioner Jackie Selebi from being charged, prosecuted and sent to jail.

Simelane gave credence to the allegations that Vusi Pikoli, then head of prosecutions who wanted to charge Selebi, had no regard for so-called national security concerns.

But in that process Simelane was declared an unreliable witness who could not be trusted with the truth. That finding by the Ginwala Commission would later haunt him.

The Supreme Court of Appeal has since declared him unfit to be the country's top prosecutor. His appointment by President Jacob Zuma was said to be "irrational".

If Simelane had stuck to what he knew best in law and left politics to the politicians, he would have remained an asset to the country's legal system. He would, in my humble opinion, be a good candidate for the bench.

What a loss!

There is also Advocate Geoff Budlender, another great legal brain who was a victim of political circumstances.

In his case it was self-imposed. In 2009 Budlender appeared before the Judicial Service Commission (JSC), seeking a post at the Constitutional Court bench.

During the interview he told the commission he thought he stood a good chance under President Jacob Zuma's government.

He didn't think the same with former President Thabo Mbeki, whom he suspected disliked him because of the cases he had won against the government.

Budlender had thought that political rhetoric would help him advance his quest to make it to the bench. And what better platform. So he thought.

The JSC was now staffed by Zuma's new appointees. Mbeki's had been removed as part of the post-Polokwane shake-up. It was the early days of triumphalism for Zuma's administration.

The victors could still be heard blowing horns all over the Republic. And the vanquished could be seen walking wounded, if not entirely disabled.

But Budlender got it all wrong. And he missed the opportunity to showcase his legal expertise. He was not short of it. For example, he was behind the celebratedGrootboom case.

It was a case in which the community of an informal settlement in Cape Town took the government to court to compel it to provide decent shelter and proper sanitation.

Irene Grootboom was the leader under whose name the complainants took on the government. Budlender won the case. The judgment sits comfortably as the jurisprudential edifice on which the socio-economic rights of all South Africans rest.

Even Gwede Mantashe, the ANC secretary-general who is highly critical of the Constitutional Court, believes Grootboom was a "good judgment".

The court had an opportunity to explain government's obligation in terms of ensuring the progressive realisation of socioeconomic rights, and it used it.

There can be no better item for a CV for a legal guru. But somehow, perhaps because of the political environment, he thought he needed something else to make it to the bench.

To be fair, he regretted mentioning political reasons for his previous failed attempt to make it. He apologised profusely.

But his attempt at venturing into politics proved too much of a dent to be erased with ease.

Thus, our legal system was deprived of Budlender's legal mind. Maybe in future.

Cape High Court Judge-President John Hlophe is another gifted legal scholar who deserved to be chief justice one day.

But his mistakes, which culminated in allegations that he tried to do the bidding of Zuma at the Constitutional Court, compromised him. Badly.

The matter is still pending in the Constitutional Court following lengthy and complex legal challenges. Whatever the outcome, Hlophe's alleged involvement in trying to save Zuma from corruption charges has dented his legal image.

The truth is, Hlophe did not need to do anyone's bidding for him to advance his career.

He had made it to the bench at an early age. Not by any political association nor aiding, but by virtue of his skill as a legal scholar, armed with a PhD in law.

He is indeed a proud scholar who has passion for reading and writing, unlike some recently elevatedjustices.

But thanks to his alleged involvement in politics, the country lost the progression of someone who otherwise stood a chance to develop our law at the highest level.

He might well continue with his current job in the Cape High Court. But he deserved more.

And, of course, there is Advocate Willem Heath.

He earned public sympathy when Mbeki excluded him from the initial probe into the arms deal.

It was contended that the special investigating unit, which Heath headed at the time, would have added value to the investigation.

Mbeki thought otherwise and went on to accuse Heath of "touting for work". Having been kicked out by Mbeki, Heath turned to politics.

He got sucked into the Mbeki-Zuma binary politics to which all of us lay citizens were beginning to believe was the one and only way to analyse our political situation.

But even as this binary was being shaken with new alliances being forged ahead of Mangaung and with Zuma increasingly looking shaky, Heath could not let go of his simplistic analysis.

He failed to understand that conspiracy theories are meant for politicians. Lawyers like him should base whatever they say on facts.

Conspiratorially, what he said in that infamous interview might very well make sense. But can it stand the test of interrogation in court? He should have known.

But his departure, which means he could not stand for what he had said - that Mbeki was behind the criminal charges Zuma faced - has essentially debased the entire conspiracy theory that elevated Zuma.

By indirectly admitting he could not account for his statements, Heath has shaken the foundation of the conspiracy theory.

With that, sympathisers bade farewell to the anti-corruption warrior. I doubt if Zuma will forgive him for the slip.

• Mkhabela is Editor of Sowetan