Move to disbar Simelane

Less than a week after his appointment, the Pretoria Bar council will hear an application by a senior advocate why prosecutions boss Menzi Simelane should be disbarred.

The Mail & Guardian can reveal that senior counsel Pat Ellis will on Tuesday submit an official complaint against Simelane at a meeting of the Pretoria Bar council following Simelane’s controversial testimony before the Ginwala inquiry last year.

President Jacob Zuma controversially appointed Simelane as head of the National Prosecuting Authority (NPA) this week.

After a flood of complaints about his appointment, Zuma’s head of communications, Vusi Mona, told the M&G this week the president respects former speaker Frene Ginwala, ‘but Frene Ginwala is not the minister of justice”.

Ellis told the M&G on Thursday that the gravity of Ginwala’s findings against Simelane and the fact that the Public Service Commission (PSC) has not released its report into allegations against him have prompted him to officially charge Simelane.

‘I will table a memorandum before the Pretoria Bar council on Tuesday and they will have to take it from there. The Bar council will then decide whether to investigate Simelane and if so, what form the investigation will take.”

Zuma, who appointed Simelane on the advice of Justice Minister Jeff Radebe, has yet to explain his controversial choice of Vusi Pikoli’s replacement as national director of public prosecutions (NDPP).

Zuma left the country on Wednesday to attend a Commonwealth summit in Trinidad and Tobago.

But, in an interview with the M&G Mona shed light on the president’s curious choice of prosecutions chief in the light of Ginwala’s damning findings about Simelane’s dishonesty and lack of integrity.

Ginwala chaired an inquiry into Pikoli’s fitness for office after former president Thabo Mbeki suspended him.

According to Mona, Ginwala’s findings ‘were not relevant to Simelane’s appointment because the justice ministry has processed the findings and decided not to proceed with disciplinary hearings”.

Mona was referring to a report by the PSC that scrutinised Ginwala’s report on the instruction of former president Kgalema Motlanthe and his justice minister, Enver Surty.

The presidency said this week that Radebe ‘interacted with the [PSC] on matters relating to advocate Simelane, raised by the Ginwala Commission, and decided not to proceed with disciplinary hearings against advocate Simelane”.

The M&G has previously reported an informed source had confirmed that the PSC had recommended that the justice minister take disciplinary steps against Simelane.

‘Even if the president had a view on the Ginwala findings, they are of no consequence,” said Mona. ‘The president respects Frene Ginwala, but Frene Ginwala is not the minister of justice.”

Mona’s response raises more questions about Radebe’s role in ‘clearing” Simelane and the legal basis for doing this.

PSC chair Ralph Mgijima reiterated this week that the Simelane report is ‘owned” by Radebe and that only he can release it. Radebe’s office has said the PSC should release the report.

Simelane’s legal experience had landed him the job, said Mona. ‘The president did apply his mind and in law there is no basis to discriminate against Simelane; he is not facing any charges.”

A source close to Simelane agreed, adding that Simelane was ‘not on trial” at the Ginwala inquiry. The source said that the PSC later gave him an opportunity to respond to Ginwala’s findings and that his answers ‘forced” the PSC to ‘put the ball back” in Radebe’s court.

He opted not to proceed against Simelane. This version is, however, disputed by a source close to the PSC process, who said Simelane responded to the commission’s report only after Radebe asked him for a response. His reply was forwarded to the PSC, which disregarded it. Mgijima previously told the M&G that the PSC report was final and could not be changed.

Ginwala slammed Simelane in her final report, calling him arrogant and condescending towards Pikoli. She labelled his evidence before the inquiry ‘contradictory and without basis in fact or in law” and blamed him for suppressing the disclosure of information.

Simelane’s conduct was ‘irregular” and Ginwala even suggested he might have contravened the NPA Act by drafting a letter to Pikoli that instructed him to abort the imminent arrest of former police boss Jackie Selebi.

Leading constitutional expert Pierre de Vos harshly criticised Zuma’s appointment of Simelane on Thursday, saying that the president had acted ‘unlawfully because Simelane clearly does not meet the requirements for the job as stipulated by the NPA Act”.

The Constitution requires that the NDPP must be a ‘fit and proper person” with due regard to his ‘experience, conscientiousness and integrity to be entrusted with the responsibilities of the office concerned”.

De Vos wrote on his blog, Constitutionally Speaking: ‘Unfortunately, we know from the report of the Ginwala inquiry that Simelane is not honest.

‘Neither is he reliable, nor does he possess the necessary truthfulness and uprightness required by the [NPA] Act. His appointment is therefore not legally valid, as he does not meet the minimum requirements for the job.”

A senior Johannesburg advocate agreed: ‘Simelane lied under oath and wrote a letter [to Pikoli about withdrawing the Selebi charges] that could be unlawful. This doesn’t only disqualify him from being the NDPP, but also [from being] an advocate.

‘We should not only look at Simelane’s fitness, but also at Zuma’s appointment,” said the advocate. ‘It was a cynical move. He [Simelane] lied and deceived on the record. This is also an issue about Zuma’s behaviour.”

Legal adviser to Defence and Military Veterans Minister Lindiwe Sisulu, Paul Ngobeni, has come out in full support of Zuma’s decision to appoint Simelane.

Ngobeni told the M&G that Zuma’s decision showed ‘leadership”. He dismissed the adverse findings made by the Ginwala inquiry.

‘That shows leadership not being hamstrung by what opposition parties will say,” said Ngobeni, adding that the opposition was ‘not in power” and should not dictate to Zuma on his ‘prerogative” to appoint the NDPP.

He said that Ginwala made ‘adverse findings of fact” against Simelane who was not the subject of the commission and did not get an opportunity to defend himself. ‘Ginwala is not a judge,” Ngobeni said.

Simelane was not available for an interview this week, saying he could speak only after his appointment takes effect on December 1.

Setting the house on fire
It took newly appointed prosecutions boss Menzi Simelane only three days to set the house on fire, writes Adriaan Basson.

The M&G reported a month ago that Simelane arrived at the National Prosecuting Authority’s head office on October 12 as a deputy to acting NPA chief Mokotedi Mpshe.

Two days later he called a meeting at which he addressed members of the National Prosecuting Service (NPS), a unit in the NPA, in the main auditorium.

Simelane was acting as NPS head for just over a month before President Jacob Zuma swapped him and Mpshe this week.

According to a senior staffer who attended the meeting with the NPS, Simelane told his new colleagues his transfer was ‘unexpected”.

‘He said he was a political animal and that it’s common knowledge he is a member of the party [the ANC] that put the president into power.

‘He said he was deployed by the party to this position and that part of his task was to implement the ANC’s vision for the NPA.”

Eight days later, on October 22, Simelane met prosecutors at the NPA’s Johannesburg office and allegedly told them political interference would not be tolerated.

‘But he said we should be sensitive when dealing with political cases because the NPA is also part of government,” said a prosecutor who attended the meeting.

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