Democratic Alliance v President of the Republic of South Africa and Others 2012 (1) SA 417 (SCA)

Citation:        2012 (1) SA 417 (SCA)

Case No:        263/11

Court:           Supreme Court of Appeal

Judge:           Navsa JA, Heher JA, Mhlantla JA, Majiedt JA and Plasket AJA

Head:           October 31, 2011

Judgement: December 1, 2011

Parties Involved

• The Democratic Alliance (DA), a registered political party, which is also the official  opposition in the parliament. DA is the Appellant, appealing against a decision that was made by North Gauteng High Court in December 2009.
• President of the Republic of South Africa, Mr Jacob Zuma is the first Respondent
• The Minister of Justice and Constitutional Development was cited as second respondent, for such interest as he might have in the matter, being the Cabinet member responsible for the administration of justice and because of his alleged conduct in relation to the fourth respondent’s appointment.
• National Director of Public Prosecutions was also cited as the third respondent in his official capacity
• Mr Menzi Simelane is the fourth respondent, he is the one who was appointed as the National Director of Public Prosecutions (NDPP) by Jacob Zuma. DA is contending against the appointment of him

Facts of the Case

In November 2009, President appointed Mr Simelane as the National Director of Public Prosecution following the departure of Mr Vusumuzi Patric Pikoli. The DA contends that this appointment was unconstitutional and invalid because the President did not adhere to the requirements provided for in the Constitution and NPA Act for appointing a National Director of Public Prosecution. Requirements contended to have not been followed are those provided in section 179(2) of the Constitution, that Director of  Public Prosecutions must be appropriately qualified, and section 9(1) (b) of the NPA Act, which provide that for a person to be appointed as an NDPP or deputy, must possess a legal qualification that entitles him to practice in all courts, must be a fit and proper person, and lastly be a South African citizen. 

The litigation culminating the appeal in SCA was launched in Dember 2009 in the North Gauteng High Court, Pretoria by the Appellant. The Appellant approached High court on urgent basis for an order declaring that the president’s decision of appointing Mr Simelane as NDPP, purportedly taken in terms of section 179 of the Constitution, read together with section 9 and 10 of the National Prosecuting Authority Act was inconsistent with the constitution and invalid. The High court was asked to review and set aside the appointment. 

Issues Raised

• Whether the President, in appointing Mr Simelane complied with the prescripts of the Constitution [s179(2)] and of the National Prosecuting Authority Act [s9(1) (b)]

Arguments of the Parties

The DA contends that Mr Simelane is not a fit and proper person within the meaning of  section 9 of NPA Act.  This section provides that a person to be appointed as the National Director must be fit and proper with due regard to his or her experience, conscientiousness and integrity, to be entrusted with responsibilities of the office. The main factual foundation on which the DA’s case is built is the ‘misleading and untruthful evidence’ given by Mr Simelane, during 2008, before an official enquiry into the fitness for office of his predecessor, Mr Vusumzi Patrick Pikoli. DA argued that because of this Mr Simelane lacks integrity to hold office of the National Director. DA referred to section 179(4) of the Constitution which requires NPA to execute its duties without fear or prejudice and contended that having regard to Mr Simelane lack of integrity it was an obligation that the NPA through him could not discharge. In addition to contention that Mr Simelane is not a fit and proper person, DA also argued that Mr Simelane had only served the NPA for about six weeks as one of the four Deputy National Directors of Public Prosecutions therefore he had extremely limited experience. 

The DA further contend that President did not conduct a proper investigation into Mr Simelane’s fitness to hold the office as required by the Constitution. They argue that the only document that was before President when he decided to appoint Mr Simelane was his CV, which was also shoddily prepared and littered with incorrect spelling and errors. They argue that President decided to ignore the Ginwala Enquiry report containing trenchant criticism of Mr Simelane, but he considered the one which criticised Mr Pikoli when he removed Mr Pikoli from office.  DA also contended that if President Zuma had properly interrogated Mr Simelane’s performance during his tenure as Competition Commissioner he would have discovered the criticism of Mr Simelane’s conduct by this court in    Pretoria Portland Cement Co Ltd and Another v Competition Commission and Others 2003 (2) SA 385 (SCA). They submit that appointments in terms of s9(1)(b) is not a matter of subjective discretion but a matter of objective jurisdictional facts. contend that the appointment was made for the ulterior purpose 

The President in response argues that he did not rely exclusively on the curriculum vitae of Mr Simelane in deciding to appoint him. He says in addition to the CV he had personal knowledge of him, and he had received some information from the Minister who recommended Mr Simelane. He says his decision was based on the totality of information oral and written he had received. President further argues that he appointed Mr Simelane to such an important position on the basis that he was 38 years old, had practised for two years as an advocate, has held positions at the Competition Commission and at the Department of Justice. DA in response to this is that neither of all these that is mentioned could have involved court work or the investigation and prosecution of the crime. It submitted on behalf of president that s 9(1)(b) provides for the President’s subjective view to be brought to bear — his assessment subject to his morality and ‘aesthetic value. 

 Mr Simelane in his answering affidavit, was emphatic that his formal qualifications, his two year stint at the Johannesburg Bar, his employment for approximately a year by the Competition Commission as Chief Legal Counsel, his five-year tenure as Commissioner of the Competition Commission  as its Chief Executive and accounting officer, his five-year period of service as DG of the Department of Justice and Constitutional Development and the short period that he served as Deputy National Director of Public Prosecutions proved his suitability and qualifications for appointment as NDPP. He pointed out that throughout his 10-year period of public service there had never been a complaint that he lacked experience, conscientiousness and integrity or that he had   failed to act independently and without fear, favour or prejudice. According to Mr Simelane, during his period of public service he had received accolades for

being conscientious. He denies that his evidence at the Ginwala Commission of Enquiry was incorrect, misleading and untruthful.

Judgement

The court declared that the decision of the President of the Republic of South Africa, taken on or about Wednesday 25 November 2009, purportedly in terms of s179 of the Constitution of the Republic of South Africa, read with section 9 and 10 of the National Prosecuting Authority Act 32 of 1998, to appoint Menzi Simelane, the fourth respondent as the National Director of Public Prosecutions is inconsistent with the Constitution and invalid. 

The court ordered that the appeal succeeds and the first and fourth respondents (President and Mr Simelane) are ordered jointly and severally the one paying the others to be absolved, to pay the appellant’s costs, including the costs of three counsel. 

Legal Reasoning/ Ratio Decidendi

The court in coming to its decision had regard to the Constitution and relevant provisions of the NPA Act, section 9 and 10. The court considered the DA’s formidable onslaught against Mr Simelane’s fitness and propriety for appointment as NDPP. Insofar as the merits of that attack are concerned the court was of the view that the question to be addressed was whether it could be on the papers hold on balance of probabilities that the president’s decision is on any grounds raised inconsistent with section 179 of the Constitution and s9 of NPA Act. 

The court also had regard to Mr Simelane’s explanation before the Ginwala Enquiry with regards to that his evidence was inaccurate and deliberately misleading. The court then concluded that although the criticism levelled at Mr Simelane in this regard may be justified, but it unable to hold that he is not a fit and proper person to hold the position of NDPP. The court further considered the challenge to Mr Simelane’s integrity on the basis of non-disclosure of information and documents to the Ginwala Commission of Enquiry. The court had regard that this aspect had evoked negative comments in the GE report. The court concluded that although this criticism can be justified to a certain extent, but it is unable to even if considered to hold Simelane to be a person unfit to hold the position of NDPP. 

The court further considered the criticisms against Simelane by the court in Pretoria Portland Cement case, about the manner in which he had conducted himself when he was employed at the Competition Enquiry. The court concluded that this demonstrated an over-eagerness on his part, albeit an ill-considered one to draw attention to the commission’s role and function but it fails to see how his actions in this regard disqualified him as a fit and proper person to hold the position of the NDPP. 

The court went on to consider the process followed by President, Zuma in appointing Mr Simelane. The court observed that there is no competitive selection process prescribed by the Constitution or the NPA Act. The court had regard to the President’s position as the head of the executive authority of the Republic of SA, who appointed Mr Simelane after consultation with the Minister of Justice and Constitutional Development. The court observed that President made enquiries on the occurrences at the Ginwala Enquiry and on the recommendations of the PSC and took into consideration the facts set out in Simelane’s curriculum vitae from which it appears that he practised for two years as an advocate, that he was a commissioner of the Competition Commission and the Director-General of the Department of Justice and Constitutional Development. The court dealt very cursorily with the DA’s charge that the President acted with an ulterior or improper purpose.

The legal principles applied by the court coming to the decision are the Constitution, particularly section 179 providing for National Prosecuting Authority. The National Prosecuting Authority Act, section 9(2)(b). 

Significant precedents considered include the case of Pikoli v President of the Republic of South Africa, where it was held that NDPP as the head of the NPA has a duty to ensure that prosecutorial independence is maintained and a person who is fit and proper to be the NDPP will be able to live out the requirement of prosecutorial independence. Another case law considered is Affordable Medicines Trust and Others v Minister of Health and Others 2006 (3) SA 247 (CC) (2005 (6) BCLR 529), where it was held that the exercise of public power must comply with the Constitution, which is the supreme law, and the doctrine of legality, which is part of that law. The doctrine of legality, which is an incident of the rule of law, is one of the constitutional controls through which the exercise of public power is regulated by the Constitution. It entails that both the Legislature and the Executive are constrained by the principle that they may exercise no power and perform no function beyond that conferred upon them by law.

The case of Albutt v Centre for the Study of Violence and Reconciliation, and Others 2010 (3) SA 293 (CC) (2010 (5) BCLR 391) was also considered with regards to the procedure followed by president to appoint Mr Simelane.  It was submitted on behalf of the President that members of the executive have a wide discretion in selecting means to achieve constitutionally permissible objectives and that courts may not interfere with the means selected simply because they do not like them or because there are other appropriate means that could have been selected. 

The court disagreed with the view that in applying s9(1) (b) of the NPA Act, the president is entitled to bring his subjective view to bear. It stated that firstly, the section does not use expression lie “in the president’s view”, second, it is couched in imperative terms, and thirdly qualities of integrity cannot be subjectively assessed. 

Conclusion

The significance of this case lies in its revelation of widespread corrupt activities within government departments, highlighting the abuse of power by those in authority to exploit others for personal gain. This case serves as a stark reminder of the need for transparency, accountability, and robust governance structures to prevent such malpractice and ensure that public officials act in the best interests of the people they serve.