Pretoria - The presidency said on Friday it respected the Constitutional Court's judgment that Menzi Simelane's appointment as National Director of Public Prosecutions was invalid.
“The presidency respects and will abide by the ruling of the Constitutional Court, which is the highest court in our democracy,” spokesman Mac Maharaj said.
“In the meantime the judgment is being studied.”
In reading the unanimous judgment, Judge Zac Yacoob said they reached a number of legal conclusions, including that the NDPP's appointment was not a matter to be determined by the subjective opinion of the president.
“It was rather a jurisdictional prerequisite to be determined objectively,” he said.
On May 8, the court heard an application by the Democratic Alliance to confirm a Supreme Court of Appeal ruling that the decision to employ Simelane was invalid.
He was appointed to the job in November 2009.
Justice department spokesman Mthunzi Mhaga said in a statement:
“We are naturally disappointed with the judgment. However, we will abide by same as the Constitutional Court is the final arbiter on these issues.
“Once we have received a copy of the written judgment we will reflect on all issues raised therein insofar as they impact on the appointment of the NDPP.”
The report of the Ginwala commission of inquiry into Simelane's predecessor Vusi Pikoli's fitness to hold office had raised concerns about Simelane's understanding of the relationship between the justice department, where he was director general, and the National Prosecuting Authority.
Ginwala, in her 2008 report, said his testimony was contradictory and without basis in fact or law.
Yacoob said Simelane was evaluated in terms of the Ginwala inquiry and evidence he gave during it.
“ 1/8We 3/8 conclude that the evidence was contradictory and on its face indicative of Mr Simelane's honesty. It raises serious questions about Mr Simelane's conscientiousness, integrity, and credibility.
“ 1/8However 3/8 The decisions taken and acts performed by Mr Menzi Simelane and actions by the 1/8NDPP 3/8 are not invalid merely because of the invalidity of his appointment,” Jacoob said.
Democratic Alliance leader Helen Zille told reporters she believed it was important to keep politics outside the law, as political parties would use the law to persecute their political enemies and not prosecute them.
“If that happens, you can't have democracy. The independence of the National Prosecuting Authority is absolutely important in a democracy,” Zille said.
“When you can't be sure of the independence of the National Prosecuting Authority you don't know if charges are laid for political reasons or if there are legal reason for these charges,” she said.
Yacoob added: “The purpose of the conferral of the power to appoint the NDPP on the president was to ensure that the appointee was sufficiently conscientious and had the integrity required to be entrusted with the responsibilities of the office.
“Dishonesty is inconsistent with the conscientiousness and integrity required for the proper execution of the responsibilities of a National Director of Public Prosecutions.”
According to the Constitutional Court's judgment, “He may have an explanation and may well be able to persuade the president that he is a fit and proper person and should be appointed”.
The justice minister was ordered to pay the DA's legal costs.
Mhaga said the department was pleased Simelane's decisions while he was NDPP would remain valid. - Sapa
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