DA taking the South African government to court

The Democratic Alliance has warned that if the selection panel for a new National Director of Public Prosecutions (NDPP) interviews Menzi Simelane for the job, it will go to court to interdict the whole process. 

However, Minister of Justice and Constitutional Development, Mmamoloko Kubayi, said that she sees “no need to halt the process as the panel” because of the party’s complaints and that “there is no basis” for the DA’s claims.

The selection panel is currently interviewing six candidates who were shortlisted for the job of NDPP for the National Prosecuting Authority (NPA).

The six candidates are: Astraid Bell, Hermoine Cronje, Andrea Johnson, Xolisile Jennifer Khanyile, Adrian Mopp and, a controversial choice, Menzi Simelane.

Simelane previously held the position of NDPP for one year of the 10-year term in 2012.  

He was appointed despite the Ginwala Commission, investigating his predecessor, Vusi Pikoli’s fitness to hold office, found prima facie evidence of dishonesty, lack of integrity and misconduct against Simelane.

Former President Jacob Zuma selected Simelane after these findings were published. The decision to appoint Simelane was therefore set aside as an abuse of executive power. 

The selection panel, which was appointed by President Cyril Ramaphosa, will interview Simelane on Thursday. He is the final candidate on the list. 

DA Spokesperson on Justice and Constitutional Development, Adv. Glynnis Breytenbach said that choosing to consider Simelane proves that the process has “gone badly off the rails.”

She said it is impossible to overlook Simelane’s history, since the Supreme Court of Appeal and the Constitutional Court both set aside Simelane’s appointment due to his lack of honesty and integrity. 

“To make matters worse,” Breytenbach continued. “He was found guilty of professional misconduct in 2017 for misleading the Ginwala Inquiry, and now he faces a striking-off application from the Johannesburg Bar Council.”

“It is hard to imagine a more serious cloud hanging over a candidate,” she said. 

Whole process is irrational and unlawful – DA

The panel insists that it is only interviewing those who meet the minimum requirements for the job, and Breytenbach argues that Simelane does not meet the minimum requirement of being “fit and proper.”

“If he is treated as qualifying, then the whole process is irrational, and if the whole process is irrational, then it is unlawful,” Breytenbach said.

After the DA’s attorneys wrote to the panel on 7 December, requesting reasons why Simelane was included, the panel did “not so much as acknowledge the letter.”

Kubayi said that the panel only received the letter on 10 December and will respond to it legally, but that there is no merit to the DA’s complaints, because the panel has not shortlisted candidates yet.

“I must also indicate that, amongst the comments we received, out of the 201 comments, the Democratic Alliance did not submit any public comments in this process,” said Kubayi.

When it did not receive a response, the DA turned to the president, writing a letter on 9 December to say that if Ramaphosa appoints anyone from the panel’s recommendations, the DA will approach the court to interdict the appointment.

“We deserve a leader with credibility, independence, and courage. Not a re-run of a constitutional disaster.”

What is the NDPP?

The NDPP is the head of the NPA and is responsible for ensuring that criminal prosecutions are conducted without fear, favour, or prejudice.

The NDPP’s role is critical because the NPA was severely weakened by years of political interference, including the 2009 disbanding of the Scorpions, its most effective anti-corruption unit.

This has left the institution vulnerable and eroded its ability to independently pursue high-level corruption.

Batohi had promised that her term would be focused on rebuilding the capacity of the NPA.

The current NDPP is reaching the end of her term at the age of 65, and as such, has become the first NDPP to leave without being removed.

All previous NDPPs have been removed before finishing their term.