Simelane's rule of law - Thought Leader

At a press conference to explain his response to the Ginwala Commission, a journalist asked then-president Kgalema Motlanthe to elaborate on what he meant by referring the matter of the director-general of the department of justice and constitutional development, Menzi Simelane, to the minister “in accordance with the law”. Simelane had, according to the Ginwala Commission, in his testimony under oath, attempted all manner of spurious allegations against the then National Prosecuting Authority head, Vusi Pikoli, to try to “get something to stick”.

The president responded that the conduct of the DG had to be referred to the minister, as a line function, to follow up on the issues raised by the Ginwala Commission. They could not ignore that his honesty had been called into question.

One has to ask — what has changed since then?

It is clear that integrity of persons comes second when it comes to Zuma appointments in general. It seems that ensuring that our public representatives can exude confidence when it comes to values of uprightness has taken a back seat.

While it was illogical that, given the commission’s findings, the former president sought to fire Pikoli, it was interesting that he nevertheless wanted the DG dealt with “in accordance with the law”.

It is plain that Motlanthe took a politically correct decision with little legal basis when it came to firing Pikoli. As we have seen recently and R7.5 million later, there was no basis for firing Pikoli. It has now been agreed that Pikoli and the state should part ways simply because of a breakdown of relationships.

So the only person who came out of the Ginwala Commission looking bad was our new NPA head, advocate Simelane. But in typical Nyami Booi style, such a person can only be rewarded with promotion.

Now, trying to “get things to stick” would be quite a handy habit for someone to have, particularly as head of the NPA. Finding allegations that do not exist and attaching them to people who you or your political friends don’t like could be useful tool, particularly when one has the backing of the entire police force, the so-called hawks and an ANC national executive committee that does not think there is anything wrong for a deployed cadre to “implement the ANC vision of the NPA”.

The Ginwala Commission also, among other adverse findings against our new lord of kings, found that “despite legal advice” the good advocate went on to attempt to exercise powers that he did not have. Another excellent instrument in the hands of someone who is now the final arbiter in prosecutions in our country. You read the law, ask experts to advise you and then you go ahead and ignore the law anyway and assert authority that you do not have over state institutions.

That’s quite a prosecutor we have here to defend the rule of law.

Frene Ginwala did not end there. She found that the DG literally undermined the independence of the NPA and actively fuelled executive interference. But as an advocate of the high court Simelane would surely not have done such a terrible thing deliberately. He obviously believes that the minister and the president must be able to instruct the NPA on what to do, who to pursue and who not to touch, especially when a matter has to do with politicians.

After all, I am sure that there is a law that indicates that if someone is a politician then they fall under a different set of laws to the simple business person who, for example, is engaged in criminal activities.

A classic example of all being equal but some being more equal than others. And now we are all asked to pretend that this is not the case and believe that all are equal before the law.

This while we have a prosecutor who, for the next 10 years, could conceivably be seeing to it that ANC politicians are safe from prosecution — unless of course they are on the wrong side of Justice Minister Jeff Radebe and President Jacob Zuma.

As if all this was not enough, Ginwala found that the testimony of Simelane was irregular, contradictory and with no basis in law and fact.

These ingredients of uprightness seem to have been too much of an inconvenience for our new prosecutor. Why use law and facts when you can use political correctness?

Simelane has already told prosecutors to be careful when dealing with political cases. Was this a clever way of telling them not to overrate law and facts in their pursuit of justice?

And why, pray tell, was it necessary for him to declare his party affiliation and state how much of a political animal he is, if this has nothing to do with his desire to see the NPA run as an extension of ANC hegemony instead of the farcical independence that has become so overrated?

And you say our democracy is safe. I think not. We must stop beating about the bush — this appointment has everything to do with Zuma’s wish to forever be protected from facing the law on the 700-odd charges brought against him. Should a court overturn outgoing acting director of public prosecutions Mokotedi Mpshe’s withdrawal of the charges against Zuma, there is no prize for guessing what someone who “is not fond of facts and the rule of law” would do rather than prosecute Zuma. There is also no prize for guessing what someone who is a party political animal would do to the revered president he “helped bring to power”.

We have to be politically and logically sedated to imagine that he would have a sudden upsurge of the conscientiousness required for his job when faced with the real prospect of payback time.