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[2011] ZASCA 241
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Democratic Alliance v President of the Republic of South Africa and others (263/11) [2011] ZASCA 241; 2012 (1) SA 417 (SCA); [2012] 1 All SA 243 (SCA); 2012 (3) BCLR 291 (SCA) (1 December 2011)

THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case no: 263/11
DEMOCRATIC
ALLIANCE
…...............................................................................................
.
Appellant
and
THE
PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA
…..................................................
First
Respondent
THE
MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT
…...................
Second
Respondent
THE
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS
…........................................
Third
Respondent
MENZI
SIMELANE
….............................................................................................
Fourth
Respondent
______________________________________________________________________
Neutral citation:
Democratic Alliance v The President of
the RSA & others
(263/11)
[2011] ZASCA 241
(1 December 2011)
CORAM:
Navsa, Heher, Mhlantla, Majiedt JJA and Plasket AJA
HEARD:
31 October 2011
DELIVERED:
1 December 2011
SUMMARY: Appointment of National Director of Public
Prosecutions in terms of s 179 of the Constitution read with
sections
9
and
10
of the
National Prosecuting Authority Act 32 of 1998
─
purpose of empowering provisions is to safeguard prosecutorial
independence ─ requirement that candidate for position
must be
a fit and proper person with due regard to his or her experience,
conscientiousness and integrity and must, having regard
to the
importance of the office be properly scrutinised by the President of
the Republic of South Africa who has the power to make
the
appointment ─ qualities required of candidate are
jurisdictional facts that must exist before an appointment can be
made ─ have to be objectively assessed ─ importance of
prosecutorial independence discussed with reference to constitutional

scheme and comparable jurisdictions.
______________________________________________________________________
______________________________________________________________________
ORDER
______________________________________________________________________
On appeal from:
North Gauteng High Court (Pretoria) (Van der
Byl AJ sitting as court of first instance):
1 The appeal succeeds and the first, second and fourth respondents
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;
2 The order of the court below is set aside and substituted as
follows:
‘
a. It is declared that the
decision of the President of the Republic of South Africa, the First
Respondent, taken on or about Wednesday
25 November 2009, purportedly
in terms of section 179 of the Constitution of the Republic of South
Africa (the Constitution), read
with
sections 9
and
10
of the
National Prosecuting Authority Act 32 of 1998
to appoint Mr Menzi
Simelane, the Fourth Respondent, as the National Director of Public
Prosecutions (the appointment), is inconsistent
with the Constitution
and invalid;
b. The appointment is reviewed and set aside;
c. The first, second and fourth respondents are ordered
jointly and severally, the one paying the others to be absolved, to
pay
the appellant’s costs, including the costs of two counsel.’
______________________________________________________________________
JUDGMENT
______________________________________________________________________
NAVSA JA (HEHER, MHLANTLA, MAJIEDT JJA and PLASKET AJA concurring)
The issue
[1] This appeal is a matter of national and constitutional
importance. It involves an institution integral to the preservation

and maintenance of the rule of law, namely the National Prosecuting
Authority (the NPA), which consists of the National Director
at the
head of prosecutorial offices, located at high courts, and further
comprises Deputy National Directors, Directors and prosecutors.
1
This case is about whether the fourth respondent, Mr Menzi Simelane,
was properly appointed as National Director of Public Prosecutions

(NDPP) by the first respondent, Mr Jacob Zuma, the President of the
Republic of South Africa (the President). Put simply, the question

for decision is whether the President, in appointing Mr Simelane on
25 November 2009, complied with the prescripts of the Constitution

and s 9(1)
(b)
of the National Prosecuting Authority Act 32 of
1998 (the Act). I will in due course deal with the wording of that
section read
against constitutional provisions, values and norms and
in conjunction with related provisions of the Act.
The background
[2] The litigation culminating in the present appeal was launched in
December 2009 in the North Gauteng High Court, Pretoria, by
the
appellant, the Democratic Alliance (the DA), a registered political
party, which is also the official opposition in Parliament.
[3] The high court was approached on an urgent basis for an order
declaring that the President’s decision, purportedly taken
in
terms of s 179 of the Constitution read with ss 9 and 10 of the
Act, was inconsistent with the Constitution and invalid.
The high
court was asked to review and set aside the appointment. 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
the Act and because of his alleged conduct in relation to the fourth
respondent’s appointment. The NDPP, in
his official capacity,
was added as the third respondent. As already stated, that post is
currently held by the fourth respondent.
The third respondent chose
to abide the court’s decision. The other respondents all
opposed the relief sought by the DA.
[4] The primary challenge to the appointment of Mr Simelane is that
he was appointed contrary to the requirement of s 9(1) of the
Act,
which provides:
‘
(1) Any person to be appointed
as National Director, Deputy National Director or Director must-
(a)
possess legal qualifications that would
entitle him or her to practise in all courts in the Republic; and
(b)
be a fit and proper person, with due regard
to his or her experience, conscientiousness and integrity, to be
entrusted with the
responsibilities of the office concerned.’
More specifically, the DA’s case is that Mr Simelane is not a
fit and proper person within the meaning of that expression
in s
9(1)
(b)
of the Act, alternatively, when the President made the
appointment he did not, as he was required to, properly interrogate
Mr Simelane’s
fitness for office in the manner contemplated in
the subsection. It is uncontested that Mr Simelane meets the
requirements
of s 9(1)
(a)
. Furthermore, as required by s 9(2)
of the Act, he is a South African citizen.
[5] In its founding affidavit 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. The Ginwala Enquiry (the GE) was conducted in terms
of s 12 of the Act,
2
subsequent to Mr Pikoli’s suspension from office on 23
September 2007 by the then President of South Africa, Mr Thabo

Mbeki.
3
The DA also submitted that regard should be had to the provisions of
s 179(4) of the Constitution, which requires the NPA to execute
its
duties without fear or favour. Having regard to Mr Simelane’s
lack of integrity, so it was contended, it is an obligation
the NPA
through him cannot discharge. In a supplementary affidavit the DA
alleged that the only document that was before President
Zuma when he
made his decision to appoint Mr Simelane was the latter’s CV,
fortifying its view that the former did not properly
apply his mind
in compliance with s 9(1)
(b)
of the Act. In his opposing
affidavit President Zuma’s response to this point is as
follows:
‘
I have made it clear that I
did not rely exclusively on Adv Simelane’s
curriculum
vitae
in
deciding to appoint him. In addition to his
curriculum
vitae
, I had
personal knowledge of him and I received information from the
Minister. I based my decision on the totality of the information,

written and oral, that I had received.’
[6] The full extent and nature of the exchanges between President
Zuma and the second respondent, Minister Radebe, concerning Mr

Simelane’s appointment, as alleged by them, will be dealt with
later in this judgment.
[7] In its supplementary affidavit the DA pointed out that when it
suited President Motlanthe, President Zuma’s predecessor,
he
used the GE’s minor criticisms of Mr Pikoli to remove him
from office and that when it suited President Zuma he ignored
the
GE’s trenchant criticism of Mr Simelane.
[8] Furthermore, the DA was critical of President Zuma’s
decision to appoint Mr Simelane to such an important position
on
the basis that he was only 38 years old at the time of his
appointment, had practiced for only two years as an advocate and
had
only held positions at the Competition Commission and at the
Department of Justice, neither of which could have involved court

work or the investigation and prosecution of crime. The DA pointed
out that Mr Simelane had only served the NPA for about six weeks
as
one of four Deputy National Directors of Public Prosecutions and thus
had extremely limited experience.
[9] A further basis of attack by the DA on Mr Simelane’s
fitness for appointment as the NDPP is that his CV was shoddily

prepared and was littered with incorrect spelling and errors. This is
an aspect in respect of which I do not intend to expend any
further
energy or thought.
[10] In its supplementary affidavit the DA 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 & another v
Competition Commission & others
2003 (2) SA 385
(SCA). At
paras 62 and 63 of that judgment this court was critical of the
manner in which the Commission went about its business
and in
particular it was critical of Mr Simelane, who had participated in
the Commission’s activities:
‘
I can only conclude that the
Commission was intent on advertising itself, with no regard to the
harm it might do to its suspects.
Not all firms suspected of
monopolistic practices are guilty of them and it must be remembered
that the innocent among the suspects
might be harmed, or even put out
of business by bad publicity, with consequences not only for the
shareholders but also the workers,
and indeed the public at large.
The impression of publicity-seeking is reinforced by
Simelane’s uninvited media interview held in PPC’s own
car park.
There is another aspect of his conduct that deserves
comment. In his replying affidavit Gommersall stated that the book
kept at
the entrance gate reflected that at 12:40 Simelane had signed
and stated in the “Whom visited” column, “MD”.

Gommersall added that it was simply untrue for Simelane to have said
that he intended visiting the managing director. And we know
from one
of the Commission’s witnesses that the meeting in the car park
was pre-arranged. Now it is true that Simelane had
no right or duty
to answer this allegation, made in reply, but I would have expected
him to offer to do so if Gommersall’s
imputation of dishonesty
were false.’
[11] During December 2008, Minister Radebe’s predecessor,
Minister Surty, had asked the Public Service Commission
4
(the PSC) to investigate, evaluate and to advise on the criticisms of
Mr Simelane in the GE report. On 6 April 2009 the PSC furnished
its
report to Minister Surty, recommending a disciplinary enquiry into Mr
Simelane’s conduct. On the same day the then acting
NDPP,
Advocate Mpshe, announced that the NPA was dropping corruption
charges against Mr Zuma. President Zuma was inaugurated on
9 May
2009. Thereafter Minister Radebe succeeded Mr Surty.
[12] On 4 June 2009 counsel for Mr Simelane made written
submissions to the Minister about the PSC’s recommended action.

On 15 July 2009 Mr Pikoli was informed that President Zuma was now
intending to appoint a new NDPP. On 11 August 2009 the North
Gauteng
High Court granted Mr Pikoli an interdict against the appointment of
a new NDPP. Mr Pikoli’s main application to
have his removal as
NDPP set aside was due to be heard on 23 November 2009. On 11 October
2009, President Zuma announced the
appointment of Mr Simelane as a
Deputy NDPP. Meanwhile, on 9 October 2009, Minister Radebe wrote
to the PSC asking for its
assessment of the submissions made on
behalf of Mr Simelane and requested that it hear evidence from Mr
Simelane. On 19 October
2009 the PSC replied that it had already
presented its report and that it was for Minister Radebe to decide
whether to proceed
with disciplinary action against Mr Simelane. On
Saturday 21 November 2009 the Government and Mr Pikoli reached a
settlement
in terms of which he was paid R7.5 million. Two days
later, on Monday 23 November 2009, Minister Radebe announced that he
was rejecting the PSC’s recommendations and would not order a
disciplinary enquiry into Mr Simelane’s conduct. As stated

above, on 25 November 2009, President Zuma appointed Mr Simelane as
the NDPP. The DA contended that the President ought himself
to have
considered the relevant parts of the transcript of GE proceedings,
its report and the PSC’s recommendations, and
ought not to have
relied solely on the Minister’s assurances about Mr Simelane’s
fitness for office. The DA contends
that these events and
circumstances and all the others that will be dealt with in detail in
later paragraphs show that the President
and Minister were
single-mindedly intent on installing Mr Simelane as someone through
which they could ‘tame and control’
the NPA.
5
Thus, the DA contended, the appointment was made for an ulterior
purpose.
[13] The three (linked) legal bases on which the DA relied in the
court below are as follows:
(a) The statutory requirement that the appointee to the position must
be ‘a fit and proper person’ has to be objectively

assessed, taking into account that he or she must discharge
professional duties without fear or favour. Whether the President’s

power is classified as executive or administrative or otherwise, it
must be exercised lawfully, which it is submitted was not done
in the
present case, in that the President failed to make a proper objective
assessment of Mr Simelane’s fitness for office;
(b) The decision by the President to appoint an NDPP constitutes
administrative action, subject to review in terms of the
Promotion of
Administrative Justice Act 3 of 2000
, and because the President did
not make an objective assessment of Mr Simelane’s fitness
for office, his decision falls
to be reviewed and set aside;
(c) To the extent that the President’s decision constituted
executive action as contemplated by s 85(2)(e) of the Constitution,

it falls to be set aside on the basis that it was unlawful,
irrational, arbitrary, biased, based on a ulterior motive and
inconsistent
with the Constitution. The significance of s 85(2)(e) of
the Constitution will become evident later in this judgment.
[14] The North Gauteng High Court (Van der Byl AJ) held that there
was no basis on which to interfere with President Zuma’s

decision to appoint Mr Simelane as NDPP. It dismissed the DA’s
application and made no order as to costs. The appeal is before
us
with the leave of that court. The material findings and conclusions
of the court below are dealt with extensively later in this
judgment.
Further details
[15] At this stage, it is necessary to set out further details so as
to provide as full a picture as possible against which the
questions
that arise in this appeal can be answered. Mr Simelane was appointed
Director-General of the Department of Justice during
June 2005.
During his time as Director-General a dispute arose with Mr Pikoli,
the then NDPP, concerning the degree of accountability
of the NPA to
the department. Mr Pikoli saw the exchanges between them as an
attempt to intrude upon prosecutorial independence.
Mr Simelane
saw it differently. In his view, as appears from his admitted
testimony before the GE, the NPA was ultimately
accountable to the
Ministry and not only in respect of finances. One of the criticisms
levelled by the DA against Mr Simelane is
that his evidence before
the GE clearly shows his lack of proper regard for the level of
independence of the NPA as guaranteed
by the Constitution and the
Act. All the respondents adopted the view that the difference between
Mr Simelane and Mr Pikoli, and
Mr Simelane and the DA, is to be found
in their interpretations of constitutional and legislative provisions
concerning interaction
between the NPA, the legislature and the
executive.
[16] During Mr Simelane’s tenure as Director-General of the
Department of Justice and Constitutional Development, Mr Pikoli,
as
NDPP, contemplated the arrest of the then Commissioner of Police, Mr
Jackie Selebi, on charges of corruption. A letter, in relation
to the
arrest and prosecution of the Commissioner, drafted by Mr Simelane
for the Minister of Justice and Constitutional Development
at the
time, Ms Bridget Mabandla, dated 18 September 2007, was sent to
Mr Pikoli. In the letter Minister Mabandla required
Mr
Pikoli to furnish her with all the information on which he was
relying for the proposed arrest and charges. She also instructed
him
not to proceed with the arrest until she had satisfied herself that
the public interest would be served and that sufficient
evidence
existed for the arrest and the charges. Mr Pikoli’s response
was that the Minister was not entitled to give him
such an
instruction. He did, however, furnish her with the information
sought. There had been meetings and exchanges between Mr Pikoli

and President Mbeki concerning the arrest of Commissioner Selebi and
related search warrants. These were about the time required
by the
President to make security and other arrangements in preparation for
the arrest and execution of the warrants. The Commissioner
was
arrested and the search warrants were executed against the background
of developing tensions between the South African Police
Services and
the office of the NDPP.
[17] On 23 September 2007, Minister Mabandla asked Mr Pikoli to
resign. He refused to do so. Later that day President Mbeki informed

Mr Pikoli that he would suspend him if he did not resign. Mr Pikoli
refused to resign, whereupon he was suspended by President
Mbeki,
purportedly in terms of s 12 of the Act. Advocate Mpshe was appointed
acting NDPP shortly thereafter.
[18] On 3 October 2007 President Mbeki appointed Dr Frene Ginwala to
chair an enquiry into Mr Pikoli’s fitness to hold office.
On 18
October 2007 the Government filed its submissions with the GE,
setting out the grounds of Mr Pikoli’s lack of fitness
for the
post he held. It is uncontested that Mr Simelane played a leading
role in drafting those submissions. He, in fact, led
the Government’s
team.
[19] At the same time, political power was shifting within the
African National Congress, the ruling party in Parliament. During

December 2007, at the annual conference of the African National
Congress, Mr Jacob Zuma ousted President Mbeki as president of
the
African National Congress.
[20] In April 2008 the GE directed that oral evidence be heard in
relation to Mr Pikoli’s fitness to hold office as NDPP.

Evidence was led during May and June 2008. Both Mr Pikoli and Mr
Simelane testified and were cross-examined.
[21] On 25 September 2008 Mr Kgalema Motlanthe succeeded President
Mbeki as President of South Africa. At that stage the NDPP was
still
pursuing corruption charges against Mr Zuma. Mr Surty replaced
Ms Mabandla as Minister of Justice.
[22] The GE issued its report on 4 November 2008 and although
criticizing Mr Pikoli for not being sensitive enough in relation
to
matters of national security, it found that most of the charges
against Mr Pikoli were unsubstantiated and recommended his
reinstatement. It found positively that he was a fit and proper
person. That notwithstanding, President Motlanthe took a decision
to
remove Mr Pikoli as NDPP.
[23] In para 15 of the executive summary of the report, the following
appears:
‘
I need to draw attention to
the conduct of the DG: Justice in this Enquiry. In general his
conduct left much to be desired. His
testimony was contradictory and
without basis in fact or in law. The DG: Justice was responsible for
preparing Government’s
original submission to the Enquiry in
which the allegations against Adv Pikoli’s fitness to hold
office were first amplified.
Several of the allegations levelled
against Adv Pikoli were shown to be baseless, and the DG: Justice was
forced to retract several
allegations against Adv Pikoli during his
cross-examination.’
[24] The following parts of the GE report (paras 320-322) criticised
Mr Simelane:
‘
I must express my displeasure
at the conduct of the DG: Justice in the preparation of Government’s
submissions and in his
oral testimony which I found in many respects
to be inaccurate or without any basis in fact and law. He was forced
to concede during
cross-examination that the allegations he made
against Adv Pikoli were without foundation. These complaints related
to matters
such as the performance agreements between the DG: Justice
and the CEO of the NPA; the NPA’s plans to expand its corporate

services division; the DSO dealing with its own labour relations
issues; reporting on the misappropriation of funds from the
Confidential
Fund of the DSO; the acquisition of new office
accommodation for NPA prosecutors; and the rationalisation of the
NPA.
All these complaints against Adv Pikoli were spurious,
and are rejected [as being] without substance, and may have been
motivated
by personal issues.
With regard to the original Government submission, many
complaints were included that were far removed in fact and time from
the
reasons advanced in the letter of suspension, as well as the
terms of reference. This further reflects on the DG: Justice’s

disregard and lack of appreciation and respect for the import for an
Enquiry established by the President.’
[25] It was submitted on behalf of the DA that in its written
submissions to the GE, which were prepared by Mr Simelane, relevant

documentation was deliberately omitted. In this regard it was
submitted that the submissions were misleading. The DA contended
that
Mr Simelane’s explanations for their omission during
cross-examination were simply not credible. A further point of

criticism against Mr Simelane was his evidence at the GE, about
whether he had taken legal opinions in relation to the powers of
the
DG as opposed to those of the NDPP. It was pointed out that
initially, during cross-examination, he had denied taking legal

opinions on the issue but later conceded that he had done so when he
saw the cross-examiner turn to a document. Furthermore, so
the DA
submitted, Mr Simelane agreed, that in part, the opinions supported
Mr Pikoli and refuted his own views, but he could not
provide an
explanation as to why he had not shared those opinions to reach
common ground. He had not disclosed these opinions to
the GE as part
of government’s submissions.
[26] In its supplementary affidavit, the DA pointed out that if the
President had properly scrutinised Mr Simelane in considering
his
worthiness for appointment as NDPP he would have discovered that in
each of the financial years of Mr Simelane’s tenure
as DG, the
Department of Justice had received a qualified audit from the
Auditor-General. It listed the details of the deficiencies
in the
financial management within the Department.
[27] The DA pointed out that if President Zuma had been truly intent
on fulfilling his statutory and constitutional obligation
to properly
scrutinise Mr Simelane’s fitness as head of the NDPP he could
quite easily have had regard to a plethora of documentation,

including annual performance agreements in relation to his tenure as
DG, and reports by the Auditor-General concerning the Department
of
Justice and Constitutional Development, in respect of which Mr
Simelane was the accounting officer. Similarly, documentation
must
have been available concerning his performance as a commissioner with
the Competition Commission.
[28] In its founding affidavit, the DA referred to the fact that the
General Council of the Bar (GCB) had launched a probe into
Mr
Simelane’s fitness as an advocate and appointed three senior
counsel to investigate the complaint. In its replying affidavit,
the
DA states that it has come to its attention that the complaints made
to the GCB relate, not only to matters arising from the
GE, but also
include an allegation that Mr Simelane had made a deliberately
misleading affidavit in proceedings before the Constitutional
Court
in the matter of
Glenister v President of the Republic of South
Africa
2011 (3) SA 347
(CC), in relation to his knowledge about
whether the cabinet had made a decision to dissolve a special
investigative unit, the
Scorpions.
Glenister
was an
application to set aside the dissolution of the Scorpions, a special
investigation unit. On 29 April 2008, Mr Simelane had
made an
affidavit stating that no decision had been taken by Cabinet to do
so, yet the very next day Cabinet approved the draft
legislation to
dissolve the Scorpions. According to the DA during the hearing in the
Constitutional Court, Mr Simelane was
rebuked by Justices
O’Regan and Yacoob for not complying with the Government’s
obligation to respond fully, frankly
and openly.
[29] The events and circumstances set out in the preceding paragraphs
sparked public interest and debate and generated controversy.
There
was speculation that Mr Pikoli had been removed from office
because he had been instrumental in the prosecution of Commissioner

Selebi, whose appeal against a subsequent conviction on charges of
corruption was coincidentally heard in this court this term.
There
were accusations against the Government of political interference in
the prosecutorial process and it was therefore unsurprising
that the
appointment of Mr Simelane, subsequent to Mr Pikoli’s removal,
was mired in controversy.
[30] In his answering affidavit Mr Simelane 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 ten-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. Mr Simelane accepted that
aspersions were cast on his integrity by the GE report.
He denied
that his evidence was incorrect, misleading and untruthful. He
accepted further that in some instances he had made incorrect

statements and made concessions in that regard. He denied making
those statements deliberately with full knowledge of the
incorrectness
thereof.
[31] In respect of the
Pretoria Portland Cement
and
Glenister
cases, Mr Simelane adopted the attitude that the criticism by the
court was on some of the activities carried out by the Commission
and
in some instances on his own conduct in execution of the work of a
commissioner and that the criticisms by the courts were
not directed
at his integrity.
[32] As stated earlier, insofar as the DA attacked his evidence at
the GE, as showing a mindset that was opposed to prosecutorial

independence, Mr Simelane responded by stating that he accepted that
the NPA is constitutionally guaranteed prosecutorial independence
but
that it is not institutionally independent because it was part of the
Department of Justice and Constitutional Development.
Mr Simelane was
emphatic that he is committed to serving the NPA and asserting its
independence.
[33] Mr Simelane denied that he holds the view that the Minister of
Justice and Constitutional Development has the power to determine

whether a particular prosecution is in the public interest and should
proceed. He contended that the letter he drafted on behalf
of the
Minister and referred to above has to be read together with President
Mbeki’s security concerns, to which Mr Pikoli
was
insensitive. According to Mr Simelane his evidence before the GE is
in conformity with this explanation.
[34] In Minister Radebe’s opposing affidavit he stated the
following at the outset:
‘
[I], as Minister of Justice
and Constitutional Development, gave advice in the form of a full
briefing to the President on the appointment
of Simelane to the
position of Deputy NDPP. In November 2009 when the President sought
to appoint Simelane as NDPP, I once again
gave him my views on
Simelane’s eligibility and told him that I supported his choice
of Simelane as NDPP. I stand by the
views expressed to the President
at the time.’
Minister Radebe stated emphatically that Mr Simelane is the most
appropriate person to assume the responsibility of the NPA. Minister

Radebe stated that he did not share the view that the GE’s
report concerning Mr Simelane disqualified him for appointment
as
NDPP. The Minister was adamant that the GE was a ‘fact finding
exercise’, established to assist the President to
take a
decision on whether Mr Pikoli was a fit and proper person to hold the
office of the NDPP and that it was not a judicial
commission of
enquiry into the conduct of Mr Simelane, the then Director-General of
his Department.
[35] It is important to have regard to Minister Radebe’s
account of his discussions with President Zuma about Mr Simelane’s

appointment as NDPP. Notably, the very first part of that account
reads as follows:
‘
When the President asked to
speak to me about his view that Simelane was the right person to
appoint to the position of NDPP, he
indicated that though
he
had firm views
on
appointing Simelane, he wished to obtain an opinion from me.’
(My emphasis.)
[36] Minister Radebe stated that even before he had been appointed
Minister of Justice and Constitutional Development, Mr Simelane
had
impressed him as someone who was diligent and tirelessly dedicated to
duty. Minister Radebe gained ‘firsthand information’
of
Mr Simelane’s work ethic and character during his (the
Minister’s) tenure as a member of Cabinet. According to the

Minister, when President Zuma approached him during November 2009,
for his view on Mr Simelane’s track record and abilities,
he
did not hesitate in assuring him that Mr Simelane was more than
capable of executing the functions attendant on being the NDPP

without fear, favour or prejudice.
[37] The paragraphs set out below are significant:
’
The President specifically
sought my views on the findings and recommendations of the Ginwala
Enquiry Report. This was a report
that was not only tabled before
Cabinet in 2009, but one that I had reason to study as part of
familiarising myself with the intricacies
of the relationship between
the national prosecuting authority and my office, and the manner in
which the discharge of our separate
and collective constitutional
obligations were tabled in Parliament.
On the occasion when, in November 2009, the President
spoke with me regarding Simelane’s appropriateness for the
position
of NDPP, I had a good sense of Cabinet’s views on the
Ginwala Enquiry Report, including the criticisms of Simelane that
were
noted in that report. I was able to share these views fully with
the President.’
[38] In respect of the investigative process that Minister Surty had
requested the PSC to undertake, Minister Radebe acknowledged
that in
his request his predecessor had stated that he regarded the remarks
or findings of the GE in a serious light. Minister
Radebe considered
that on its own version the PSC had conducted a desktop investigation
by assessing only the record of proceedings
of the GE and its report.
Minister Radebe thought it critical that the PSC had not provided Mr
Simelane with an opportunity to
present his views and to this end
submitted a document prepared by Mr Simelane to the PSC, with a
request that it consider
and reflect on the possibility of taking
oral evidence from Mr Simelane. The PSC having already made
recommendations to the Minister
considered itself to be
functus
officio
. Consequently, Minister Radebe took the view that there
was no purpose to be served in presenting the PSC’s findings to
the
President and advised the President accordingly.
[39] A refrain in Minister Radebe’s opposing affidavit is that
the GE had not been concerned with the conduct or the activities
of
Mr Simelane but rather with those of Mr Pikoli.
[40] The following paragraph of Minister Radebe’s affidavit is
instructive:
‘
I continue to hold the view
that Simelane is a fit and proper person to provide leadership at the
national prosecuting authority.
On discussing my views with the
President, he appeared satisfied that I had applied my mind to the
issues regarding Simelane’s
fitness for office raised by me,
and expressed his appreciation of my candour.’
[41] In the present case, central to the dispute between the
Government and the DA is the submission in the opposing affidavit
by
Minister Radebe that, whilst the President may consult with the
national executive, the final decision on whom to appoint as
NDPP is
his and his alone. The DA’s position is that it is not a power
that is untrammelled and it submitted that the power
to appoint must
be made in accordance with the law and is subject to scrutiny by a
court. The parties differ about whether constitutional
and statutory
prescripts were met when Mr Simelane was appointed NDPP.
[42] In President Zuma’s opposing affidavit he describes how,
when he took office as President of the Republic of South Africa,
the
office of the NDPP was already under government consideration. At
that time, Mr Pikoli’s court challenge was pending.
The
President appreciated that in the event of government’s
opposition to Mr Pikoli succeeding he would have to make an
appointment to that office. According to the President he had time to
consult and consider such an appointment.
[43] The first point made by President Zuma is that when, on 6
October 2009, he had appointed Mr Simelane as Deputy National
Director
of Public Prosecutions, the same considerations applied as
those involving the appointment of the NDPP and that the prior
appointment
has not been challenged ─ based on the DA’s
present case it should have been.
[44] According to President Zuma, the requirement that the person
considered for appointment must be a fit and proper person, with

regard to his or her experience, conscientiousness and integrity to
be entrusted with the responsibility of the NDPP, is a subjective

requirement and that it is his subjective decision that is called
for. He stated as follows:
‘
I am the person, as the
President of the Republic, to be satisfied that the person is fit and
proper. In so doing I have to take
cognizance of his/her experience,
conscientiousness and integrity.’
This attitude is indicative of the distinctive approaches of the
parties.
[45] President Zuma stated that he took into account that the NDPP
must, in complying with his or her statutory obligations, act
without
fear, favour or prejudice. Like Minister Radebe, President Zuma
stated that he has known Mr Simelane for a number of years,
both as a
member of the Competition Commission and as DG of Minister Radebe’s
department. He stated that whilst he consulted
Minister Radebe and
the Acting National Director of Public Prosecutions about Mr
Simelane’s appointment, he alone took the
decision to appoint
Mr Simelane. The following eleven paragraphs of
President Zuma’s affidavit are sufficiently important to quote
in their entirety:
’
I discussed the issue of the
Ginwala Report with the Minister of Justice. The Minister of Justice
conveyed to me that Adv Simelane
was, in his view, a person of
integrity and competence. I understood the Ginwala Enquiry to be a
fact-finding exercise established
to assist the President to take a
decision on whether Adv Pikoli was a fit and proper person to hold
the office of National Director
of Public Prosecutions. It was not a
judicial commission of enquiry into the conduct of Adv Simelane as
the Director General of
Justice. The testimony of Adv Simelane was
required at that enquiry because of the relationship between the NPA
and the Justice
Department.
I considered the Ginwala Enquiry’s views on Adv
Simelane as a note or precaution to the national executive, the NPA
and Parliament
to streamline the relationship between all of them. It
was not a report intended to have Adv Simelane disqualified for
future appointments.
The Minister of Justice also expressed his
satisfaction that Adv Simelane was fit and proper to be appointed as
the Deputy National
Director of Public Prosecutions.
After taking into account the experience of Adv Simelane
as I perceived it, his conscientiousness and integrity and having
regard
to the discussions with the Minister of Justice, I concluded
that Adv Simelana is fit and proper to be entrusted with
responsibilities
of the office of the Deputy National Director of
Public Prosecutions.
When the litigation that had been instituted by the
former National Director of Public Prosecutions, Adv Pikoli came to
an end,
I was required to make an appointment in terms of s 10 of the
NPA Act. I again considered the
curriculum
vitae
of Adv Simelane, my personal knowledge
and the input I had received from the Minister of Justice. I
conferred again with the Minister
of Justice as to whether there were
other issues that he wished to bring to my attention. I also
discussed the issue of the Public
Service Commission (“PSC”)
with the Minister. The Minister confirmed that he had decided not to
institute disciplinary
proceedings against Adv Simelane.
He explained that the PSC had not provided Adv Simelane
with the opportunity to inform it of his views on the matters under
investigation.
In his view, the PSC did not give any weight to the
fact that the Ginwala Enquiry was a fact-finding exercise
commissioned by the
President in terms of s 12(6) of the NPA Act and
that the individual under scrutiny was not Adv Simelane but Adv
Pikoli. Adv Simelane
gave the Minister a document expressing his
views. The Minister gave it to the PSC with a request that the PSC
consider and reflect
on the possibility of taking oral evidence from
Adv Simelane, amongst others, in order to properly ventilate the
allegations that
had been made in the Ginwala Report. The PSC, it
appears, declined to adopt this course, and advised that in essence,
having reported
on their investigation and made recommendations to
the Minister of Justice, they considered themselves to have completed
their
task. The Minister took no further action, be it in the form of
a disciplinary enquiry or any other investigation into the conduct
of
Adv Simelane. It would have been wrong for me, in these circumstances
to draw any adverse inferences against Adv Simelane’s
standing.
The Minister further expressed his views on the
interpretation that the Ginwala Enquiry and the courts have given to
the terms of
s 85(2) and s 92 read with s 179 of the Constitution,
with special emphasis on subsections (1), (2), (4), (5) and (6)
thereof.
His views were the NDPP should have the appropriate skills
necessary to fulfil the obligations of that office. The skills would,

necessarily, include professional competence and managerial ability.
The NDPP should have a clear insight into the important role
to be
performed by his/her office in our Constitutional and political
environment and should have insight into the inter-relationship
which
necessarily arises from the interaction between his/her office and
the other arms of government. The Minister expressed to
me that
despite the complete independence of the NDPP with regard to
decisions to prosecute or terminate a pending prosecution,
the
Minister is entitled to be kept informed of all relevant decisions
taken by the NDPP.
I was satisfied with the reasons and views that the
Minister gave for his decision.
The Minister further assured me that under the
leadership of Adv Simelane, he would continue to have a healthy
professional relationship
with the NPA founded on the provisions of
the Constitution and the law.
I made a decision that Adv Simelane was fit and proper
with due regard to his experience, conscientiousness and integrity to
be
entrusted with the responsibilities of the office of the National
Director of Public Prosecutions. I duly appointed him.
In the premises, I submit that the decision to appoint
Adv Simelane is lawful and in accordance with the Constitution.
In considering the appointment of Adv Simelane as the
NDPP, I did not have regard to
the transcripts of
the Ginwala Enquiry. The DA has annexed the transcript of Adv
Simelane’s evidence. I have considered those
excerpts that the
DA makes reference to for purposes of responding to the allegations
made by the DA and have not had regard to
the entire testimony. I
submit that I am not required to go behind the Ginwala Report and
interrogate the testimony led in the
Enquiry, moreover as my
attention is drawn only to parts of the testimony and not all the
evidence put before the Enquiry. To do
so, I submit, would be to
undermine the Enquiry which was appointed by the President to
comprehensively consider all facts and
evidence and on the basis
thereof submit a report on the fitness of the former NDPP to continue
to hold office. I am not required,
I submit for purposes of my
decision to appoint Adv Simelane, to read and reflect on the entire
transcript of testimony, its import
and inferences.
Having considered the relevant excerpts of the
transcript I remain of the firm view that the appointment of Adv
Simelane is lawful
and in accordance with the Constitution and the
provisions of the NPA Act.’
The reasoning of the court below
[46] The court below had regard to the Constitution and relevant
provisions of the Act and recorded in its judgment that the parties

differed on whether the requirement of ‘fit and proper person’
as expressed in s 9(1)
(b)
of the Act had to be assessed
objectively. It was submitted on behalf of the President, the
Minister and Mr Simelane that the assessment
is one within the
subjective discretion of the President. It does not appear from the
judgment that Van der Byl AJ reached any
conclusion in that regard.
The learned acting judge went on to consider the DA’s
‘formidable onslaught’ against
Mr Simelane’s
fitness and propriety for appointment as NDPP. Insofar as the merits
of that attack is concerned the court
below was of the view that the
question to be addressed was whether it could ‘on the papers’
hold on a balance of probabilities
that the President’s
decision is, on any of the grounds raised, inconsistent either
individually or cumulatively with s 179
of the Constitution and with
ss 9 and 10 of the Act.
[47] On its path to answering that question the court below commenced
by stating the following:
‘
In order to come to such a
conclusion on the papers is an extremely difficult task.’
Van der Byl AJ thought that his task was made more difficult because
no statutory process was prescribed for the President to follow
in
appointing an NDPP.
[48] The court below listed the DA’s criticisms against Mr
Simelane’s evidence before the GE. Van der Byl AJ considered

the letter drafted by Mr Simelane for Minister Mabandla, in which Mr
Pikoli was instructed to halt his intended arrest and prosecution
of
Commissioner Selebi, pending a decision by her. The DA had submitted
that this proved that Mr Simelane had no regard for prosecutorial

independence. The court below had regard to Mr Simelane’s
explanation before the GE that the letter was only intended to
convey
a message that the arrest, search and seizure should not go ahead
until the Minister was in possession of information so
as to be able
to advise President Mbeki on how best to handle the situation. The
court below was sceptical and asked why, if this
was so, it would
have been necessary for Mr Pikoli to be asked to resign. On this
aspect the court concluded as follows:
‘
Although the criticism
levelled at [Mr Simelane] in this regard may be justified, I find
myself unable to hold that he is not a
fit and proper person to hold
the position of NDPP.’
Van der Byl AJ took into account, in favour of Mr Simelane, that it
now appeared that he believed in the independence of the office
of
the NDPP and must upon his appointment have taken an oath to uphold
and protect the Constitution and to enforce the law without
fear,
favour or prejudice.
[49] Van der Byl AJ went on to consider the challenge to Mr
Simelane’s integrity on the basis of non-disclosure of
information
and documents to the GE and to Mr Pikoli’s
attorneys ─ the court had regard to the fact that this aspect
had evoked
negative comments in the GE’s report. On this point
the following conclusion was reached:
‘
Although the criticism
levelled at Mr Simelane in this regard may to a certain extent be
justified, I also find myself here unable,
even if it is considered
in context with the aforegoing criticism, to hold him to be a person
that is unfit to hold the position
of NDPP.’
[50] Insofar as the recommendations of the PSC are concerned the
court below said the following:
‘
I fail to see, except to note
that the PSC was of the view that Mr Simelane’s conduct
justifies disciplinary proceedings,
how any inference, other than the
one that I have drawn from the Ginwala Report, can be drawn from
those recommendations. As a
matter of fact Mr Simelane cannot be
blamed for the fact that the Minister refused to accept those
recommendations.’
[51] Turning to this court’s criticism of Mr Simelane in the
Pretoria Portland Cement
case, about the manner in which he
had conducted himself when he was employed at the Competition
Commission, the court below held
that it demonstrated ‘perhaps
an over-eagerness on his part, albeit an ill-considered one to draw
attention to the Commission’s
role and function but I fail to
see how his actions in this regard disqualified him as a fit and
proper person to hold the position
of NDPP’.
[52] As far as the DA’s criticisms about Mr Simelane’s
actions in the
Glenister
matter was concerned, Van der Byl AJ
said the following:
‘
[I]t is not clear to me
whether Mr Simelane knew that the issue of the Scorpions would be
considered by the Cabinet the day after
he deposed to his affidavit
or whether he was free to anticipate decisions to be taken by
Cabinet.’
[53] In respect of the intended GCB probe into Mr Simelane’s
conduct the court below said the following:
‘
The fact that a probe has been
or was about to be launched by the GCB or the Bar Council was not
relevant at the time of his appointment.
It does not appear that the
GCB or Bar Council has at any stage evaluated any complaints against
him or has formulated any charges
against him and, I doubt whether it
can be said that he was facing any complaints of unprofessional
conduct.’
[54] Having reached these conclusions on whether, as a fact, Mr
Simelane had the standard of integrity required, the court below
went
on to consider the process followed by President Zuma in appointing
Mr Simelane. As a starting point Van der Byl AJ observed
that there
is no competitive selection process prescribed by the Constitution or
the Act. The learned acting judge had regard to
the President’s
position as head of the executive authority of the Republic of South
Africa who appointed Mr Simelane after
consultation with the Minister
of Justice and Constitutional Development. The following observation
by the court below about the
degree of consultation is noteworthy:
‘
In doing so, he, albeit, as I
have already indicated
somewhat
superficially
, 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 his
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.’
(My emphasis.)
[55] The court dealt very cursorily with the DA’s charge that
the President acted with an ulterior or improper purpose on
the basis
that this ground is linked to the other grounds of challenge on which
he had already made the findings referred to above.
[56] Interestingly, in para 100 of the judgment of the court below,
the following appears:
‘
I am not persuaded that, if
regard is had to all the averments made in the papers, that he is not
a controversial person and one
with an unblemished background or that
he is one of the most experienced persons who could have been taken
into consideration for
appointment.’
Conclusions
[57] In order to fully appreciate the importance of the NPA and the
NDPP in our constitutional democracy it is necessary first,
to bear
in mind that the Constitution empowers those who govern and imposes
limits on their power and second, to consider the wider

constitutional scheme in which both the institution and the
individual are dealt with. A good starting place is an examination
of
the founding provisions of the Constitution. Section 1(c) of the
Constitution states that the Republic of South Africa is one,

sovereign, democratic state founded amongst other values on the
supremacy of the Constitution and the rule of law. Section 1(d),

commits government to democracy and to accountability, responsiveness
and openness. Section 2 of the Constitution reaffirms that
the
Constitution is the supreme law of the Republic and that law or
conduct inconsistent with it is invalid and that the obligations

imposed by it must be fulfilled. Thus, every citizen and every arm of
government ought rightly to be concerned about constitutionalism
and
its preservation.
[58] The constitutional scheme is deliberate. Chapter 1 sets out the
founding provisions and deals with founding values, citizenship,
the
national anthem, the national flag and languages. Chapter 2 states
that the Bill of Rights is a cornerstone of democracy in
South Africa
and that it enshrines rights of all people in our country and affirms
the democratic values of human dignity, equality
and freedom. The
State is obliged to respect, protect, promote and fulfil the rights
referred to in the Bill of Rights. Chapter
3 of the Constitution
deals with co-operative government and dictates that all spheres of
government must adhere to constitutional
principles in this regard
and must conduct their activities within constitutional parameters.
Chapter 4 sets out the composition
of Parliament and its legislative
authority. Section 48 provides that before members of the National
Assembly begin to perform
their functions, they must swear or affirm
faithfulness to the Republic and obedience to the Constitution.
Section 62(6) provides
that before permanent delegates to the
National Council of Provinces begin to perform their functions they
must swear or affirm
faithfulness to the Republic and obedience to
the Constitution. Chapter 5, which is of importance to the present
case, deals with
the President and the National Executive. Section 83
of the Constitution provides:
‘
The President –
(a) is the Head of State and head of the national
executive;
(b) must uphold, defend and respect the Constitution as
the supreme law of the Republic; and
(c) promotes the unity of the nation and that which will
advance the Republic.’
Section 84 sets out powers and functions of the President. Section 85
provides:
‘
(1) The executive authority of
the Republic is vested in the President.
(2) The President exercises the executive authority,
together with the other members of the Cabinet, by -
(a) implementing national legislation except where the
Constitution or an Act of Parliament provides otherwise;
(b) developing and implementing national policy;
(c) co-ordinating the functions of state departments and
administrations;
(d) preparing and initiating legislation; and
(e) performing any other executive function provided for
in the Constitution or in national legislation.’
[59] Section 87 of the Constitution provides that within five days of
his election the President must assume office by swearing
or
affirming faithfulness to the Republic and obedience to the
Constitution. In
President of the Republic of South Africa v Hugo
1997 (4) SA 1
(CC) para 65, Kriegler J said of the relationship
between the President and the Constitution:
‘
Ultimately the President, as
the supreme upholder and protector of the Constitution, is its
servant. Like all other organs of state,
the President is obliged to
obey each and every one of its commands.’
[60] Chapter 6 deals with the provinces and their legislative
authority. Before members of a provincial legislature begin their

functions they too must swear or affirm faithfulness to the Republic
and obedience to the Constitution. Section 118 of the Constitution

obliges a provincial legislature to facilitate public involvement in
the legislative process. Section 127 sets out the powers and

functions of Premiers who also must swear or affirm faithfulness to
the Republic and obedience to the Constitution. Members of
an
Executive Council of a province are collectively and individually
accountable to the legislature for the exercise of their powers
and
the performance of their functions and can only act in accordance
with the Constitution. Section 140 provides that a decision
by a
Premier of a province must be in writing if it is taken in terms of
legislation or has legal consequences.
[61] Chapter 7 of the Constitution deals with local government. In
terms of s 151 of the Constitution a municipality has the right
to
govern, on its own initiative, the local government affairs of its
community, subject to national and provincial legislation
as provided
for in the Constitution. Section 152 deals with the objects of local
government and provides, amongst others, that
local government must
provide democratic and accountable government for local communities.
I shall deal with Chapter 8, which deals
with courts and the
administration of justice, including providing for a National
Prosecuting Authority, last. Chapter 9 sets out
which state
institutions are supportive of our constitutional democracy. They
include the office of the Public Protector, the South
African Human
Rights Commission, the Commission for the Promotion and Protection of
the Rights of Cultural, Religious and Linguistic
Communities, the
Commission for Gender Equality, the Auditor-General and the Electoral
Commission. Section 181(2) states:
‘
These institutions are
independent, and subject only to the Constitution and the law, and
they must be impartial and must exercise
their powers and perform
their functions without fear, favour or prejudice.’
Section 181(3) obliges other organs of state, through legislative and
other measures, to assist and protect these institutions
to ensure
their independence and impartiality, dignity and effectiveness. The
listed institutions are all accountable to the National
Assembly and
must report on the activities and the performance of their functions
to the Assembly at least once a year.
[62] Chapter 10 deals with Public Administration. Section 195(1)
dictates that public administration must be governed by the
democratic
values enshrined in the Constitution. Section 195(1)(f)
provides that public administration must be accountable. The PSC,
referred
to earlier in this judgment, is established by s 196 of the
Constitution. It is required to be independent and impartial and must

exercise its powers and perform its functions without fear, favour or
prejudice in the interest of the maintenance of effective
and
efficient public administration and a high standard of professional
ethics in the public service. The PSC is also accountable
to the
National Assembly and is required to report to it at least once a
year.
[63] Chapter 11 deals with security services. Section 198 sets out
the governing principles and states, amongst others, that national

security must be pursued in compliance with the law, including
international law. National security is subject to the authority
of
Parliament and the National Executive. Chapter 11 contains provisions
dealing with the defence force, the police and the intelligence

services.
[64] Chapter 12 of the Constitution recognises the status and role of
traditional leaders according to customary law, subject to
the
Constitution. Chapter 13 deals with treasury control and financial
matters, including the remuneration of persons holding public
office.
It also establishes a Financial and Fiscal Commission which, in terms
of s 220(2), is required to be independent and
impartial and
subject only to the Constitution and the law.
[65] Chapter 14 contains general provisions and embraces subjects
such as international agreements, the application of international

law, funding for political parties and transitional arrangements.
[66] Before dealing with Chapter 8 of the Constitution, which
contains the provisions that relate to the courts and the
administration
of justice, including the NPA, it is necessary to
consider the full and necessary import of the Chapters and provisions
of the
Constitution referred to in the preceding paragraphs. All the
institutions, organs of state and public office bearers referred to

are essential for the functioning of our constitutional democracy.
The rule of law is a central and founding value. No-one is above
the
law and everyone is subject to the Constitution and the law. The
legislative and executive arms of government are bound by
legal
prescripts. Accountability, responsiveness and openness are
constitutional watchwords. It can rightly be said that the
individuals
that occupy positions in organs of state or who are part
of constitutional institutions are transient but that constitutional
mechanisms,
institutions and values endure. To ensure a functional,
accountable constitutional democracy the drafters of our Constitution
placed
limits on the exercise of power. Institutions and office
bearers must work within the law and must be accountable. Put simply,
ours is a government of laws and not of men or women.
[67] As we look back on 17 years of existence as a constitutional
democracy and as we view what the constitutional compact means,
we
must all as a nation breathe more easily in the knowledge that we
have truly broken with an authoritarian past in which government

served the interests of a few and was unresponsive to the needs of
the majority of its citizens and where no safeguards existed
to
ensure that power was not abused. See
S v Makwanyane
[1995] ZACC 3
;
1995 (3)
SA 391
(CC) para 262. Professor Mureinik explained (in the context of
the interim Constitution) the fundamental change brought about
because
of a shift from a ‘culture of authority’ to a
‘culture of justification’. He described it as ‘a
culture
in which every exercise of power is expected to be justified;
in which the leadership given by government rests on the cogency of

the case offered in defence of its decisions, not the fear inspired
by the force at its command’.
6
[68] It is now necessary to turn to consider that Chapter of the
Constitution dealing with the administration of justice and which

encompasses, not only judicial authority, but also the NPA. Section
165, which is located in Chapter 8 of the Constitution, provides
that
the judicial authority of the Republic is vested in the courts, which
are independent and subject only to the Constitution
and the law,
which they must apply impartially and without fear, favour or
prejudice. Importantly, organs of state, through legislative
and
other measures, must assist and protect the courts to ensure their
independence, impartiality, dignity, accessibility and effectiveness.

The hierarchy of courts is established and listed in this chapter.
Section 174(1) provides that any appropriately qualified woman
or man
who ‘is a fit and proper person’ may be appointed as a
judicial officer.
[69] Section 179 deals with the NPA. It is necessary to quote it in
full:
‘
(1) There is a single national
prosecuting authority in the Republic, structured in terms of an Act
of Parliament, and consisting
of –
(a) a National Director of Public Prosecutions, who is
the head of the prosecuting authority, and is appointed by the
President,
as head of the national executive; and
(b) Directors of Public Prosecutions and prosecutors as
determined by an Act of Parliament.
(2) The prosecuting authority has the power to institute
criminal proceedings on behalf of the state, and to carry out any
necessary
functions incidental to instituting criminal proceedings.
(3) National legislation must ensure that the Directors
of Public Prosecutions –
(a) are appropriately qualified; and
(b) are responsible for prosecutions in specific
jurisdictions, subject to subsection (5).
(4) National legislation must ensure that the
prosecuting authority exercises its functions without fear, favour or
prejudice.
(5) The National Director of Public Prosecutions –
(a) must determine, with the concurrence of the Cabinet
member responsible for the administration of justice, and after
consulting
the Directors of Public Prosecutions, prosecution policy,
which must be observed in the prosecution process;
(b) must issue policy directives which must be observed
in the prosecution process;
(c) may intervene in the prosecution process when policy
directives are not complied with; and
(d) may review a decision to prosecute or not to
prosecute, after consulting the relevant Director of Public
Prosecutions and after
taking representations within a period
specified by the National Director of Public Prosecutions, from the
following:
(i) The accused person.
(ii) The complainant.
(iii) Any other person or party whom the National
Director considers to be relevant.
(6) The Cabinet member responsible for the
administration of justice must exercise final responsibility over the
prosecuting authority.
(7) All other matters concerning the prosecuting
authority must be determined by national legislation.’
[70] As can be seen the same theme that suffuses all the other
Chapters of the Constitution permeates Chapter 8 as well, namely,

that institutions of state integral to the well-being of a
functioning democracy have to be above reproach, have to be
independent
and have to serve the people without fear, favour or
prejudice.
[71] The national legislation envisaged in s 179(3) of the
Constitution is the Act. That fact is expressly recognised in the
preamble
to the Act. Section 2 of the Act provides for a single
national prosecuting authority, as envisaged in s 179(3) of the
Constitution.
Section 3 sets out the structure of the prosecuting
authority, namely, the office of the National Director and the
offices of the
prosecuting authority at the seat of each high court,
established in terms of s 6. Section 5 establishes the National
Office of
the prosecuting authority which consists of the National
Director, who is the head of and controls the office, Deputy National
Directors and other members of the prosecuting authority appointed at
or assigned to the office. Section 10 states that the President

‘must’ in accordance with section 179 of the Constitution
appoint the NDPP. The crucial section for present purposes
is s 9(1)
of the Act, which sets out the qualifications for appointment of the
NDPP. Section 12 of the Act provides a fixed non-renewable
period of
ten years for a National Director to hold office. Section 12(5) can
rightly be viewed as a protective provision to guard
against
political interference. It provides that a National Director cannot
be suspended or removed from office, except in accordance
with the
provisions of subsections 6, 7 and 8.
[72] To understand the importance of the office of the NDPP and the
power that he or she wields, regard should be had first, to
the
provisions of s 179(2) of the Constitution, set out in para 68 above.
The prosecuting authority has the power to institute
criminal
proceedings on behalf of the State and to carry out any necessary
functions incidental to instituting criminal proceedings.
This power
is echoed in s 20(1) of the Act. Section 20(1)
(c)
of the Act
gives the prosecuting authority the power to discontinue criminal
proceedings. It hardly needs stating that these are
awesome powers
and that it is central to the preservation of the rule of law that
they be exercised with the utmost integrity.
That must mean that the
people employed by the prosecuting authority must themselves be
people of integrity who will act without
fear, favour or prejudice.
[73] Section 22(1) of the Act provides:
‘
The National Director, as the
head of the prosecuting authority, shall have authority over the
exercising of all the powers, and
the performance of all the duties
and functions conferred or imposed on or assigned to any member of
the prosecuting authority
by
the Constitution, this Act or any other law.’
[74] Section 22(2) gives the National Director the power to determine
prosecution policy and to issue policy directives. It enables
him or
her to intervene in any prosecution process when policy directives
are not complied with. In terms of s 22(2)
(c)
the National
Director may review a decision to prosecute or not to prosecute,
after consulting the relevant Director and after
taking
representations of an accused person, a complainant or any other
relevant party.
[75] Section 22(3) gives the National Director the power to direct
that investigations and criminal proceedings in respect of an
offence
be moved territorially, within the Republic. Section 22(4) empowers a
National Director to conduct any investigation he
or she may deem
necessary in respect of a prosecution or prosecution process, or
directives, directions or guidelines issued by
a director. Section
22(4)
(a)
(iii) provides that the National Director may advise
the Minister of Justice and Constitutional Development on all matters
relating
to the administration of justice.
[76] It is against that constitutional and statutory background that
s 9(1)
(b)
of the Act ultimately has to be construed. Before
turning to those provisions it is necessary for a brief conspectus of
views on
prosecutorial independence in comparable jurisdictions.
[77] Addressing the Portuguese Prosecutors Association, Jessica de
Grazia, a prosecutor in the Manhattan District Attorneys’

Office and a former New York chief-assistant District Attorney, said
the following:
‘
Prosecutorial independence is
both difficult to establish and difficult to maintain. It is under
greatest threat when civil society
is weak, justice institutions
fragile, when countries are experiencing or emerging from security
crises, when a single political
party is dominant, when a country is
poor, jobs are few, out-migration high, when a free media is
suppressed, or when prosecutors
target the top tier of economic or
organized crime and there is a nexus to members of the political
elite.’
7
Ms de Grazia rightly observed that every democracy has its own ways
of insulating prosecutors from political pressure.
[78] In a seminar organised by The European Commission for Democracy
Through Law (Venice Commission), conducted at Trieste, Italy,
between
28 February and 3 March 2011, under the title ‘The Independence
of Judges and Prosecutors: Perspectives and Challenges’,
Mr
James Hamilton, a substitute member of the Venice Commission and
Director of Public Prosecutions, Ireland, noted that in common
law
systems the prosecution is invariably a part of the executive, in
some civil law systems it is part of the executive and in
others it
is part of the judiciary. Under the subheading ‘Responsibilities
of Public Prosecutors in ensuring due process
and the rule of law’
Mr Hamilton stated the following:
8
‘
It is clear that a
prosecutor’s office which displays a respect for fair
procedures will operate as a bulwark against human
rights abuses,
whereas a prosecutor’s office which is not concerned with such
matters will make it more likely that the rule
of law will not be
observed. In this connection it should be noted that the prosecutor
not only acts on behalf of the people as
a whole, but also has duties
to particular individual citizens.’
[79] The following part of the paper presented by Mr Hamilton is
apposite:
9
‘
The Venice Commission Report
on the independence of the prosecution service also lays emphasis on
the qualities of prosecutors,
in particular at paragraphs 14 to 19 of
the Report. Having referred to the importance of the prosecutor
acting to a higher standard
than a litigant in a civil matter because
he or she acts on behalf of society as a whole and because of the
serious consequences
of criminal conviction, and having referred to
duties to act fairly and impartially, as well as the duty to disclose
all relevant
evidence to the accused, the Commission points to the
necessity to employ as prosecutors suitable persons of high standing
and
good character, having qualities similar to those required of a
judge, and they require that suitable procedures for appointment
and
promotion are in place.’
[80] Two paragraphs later Mr Hamilton states:
10
‘
The Venice Commission goes on
to talk about political interference in prosecution. The Report
points out that if modern western
Europe has largely avoided the
problem of abusive prosecution in recent times this is largely
because mechanisms have been adopted
to ensure that improper
political pressure is not brought to bear in the matter of criminal
prosecution. The Commission points
out that in totalitarian states or
in modern dictatorships criminal prosecution has been and continues
to be used as a tool of
repression and corruption.’
[81] Mr Hamilton pointed out that procedures to guarantee a proper
selection of prosecutors and to prevent their arbitrary dismissal
are
very important in safeguarding prosecutorial independence. In this
regard he referred to an opinion by the Venice Commission
on the
regulatory concept of the Constitution of the Hungarian Republic:
11
‘
It is important that the
method of selection of the general prosecutor should be such as to
gain the confidence of the public and
the respect of the judiciary
and the legal profession. Therefore professional, non-political
expertise should be involved in the
selection process. However it is
reasonable for the government to wish to have some control over the
appointment, because of the
importance of the prosecution of crime in
the orderly and efficient functioning of the state, and to be
unwilling to give some
other body, however distinguished,
carte
blanche
in
the selection process. It is suggested, therefore that consideration
might be given to the creation of a commission of appointment

comprised of persons who would be respected by the public and trusted
by the government.’
[82] In his conclusion Mr Hamilton stated the following:
12
‘
Despite the variety of
arrangements in prosecutor’s offices, the public prosecutor
plays a vital role in ensuring due process
and the rule of law as
well as respect for the rights of all the parties involved in the
criminal justice system. The prosecutor’s
duties are owed
primarily to the public as a whole but also to those individuals
caught up in the system, whether as suspects or
accused persons,
witnesses or victims of crime. Public confidence in the prosecutor
ultimately depends on confidence that the rule
of law is obeyed.’
[83] Writing on prosecutorial independence in the
(2001) 45
Criminal
Law Quarterly
272
,
Bruce A MacFarlane QC, the then Deputy
Attorney General for the Province of Manitoba, Canada, considered
models intended to ensure
independence in England, Australia, New
Zealand, the USA and Canada. He states:
13
‘
[I]rrespective of the laws or
structures in place in a jurisdiction, principles of independence
ultimately depend upon the integrity
of the person occupying the
office of Attorney General.’
[84] Mr MacFarlane postulates that there are many paths to
prosecutorial independence. Some countries, he noted, have chosen,
with varying degrees of success, a legislatively-based structural
model. That approach he states has in some cases ‘led to

questions concerning public accountability, if not overzealousness,
on the part of the prosecuting authority.’
14
On this aspect he concludes as follows:
15
‘
In the end, each nation needs
to develop an approach to independence that makes sense in the
context of its own legislative and
constitutional framework, as well
as the traditions, practices and history of its legal system.’
[85] In
Sharma v Brown-Antoine
[2006] UKPC 57
the Privy
Council said, with reference to prosecutorial independence, that the
maintenance of public confidence in the administration
of justice
required that it be, and is seen to be, even handed.
[86] In
Krieger v Law Society of Alberta
2002 SCC 65
;
[2002] 3 SCR 372
the
Supreme Court of Canada said that the gravity of the power to bring,
manage and terminate prosecutions, which lay at the heart
of the
Attorney-General’s role, had given rise to an expectation that
he would in this respect be fully independent from
political
pressures of the government.
[87] In
Imbler v Pachtman
[1976] USSC 26
;
424 US 409
(1976) at 423-424 the
Supreme Court of the United States of America spoke of the ‘fearless
and impartial policy’ which
should characterise the
prosecutorial service and ‘the independence of judgment
required by his public trust’.
[88] In dealing with the powers and functions of the Namibian
Attorney General and Prosecutor General, respectively, the Namibian

Supreme Court said the following:
‘
In the light of what I have
said earlier in this judgment, on my understanding of the
aspirations, expectations and the ethos of
the Namibian people, it
seems to me that one must interpret the Constitution in the most
beneficial way giving it the full amplitude
of the powers which are
given to the prosecutor-general. Thus interpreted, the office,
appointed by an independent body, should
be regarded as truly
independent subject only to the duty of the prosecutor-general to
keep the attorney-general properly informed
so that the latter may be
able to exercise ultimate responsibility for the office. . . .On this
view of the matter the Constitution
creates on the one hand an
independent prosecutor-general while at the same it enables the
attorney-general to the exercise final
responsibility for the office
of the prosecutor-general. The notions are not incompatible. Indeed,
it is my strong view that this
conclusion is the only one which
reflects the spirit of the Constitution, its cardinal values, the
ethos of the people, and articulates
their values, their ideals and
their aspirations. It also is entirely in accordance with the
“uniquely caring and humanitarian
quality of the
Constitution”.’
16
[89] In
Pikoli v The President
2010 (1) SA 400
(GNP) Du
Plessis J (at 406E-F) said the following:
‘
As the head of the [NPA] the
NDPP has a duty to ensure that this prosecutorial independence is
maintained. It follows that a person
who is fit and proper to be the
NDPP will be able to live out, and will live out in practice, the
requirements of prosecutorial
independence. That he or she must do
without fear, favour or prejudice.’
[90] In the
Certification
judgment of the Constitutional
Court
17
the objection to the President having the power to appoint the NDPP,
on the basis that it threatened prosecutorial independence,
was
rejected. Importantly, however, the Constitutional Court, considering
s 179(4) of the Constitution stated (para 146):
‘
[Section] 179(4) provides that
the national legislation
must
ensure
that
the prosecuting authority exercises its functions without fear,
favour or prejudice. There is accordingly a constitutional
guarantee
of independence, and any legislation or executive action inconsistent
therewith would be subject to constitutional control
by the courts.
In the circumstances, the objection to [s] 179 must be rejected.’
(My emphasis.)
[91] It is to the relevant part of the national legislation that I
now turn. The provisions of Section 9(1)(b) appear 86 paragraphs

earlier in this judgment. I consider it necessary to restate it here:
‘
(1) Any person to be appointed
as National Director, Deputy National Director or Director must-
. . .
(b) be a fit and proper person, with due regard to his
or her experience, conscientiousness and integrity, to be entrusted
with
the responsibilities of the office concerned.’
[92] In affidavits filed on its behalf in the court below the DA had
asserted that in exercising his power in terms of s 10 of
the NPA, to
appoint the NDPP, the President performed an administrative act. That
contention was rightly not persisted in before
us. In this regard,
counsel for the respondents are correct, when they point out that the
President’s original power to appoint
the NDPP is sourced in s
179(1)(a) of the Constitution, which provides in express terms that
the NDPP is appointed by the President,
‘as head of the
National Executive’. The act of appointment is thus clearly
executive action. See also
Masetlha v President of the Republic of
South Africa & another
[2007] ZACC 20
;
2008 (1) SA 566
(CC) which dealt with
the President’s power to appoint and terminate the services of
the head of the National Intelligence
Agency. Also of relevance is s
85(2)(e) of the Constitution which states that the President
exercises executive authority together
with other members of the
Cabinet by ‘performing any other executive function provided
for in the Constitution or in national
legislation’.
[93] That does not mean that the President’s decision to
appoint an NDPP is beyond judicial scrutiny. In
Pharmaceutical
Manufacturers Association of SA & another: In re Ex parte
President of the Republic of South Africa
[2000] ZACC 1
;
2000 (2) SA 674
(CC)
(2000 (3) BCLR 241)
para 84-85 the following is stated:
‘
In
S
v Makwanyane
Ackermann
J characterised the new constitutional order in the following terms:
“
We have moved from a past
characterised by much which was arbitrary and unequal in the
operation of the law to a present and a future
in a constitutional
State where State action must be such that it is capable of being
analysed and justified rationally. The idea
of the constitutional
State presupposes a system whose operation can be rationally tested
against or in terms of the law. Arbitrariness,
by its very nature, is
dissonant with these core concepts of our new constitutional order.”
Similarly, in
Prinsloo v Van der
Linde and Another
this Court held that when
Parliament enacts legislation that differentiates between groups or
individuals it is required to act
in the rational manner:
“
In regard to mere
differentiation the constitutional State is expected to act in a
rational manner. It should not regulate in an
arbitrary manner or
manifest ‘naked preferences’ that serve no legitimate
governmental purpose, for that would be inconsistent
with the rule of
law and the fundamental premises of the constitutional State.”
It is a requirement of the rule of law that the exercise
of public power by the Executive and other functionaries should not
be
arbitrary. Decisions must be rationally related to the purpose for
which the power was given, otherwise they are in effect arbitrary
and
inconsistent with this requirement. It follows that in order to pass
constitutional scrutiny the exercise of public power by
the Executive
and other functionaries must, at least, comply with this requirement.
If it does not, it falls short of the standards
demanded by our
Constitution for such action.’
[94]
In Affordable Medicines Trust v Minister of Health
[2005] ZACC 3
;
2006
(3) SA 247
(CC) the Constitutional Court, referring to
Fedsure
Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan
Council
[1998] ZACC 17
;
1999 (1) SA 374
(CC)
(1998 (12) BCLR 1458)
para 58,
stated the following (para 49):
‘
The exercise of public power
must therefore 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”. In this sense the Constitution
entrenches the principle of legality and provides the foundation for
the control
of public power.’
[95] In
Masetlha
, para 81, in dealing with the power of the
President to dismiss the head of the National Intelligence Agency and
implicitly with
the power to appoint, the Constitutional Court said:
‘
It is therefore clear that the
exercise of the power to dismiss by the President is constrained by
the principle of legality, which
is implicit in our constitutional
ordering. Firstly, the President must act within the law and in a
manner consistent with the
Constitution. He or she therefore must not
misconstrue the power conferred. Secondly, the decision must be
rationally related to
the purpose for which the power was conferred.
If not, the exercise of the power would, in effect, be arbitrary and
at odds with
the rule of law.’
[96] Following the template provided by these pronouncements, the
question to be answered is what does s 9(1)
(b)
require of the
President in the appointment process. It was accepted by all the
parties that the President must at the very least
consider whether
the person he has in mind for appointment as the NDPP has the
qualities described in this subsection.
[97] The parties differ about how the President should go about
considering the suitability of the person he contemplates appointing.

The DA submitted that, having regard to the purpose of the power,
namely, to secure for South Africa a head of the prosecution

authority with the experience and ability to lead the institution in
an independent way which will command broad public confidence
in the
administration of criminal justice, not only the decision must be
rationally related to that purpose but also the process
of reaching
it must be so.
[98] It was contended by the DA that a rational process would
generally entail at least the following:
(a) obtaining sufficient and reliable information about the
candidate’s past work experience and performance;
(b) obtaining sufficient and reliable information about the
candidate’s integrity and independence; and
(c) in cases where the candidate is the subject of allegations
calling his fitness to hold office into question, a satisfactory

process to determine the veracity of the allegations in a reliable
and credible fashion.
[99] Relying on
Albutt v Centre for the Study of Violence and
Reconciliation
2010 (3) SA 293
(CC) 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. It was submitted that studying
Mr Simelane’s
CV and consulting the Minister was sufficient.
[100] It was submitted on behalf of Mr Simelane that having regard to
constitutional provisions, including s 85, which provides
that the
President exercises executive authority together with other members
of the Cabinet, the consultation with the Minister
was sufficient as
no other processes are prescribed. It was also submitted that since
the Minister and the President stated that
Mr Simelane was appointed
with due regard to his experience, integrity and conscientiousness
their statements in this regard cannot
be scrutinised any further.
The Minister’s briefing on the GE and the PSC’s
involvement was, so it was contended, adequate
and the President
therefore acted in accordance with legal prescripts.
[101] Submissions on behalf of the Minister on this aspect were in
line with the submissions on behalf of the President and Mr
Simelane.
[102] Insofar as s 9(1)
(b)
prescribes that the NDPP should be
a fit and proper person, with due regard to the qualities listed
therein, the DA submitted that
each of the qualities is stated in
objective terms. It was contended that the absence of the words ‘in
the President’s
opinion’ is indicative that the fitness
for office of a candidate is to be determined objectively. Put
differently, these
are jurisdictional requirements, so it was
contended, that have to exist as an objective fact. It was submitted
further that the
President may not reason that even though there are
question marks as to a candidate’s fitness, the adverse
allegations have
not been positively proved and therefore the
candidate is entitled to the benefit of the doubt. The Act requires,
so it was argued,
that the President must properly and transparently
determine whether those qualities exist in a candidate.
[103] On behalf of the President it was submitted, with reference to
the decision of this court in
Jasat v Natal Law Society
2000
(3) SA 44
(SCA), that in determining the fitness of a candidate for
appointment as NDPP, the President exercised a value judgment which
translates
into a subjective assessment of whether the candidate has
the qualities prescribed by s 9(1)
(b)
. The following part of
the heads of argument in this regard is important:
‘
Value judgment is based upon
or reflecting one’s personal moral and aesthetic value, a
subjective evaluation.’
[104] The following part of the heads of argument on behalf of the
President bears quoting:
‘
The President is the choice of
the people. The Constitution vests in him the power to apply his
value judgment and appoint a NDPP
who meets the objective criteria
and is a fit and proper person to hold such office.’
[105] On behalf of the Minister, it was submitted that the flaw in
the DA’s argument on this aspect is that the NDPP must
conform
to a standard defined by it rather than by the President.
[106] Relying on the decision in this court in
SA Defence and Aid
Fund v Minister of Justice
1967 (1) SA 31
(C), it was submitted
that the jurisdictional facts necessary to be satisfied before an
appointment can be made fall into the category
where the President is
the repository of the power and has the sole and exclusive function
to determine whether the prescribed
fact or state of affairs existed.
[107] It is true that no process is prescribed, either by the
Constitution or by any provision of the Act, for the President to

follow in assessing a candidate’s fitness for the position of
NDPP. As stated in the dictum from the
Certification
judgment,
referred to in para 90 above, the national legislation envisaged
must
ensure that the NPA exercises its functions without fear, favour or
prejudice. That is the primary purpose of the Act. It will
falter at
the starting post if it is not insistent about the qualities the head
of the institution must possess in order to lead
the NPA on its
constitutional path. Section 9(1)
(b)
must consequently be
construed to achieve that purpose. Thus, I agree with the submission
on behalf of the DA, set out in para
98 above. There has to be a real
and earnest engagement with the requirements of s 9(1)
(b)
.
Having regard to what is stated in earlier paragraphs about the
importance of the NPA and the office of the NDPP it is the least
that
‘we the people’ can expect and that s 9(1)
(b)
demands.
[108] Whether the requirements for appointment in terms of s 9(1)
(b)
of the Act are a matter of subjective discretion or of objective
jurisdictional facts, it was accepted by the parties that the

President, in considering the appointment of an NDPP, must at the
very least have regard to relevant factors that are brought to
his
knowledge, or that can reasonably be ascertained by him. In the
present case, if regard is had to what is stated by the Minister,
as
described in para 34 above, the starting point was wrong. The
Minister stated that the President told him, at the outset, before

asking for his input, that he (the President) had ‘firm views’
on appointing Mr Simelane as NDPP. Section 9(1)
(b)
does not
allow for a firm view before a consideration of the qualities
referred to therein. It does not assist the President that
he knew Mr
Simelane long before he was called upon to apply s 9(1)
(b)
in
considering him for appointment as NDPP. The President himself said
that his approach to determining Mr Simelane’s fitness
for
office was this:
‘
Absent any evidence to the
contrary I have no basis to conclude that he is not fit and proper.’
This is a wrong approach.
[109] But that is not the only problem faced by the respondents. It
is common cause that the President sought the Minister’s
views
on the GE. The President did not disclose exactly why he made the
enquiry, or exactly what his concerns were. A fundamental
problem for
the Minister and the President is that they both considered that the
GE report was irrelevant or, based on a rigid
view that the GE
enquired into Mr Pikoli’s fitness for office and did not
concern Mr Simelane’s integrity. It is clear
from the
President’s account of the discussion with the Minister and
from his description of his mindset, as set out in para
45 above,
that he took the view that the GE report, insofar as it related to Mr
Simelane, was a note of precaution to the National
Executive, the NPA
and Parliament and that it was not a report intended to have Mr
Simelane disqualified for future appointments.
The President and the
Minister wrongly discounted Minister Surty’s serious concerns
about the Ginwala report and its impact
on Mr Simelane. So too they
were too easily dismissive of the PSC’s attitude in this
regard. It ought also to have been a
matter of concern that the GCB
had been poised to enquire into Mr Simelane’s conduct ─
it is a matter that would directly
affect public perception about his
candidacy. It is not unlikely that the GCB probe ground to a halt
because of the ensuing litigation.
[110] It is clear that what is said in the GE report, referred to in
paragraph 24 above, about Mr Simelane, is directly relevant
to the
questions required to be addressed in the appointment process. They
bring his integrity directly into question. They were
issues of
serious concern to Minister Surty, with whom the PSC agreed. There
may well be answers forthcoming from Mr Simelane on
the issues raised
by the GE report, but at the very least they required interrogation.
The court below was correct when it described
the enquiries made
about the GE report as being superficial. More was required.
[111] Mr Simelane is of course incorrect when he states that the
dicta referred to in the
Pretoria Portland Cement
case, set
out in para 10 above, do not reflect on his integrity. Of course they
do. This is particularly so of para 63 of the
Pretoria Portland
Cement
case. Mr Simelane might of course have an explanation or
some other response. But it is not necessary to deal with that case
or
the
Glenister
case any further. Based on the reasoning in
relation to the GE alone the decision to appoint Mr Simelane should
be set aside. The
court below itself was concerned about Mr
Simelane’s conduct in relation to the Pikoli matter, but
thought that it was not
open to it to subject the decision to appoint
him NDPP to further judicial scrutiny. In paras 48 and 49 above the
view of the court
belowthat Mr Simelane might justifiably be
criticised is reflected. That court below adopted the attitude that
this was not sufficient
to enable the decision to be overturned.
[112] Thus the Minister and the President both made material errors
of fact and law in the process leading up to the appointment
of Mr
Simelane. This speaks to both rationality and legality.
18
In
President of the RSA v SARFU
at 148, the Constitutional
Court, in dealing with constraints on the President’s executive
powers stated that the President
must act in good faith and must not
misconstrue his powers. It does not avail the President to say that
he subsequently read the
transcripts of those parts of the GE’s
proceedings that the DA referred to in its application in the court
below and that
he would have arrived at the same conclusion. It was
too late and must be assessed in the light of the President’s
persistent
view that the GE did not concern Mr Simelane’s
integrity but was instituted to consider Mr Pikoli’s fitness to
continue
in office. In failing to take the GE into account, the
President took a decision in respect of which he ignored relevant
considerations.
By doing so he misconstrued his powers and acted
irrationally.
[113] In
SA Defence and Aid Fund
, Corbett J held that, in the
context of deciding whether to ban an organisation in terms of
security legislation the President
had to have ‘before him some
information relating to such matters as the aims and objects of the
organisation in question,
its membership, organisation and control,
the nature and scope of its activities, what its purpose is and what
it professes to
be’. We have come a long way since that kind of
security legislation. In this case he had less than scanty
information on
which to make the required decision. His own knowledge
and interaction with the candidate and a brief CV was insufficient,
particularly
in the light of the concerns set out above. In these
circumstances he could not have applied his mind properly.
[114] I accept that the President must have a multitude of daily
duties and is a very busy man. However when he is dealing with
an
office as important as that of the NDPP, which is integral to the
rule of law and to our success as a democracy, then time should
be
taken to get it right.
[115] Having regard to the conclusion already reached in this
judgment it might appear that nothing remains for further
adjudication.
In my view it is necessary, to guide future action, to
consider the submissions on behalf of the President, the Minister and
Mr Simelane,
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’. In the heads of argument
filed on behalf of the President the following appears:
‘
The President is the choice of
the people. The Constitution vests in him the power to apply his
value judgment and appoint a NDPP
who meets the objective criteria
and is a fit and proper person to hold such office.’
That submission appears to conflate a subjective assessment with
objective criteria. However, the first part of the statement is
an
aspect on which I shall comment later.
[116] I disagree with the view that in applying s 9(1)
(b)
of
the Act the President is entitled to bring his subjective view to
bear. First, the section does not use the expression ‘in
the
President’s view’ or some other similar expression.
Second, it is couched in imperative terms. The appointee ‘must’

be a fit and proper person. Third, I fail to see how qualities like
‘integrity’ are not to be objectively assessed.
An
objective assessment of one’s personal and professional life
ought to reveal whether one has integrity. In
The Shorter Oxford
English Dictionary on Historical Principles
(1988), inter alia,
the following are the meanings attributed to the word ‘integrity’:
‘Unimpaired or uncorrupted
state; original perfect condition;
soundness; innocence, sinlessness; soundness of moral principle; the
character of uncorrupted
virtue; uprightness; honesty, sincerity.’
Collins’
Thesaurus
(2003) provides the following as
words related to the word ‘integrity’: ‘honesty,
principle, honour, virtue,
goodness, morality, purity, righteousness,
probity, rectitude, truthfulness, trustworthiness, incorruptibility,
uprightness, scrupulousness,
reputability.’ Under ‘opposites’
the following is noted: ‘corruption, dishonesty, immorality,
disrepute,
deceit, duplicity.’
[117] Consistent honesty is either present in one’s history or
not, as are conscientiousness and experience. Conscientious
is
defined in the
Concise Oxford English Dictionary
(2002) 10 ed
as: ‘1 wishing to do what is right. 2 relating to a person’s
conscience.’ In my view, having regard
to the purposes of the
Act, served also by s 9(1)
(b)
of the Act, there can in my view
be no doubt that it is not left to the subjective judgment of
transient Presidents, but to be
objectively assessed to meet the
constitutional objective to preserve and protect the NPA and the NDPP
as servants of the rule
of law. Take a notional President whose moral
view is that a recent conviction of fraud of a notional candidate can
be discounted
because of an undertaking by the latter not to do
anything illegal in the future. The submission that it is the
President’s
subjective view and assessment that is required to
be brought to bear in terms of s 9(1)
(b)
, when viewed
against this example is, in my view shown to be fallacious.
[118] Thus, the requirements of s 9(1)
(b)
of the Act are, in
my view, jurisdictional facts the objective existence of which are a
prelude to the appointment of the NDPP.
In this regard the following
dictum from
SA Defence and Aid Fund
(at 34H-35A) is apposite:
‘
Upon a proper construction of
the legislation concerned, a jurisdictional fact may fall into one or
other of two broad categories.
It may consist of a fact, or state of
affairs, which objectively speaking, must have existed before the
statutory power could validly
be exercised. In such a case, the
objective existence of the jurisdictional act as a prelude to the
exercise of that power in a
particular case is justiciable in a Court
of law. If the Court finds that objectively the fact did not exist it
may then declare
invalid the purported exercise of the power (see eg
Kellerman v Minister
of Interior
1945
T.P.D. 179
;
Tefu v
Minister of Justice
1953
(2) SA 61
(T).’
[119] Cases dealing with the admission or disbarment of attorneys,
such as
Jasat,
in which the expression ‘fit and proper
person’ is applied are unhelpful. The Attorneys’ Act was
amended in 1984
to convert the test of ‘fit and proper person’
into one for the trial court’s discretion. Significantly, in a

pre 1984 case,
Kudo v Cape Law Society
1977 (4) SA 650
(A) the
following is stated at 650-651:
‘
One of the basic criteria for
admission, striking off or re-admission is therefore whether or not
the person concerned is “fit
and proper”. In relation to
admission that is a question of fact, as has been said above, and not
of “discretion”.’
[120] In any event, the question posed in this appeal was decided
against a specific statutory provision, with due regard to its

purpose and measured against constitutional values and norms.
[121] It is clear that the President did not undertake a proper
enquiry of whether the objective requirements of s 9(1)
(b)
were satisfied. On the available evidence the President could in any
event not have reached a conclusion favourable to Mr Simelane,

as there were too many unresolved questions concerning his integrity
and experience.
[122] One further aspect requires brief attention. It will be
recalled that in para 115 above a paragraph from the heads of
argument
on behalf of the President was quoted, in which it was
submitted that, because the President is the people’s choice,
the
Constitution vests the power in him to appoint an NDPP and that
the power is exercised based on the President’s value judgment.

It is implicit in that submission that a court cannot scrutinise the
President’s exercise of a value judgment. I have already
dealt
with the power of courts to ensure compliance with the Constitution.
It is necessary to say something about whether in doing
so the
popular will is subverted. Dealing with critics who suggest that the
power vested in the judiciary to set aside the laws
made by a
legislature mandated by the popular will, itself constitutes a
subversion of democracy, former Chief Justice Mahomed,
in an address
in Cape Town on 21 July 1998 to the International Commission of
Jurists on the independence of the judiciary, stated
the following:
‘
That argument is, I think,
based on a demonstrable fallacy. The legislature has no mandate to
make a law which transgresses the
powers vesting in it in terms of
the Constitution. Its mandate is to make only those laws permitted by
the Constitution and to
defer to the judgment of the court, in any
conflict generated by an enactment challenged on constitutional
grounds. If it does
make laws which transgress its constitutional
mandate or if it refuses to defer to the judgment of the court on any
challenge to
such laws, it is in breach of its own mandate. The court
has a constitutional right and duty to say so and it protects the
very
essence of a constitutional democracy when it does. A democratic
legislature does not have the option to ignore, defy or subvert
the
court. It has only two constitutionally permissible alternatives, it
must either accept its judgment or seek an appropriate
constitutional
amendment if this can be done without subverting the basic
foundations of the Constitution itself.’
19
These statements are beyond criticism and apply equally when actions
or decisions by the executive are set aside.
[123] Finally, it was submitted on behalf of the DA that the matter
was one of sufficient importance and complexity to warrant
the
employment by it of three counsel. I agree.
[124] For all the reasons set out above the following order is made:
1 The appeal succeeds and the first, second and fourth respondents
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;
2 The order of the court below is set aside and substituted as
follows:
‘
a. It is declared that the
decision of the President of the Republic of South Africa, the First
Respondent, taken on or about Wednesday
25 November 2009, purportedly
in terms of section 179 of the Constitution of the Republic of South
Africa (the Constitution), read
with
sections 9
and
10
of the
National Prosecuting Authority Act 32 of 1998
to appoint Mr Menzi
Simelane, the Fourth Respondent, as the National Director of Public
Prosecutions (the appointment), is inconsistent
with the Constitution
and invalid;
b. The appointment is reviewed and set aside;
c. The first, second and fourth respondents are ordered
jointly and severally, the one paying the others to be absolved, to
pay
the appellant’s costs, including the costs of two counsel.’
_________________
M S NAVSA
JUDGE OF APPEAL
APPEARANCES:
For Appellant: O Rogers SC
A Katz SC
D Borgström
N Mayosi
Instructed by
Minde Shapiro & Smith Bellville
Symington & De Kok Bloemfontein
For 1
st
Respondent: N Cassim SC
V Notshe SC
M Sello
Instructed by
The State Attorney Pretoria
The State Attorney Bloemfontein
For 2
nd
Respondent: M Moerane SC
L Gcabashe
Instructed by
The State Attorney Pretoria
The State Attorney Bloemfontein
For 4
th
Respondent: G Malindi SC
I Goodman
Instructed by
The State Attorney Pretoria
The State Attorney Bloemfontein
1
See
s 179 of the Constitution and
ss 2
,
3
,
4
,
5
and
6
of the
National
Prosecuting Authority Act 32 of 1998
.
2
Section
12 of the Act provides that the President may provisionally suspend
the National Director of Public Prosecutions from
office pending an
enquiry into his or her fitness for office.
3
Mr
Pikoli had been appointed National Director of Public Prosecutions
by President Mbeki on 1 February 2005.
4
The
Public Service Commission is created by s 196 of the Commission. Its
function, amongst others, is to propose measures to ensure
effective
and efficient performance within the public service, to give
directions aimed at ensuring that personnel procedures
related to
recruitment, transfers, promotions and dismissals comply with the
constitutional values set out in s 195 of the Constitution.
5
That
this is the DA’s case is particularly clear from para 149.4 of
its founding affidavit.
6
Etienne
Mureinik ‘A Bridge to Where? Introducing the Bill of Rights’
(1994) 10
SAJHR
31
at 32.
7
Keynote
address delivered at the Conference on Combating Crime in Europe,
organised by the Sindicato dos Magistrados do Ministerio
Publico
(SMMP), Lisbon Portugal, May 2010.
8
Hamilton
p 4.
9
Hamilton
p 6.
10
Hamilton
p 6.
11
Hamilton
p 9.
12
Hamilton
p 13.
13
B
A MacFarlane ‘Sunlight and Disinfectants: Prosecutorial
Accountability and Independence through Public Transparency’

(2001) 45
Criminal Law Quarterly
272 at 278.
14
MacFarlane
p 274.
15
MacFarlane
p 274.
16
Ex
Parte Attorney-General, Namibia: In re: The Constitutional
Relationship between the Attorney-General and the Prosecutor-General
1995 (8) BCLR 1070
(NmS) at 1089.
17
Ex
Parte Chairperson of the Constitutional Assembly In re Certification
of the Constitution of the RSA
,
[1996] ZACC 26
;
1996
1996 (4) SA 744
(CC), para 141.
18
See
Pepcor Retirement Fund v Financial
Services Board
2003 (6) SA 38
(SCA)
para 47. As Cloete JA held that error of fact as a ground of review
stems from the principle of legality, it applies not
only to
challenges to administrative actions. See also
Government
Employees Pension Fund v Buitendag
2007
(4) SA 2
(SCA).
19
I
Mahomed ‘The Independence of the Judiciary’
(1998) 115
SALJ
658
at 662-663. See also
Minister of Health v
Treatment Action Campaign (No 2)
[2002] ZACC 15
;
2002 (5) SA 721
(CC) paras
96-99.