Democratic Alliance v President of South Africa and Others (CCT 122/11) [2012] ZACC 24; 2012 (12) BCLR 1297 (CC); 2013 (1) SA 248 (CC) (5 October 2012)

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[2012] ZACC 24
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Democratic Alliance v President of South Africa and Others (CCT 122/11) [2012] ZACC 24; 2012 (12) BCLR 1297 (CC); 2013 (1) SA 248 (CC) (5 October 2012)

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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 122/11
[2012] ZACC 24
In the matter between:
DEMOCRATIC ALLIANCE
.........................................................................
Applicant
and
PRESIDENT OF THE REPUBLIC
OF SOUTH AFRICA
..........................................................................
First
Respondent
MINISTER FOR JUSTICE AND
CONSTITUTIONAL DEVELOPMENT
........................................
Second Respondent
NATIONAL DIRECTOR OF
PUBLIC PROSECUTIONS
...............................................................
Third
Respondent
MENZI SIMELANE
........................................................................
Fourth
Respondent
Heard on : 8 May 2012
Decided on : 5 October 2012
JUDGMENT
YACOOB ADCJ (Mogoeng CJ, Cameron J, Froneman J, Jafta J, Khampepe J,
Maya AJ, Nkabinde J, Skweyiya J, Van der Westhuizen J concurring):
Introduction
This case requires a decision on whether the appointment of Mr
Menzi Simelane
1
as the National Director of Public Prosecutions (National Director)
of our country by the President of the Republic of South
Africa
2
is within the bounds of the Constitution. The Minister for Justice
and Constitutional Development
3
(Minister) and Mr Simelane appeal against a judgment and order of
the Supreme Court of Appeal,
4
which concluded that the appointment of the National Director was
constitutionally wanting in that the process for appointment
and,
consequently, the appointment itself was irrational and invalid.
The High Court
5
held that, while the appointment of Mr Simelane as the National
Director raised some concerns, it could not be said that the

conduct of the President fell foul of the Constitution.
The
order of the Supreme Court of Appeal reads:
“
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 s 179 of the
Constitution of the Republic of South Africa (the Constitution),

read with
ss 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 appellants costs, including
the costs of two counsel’.”
The
Constitution provides that an order of constitutional invalidity of
any conduct of the President has no force unless it
is confirmed by
this Court.
6
The order of the Supreme Court of Appeal declared invalid the
conduct of the President. The Democratic Alliance
7
applies for confirmation of the order of the Supreme Court of
Appeal. The Minister opposes the application. The President opposed

the application in the High Court and in the Supreme Court of
Appeal but has decided not to participate in these proceedings.
8
The
facts broadly
The
facts and circumstances that form the basis upon which the
Democratic Alliance contends for the unconstitutionality of the

appointment of the National Director are separately set out in
detail later, in relation to each argument advanced. A broad

outline of the facts will suffice at this stage.
Mr
Simelane, in his capacity as the Director-General of the
Department for Justice and Constitutional Development
(Director-General),
9
was intimately involved in a dispute concerning the proper role of
the then National Director, Mr Vusi Pikoli. The dispute
related to
the powers and duties of the Minister for Justice and
Constitutional Development and the National Director.
Mr
Pikoli was suspended by the then President
10
on 23 September 2007.
Shortly
after that, on
3 October 2007,
Mr Mbeki
appointed a commission of enquiry
11
headed by a former Speaker of Parliament, Dr Frene Ginwala
(Ginwala Commission) to inquire into Mr Pikoli’s fitness
to
hold office as the National Director.
Mr
Simelane presented the government’s submissions to, and gave
evidence under oath before, the Ginwala Commission.
The
report of the Ginwala Commission criticised with some severity the
approach by Mr Simelane in making government’s
submissions
as well as the credibility of his evidence.
The
then Minister for Justice and Constitutional Development,
12
Mr Enver Surty, requested the Public Service Commission
13
to investigate Mr Simelane’s conduct during the Ginwala
Commission.
14
The
Public Service Commission, in a detailed report, recommended
disciplinary proceedings against Mr Simelane arising out
of his
conduct and evidence before the Ginwala Commission.
15
The
Minister
16
rejected the recommendations of the Public Service Commission.
17
The
President appointed Mr Simelane as the National Director two days
after the Minister rejected the Public Service Commission

recommendations.
Mr
Simelane had been appointed as the Deputy National Director of
Public Prosecutions a month and a half earlier.
18
This
appointment took place in the wake of Mr Pikoli’s dismissal
19
by the then President
20
and the settlement of a case brought by Mr Pikoli to challenge his
dismissal in terms of which Mr Pikoli agreed to be relieved
of his
position.
The
General Council of the Bar subsequently
21
began an investigation into Mr Simelane’s fitness as an
advocate arising at least out of Mr Simelane’s conduct

during the Ginwala Commission.
The
constitutional setting will be discussed in more detail later. But
to understand the judgment of the Supreme Court of Appeal,
it is
enough to say that the appointment was made by the President as
head of the National Executive in terms of the Constitution,
22
which requires national legislation to ensure that the National
Director is appropriately qualified. That national legislation
is
the Act and provides that the National Director must be a person
fit and proper for the job.
23
The
Supreme Court of Appeal
The
Supreme Court of Appeal considered that the President erred in four
respects and that these mistakes rendered the process
by which the
decision to appoint Mr Simelane had been taken and, consequently,
the decision itself irrational and invalid.
The first was that,
according to the President, he had firm views about Mr Simelane
being the right person to be appointed
the National Director even
before he had considered whether Mr Simelane was a fit and proper
person for the job. Second, the
President incorrectly reasoned that
the absence of evidence contradicting the idea that Mr Simelane was
a fit and proper person
for appointment justified the conclusion
that he was indeed a fit and proper person. The correct approach,
according to the
Supreme Court of Appeal, was for the President to
determine positively whether Mr Simelane was a fit and proper
person.
This the President did not do. Third, the President
disregarded the criticisms of Mr Simelane made by the Ginwala
Commission,
on the tenuous basis that the Commission had not been
appointed to investigate Mr Simelane, but Mr Pikoli. Last, the
recommendations
of the Public Service Commission that the Ginwala
Commission’s criticisms merited a disciplinary enquiry
against Mr Simelane
were too lightly brushed aside.
24
The
Supreme Court of Appeal was of the view that the fact that the
Ginwala Commission’s comments were not taken into account
was
in itself enough to set aside the appointment as irrational.
Submissions
in this Court
The
Minister reiterates the argument advanced in the Supreme Court of
Appeal that neither the Constitution nor the Act prescribes
any
procedure for the appointment of the National Director. This being
so, it was for the President to determine the process.
This he did,
so it is submitted. That process was described in the Minister’s
written argument as including an “
assessment
and evaluation of the qualities, strengths and weakness of the
person whom
the President had
identified for appointment.
”
(Emphasis
added.)
The Minister stresses that the
rationality requirement is not
onerous,
and submits that the test employed by the Supreme Court of Appeal
went beyond rationality, and amounted to an unauthorised
intrusion
into presidential and executive territory. The Supreme Court of
Appeal, says the Minister, applied the reasonableness
standard
appropriate for administrative action cases under PAJA,
25
instead of testing presidential executive action
by reference to rationality alone. According to the Minister a
court would,
on the application of the proper test, be entitled to
set aside the appointment only if it concluded that Mr Simelane was
not
a fit and proper person to have been appointed. Reliance is
also placed on the separation of powers requiring a more
deferential
approach. It is contended that the President has a
wide, subjective discretion in making the appointment and that it
should
be understood that the National Director is a political
appointee who has a substantial policy-related role as distinct
from
other Directors of Public Prosecutions.
The
Minister addresses directly only one of the findings of the Supreme
Court of Appeal set out earlier:
26
that the finding of the Court that the President
had firm views about the appointment of Mr Simelane before he
considered whether
Mr Simelane should be appointed is
incorrect. It is contended that the President said this after
having considered the
provisions of section 9(1)(b) in the process
of Mr Simelane’s appointment as Deputy National Director
of Public
Prosecutions. The only response by the Minister to the
other findings of the Supreme Court of Appeal is that the Court
glossed
over other indications that Mr Simelane was fit and proper
of which the Minister was aware. It is also asserted that the
Ginwala
Commission was not a court and that the Minister was right
that Mr Simelane should have had the opportunity to respond to
these
matters before adverse inferences were drawn against him.
Mr
Simelane broadly aligns himself with the Minister, clarifying
however that he was not a party to the process of his appointment.
The
Democratic Alliance supports the reasoning and conclusion of the
Supreme Court of Appeal concerning rationality. It contends
in
addition that the evidence showed that Mr Simelane was not a fit
and proper person to be appointed National Director, which
it
argues is an objective jurisdictional fact antecedent to
appointment, and that the President had an ulterior purpose in

appointing him. The Minister and Mr Simelane take issue with
these submissions too.
The
issues
It
is common cause, and rightly so, that the decision of the President
was an executive decision and that the decision had to
be rational.
The Democratic Alliance is of the view that it is
unnecessary to decide the question whether the decision by the
President constituted
executive or administrative action, because
even in terms of the former, rationality is a requirement under the
principle of
legality.
The issues this Court
must traverse, after setting out the constitutional and statutory
provisions that bear on the President’s
decision, are now
defined:
The
question whether the requirement that the National Director must
be a fit and proper person to be appointed to that position
is an
objective jurisdictional fact antecedent to appointment.
The requirements of
rationality concerned in particular with—
the distinction between
reasonableness and rationality and the relationship between
means and ends;
whether
the process as well as the ultimate decision must be rational;
the
consequences for rationality if relevant factors are ignored;
and
rationality
and the separation of powers.
An
investigation into whether the decision of the President to
appoint Mr Simelane was rational and, in particular, whether

the President’s failure to take into account the finding in
relation to and evidence of Mr Simelane in the Ginwala
Commission
was rationally related to the purpose for which the power to
appoint a National Director was conferred.
If
the decision is found to be rational in this sense then we must
evaluate whether—
the
evidence shows that Mr Simelane is a fit and proper person to be
appointed the National Director; and
the
President had an ulterior purpose in making the appointment.
A
conclusion that the appointment by the President of Mr Simelane as
National Director was irrational, in the sense that the means

employed to make the appointment were not rationally connected to
the purpose for which the power had been conferred upon the

President, would render it unnecessary to decide the issues in
sub-paragraph (d) above.
The
Constitution and the Act
The appointment of the National
Director is governed by section 179 of the Constitution and certain
provisions of the Act. I
set out those features that, in my view,
are material to our decision:
The Constitution demands a
single national prosecuting authority headed by a National
Director of Public Prosecutions appointed
by the President and
Directors of Public Prosecutions appointed in terms of an Act of
Parliament.
27
Section 10 of the Act requires the President to appoint the
National Director according to section 179 of the Constitution.
28
Section
179 obliges national legislation to ensure that Directors of
Public Prosecutions are appropriately qualified.
29
There was some suggestion, on the basis that section 179 makes a
continuous distinction between National Directors and other

Directors, that the Constitution does not require the National
Director to be appropriately qualified. I am prepared to accept

that the reference to Directors being appropriately qualified may
be construed as a reference to Directors of Public Prosecutions

and not the National Director. All this means is that the
requirement that the National Director must be appropriately

qualified is not expressly stated in section 179. This cannot mean
that the Constitution does not require the National Director
to be
appropriately qualified. That proposition, in my view, simply has
to be stated to be rejected. The Constitution by
necessary
implication requires the National Director to be appropriately
qualified.
Section
9 of the Act determines these qualifications.
30
For present purposes, the only relevant prescribed qualification
is that a person appointed as a Director of Public Prosecutions,

including the National Director, “must . . . 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.”
National
legislation is required to ensure that the prosecuting authority,
and this includes the National Director, performs
its functions
without fear, favour or prejudice.
31
The Act does this.
32
The
National Director has the power to institute criminal proceedings
on behalf of the State
33
and must determine prosecution policy after consultation with the
Directors of Public Prosecutions and with the concurrence
of the
Minister.
34
The National Director is also obliged to issue
35
and enforce
36
policy directives to be observed in the prosecution process and
has the power to review a decision whether to prosecute or
not.
37
These powers and duties are extensive and their proper exercise
and performance is crucial to the attainment of criminal
justice
in our country. And the attainment of an effective criminal
justice system is in turn vital to our democracy.
The
Constitution and the Act oblige the Minister to exercise final
responsibility over the prosecuting authority.
38
The Act also obliges the National Director to provide certain
information concerning prosecutions if the Minister requests
it.
39
The
President, the Minister and all other organs of state are not to
interfere improperly with, hinder or obstruct the prosecuting

authority.
40
Is
fitness and propriety an objective requirement?
The
Supreme Court of Appeal concluded that the President’s
decision was irrational irrespective of whether the decision
taken
by the President was subjective or whether the criteria for
appointment of the National Director were objective. It
nevertheless concluded, for the purpose of giving guidance, that
the requirement that the National Director must be a fit and
proper
person constituted a jurisdictional fact capable of objective
ascertainment. My approach is somewhat different. Questions
as to
whether and how the rationality requirement would apply if the
criteria were merely subjective are, to my mind, complex.
I
therefore think it is appropriate to determine first whether the
Supreme Court of Appeal was correct in concluding that the

requirements represented objective jurisdictional facts.
The
Minister and Mr Simelane contend that the President has a wide
discretion in the appointment of the National Director. It
follows,
so they submit, that it is for the President to make the decision –
which involves a value judgment –
and the requirement that
the person appointed “must be a fit and proper person with
due regard to his experience, conscientiousness
and integrity”
is thus not an objective one.
In
developing the point, the Minister places considerable emphasis on
the fact that the role of the prosecuting authority was
policy
driven and that the National Director was what was referred to in
argument as “a political appointee”. It
is true that
the National Director is appointed by the President. It does not
follow that this renders the incumbent of that
office “a
political appointee”. I endorse the statement in
Legal
Soldier
,
41
describing the office of the National Director as a “non-political
chief executive officer directly appointed by the
President”:
“
The
most important change brought about by s 179 . . . is that a single
national prosecuting post was created. Previously there
was a direct
link between the Minister of Justice and the various
Attorneys-General, whose activities such Minister coordinated
and to
whom they reported. What s 179 did was to slot the NDPP in between
the political head of the Department of Justice and
the officers at
the head of the provincial prosecutorial divisions. The effect of
the change was to gather the strands of the
country’s
prosecutorial services in the hands of one non-political chief
executive officer directly appointed by the President.”
42
The
Minister also relied on the following statement in
Geuking
:
43
“
The
President in deciding whether to consent to the surrender of a
person under s 3(2) must be free to take into account
any
matter considered relevant to what is a policy decision relating to
foreign affairs. It is not for the courts to determine
what matters
are appropriate or relevant for that purpose. The courts could
intervene only if the President were to abuse the
power vested in
him or use it in a manner contrary to the provisions of the
Constitution.”
44
(Footnote
omitted.)
Geuking
is not on point. It was concerned with a provision of the
Extradition Act
45
to the effect that the President has to consent to extradition
before it can validly take place. The Extradition Act lays down
no
criteria for the granting of the consent of the President.
The
present case is comparable with that part of
SARFU
46
in which this Court held, drawing on the Appellate Division,
47
that the requirement that a matter must be one of “public
concern” before the
Commissions Act
48
applies to it, is an objective one:
“
In
determining whether the subject-matter of the commission’s
investigation is indeed a ‘matter of public concern’,

the test to be applied is an objective one. The legally relevant
question is not whether the President thought that the
subject-matter
of the inquiry was a matter of public concern, but
whether it was objectively so at the time the decision was taken.
Whether
or not the matter is one of public concern is a question for
the courts to determine and not a matter to be decided by the
President
within his own discretion. In this context, the
Constitution requires that the notion of ‘public concern’
be interpreted
so as to promote the spirit, purport and objects of
the Bill of Rights and to underscore the democratic values of human
dignity,
equality and freedom. The purpose of the requirement that a
matter be one of public concern is, on the one hand, to protect the

interests of individuals by limiting the range of matters in respect
of which the President may confer powers of compulsion upon
a
commission and, on the other, to protect the interests of the public
by enabling effective investigation of matters that are
of public
concern.”
49
(Footnotes
omitted.)
For
the reasons stated above and for the reasons that follow, I agree
with the Supreme Court of Appeal that the requirement
is an
objective jurisdictional fact.
The
starting point is the Constitution itself. It requires that the
National Director must be appropriately qualified and leaves
it to
an Act of Parliament to determine the qualification in detail. The
Constitution does not, in its terms, leave the determination
of
appropriate qualification to the President. It obliges the
Legislature to ensure that the National Director is appropriately

qualified. The Legislature, in my view, had the obligation to
determine qualifications that must be present before an appointment

could be made.
Second,
and as the Supreme Court of Appeal correctly points out,
50
the Act itself does not say that the candidate for appointment as
National Director should be fit and proper “in the

President’s view”. The Legislature could easily have
done so if the purpose was to leave it in the complete discretion

of the President. Crucially, as the Supreme Court of Appeal again
pointed out, the section “is couched in imperative
terms. The
appointee ‘must’ be a fit and proper person.”
51
Third,
it is correct that the determination whether a candidate does
fulfil the fit and proper requirement stipulated by the
Act
involves a value judgment. But it does not follow from this that
the decision and evaluation lies within the sole and subjective

preserve of the President. Value judgments are involved in
virtually every decision any member of the Executive might make

where objective requirements are stipulated. It is true that there
may be differences of opinion in relation to whether or
not
objective criteria have been established or are present. This does
not mean that the decision becomes one of subjective
determination,
immune from objective scrutiny.
Another
factor that points to the criteria being objective is the statement
of this Court concerning the constitutional provision
that the
national prosecuting authority must perform its functions without
fear, favour or prejudice:
“
NT
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.”
52
A
construction that renders the determination of the qualification
criteria to the President’s subjective opinion is not
in
keeping with the constitutional guarantee of prosecutorial
independence. The interpretation that these requirements are

objective jurisdictional facts that must exist before the
appointment is made is more consistent with the constitutional
guarantee.
The
fifth relevant consideration is that the National Director can be
suspended by the President on the basis, amongst other
things, that
the person appointed is not a fit and proper person, and can be
removed from office by the President after a commission
of enquiry.
The President’s decision stands unless Parliament takes
another view.
53
If the President is the sole determinant of fitness and propriety,
then the spectre is raised of President A appointing someone
as
National Director on the subjective belief that the person
concerned is indeed fit and proper and President B suspending
or
removing that person from office in the subjective belief, equally
genuine, that the incumbent is neither fit nor proper.
Neither the
Constitution nor the Act could have contemplated that the position
of the National Director would be so vulnerable
to opinion.
The
final reason revolves around the importance of this portfolio in
the context of our democracy. It is true that the functions
of the
National Director are not judicial in character. Yet, the
determination of prosecution policy, the decision whether
or not to
prosecute and the duty to ensure that prosecution policy is
complied with are, as I have said earlier, fundamental
to our
democracy. The office must be non-political and non-partisan and is
closely related to the function of the judiciary
broadly to achieve
justice and is located at the core of delivering criminal justice.
54
Rationality
The
Minister and Mr Simelane accept that the “executive” is
“constrained by the principle that [it] may exercise
no power
and perform no function beyond that conferred . . . by law”
55
and that the power must not be misconstrued.
56
It is also accepted that the decision must be
rationally related to the purpose for which the power was
conferred.
57
Otherwise the exercise of the power would be
arbitrary and at odds with the Constitution.
58
I agree.
The
four issues concerning rationality mentioned earlier
59
nevertheless require brief exploration.
Reasonableness and rationality
It must be emphasised that it is useful to keep
the reasonableness test and that of rationality conceptually
distinct. Reasonableness
is generally concerned with the decision
itself. In the constitutional era reasonableness in the
administrative law context
has been authoritatively stated in
Bato
Star
:
60
“
In
determining the proper meaning of section 6(2)(h) of PAJA in the
light of the overall constitutional obligation upon administrative

decision-makers to act ‘reasonably’, the approach of
Lord Cooke provides sound guidance. Even if it may be thought
that
the language of section 6(2)(h), if taken literally, might set a
standard such that a decision would rarely if ever be found

unreasonable, that is not the proper constitutional meaning which
should be attached to the subsection. The subsection must be

construed consistently with the Constitution and in particular
section 33 which requires administrative action to be ‘reasonable’.

Section 6(2)(h) should then be understood to require a simple test,
namely that an administrative decision will be reviewable
if, in
Lord Cooke’s words, it is one that a reasonable decision-maker
could not reach.”
61
(Footnotes omitted.)
While
there may be some overlap between the reasonableness and
rationality evaluations, these tools are best understood as being

conceptually different. As was said in
Albutt
:
62
“
The
Executive has a wide discretion in selecting the means to achieve
its constitutionally permissible objectives. Courts
may not
interfere with the means selected simply because they do not like
them, or because there are other more appropriate means
that could
have been selected. But, where the decision is challenged on the
grounds of rationality, courts are obliged to examine
the means
selected to determine whether they are rationally related to the
objective sought to be achieved. What must be stressed
is that the
purpose of the enquiry is to determine not whether there are other
means that could have been used, but whether the
means selected are
rationally related to the objective sought to be achieved. And if,
objectively speaking, they are not, they
fall short of the standard
demanded by the Constitution.”
63
It was held in that case that the means employed in the process of
determining whether the President should pardon people who
had been
convicted of certain offences, namely not to give victims or their
families an opportunity to be heard, was not rationally
related to
the purpose of determining whether pardons should be granted.
64
On the other hand, it was held in
Poverty Alleviation
65
that the test laid down in
Merafong
66
should be applied, and that the legislation aimed at transferring a
part of Matatiele from the province of KwaZulu-Natal to
the
province of the Eastern Cape was “rationally connected to a
legitimate governmental end.”
67
In other words, the means employed, namely the transfer of a part
of Matatiele from one province to another, was rationally
related
to the purpose of improving conditions for the residents of that
part of Matatiele on the basis that the governmental
purpose could
be achieved in more than one way and that it was not for the Court
to decide which way was better. The decision
in
Albutt
was
not concerned with the evaluation of two different methods of
achieving the purpose but with whether not giving the victims
or
their families the opportunity to be heard was rationally concerned
with the governmental purpose in issue in that case.
68
The
reasoning in these cases shows that rationality review is really
concerned with the evaluation of a relationship between
means and
ends: the relationship, connection or link (as it is variously
referred to) between the means employed to achieve
a particular
purpose on the one hand and the purpose or end itself. The aim of
the evaluation of the relationship is not to
determine whether some
means will achieve the purpose better than others but only whether
the means employed are rationally
related to the purpose for which
the power was conferred. Once there is a rational relationship, an
executive decision of the
kind with which we are here concerned is
constitutional.
Decision or process?
The Democratic Alliance submitted that the
irrationality ground covers irrationality in process as well as on
the merits. The
Minister and Mr Simelane did not appear fervently
to embrace this proposition but did not advance any cogent
alternative submission
against it.
Chonco
1
,
69
concerned with the power of the President, as
Head of State, to grant pardons under the Constitution,
70
elucidated the rationality requirement in the
process of granting pardons:
“
In
SARFU
,
this court, affirming
Hugo
,
held that the powers s 84(2) confers on the President as Head of
State originate historically from the royal prerogative and
were
exercised by the Head of State rather than the head of the national
executive. The powers granted by sj 84(2) are now clearly
original
constitutional powers. Section 84(2)(j) is the source of the power,
function and obligation to decide upon applications
for pardon.
Though there is no right to be pardoned, the function conferred on
the President to make a decision entails a corresponding
right to
have a pardon application considered and decided upon rationally, in
good faith, in accordance with the principle of
legality, diligently
and without delay. That decision rests solely with the President.”
71
(Footnotes omitted.)
It
follows that both the process by which the decision is made and the
decision itself must be rational.
Albutt
is authority for the same
proposition.
72
The means there were found not to be rationally
related to the purpose because the procedure by which the decision
was taken
did not provide an opportunity for victims or their
family members to be heard.
Mr
Simelane points out that this case is not concerned with pardons.
He argues further that cases involving pardons are distinguishable

from the present case.
73
While I agree that this case is not concerned
with pardons, there is no basis for the suggestion that the
proposition in
Albutt
that
decisions by the President as Head of State should be rational both
in process and in the final decision should not apply
here. It is
true that the decision by the President in this case was made as
head of the National Executive. It is illogical
to suggest that
while decisions by the President as Head of State must be rational
in process and outcome, decisions of the
President as head of the
National Executive should be rational only in outcome and not in so
far as they relate to the process.
The
conclusion that the process must also be rational in that it must
be rationally related to the achievement of the purpose
for which
the power is conferred, is inescapable and an inevitable
consequence of the understanding that rationality review
is an
evaluation of the relationship between means and ends. The means
for achieving the purpose for which the power was conferred
must
include everything that is done to achieve the purpose. Not only
the decision employed to achieve the purpose, but also
everything
done in the process of taking that decision, constitute means
towards the attainment of the purpose for which the
power was
conferred.
This
conclusion addresses the differences that emerged in argument on
whether the decision needs to be rational or whether the
process
resulting in the decision should also have been rational for an
executive decision to stand. A related question, if
the process is
to be rationally related to the purpose for which the power has
been conferred, is whether each step in the
process must be so
rationally related. The parties were ultimately in agreement that,
while each and every step in the process
resulting in the decision
need not be rationally viewed in isolation, the rationality of the
steps taken have implications
for whether the ultimate executive
decision is rational. In my view, the decision of the President as
Head of the National
Executive can be successfully challenged only
if a step in the process bears no rational relation to the purpose
for which
the power is conferred and the absence of this connection
colours the process as a whole and hence the ultimate decision with

irrationality. We must look at the process as a whole and determine
whether the steps in the process were rationally related
to the end
sought to be achieved and, if not, whether the absence of a
connection between a particular step (part of the means)
is so
unrelated to the end as to taint the whole process with
irrationality.
Rationality
and ignoring relevant factors
The
Supreme Court of Appeal held that the President, by not taking into
account the findings of the Ginwala Commission, ignored
a relevant
factor. This formulation takes us to the question of whether the
seminal statement in
Johannesburg
Stock Exchange
74
concerning administrative action in the
pre-constitutional era is at all relevant to the rationality
evaluation:
“
Broadly,
in order to establish review grounds it must be shown that the
president failed to apply his mind to the relevant issues
in
accordance with the ‘behests of the statute and the tenets of
natural justice’ (see
National
Transport Commission and Another v Chetty’s Motor Transport
(Pty) Ltd
1972
(3) SA 726
(A) at 735F–G;
Johannesburg
Local Road Transportation Board and Others v David Morton Transport
(Pty) Ltd
1976
(1) SA 887
(A) at 895B–C;
Theron
en Andere v Ring van Wellington van die NG Sendingkerk in
Suid-Afrika en Andere
1976
(2) SA 1
(A) at 14F–G). Such failure may be shown by proof,
inter
alia
,
that the decision was arrived at arbitrarily or capriciously or
mala
fide
or
as a result of unwarranted adherence to a fixed principle or in
order to further an ulterior or improper purpose; or that the

president misconceived the nature of the discretion conferred upon
him and took into account irrelevant considerations or ignored

relevant ones; or that the decision of the president was so grossly
unreasonable as to warrant the inference that he had failed
to apply
his mind to the matter in the manner aforestated.”
75
This
Court in
SARFU
said
that “
the exercise of the
President’s constitutional power to appoint a commission of
enquiry is not directly governed by the
principle in the
Johannesburg Stock Exchange
case.”
76
It follows that this principle would not
directly govern the President’s power to appoint the National
Director either.
That is not to say that ignoring relevant factors
can have nothing to do with rationality. If in the circumstances of
a case,
there is a failure to take into account relevant material
that failure would constitute part of the means to achieve the
purpose
for which the power was conferred. And if that failure had
an impact on the rationality of the entire process, then the final

decision may be rendered irrational and invalid by the
irrationality of the process as a whole. There is therefore a three

stage enquiry to be made when a court is faced with an executive
decision where certain factors were ignored. The first is
whether
the factors ignored are relevant; the second requires us to
consider whether the failure to consider the material concerned

(the means) is rationally related to the purpose for which the
power was conferred; and the third, which arises only if the
answer
to the second stage of the enquiry is negative, is whether ignoring
relevant facts is of a kind that colours the entire
process with
irrationality and thus renders the final decision irrational.
I
must explain here that there may rarely be circumstances in which
the facts ignored may be strictly relevant but ignoring
these facts
would not render the entire decision irrational in the sense that
the means might nevertheless bear a rational
link to the end sought
to be achieved. A decision to ignore relevant material that does
not render the final decision irrational
is of no consequence to
the validity of the executive decision. It also follows that if the
failure to take into account relevant
material is inconsistent with
the purpose for which the power was conferred, there can be no
rational relationship between
the means employed and the purpose.
Rationality
and the separation of powers
I
must next address a content
ion that this
Court’s upholding of the decision of the Supreme Court of
Appeal that the decision of the President was
irrational would
amount to a violation of the principle of the separation of powers
.
The rule that executive decisions may be set
aside only if they are irrational and may not ordinarily be set
aside because they
are merely unreasonable or procedurally unfair
has been adopted precisely to ensure that the principle of the
separation of
powers is respected and given full effect.
77
If executive de
cisions
are too easily set aside, the danger of courts crossing boundaries
into the executive sphere would loom large. As O’Regan
J
helpfully explained:
“
A
central principle of the United States jurisprudence has been to
impose different levels of scrutiny on different categories
of
legislative classification. The most stringent level of scrutiny is
reserved for classifications based on race or nationality,
or those
that invade fundamental rights. Such classifications are almost
inevitably considered to be a breach of the Fourteenth
Amendment. An
intermediate level of scrutiny is applied to classifications
concerning gender or socio-economic rights. The third
level of
scrutiny requires merely that a classification be shown to have a
rational relationship to the legislative purpose.”
78
It
is evident that a rationality standard by its very nature
prescribes the lowest possible threshold for the validity of

executive decisions: it has been described by this Court as the
“minimum threshold
requirement applicable to the
exercise of all public power by members of the Executive and other
functionaries”
.
79
And the rationale for this test is “
to
achieve a proper balance between the role of the legislature on the
one hand, and the role of the courts on the other.”
80
And
Affordable Medicines
said:
“
The
rational basis test involves restraint on the part of the Court. It
respects the respective roles of the courts and the Legislature.
In
the exercise of its legislative powers, the Legislature has the
widest possible latitude within the limits of the Constitution.
In
the exercise of their power to review legislation, courts should
strive to preserve to the Legislature its rightful role in
a
democratic society.”
81
This
applies equally to executive decisions.
It
is therefore difficult to conceive how the separation of powers can
be said to be undermined by the rationality enquiry.
The only
possible connection might be that rationality has a different
meaning and content if separation of powers is involved
than
otherwise. In other words, the question whether the means adopted
are rationally related to the ends in executive decision-making

cases somehow involves a lower threshold than in relation to
precisely the same decision involving the same process in the

administrative context. This is wrong. Rationality does not
conceive of differing thresholds. It cannot be suggested that a

decision that would be irrational in an administrative law setting
might mutate into a rational decision if the decision being

evaluated was an executive one. The separation of powers has
nothing to do with whether a decision is rational. In these

circumstances, the principle of separation of powers is not of
particular import in this case. Either the decision is rational
or
it is not.
It
is now possible to consider the crux of this case to decide whether
the President acted rationally in appointing Mr Simelane
as the
National Director and whether the President’s failure to take
into account the findings in relation to, and the
evidence of, Mr
Simelane in the Ginwala Commission was rationally related to the
purpose for which the power was conferred.
Did
the President act rationally?
The
Democratic Alliance relied mainly on the findings of the Ginwala
Commission and the evidence given by Mr Simelane at that
enquiry as
the basis for the submission that the President did not act
rationally. The conclusions of the Ginwala Commission
on Mr
Simelane’s evidence and the evidence itself raised questions
that threw so much doubt on Mr Simelane’s credibility
and
integrity, so the argument went, that it rendered the appointment
irrational.
The
President relied on Mr Simelane’s curriculum vitae, which
indicated broadly that he had been the Competition Commissioner
for
a period of a little more than 5 years
82
and that he had been Director-General for a period of a little more
than 4 years.
83
He also relied on his personal knowledge of Mr Simelane’s
personal and professional qualities, though we do not have
much
detail about the precise contours of this knowledge. The President
also relied on the advice of the Minister to the effect
that from
the Minister’s personal knowledge of Mr Simelane he was a fit
and proper person to be appointed National Director.
The Minister,
who was familiar with both the Ginwala Commission and the Public
Service Commission recommendations, advised
the President, in
effect, that there was no need for him to interrogate these
documents and that he would advise that Mr Simelane
be appointed,
despite the recommendations made by the Ginwala Commission and the
Public Service Commission. The basis on which
the advice was given
will be evaluated later in this judgment.
The
report of Mr Simelane’s evidence in the Ginwala Commission
and the question of whether the President was right in
not taking
it into account can properly be considered if we have in mind the
purpose for which the power was conferred.
The purpose of the power
The provisions of the Constitution and the Act must be taken
together to determine the purpose for which the power was
conferred.
It is evident that the purpose of the conferral of the
power upon the President was to ensure that the person appointed as

National Director is sufficiently conscientious and has the
integrity required to be entrusted with the responsibilities of the

office. In particular, to ensure that—
the
prosecuting authority performs its functions honestly and without
fear, favour or prejudice;
decisions
to institute criminal prosecution are taken honestly, fairly and
without fear, favour or prejudice;
prosecution
policy is determined honestly and is appropriate to the needs of
our country;
the
criminal justice system in so far as it concerns prosecutions is
fairly administered;
any
improper interference, hindrance or obstruction of the prosecuting
authority by any organ of state is not tolerated; and
all
Directors of Public Prosecutions carry out their functions
honestly and fairly.
84
It is
obvious that dishonesty is inconsistent with the hallmarks of
conscientiousness and integrity that are essential prerequisites
to
the proper execution of the responsibilities of a National Director.
The
Ginwala Commission findings
In
the executive summary of the Ginwala report,
85
Dr Ginwala said of Mr Simelane:
“
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.”
86
In
the report of the Ginwala Commission itself, Dr Ginwala said of
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 agreement 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
the DG: Justice’s
disregard and lack of appreciation and
respect for the import for an Enquiry established by the
President.”
87
These
extracts from the report of the Ginwala Commission ought to have
been cause for great concern. Indeed, these comments
represented
brightly flashing red lights warning of impending danger to any
person involved in the process of Mr Simelane’s

appointment to the position of National Director. Any failure to
take into account these comments, or any decision to ignore
them
and to proceed with Mr Simelane’s appointment without
more, would not be rationally related to the purpose
of the power,
that is, to appoint a person with sufficient conscientiousness and
credibility. The Minister did in fact study
the Ginwala Commission
Report to the extent that it related to Mr Simelane before advising
the President. He also studied the
report of the Public Service
Commission
88
and representations that had been made to him by Mr Simelane’s
legal team in relation to that report. We must also look
at
Mr Simelane’s evidence at the enquiry, the Public
Service Commission’s recommendations and, to some extent,
the
representations made by Mr Simelane’s legal team, in order to
determine whether the President acted rightly in not
taking the
evidence before the Commission into account.
Ginwala
Commission: Mr Simelane’s evidence
The
Democratic Alliance relies specifically on four aspects of the
evidence of Mr Simelane:
Mr
Simelane’s failure to disclose a letter that had been
drafted by him and sent by the Minister consequent upon a letter

received by the Minister from the then President
89
(to Mr Pikoli) together with Mr Simelane’s evidence relating
to the contents of the letter he had drafted;
Mr
Simelane’s failure to disclose the former President’s
letter to Mr Pikoli’s attorneys in response to
their request
for certain documents;
Mr
Simelane’s failure to disclose a legal opinion that had been
obtained by him and which was adverse to his opinion
concerning
the relationship between the National Director and the
Director-General.
Mr
Simelane’s evidence accusing Mr Pikoli of dishonesty.
The non-disclosure and content of Minister Mabandla’s
letter
During
the week immediately before Mr Pikoli’s suspension, President
Mbeki wrote a letter (the former President’s
letter) to the
then Minister
90
requiring her to obtain certain information from Mr Pikoli
concerning the intended arrest and prosecution of Mr J Selebi

who was, at the time, the National Commissioner of the South
African Police Service. The letter in relevant part reads:
“
In
view of the constitutional responsibilities of the President with
regard to the Office of the National Commissioner of the
police
service, I deem it appropriate that you obtain the necessary
information from the National Director of Public Prosecution

regarding the intended arrest and prosecution of the National
Commissioner. This would enable me to take such informed decisions

as may be necessary with regard to the National Commissioner.”
It is
apparent that the President’s request was one for further
information and did not request Minister Mabandla to give
any
instructions to the prosecuting authority in relation to the arrest
or prosecution of Mr Selebi.
It
is common cause that Mr Simelane drafted Minister Mabandla’s
letter to Mr Pikoli consequent upon the former President’s

letter. The salient parts of the letter read:
“
[I]n
order for me to exercise my responsibilities as required by the
Constitution, I require all of the information on which you
relied
to take the legal steps to effect the arrest of and the preference
of charges against the National Commissioner of the
police service.
This includes but is not limited to specific information or evidence
indicating the direct involvement of the
National Commissioner in
any activity that constitutes a crime in terms of the laws of South
Africa. In pursuing your intended
course of action and any
prosecution, the NPA must do so in the public interest
notwithstanding a prima facie case. Such exercise
of discretion
requires that all factors be taken into account including the public
interest. Therefore, I must be satisfied that
indeed the public
interest will be served should you go ahead with your intended
course of action. Until I have satisfied myself
that sufficient
information and evidence does exist for the arrest of and preference
of charges against the National Commissioner
of the police service,
you shall not pursue the route that you have taken steps to pursue.”
There
is no dispute that this letter was not disclosed to the Ginwala
Commission. It is transparent that the letter, seen in
isolation,
can be nothing but conduct by Minister Mabandla amounting to
improper interference with, as well as hindrance and
obstruction
of, the National Director of Public Prosecutions in the exercise,
carrying out or performance of his powers, duties
and functions.
91
Mr
Pikoli replied to this part of the letter in the following terms:
“
Finally
your letter may be construed as an instruction to the NPA not to
proceed with the arrest and preferring of charges against
Mr Selebi
until you have satisfied yourself that sufficient information and
evidence exist to warrant such steps, and that such
a prosecution
would be in the public interest. I wish to point out respectfully
that if indeed it were an instruction, it would
be unlawful, it
would place me in a position where I would have to act in breach of
the oath of office I took”.
This
reply too was not disclosed. It must be remembered that one of the
issues pertinent to the Ginwala Commission was whether
there had
been any interference in contravention of section 32(1)(b) of the
Act. It was in this context that Mr Simelane’s
evidence
concerning the non-disclosure and content must be understood.
Two
aspects of the evidence are relevant here:
His
evidence surrounding the non-disclosure of the document is
absorbing indeed:
“
Adv
Trengove: Did you know about the minister’s letter of 18
th
September 2007 instructing Mr Pikoli not [to] proceed with the
arrest and prosecution until she was satisfied that it was in
the
public interest? Did you know about that?
Adv Simelane: Yes.
Adv Trengove: And did you know
that the letter and instruction was given on the 18
th
of
September . . . did you know that?
Adv Simelane: Yes.
Adv Trengove: And did you know
that Mr Pikoli refused to comply with that instruction?
Adv Simelane: Yes I remember
his response, yes I think I read it once.
Adv Trengove: And do you know
that he contended that if indeed it was such an instruction, that it
would be unconstitutional?
Adv Simelane: Yes I recall that
from his response.
Adv Trengove: Why didn’t
you disclose these events in the government’s papers?
Adv Simelane: Because these are
the details that wasn’t necessary to disclose, because what
was taken into account was not
the reason why Mr Pikoli was
insistent on proceeding in the manner that he had intended to
proceed. What was at issue was the
manner in which he proposed to do
it, having regard to the representations that had been made earlier
that Rev Chikane also spoke
to and what implications for national
security would be there if it was pursued in the manner that he had
intended at that time.
Adv Trengove: Are you
suggesting that these events were not relevant to the suspension of
Mr Pikoli?
Adv Simelane: No.
Adv Trengove: No what?
Adv Simelane: I am not
suggesting that these events were irrelevant for the suspension of
Pikoli.
Adv Trengove: Sorry you have a
double negative in there which makes your answer ambiguous. Are you
saying that these events were
irrelevant or they were relevant?
Adv Simelane: I am not saying
they were irrelevant.
Adv Trengove: You are not
saying they were irrelevant. Do you concede they were relevant to
his suspension?
Adv Simelane: They were
considered and they were part of it, so they would be relevant.
Adv Trengove: Do you concede
that they were highly relevant?
Adv Simelane: They were
relevant and they were considered in that context.
Adv Trengove: Do you concede
that they were highly relevant?
Adv Simelane: I am not sure
whether it makes a difference if they were highly, or very highly or
very very highly.
Adv Trengove: Which adjective
would you use?
Adv Simelane: They were
important.
Adv Trengove: Important, but
not disclosed.
. . .
Adv Trengove: I want to suggest
to you that an honest preparation of the government’s papers
would have disclosed the letter
and Mr Pikoli’s refusal to
obey the unlawful instruction a mere four days before his
suspension.
Adv Simelane: I disagree and I
object to the suggestion that the preparation of government’s
submission may have been dishonest
or was dishonest. It was honest
in its preparation and we, in its preparation we did not leave out
that which we believed needed
to be put there. This was part of the
context in which that submission was prepared. So there is nothing
dishonest that went
into that preparation. That would be my
submission.”
The
evidence concerning content, too, is interesting:
“
Adv
Trengove: Important but not disclosed.
Adv Simelane: Because they
constituted part of the detail of what was, or were the main
reasons. And one of which linked to that
was the issue of national
security.
Adv Trengove: They weren’t
part of the detail. They were an unconstitutional and unlawful
attempt to interfere with the
performance by Mr Pikoli of his
constitutional duty.
Adv Simelane: Those are your
instructions, I disagree.
Adv Trengove: I beg your
pardon.
Adv Simelane: I am saying those
are your instructions, I disagree.
Adv Trengove: I see. Why do you
disagree? Was it a lawful instruction given by the minister?
Adv Simelane: The instruction,
if you say that was an instruction, to me it was not saying Mr
Pikoli cannot carry out what he
wanted to do. So I don’t read,
I don’t recall the letter like that.
Adv Trengove: Well let me read
you the critical sentence . . . :
‘
I
must be satisfied that indeed the public interest will be served
should you go ahead with your intended course of action. Until
I
have satisfied myself that sufficient information and evidence does
exist for the arrest of and preference of charges against
National
Commissioner of Police Service, you shall not pursue the route have
taken steps to pursue.’
Is that not an instruction to
stop the proposed arrest and prosecution of Mr Selebi?
Adv Simelane: No I don’t
read it like that because I read it in the context . . .
(intervenes)
Adv Trengove: You don’t
like it?
Adv Simelane: No I said I don’t
read it like that.
Adv Trengove: I see.
Adv Simelane: Yes.
Adv Trengove: How did you read
it, as a request?
Adv Simelane: Well, I read it
contextually, contextually in that it’s a letter that asked
for a report first so that the
minister could then advise the
president in exercise of her responsibilities over this institution
and therefore she was then
saying until Mr Pikoli then gives that
report which she had requested, he shouldn’t pursue that route
that he intended
to take.
Adv Trengove: Whatever her
justification for it, it was an instruction not to go ahead,
correct?
Adv Simelane: Until he gave
that report yes.
Adv Trengove: No, not until he
gave that report, until she was satisfied there was enough evidence
. . . (intervenes)
Adv Simelane: Because she would
be satisfied when she receives a report with the necessary
information from Mr Pikoli, that’s
what she asked for.
Adv Trengove: No, no, she
demanded the information, but said: You stop your intended arrest
and prosecution until I am satisfied
that there is enough evidence
for you to go ahead. That is an arrogation of a constitutional
function that belongs to Mr Pikoli,
correct?
Adv Simelane: No I don’t
read it to say that he, Mr Pikoli couldn’t carry through what
he wanted to do. I don’t
read it the way you are reading it.
Adv Trengove: Why did you not
disclose this letter to this commission?
Adv Simelane: Because this
letter together with the point on which you have questioned me I
have said were part of the issue of
national security that had to be
considered.”
I
have already said that Minister Mabandla’s letter appears to
constitute a contravention of the Act as an improper interference

with the prosecuting authority. Mr Simelane’s attempt to
explain its content and justify his own draft is revealing.
If
he did understand what he drafted he should have known that, at the
very least, the letter was capable of the construction
that it
constituted improper interference and if he did not begin to see
this possibility the question whether he would resist
interference
by others requires some explanation and answer. It is probable that
he did indeed understand what he drafted.
Mr
Simelane, having conceded that the letter was both relevant and
important, found himself driven to irrelevancies in the attempt
to
explain the failure to disclose it. These extracts reflect on Mr
Simelane’s credibility and conscientiousness. They
are
material. Any decision by any person aware of this evidence to
ignore it in the decision-making process involving Mr Simelane’s

credibility would have been, on the face of it and in the absence
of any explanation from that person, irrational. In other
words,
not taking the evidence into account was not, on the face of it,
rationally related to the purpose of appointing a National

Director, sufficiently conscientious and credible to resist
interference with his office.
Almost
all this evidence was also in the Public Service Commission Report.
The Minister says he evaluated this report in the
light of the
criticisms made of it by Mr Simelane’s lawyers. In fact, he
considered it carefully and came to the conclusion
that no
disciplinary enquiry should be instituted. He must have been aware
of this evidence but decided to ignore it and to
advise the
President to ignore it.
Failure
to disclose the then President’s letter
About
a month after Mr Pikoli’s suspension
92
his attorney wrote a letter to Mr Simelane, Minister Mabandla
and to the Presidency requesting certain information. The
letter,
to the extent relevant, reads:
“
One
of the issues in the inquiry is whether the President or anybody in
the Presidency, the Minister of Justice or anybody in
her Ministry
or you or anybody in your Department interfered with the NPA’s
investigation and prosecution of the National
Commissioner of Police
Mr Selebi. Adv Pikoli informs us that there was such interference in
the immediate run up to his suspension
on 23 September 2007. . . .
May we please have copies of all communications and other documents
relating to the
investigation and prosecution of Mr Selebi which you
or your Department may have sent to or received from the President
or anybody
in the Presidency at any time since 15 September, the
Minister of Justice or anybody in her Ministry at any time since 15
September
. . .”
The
former President’s letter of 17 September 2007 was not
disclosed. We would do well to examine Mr Simelane’s
evidence
under cross-examination:
“
Adv
Trengove: . . . if I may just pick it up in the opening sentence in
paragraph 3:
‘
May
we please have copies of all communications and documents relating
to the investigation and prosecution of Mr Selebi which
you or your
office sent to or received from the president or anybody in The
Presidency at any time since 15 September 2007.’
Do you see that?
Adv Simelane: Yes.
Adv Trengove: That squarely
covered the president’s letter to the minister of 17 September
2007, correct?
Adv Simelane: Yes if you
mention that letter yes.
Adv Trengove: Now let’s
go then to your response to that letter . . . ?
Adv Simelane: Yes.
Adv Trengove: It’s your
response, it’s dated the 1
st
November and it is
addressed to Mr Moosajee of Deneys Reitz. . . .
. . .
Adv Trengove: . . . Then you go
on in the next paragraph:
‘
We
are not in possession of any documents relating to the investigation
of the National Commissioner of Police, save for reports
prepared by
your client. Our information is that the investigation against the
national commissioner is ongoing.’
Was that statement true?
Adv Simelane: My understanding
is that the investigation was ongoing.
Adv Trengove: Why do you ignore
the critical part of this statement? You denied that you were in
possession . . . of any of the
documents requested of you, correct?
Adv Simelane: Well save for the
reports that were submitted yes.
Adv Trengove: Yes. Why did you
not disclose the president’s letter to the minister which was
specifically sought?
Adv Simelane: Well I wasn’t
informed about the letter, I became aware of the letter much later.
. . .
Adv Trengove:
I
still don’t have it. I understand that you say you haven’t
seen the president’s letter. Is my understanding
also correct
that you say you had heard about that letter however?
Adv Simelane: Yes because the
minister, yes had received the letter.
Adv Trengove: Now then why
didn’t you disclose it?
Adv Simelane: Well the way we,
the way I read the request and understood the request, it was for
any information that related
to this investigation. I didn’t
read the president’s letter to be one of those that they
requested.
Adv Trengove: I see. So you
thought about the president’s letter but concluded that it
wasn’t covered by the request?
Adv Simelane: No, I mean I was
aware of it as I said, I heard that it was there.
Adv Trengove: Yes.
Adv Simelane: But I focused on
the previous correspondence and the reports that were sent. Hence I
drafted the letter in this
way, because I read the request from the
attorneys to be requiring that only.
Adv Trengove: Are you saying
that you thought the president’s letter fell outside the
request?
Adv Simelane: Yes I didn’t
read it to fall within this particular request.
Adv Trengove: Well, why don’t
you go back to the request of the minister . . .
‘
May
we please have copies of all communications and other documents
relating to the investigation and prosecution of Mr Selebi,
which
you or your office sent to or received from the president.’
How can there be any ambiguity
about its meaning?
Adv Simelane: I think we read
this narrowly. I didn’t read it to include this.
Adv Trengove: No, no you can’t
read it honestly and believe that the president’s letter falls
outside of it.
Adv Simelane: No I didn’t
read it to include.
Adv Trengove: I beg your
pardon?
Adv Simelane: I didn’t
read it to, I didn’t understand it to fall into this.
Adv Trengove: How did you
understand it so as to exclude the letter from the president?
Adv Simelane: No I didn’t
read the request to be including in its ambit a letter of that type
from the president, that’s
why I would not have . . .
(intervenes)
Adv Trengove: But the request
is very simple, it says to the minister: Minister, did you receive
any communication from the president
concerning the Selebi
investigation at any time after 15 September. Now how can there be
any doubt about the fact that the president’s
letter fell
squarely within the terms of that request?
Adv Simelane: Look I didn’t
read it to be requiring a letter like that. So if you are saying in
your view it should have
been included, I can understand that
interpretation.
Adv Trengove: My view is
irrelevant, but we are going to submit to this inquiry that the
concealment of that letter could only
have been dishonest. Do you
have any response to it?
Adv Simelane: No I don’t
think so, because we have sought to explain to this inquiry why it
was felt that that letter need
not be disclosed.
. . .
Adv Trengove: No, this has got
nothing to do with permission, this has got to do with honesty and
dishonesty. You said: We have
no such a document in our possession.
And I want to know who decided to tell that lie, you or the
minister?
Adv Simelane: We didn’t,
I don’t think it is a lie, because . . . (intervenes).
.
. .
Adv Simelane: I think as I said
I was aware that the minister had received a letter from the
president, because she mentioned
it. So I was aware of the letter
but I hadn’t seen the letter.
Adv Trengove: Won’t you
just answer my question though?
Adv Simelane: I don’t
understand, that the letter was privileged. We had always had that
view that the letter was privileged.
Adv Trengove: And is that why
you denied that you had it?
Adv Simelane: No we didn’t,
we didn’t deny that the letter was there, we didn’t make
reference to it in our
response, as I said because I didn’t
understand the request to be inclusive of that particular letter.
Adv Trengove: You see because I
want to suggest to you that if privilege was your issue or excuse,
then the honest response would
have been: Yes we have correspondence
from The Presidency, but we refuse to give it to you because it is
privileged. That would
have been the honest response. It is not
honest to say we don’t have anything of the kind. Do you
understand that?
Adv Simelane: Yes I think we
could have, if I had instructions to make reference to the letter
and it was given to me, I would
have then made reference to it.”
After
some cross-examination, Mr Simelane conceded without qualification
that the request by Mr Pikoli’s lawyers squarely
covered the
letter of the then-President to Minister Mabandla. But then the
trouble began. According to the record, Mr Simelane
tried to evade
the question whether the statement that the Presidency, the then
Minister and Mr Simelane himself were “not
in possession of
any documents relating to the investigation of the National
Commissioner of Police” was true. He then
said that the
statement was true. When pertinently asked why the letter had not
been disclosed he said variously that the letter
had not been
disclosed because he became aware of the letter much later, that he
was aware of the letter but thought it was
not covered by the
request, that he had known about the letter but had focused on the
previous correspondence and reports that
had been sent, that he
considered the letter to be a privileged document, that he had no
instructions to make reference to
the letter (presumably from
Minister Mabandla) and, most importantly, that he did not “read”
the President’s
letter to be one of those that had been
requested. The last reason necessarily implies that he in fact read
the former President’s
letter.
All
these statements cannot be true. If he read the letter, he must
have known about it and if he knew about it he could not
say he got
to know about it much later. If he did not know about the letter,
he could not have read it, could not have thought
that it was
privileged, could not have focused on something else and could not
have been waiting for instructions.
93
It is inconceivable that the former President’s letter was
not in his possession when he drafted the follow up letter
to Mr
Pikoli, on behalf of himself, Minister Mabandla and the Presidency,
presumably on instruction from Minister Mabandla.
We
must remember that Mr Simelane wrote this letter to the attorney
saying that there was no relevant document in his possession
more
than a month after he had drafted the letter that had been sent to
Mr Pikoli consequent upon the former President’s
letter.
94
Either Mr Simelane drafted the response on behalf of
Minister Mabandla without reading the former President’s

letter or he had it in his possession and read it. If he did not
have the letter when he wrote the reply, this raises serious

questions about his conscientiousness. If he did indeed have the
letter, sharp questions about his dishonesty rear their heads.
On
the face of it, the contradictions reflect on Mr Simelane’s
credibility, integrity and conscientiousness. They were
and remain
material. Any decision, by any person aware of this evidence, to
ignore it in the decision-making process involving
Mr Simelane’s
credibility would have been, on the face of it and in the absence
of any explanation from that person,
not rationally related to the
purpose for which the power was conferred.
All
but an irrelevant three and a half lines of this evidence was in
the Public Service Commission Report. The Minister evaluated
this
report in the light of the criticisms made of it by Mr Simelane’s
lawyers. Indeed he studied it carefully and decided
that the
disciplinary enquiry recommended by the Public Service Commission
should not be instituted. He must have been aware
of this evidence
but decided to ignore it and to advise the President to ignore it.
Absent any sound explanation, a decision
to ignore this evidence or
the failure to take it into account would be irrational in the
sense of not being rationally connected
to the purpose for which
the power was conferred.
Failure
to disclose legal opinion
It
is common cause that Mr Simelane obtained a legal opinion that was
to some extent adverse to his view on the relative roles
of the
National Director and the Director-General. His evidence on this
score and his disclosure only during cross-examination
of the fact
that he had secured that legal opinion is illuminating:
“
Adv
Trengove:
I
want to turn to a different topic and that is the difference of
opinion that existed between yourself and Mr Pikoli about your
role
in the NPA. You are acquainted with that topic, is that correct?
Adv Simelane: Yes.
Adv Trengove: And you are aware
of the fact that part of the complaint against Mr Pikoli is
based on your evidence to the
effect that he did not permit you to
play the role in the NPA that you believed you were entitled and
obliged to do.
Adv Simelane: Yes.
Adv Trengove: Correct. There
was a difference of opinion between yourself and Mr Pikoli. Mr
Pikoli’s opinion was that
he alone had the final say in the
management of the NPA. Is that correct? I am not sure that your
microphone is switched on,
could you perhaps check?
Adv Simelane: Yes that was his
opinion.
Adv Trengove: And in fact he
insisted that the constitutional independence of the prosecuting
service required that to be so,
correct?
Adv Simelane: Yes in respect of
prosecutorial decisions, yes that’s what he said.
. . .
Adv Trengove: That was your
opinion that you are the accounting officer and in that capacity
that you have all the powers and
duties of the PFMA, Public Finance
Management Act, Sections 38 to 43 confer on an accounting officer,
is that correct?
Adv Simelane: Yes that’s
my argument.
. . .
Adv Trengove: You say in
paragraph 13 [in your supplementary affidavit] that part 2 of the
PFMA, comprising Sections 38 to 43,
deals with the responsibilities
of accounting officers. Am I correct in my understanding that your
contention in other words
is that your responsibilities were those
spelt out in Sections 38 to 43?
Adv Simelane: Yes of the
accounting officer, yes.
Adv Trengove: And you go on:
‘
One
such responsibility is to ensure the effective, efficient,
economical and transparent use of the resources of the department,

trading entity or constitutional institution.’
Correct?
Adv Simelane: Yes.
. . .
Adv Trengove: Have you taken
legal advice on the issue?
Adv Simelane: It’s pretty
straightforward, it doesn’t need legal advice in my view.
Adv Trengove: Won’t you
answer the question. Have you taken legal advice on the question?
Adv Simelane: No.”
And then
a few minutes later after discussion of another topic:
“
Adv
Trengove: You said you took no legal advice on this issue, correct.
Adv Simelane: No, I don’t
remember really getting counsel opinion on it. No in fact, yes I
think you are quite right, we
actually did, we got the opinion of
Adv Maleka, yes now I recall and Adv Khoza, yes we did.
Adv Trengove: Mr Simelane, you
said you took no advice. You repeated that same answer and then when
you saw me turning up a document
you changed your mind.
Adv Simelane: No you are quite
wrong. What I was trying to recall was what the opinion was and it
actually covered quite a lot
of issues, more than this one specific
issue. So I am correcting myself that we did actually get an opinion
on a whole range
of issues about the role of the NDPP. If I recall
that was our opinion yes.
. . .
Adv Trengove: Yes. You were
intimately involved in the preparations of the papers.
Adv Simelane: Absolutely.
Adv Trengove: And in those
papers one of the grounds, one of the accusations against Mr Pikoli
is precisely this difference of
opinion between you and him,
correct?
Adv Simelane: Yes.
Adv Trengove: And yet you don’t
tell the commission that you have taken legal advice on the
question.
Adv Simelane: Sorry can you
repeat that, I didn’t hear it nicely.
Adv Trengove: You don’t
disclose to the commission that you had taken legal advice on the
question.
Adv Simelane: No I didn’t
think there was a need to disclose that I took legal advice on the
particular issue.”
The
Minister tries to justify this about-face by saying that Mr
Simelane is entitled, when he remembers something, to change
his
mind and say that he has done so. This attempt is, in my view, in
vain.
One
of the important purposes of the Ginwala Commission was precisely
to investigate this difference of view and to express
a view on it.
Mr Simelane must have deliberately taken the decision to obtain the
legal opinion. He could in all probability
not have forgotten about
it. Absent any explanation, his failure to disclose a legal opinion
adverse to his (and I may say
adverse to the case he was making
before the Commission) was seemingly aimed at misleading the
Commission. His denial that
he had obtained that legal opinion
would, absent any explanation, be dishonest. What is more, when
asked why the opinion had
not been disclosed to the Commission,
Mr Simelane did not say that he had forgotten to include it
but rather that he did
not think there was a need to disclose that
he took advice on the issue. How does this statement square with
conscientiousness?
Important questions remain unanswered once
again.
This
evidence too, reflected in the Report of the Public Service
Commission, must have been known to the Minister and was ignored.

The decision to ignore and the advice to the President to ignore
relevant indications of dishonesty that could detract from
the
credibility, integrity and conscientiousness of Mr Simelane would,
in the circumstances, be irrational unless there were
a proper
reason for ignoring it.
Improper
accusation of dishonesty
Mr
Simelane did not accuse Mr Pikoli of dishonesty in any papers
before the Commission until he was cross-examined. He then
tried to
improve his case by falsely accusing Mr Pikoli of dishonesty:
“
Adv
Trengove: Now that was the difference between you and Mr Pikoli. He
insisted that he was the head and had the final say. You
insisted
that in your capacity as accounting officer there are certain
matters in which you had the final say, correct?
Adv Simelane: Yes.
Adv Trengove: Now in fairness
to you and in fairness to Mr Pikoli, could you please turn to the
comment that you make, on page
3, at the foot of the page, where you
say in the very last line on page 3 in paragraph 8 you say the
following, you are speaking
about this difference between yourself
and Mr Pikoli and you say:
‘
However,
having said that I wish to state that there was no acrimony between
Pikoli and I as the differences between us were purely

professional.’
Is that correct?
Adv Simelane: Yes that’s
correct.
Adv Trengove: So Mr Simelane as
I understand you on this score you do not accuse Mr Pikoli of
anything worse than that he held
a view which differed from yours,
correct?
Adv Simelane: Yes and the
consequences that flow from that view.
Adv Trengove: Oh yes, but you
accept that he genuinely held a different view from yours, correct?
Adv Simelane: Yes he held a
different view.
Adv Trengove: And accepting
that you differed from him on the law, given his perception of the
law he acted entirely as he thought
the law required him to do,
correct?
Adv Simelane: I think with
respect to the responsibilities of the accounting officer I was of
the view and still am of the view
that Mr Pikoli actually has a much
better understanding and shares the same understanding that I share
on the responsibilities
of the accounting officer.
Adv Trengove: I see, so what
you are really saying is that he was dishonest?
Adv Simelane: Well what I am
saying is that he knows the correct position and in my discussions
with him he, in fact he has even
indicated on no less than two
occasions that I am the accounting officer and therefore I should
deal with . . . (intervenes)
Adv Trengove: Are you saying
that he was dishonest? That he said he knew one thing, but said
another, is that what you are saying?
Adv Simelane: Well if you call
that dishonesty then so be it, but he definitely on no less than two
occasions made it clear to
me that you are the accounting officer,
you deal with the issues.
Adv Trengove: Are you
suggesting that while he insisted to have the final say in the
management of the NPA, he actually knew that
you had the final say
as accounting officer?
Adv Simelane: On the issues of
accounting officer, yes he definitely knew, he was in that position.
Adv Trengove: Now that’s
a very serious accusation because that’s an accusation of
dishonesty, correct?
Adv Simelane: If that’s
what you call it, but I can’t tell you . . . (intervenes)
Adv Trengove: No, no not what I
call it. You do know what the difference is between honesty and
dishonesty, don’t you Mr
Simelane?
Adv Simelane: Yes I think I
know the difference.
Adv Trengove: And the evidence
of what you are now giving, the implication of what you are now
saying is that Mr Pikoli was dishonest
on this score.
Adv Simelane: Well the point is
that he deliberately argued that he is not, that the accounting
officer is not responsible for
the part 2 of the PFMA that you have
just cited, if his evidence would be that those are not the
responsibilities of the accounting
officer, I disagreed with him
there and I disagree with him today.
Adv Trengove: I am not asking
you what the position would be if he said that or if he said this. I
am asking you whether you are
saying that Mr Pikoli was dishonest on
this score. You were there, I wasn’t. Was he dishonest or was
it a purely professional
difference of opinion on the law?
Adv Simelane: It was a
different view and it is a dishonest view in my opinion for
Mr Pikoli to argue that he does not know
and he doesn’t
agree that the accounting officer has those responsibilities in part
2 that you cited.
Adv Trengove: It was dishonest
for him to argue that you say?
Adv Simelane: Yes.
Adv Trengove: I see. Now that’s
a very serious accusation to make against the NDPP, correct?
Adv Simelane: Oh yes, it’s
a serious accusation.
Adv Trengove: Yes. Why did you
never in any of your affidavits say anything of the kind?
Adv Simelane: Say what? I think
I stated it in the affidavits clearly that we differed on that
particular point.
Adv Moroka: Chair, if Mr
Trengove would refrain from interrupting the witness. He is entitled
to finish his answer.
Adv Trengove: Mr Simelane, you
never in any of your affidavits suggested that Mr Pikoli was
dishonest on this score, correct?
Adv Simelane: I never used the
word dishonest in the affidavits.
Adv Trengove: By whatever name
you did not accuse him of dishonesty, duplicity, or whatever you
might call it, correct?
Adv Simelane: No I didn’t
accuse him of dishonesty in the affidavit.
Adv Trengove: The only thing
you said in your affidavit was:
‘
I
wish to state that there was no acrimony between Pikoli and I and
the difference between us was purely professional.’
That means an honest difference
of opinion between two professional people, correct?
Adv Simelane: A difference of
opinion and a professional one, yes.
Adv Trengove: I want to suggest
to you Mr Simelane your current evidence that Mr Pikoli
dishonestly pretended to hold one
view when in fact he knew better,
is a fabrication in the witness box this morning, because otherwise
you would have raised it
in the affidavits.
Adv Simelane: I disagree.”
Again
this evidence raises questions that require urgent answers about
Mr Simelane’s integrity and conscientiousness.
Unless
there is a proper explanation for the contradiction in his overall
testimony about whether there was a genuine difference
of opinion
between him and Mr Pikoli or whether Mr Pikoli was being dishonest
in holding his opinion, there is cause for grave
concern. Absent
the resolution of this issue, the evidence could not be ignored
without affecting the rationality of the decision.
This
evidence was not contained in the report of the Public Service
Commission and the Minister may not in fact have seen it.
But
having known of the evidence that Mr Simelane gave that is referred
to in the report of the Public Service Commission,
the Minister
ought to have seen to it that Mr Simelane’s evidence was
subjected to closer examination. The decision not
to do so in the
light of the Report of the Public Service Commission is irrational.
If the evidence had been subjected to closer
scrutiny this aspect
of the matter would undoubtedly have been discovered. Once this had
happened, any decision not to investigate
the matter further in the
process of making the appointment would not have been rationally
linked to the purpose for which
the power to appoint had been
conferred.
Summary of consequences of the Ginwala Commission criticisms and
evidence
In
my view all the criticisms of the evidence and approach of Mr
Simelane by the Ginwala Commission have, on the face of it,
a
sufficient basis in the evidence before it. So are all the
criticisms expressed of Mr Simelane in the Report of the Public

Service Commission. The President, on the advice of the Minister,
decided to ignore the submissions in the Public Service Commission

Report too. These were not to be taken into account. The reasons
why he did so are important.
We
must now evaluate the reasons why the Minister decided to ignore
the criticisms by the Ginwala Commission, the evidence before
the
Ginwala Commission as well as the recommendations of the Public
Service Commission and to advise the President to ignore
these
matters in the process of making the appointment.
The Minister’s reasons
The
first reason given is that the Public Service Commission had not
given Mr Simelane an opportunity to be heard. Mr Simelane
had
been heard in the Ginwala Commission and had been given every
opportunity to defend his position. If the Minister had decided
to
commence a disciplinary enquiry against Mr Simelane, he would have
been given a hearing there once again. In any event,
it was not the
Public Service Commission that had the power to institute
disciplinary proceedings against Mr Simelane. That
decision had
been made after Mr Simelane had been heard. The fact that Mr
Simelane had not been given a hearing before the
Public Service
Commission had made its recommendations to the Minister is no
reason for not instituting disciplinary proceedings
particularly
because Mr Simelane had been heard by the Minister.
The second reason given was that he agreed with the submissions
made to him by Mr Simelane’s lawyers consequent upon
the
recommendations of the Public Service Commission. These submissions
were aimed at and succeeded in persuading the Minister
not to
institute disciplinary proceedings against Mr Simelane. They were
technical and legalistic in nature. They were intent
upon
establishing that Mr Simelane’s conduct was not hit by
the relevant legislation. Nowhere in these submissions
to the
Minister is it said, nor could it have been credibly said, that
Mr Simelane’s integrity and honesty had been
left
untouched and that he had come out of the process morally
unscathed. Indeed, Mr Simelane’s lawyers submitted that
if
their submissions on whether Mr Simelane’s conduct fell
within conduct prohibited by law, he should be counselled
and that
disciplinary proceedings should nevertheless not be instituted
against him. This was an admission by Mr Simelane’s
legal
representatives that his conduct before the Ginwala Commission was
less than desirable. It seems that the Minister ignored
submissions
by Mr Simelane’s legal representatives conceding that his
credibility was not wholly intact after evidence
at the Ginwala
Commission had been given. This too could not have been rationally
related to the purpose for which the power
had been given.
Thirdly,
having decided not to accept the recommendations of the Public
Service Commission, and in effect not to give Mr Simelane
an
opportunity to explain, the Minister reasons that it was not right
for Mr Simelane’s conduct at the Ginwala Commission
to be
held against him because Mr Simelane had not been given an
opportunity to respond to the Public Service Commission and
because
the allegations had not been proved absent an enquiry. Quite apart
from the fact that it was the Minister’s decision
that
resulted in the fact that Mr Simelane had not been able to defend
himself in an enquiry, the Minister’s statement
is a
concession that if the allegations against Mr Simelane continued to
stand after being tested, they would be of a kind
that would
reflect badly on him. And the Minister is right in this.
The
fourth basis on which the findings and evidence were not taken into
account is that the Commission was not investigating
Mr Simelane
but Mr Pikoli. This reason is also unacceptable because it implies
that dishonesty on the part of a senior state
official before a
commission of enquiry, where the enquiry is not directly about the
person concerned, can be disregarded.
The
last reason given is that the Ginwala Commission is not a court.
This is an irrelevant consideration. It does not matter
for the
purposes of evaluation of credibility whether a person is dishonest
and devious to a court, to a commission of enquiry,
to an employer
or to anyone else for that matter. Dishonesty is dishonesty
wherever it occurs. And it is much worse when the
person who had
been dishonest is a senior government employee who gave evidence
under oath. Although not a court, the Ginwala
Commission was about
as important a non-judicial fact-finding forum as can be imagined.
The
reasons given by the Minister for ignoring these indications of
dishonesty, albeit prima facie, in the evidence of Mr Simelane

before the Ginwala Commission, the evaluation of his evidence by
that Commission, and the recommendations of the Public Service

Commission did not in all circumstances hold any water. Indeed,
they do not disturb my original conclusion that the failure
to take
these indications into account were not rationally related to the
purpose for which the power to appoint a fit and
proper person as a
National Director were given.
Conclusion
The
difficulties concerning Mr Simelane’s evidence that appear
from a study of the records of the Ginwala Commission were
and
remain highly relevant to Mr Simelane’s credibility,
honesty, integrity and conscientiousness. The Minister’s

advice to the President to ignore these matters and to appoint Mr
Simelane without more was unfortunate. The material was relevant.

The President’s decision to ignore it was of a kind that
coloured the rationality of the entire process, and thus rendered

the ultimate decision irrational.
And
the President decided to heed that advice. The President knew that
there had been a commission of enquiry but he accepted
the
Minister’s reasoning that the Commission’s findings
should be disregarded because the enquiry had not been
appointed to
investigate Mr Simelane. Though the President said that he accepted
the findings of the Commission, this acceptance
appears to have
been qualified by his reliance on the circumstance that the
Commission had not been appointed to investigate
Mr Simelane. The
President appears to be saying therefore that he accepted the
findings of the Commission only to the extent
that they related to
Mr Pikoli.
The
President too should have been alerted by the adverse findings of
the Ginwala Commission against Mr Simelane and ought to
have
initiated a further investigation for the purpose of determining
whether real and important questions had been raised
about Mr
Simelane’s honesty and conscientiousness. This he should have
done despite his knowledge of Mr Simelane as a
person. There is no
rational relationship between ignoring the findings of the Ginwala
Commission without more and the purpose
for which the power had
been given.
The
absence of a rational relationship between means and ends in this
case is a significant factor precisely because ignoring
prima facie
indications of dishonesty is wholly inconsistent with the end
sought to be achieved, namely the appointment of
a National
Director who is sufficiently conscientious and has enough
credibility to do this important job effectively. The
means
employed accordingly colour the entire decision which falls to be
set aside.
This
is not to say that Mr Simelane cannot validly be appointed National
Director. He may have an explanation and may well be
able to
persuade the President that he is a fit and proper person and
should be appointed.
Given
this finding, it is unnecessary for this Court to determine whether
Mr Simelane is in fact a fit and proper person
to be appointed
as the National Director or whether the President had an ulterior
purpose in making the appointment. There
is no finding in relation
to these issues.
Remedy
There
is no merit in the contention by the Minister that Mr Simelane
should stay in office and the matter should be referred
back to the
President for reconsideration. Mr Simelane is suspended and an
Acting National Director has been appointed. There
is accordingly
no reason for our decision to have prospective effect alone.
However,
in these circumstances, we should make an order that the invalidity
of Mr Simelane’s appointment will not by
itself affect the
validity of any of the decisions taken by him while in office as
National Director. This will mean that all
decisions made by him
remain challengeable on any ground other than the circumstance that
his appointment was invalid.
95
Costs
There is no reason why costs should not follow the result. The
second respondent, the Minister, who opposed confirmation of
the
Supreme Court of Appeal order, must pay the costs. The Democratic
Alliance had four counsel. In my view, the costs of two
counsel in
this Court are appropriate.
96
Order
The
following order is made:
The
appeal is dismissed.
The
second respondent must pay the applicant’s costs in this
Court, including the costs of two counsel.
The
declaration of invalidity by the Supreme Court of Appeal of the
decision of the President of the Republic of South Africa,
the
First Respondent, taken on 25 November 2009, purportedly in terms
of section 179 of 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
is confirmed.
Decisions taken and acts performed by Mr Menzi Simelane in his
capacity as the National Director of Public Prosecutions are
not
invalid merely because of the invalidity of his appointment.
ZONDO AJ:
Subject to what follows below, I agree with the order and reasoning
of the main judgment.
In
paragraph 81 of the main judgment it is implied that there was no
need for, or, no obligation on, the Public Service Commission
(PSC)
to afford Mr Simelane an opportunity to be heard either prior to or
after it had concluded its investigation into Mr
Simelane’s
conduct and made its recommendation that the Minister for Justice
and Constitutional Development (Minister)
take disciplinary action
against Mr Simelane. The main judgment makes this point in response
to the Minister’s view that
the PSC should have given
Mr Simelane an opportunity to be heard but the PSC refused to
do so. The Minister criticised
the PSC’s failure or refusal
to give Mr Simelane an opportunity to be heard as a breach of the
audi alteram partem
rule which is entrenched in our law. He
said it violated Mr Simelane’s right to be heard. The main
judgment implies that
this is not so.
I am
unable to say that a statutory body such as the PSC
97
is not obliged to give a person whose conduct it is asked to
investigate (and in regard to which it must make recommendations)

an opportunity to be heard before it can conclude its
investigations or, at any rate, before it makes its recommendations
to an authority that has to make a decision such as the decision
the PSC recommended in this case. Experience shows that, generally

speaking, statutory bodies such as the PSC usually give affected
persons an opportunity to be heard before they conclude their

investigations and make recommendations.
98
The main judgment says that Mr Simelane had already been heard in
the enquiry into the conduct of Mr Pikoli under the
National
Prosecuting Authority Act
99
(Ginwala
Inquiry) and he was going to be heard once again in the
disciplinary inquiry.
In
my view the main judgment fails to appreciate that, if Mr Simelane
was entitled to a hearing, the PSC should have heard him
not only
on whether there were grounds to believe that he had prima facie
done wrong but also on what steps, if any, the PSC
had to recommend
be taken by the Minister. The Ginwala Inquiry had nothing to do
with hearing Mr Simelane on what steps,
if any, the Minister
should take concerning his conduct. Accordingly, it would be
incorrect to suggest that the Ginwala Commission
provided
Mr Simelane with the kind of opportunity to be heard to which
the Minister was referring.
100
The
main judgment also says that Mr Simelane was going to be heard once
again in the disciplinary enquiry. This was if the PSC’s

recommendation was accepted and implemented. I also do not think
that this answers the criticism of the PSC on the
audi alteram
partem
point. The opportunity to be heard that Mr Simelane
was going to be afforded in the disciplinary inquiry, if one was
established,
would have focused on whether or not he was guilty of
the allegations of misconduct that would have been brought against
him
and on what the appropriate sanction would be if he was found
guilty. That focus is rather different from the focus of the

opportunity to be heard to which he may have been entitled to be
given by the PSC. As I have said, the focus of the latter

opportunity would in part have been on what steps the PSC should
recommend be taken by the Minister against Mr Simelane if, prima

facie, there were grounds for some steps to be taken against him.
In
the light of the above, although I incline towards the view that a
statutory body such as the PSC is required to observe
the
audi
alteram partem
rule in a case such as
this, it is, in my view, not necessary on the facts of this case to
express a definitive view. I am
prepared to assume, without
deciding, in the Minister’s favour that the PSC was obliged
to have given Mr Simelane an
opportunity to be heard. However, when
one approaches the matter on this footing, it does not follow that
the PSC’s failure
to give Mr Simelane an opportunity to be
heard necessarily has the consequence that the Minister could
ignore the PSC’s
findings and recommendations. Since the
authority to initiate a disciplinary process vested in the
Minister
101
and Mr Simelane’s lawyers had submitted their
representations to him, the Minister was obliged to take into
account
both the PSC’s report as well as Mr Simelane’s
representations and decide whether he should initiate a
disciplinary
process. It seems that this is what the Minister did
but he came to the conclusion that there were no grounds to
initiate a
disciplinary process. In regard to that conclusion I am
in agreement with the finding of the main judgment.
For
the Applicant: Advocate O Rogers SC, Advocate A Katz SC, Advocate D
Borgström and Advocate N Mayosi instructed by Minde
Shapiro and
Smith Inc.
For
the Second Respondent: Advocate M T K Moerane SC, Advocate L
Gcabashe and Advocate P Jara (Pupil) instructed by the State

Attorney.
For
the Fourth Respondent: Advocate D Unterhalter SC, Advocate G Malindi
SC, Advocate I Goodman and Advocate L K Adebola-Ramadi
(Pupil)
instructed by the State Attorney.
1
The
fourth respondent.
2
The
first respondent.
3
The
second respondent.
4
Democratic
Alliance v President of the Republic of South Africa and Others
2012 (1) SA 417
(SCA) (SCA judgment).
5
Democratic
Alliance v President of the Republic of South Africa and Others
[2010] ZAGPPHC 194.
6
Section
172(2)(a)
provides:
“
The Supreme Court of Appeal,
a High Court or a court of similar status may make an order
concerning the constitutional validity
of an Act of Parliament, a
provincial Act or any conduct of the President, but an order of
constitutional invalidity has no force
unless it is confirmed by the
Constitutional Court.”
7
The
applicant.
8
The
President initially opposed confirmation but withdrew shortly
afterwards.
9
A
position he occupied from June 2005 to October 2009.
10
Mr
Thabo Mbeki.
11
Section
12(6)(a) of the National Prosecuting Authority Act 32 of 1998 (Act)
provides:
“
The President may
provisionally suspend the
National
Director
or a
Deputy National
Director
from his
or her office, pending such enquiry into his or her fitness to hold
such office as the President deems fit and,
subject to the
provisions of this subsection, may thereupon remove him or her from
office—
(i) for misconduct;
(ii) on account of continued ill-health;
(iii) on account of incapacity to carry out his or her
duties of office efficiently; or
(iv) on account thereof that he or she is no longer a
fit and proper person to hold the office concerned.”
12
The
predecessor of the present Minister.
13
A
constitutional institution created by section 196 of the
Constitution.
14
The
request was made on 10 December 2008.
15
The
Report of the Public Service Commission is dated April 2009.
16
Mr
Jeff Radebe, who had succeeded Minister Surty as Minister for
Justice and Constitutional Development.
17
On
23 November 2009.
18
On
6 October 2009.
19
On
8 December 2008.
20
Mr
Kgalema Motlanthe.
21
In
December 2009.
22
Section
179(1)(a).
23
Section
9(1)(b) of the Act.
24
The
Supreme Court of Appeal in fact said that the President and the
Minister “were too easily dismissive” of the attitude
of
the Public Service Commission.
25
In
terms of section 4 of the Promotion of Administrative Justice Act 3
of 2000 (PAJA), in order to give effect to procedurally
fair
administrative action, the administrator must fulfil certain
requirements. In terms of section 4(4)(a) an administrator
may
depart from the requirements if it is reasonable and justifiable to
do so. In determining whether the departure is reasonable
and
justifiable the administrator must take into account the factors
mentioned in section 4(4)(b). These factors are:
“
i) the objects of the
empowering provision;
ii) the nature and purpose of, and the need to take,
the administrative action;
iii) the likely effect of the administrative action;
iv) the urgency of taking the administrative action or
the urgency of the matter; and
v) the need to promote an efficient administration and
good governance.”
26
See
[6] and [7] above.
27
Section
179(1) provides:
“
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.”
28
Section
10 provides:
“
The President must, in
accordance with section 179 of the
Constitution
,
appoint the National Director.”
29
Section
179(3) provides:
“
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).”
30
Section
9 provides:
“
(1) Any person to be
appointed as
National
Directo
r,
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.
(2) Any person to be appointed as the
National
Director
must be a South African citizen.”
31
Section
179(4) provides:
“
National legislation must ensure that the
prosecuting authority exercises its functions without fear, favour
or prejudice.”
32
Section
32(1)(a) provides:
“
A member of the
prosecuting
authority
shall
serve impartially and exercise, carry out or perform his or her
powers, duties and functions in good faith and without
fear, favour
or prejudice and subject only to the
Constitution
and the law.”
33
Section
179(2) provides:
“
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.”
34
Section
179(5)(a) provides:
“
The National Director of Public Prosecutions
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”.
35
Section
179(5)(b) provides:
“
The National Director of
Public Prosecutions
must issue policy directives which must be observed in the
prosecution process”.
36
Section
179(5)(c) provides:
“
The National Director of
Public Prosecutions
may intervene in the prosecution process when policy directives are
not complied with”.
37
Section
179(5)(d) provides:
“
The National Director of Public Prosecutions 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.”
38
Section
179(6) provides:
“
The Cabinet member responsible for the
administration of justice must exercise final responsibility over
the prosecuting authority.”
Section
33(1) of the Act
provides:
“
The
Minister
shall, for purposes of section 179 of the
Constitution
,
this Act
or any other law concerning the
prosecuting
authority
,
exercise final responsibility over the
prosecuting
authority
in
accordance with the provisions of
this
Act
.”
39
Section
33(2) of the Act provides:
“
To enable the
Minister
to exercise his or her final responsibility over the prosecuting
authority, as contemplated in section 179 of the
Constitution
,
the
National
Director
shall, at
the request of the
Minister
—
furnish the
Minister
with information or a
report with regard to any case, matter or subject dealt with by the
National Director
or a
Director
in the exercise of
their powers, the carrying out of their duties and the performance
of their functions;
provide the
Minister
with reasons for any
decision taken by a
Director
in the exercise of his or her
powers, the carrying out of his or her duties or the performance of
his or her functions;
furnish the
Minister
with information with
regard to the prosecution policy referred to in section 21(1)(a);
furnish the
Minister
with information with
regard to the policy directives referred to in section 21(1)(b);
submit the reports contemplated in section 34 to the
Minister
; and
arrange meetings between the
Minister
and
members of the
prosecuting authority
.”
40
Section
32(1)(b) of the Act provides:
“
Subject to the
Constitution
and
this Act
,
no organ of state and no member or employee of an organ of state nor
any other person shall improperly interfere with, hinder
or obstruct
the
prosecuting
authority
or any
member thereof in the exercise, carrying out or performance of its,
his or her powers, duties and functions.”
41
Minister
of Defence v Potsane and Another
;
Legal Soldier (Pty) Ltd and
Others v Minister of Defence and Others
[2001] ZACC 12
;
2002 (1)
SA 1
(CC);
2001 (11) BCLR 1137
(CC) (
Legal Soldier
).
42
Id
at para 19.
43
Geuking
v President of the Republic of South Africa and Others
[2002]
ZACC 29
;
2003 (3) SA 34
(CC);
2004 (9) BCLR 895
(CC).
44
Id
at para 27.
45
67
of 1962. Section 3(2) of the Extradition Act provides:
“
Any person accused or
convicted of an extraditable offence committed within the
jurisdiction of a foreign State which is not a
party to an
extradition agreement shall be liable to be surrendered to such
foreign State, if the President has in writing consented
to his or
her being so surrendered.”
46
President
of the Republic of South Africa and Others v South African Rugby
Football Union and Others
[1999] ZACC 11
;
2000 (1) SA 1
(CC);
1999 (10) BCLR 1059
(CC) (
SARFU
).
47
Garment
Workers’ Union v Schoeman
,
NO and Others
1949
(2) SA 455
(A) at 463.
48
Commissions
Act
8 of 1947. See
Section 1(1).
49
SARFU
above n 46 at para 171.
50
SCA
judgment above n 4 at para 116.
51
Id.
See also section 9(1)(b) of the Act.
52
Ex
Parte Chairperson of the Constitutional Assembly: In re
Certification of the Constitution of the Republic of South
Africa, 1996
[1996] ZACC 26
;
1996 (4) SA 744
(CC);
1996 (10)
BCLR 1253
(CC) a
t para 146.
53
Section
12(5)-(7) of the Act provides:
“
(5) The
National
Director
or a
Deputy National
Director
shall not
be suspended or removed from office except in accordance with the
provisions of subsections (6), (7) and (8).
(6)(a) The President may provisionally suspend the
National Director
or a
Deputy National Director
from
his or her office, pending such enquiry into his or her fitness to
hold such office as the President deems fit and, subject
to the
provisions of this subsection, may thereupon remove him or her from
office—
(i) for misconduct;
(ii) on account of continued ill-health;
(iii) on account of incapacity to carry out his or her
duties of office efficiently; or
(iv) on account thereof that he or she is no longer a
fit and proper person to hold the office concerned.
(b) The removal of the
National Director
or a
Deputy National Director
, the reason therefor and the
representations of the
National Director
or
Deputy
National Director
(if any) shall be communicated by message to
Parliament within 14 days after such removal if Parliament is then
in session or,
if Parliament is not then in session, within 14 days
after the commencement of its next ensuing session.
(c) Parliament shall, within 30 days after the message
referred to in paragraph (b) has been tabled in Parliament, or as
soon
thereafter as is reasonably possible, pass a resolution as to
whether or not the restoration to his or her office of the
National
Director
or
Deputy National Director
so removed, is
recommended.
(d) The President shall restore the
National
Director
or
Deputy
National Director
to his or her
office if Parliament so resolves.
(e) The
National Director
or a
Deputy
National Director
provisionally suspended from office shall
receive, for the duration of such suspension, no salary or such
salary as may be determined
by the President.
(7) The President shall also remove the
National
Director
or a
Deputy National Director
from office if an
address from each of the respective Houses of Parliament in the same
session praying for such removal on any
of the grounds referred to
in subsection (6)(a), is presented to the President.”
54
Section
209(2) of the Constitution.
55
Fedsure
Life Assurance Ltd and Others v Greater Johannesburg Transitional
Metropolitan Council and Others
[1998] ZACC 17
;
1999 (1) SA 374
(CC);
1998 (12) BCLR 1458
(CC) at para 58.
56
SARFU
above n 46 at para 148. This case was concerned with the President’s
decision as Head of State and not as head of the National
Executive
but the principle remains valid. The proposition is also to be found
in
Masetlha v President of the Republic of South Africa and
Another
[2007] ZACC 20
;
2008 (1) SA 566
(CC);
2008 (1) BCLR 1
(CC) at para 81.
57
Pharmaceutical
Manufacturers Association of SA and Another: In re Ex Parte
President of the Republic of South Africa and Others
[2000] ZACC
1
;
2000 (2) SA 674
(CC);
2000 (3) BCLR 241
(CC) (
Pharmaceutical
Manufacturers
) at para 85. See also
Affordable Medicines
Trust and Others v Minister of Health and Another
[2005] ZACC 3
;
2006 (3) SA 247
(CC);
2005 (6) BCLR 529
(CC) (
Affordable
Medicines
) at para 75
and
Masetlha
above n 56.
58
Masetlha
id.
59
See
[12 b] above.
60
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Tourism and Others
[2004] ZACC 15
;
2004 (4) SA 490
(CC);
2004
(7) BCLR 687
(CC) (
Bato Star
).
61
Id
at para 44.
62
Albutt
v Centre for the Study of Violence and Reconciliation, and Others
[2010] ZACC 4
;
2010 (3) SA 293
(CC);
2010 (5)
BCLR 391
(CC).
63
Id
at para 51.
64
Id
at paras 70-4.
65
Poverty
Alleviation Network and Others v President of the Republic of South
Africa and Others
[2010] ZACC 5
;
2010 (6) BCLR 520
(CC) (
Poverty
Alleviation
) at para 66.
66
Merafong
Demarcation Forum and Others v President of the Republic of South
Africa and Others
[2008] ZACC 10
;
2008 (5) SA 171
(CC);
2008
(10) BCLR 969
(CC) (
Merafong
) at para 114:
“
What is required, insofar as
rationality may be relevant here, is a link between the means
adopted by the legislature and the
legitimate governmental end
sought to be achieved. It is common cause that doing away with
cross-boundary municipalities is desirable
for improved service
delivery and governance. This is the purpose of the Twelfth
Amendment. More ways than one of achieving the
objective are,
however, available, namely to locate Merafong either wholly in
Gauteng or wholly in North West. From economic,
geographical and
other perspectives the choice can be debated, but it is one for the
legislature to make. It is not for this
court to decide in which
province people must live or to second-guess the option chosen by
the Gauteng Provincial Legislature
to achieve its policy goals and
thus to make a finding on how socially, economically or politically
meritorious the Twelfth Amendment
is.”
67
Above
n 65 at para 76.
68
Compare
Price “Rationality Review of Legislation and Executive
Decisions:
Poverty Alleviation Network
and
Albutt”
(2010) 127
SALJ
580.
69
Minister
for Justice and Constitutional Development v Chonco and Others
[2009] ZACC 25
;
2010 (4) SA 82
(CC);
2010 (2) BCLR 140
(CC) (
Chonco
1
). This case is referred to as
Chonco 1
because of the
two decisions concerning consequential cases that involved the same
parties.
70
I
n
terms of section 84(2)(j).
71
Above
n 69 at para 30.
72
Above
n 62.
73
The
Democratic Alliance relies on the case of
Albutt
above
n 62
,
which was also concerned with
pardons but the argument applies equally to the case of
Chonco
1
above n 69, which in my view is on
point.
74
Johannesburg
Stock Exchange and Another v Witwatersrand Nigel Ltd and Another
1988 (3) SA 132
(A).
75
Id
at 152A-D.
76
SARFU
above n 46 a
t para 224.
77
See
Albutt
above n 62 at para 51;
Affordable Medicines
above n 57 at para 73;
Bato Star
above n 60 at para 48 and
Pharmaceutical Manufacturers
above n 57 at para 90.
78
Brink
v Kitshoff NO
[1996] ZACC 9
;
1996 (4)
SA 197
(CC);
1996 (6) BCLR 752
(CC) at para 35.
79
Pharmaceutical
Manufacturers
above n 57 at para 78.
80
Affordable
Medicines
above n 57 at para 83. See also
S v Lawrence; S v
Negal; S v Solberg
[1997] ZACC 11
;
1997 (4) SA 1176
(CC);
1997
(10) BCLR 1348
(CC) at para 44.
81
Affordable
Medicines
id at para 86.
82
From
February 2000 to May 2005.
83
From
June 2005 to October 2009.
84
See
[13] above.
85
Ginwala
“Report of the Enquiry into the Fitness of Advocate VP Pikoli
to Hold the Office of National Director of Public
Prosecutions”
(November 2008),
http://www.info.gov.za/view/DownloadFileAction?id=93423
,
accessed on 27 September 2012.
86
Id
at para 15.
87
Id
at paras 320-2.
88
See
[4 g] above.
89
Mr
Thabo Mbeki.
90
Ms
Bridgette Mabandla (Minister Mabandla).
91
In
contravention of section 32(1)(b) of the Act, quoted above n 40.
92
On
22 October 2007.
93
At
[64] and [65] above.
94
The
letter to Mr Pikoli consequent upon the receipt by Minister Mabandla
of the former President’s letter was drafted on
behalf of
Minister Mabandla and was dated 18 September 2007 while the letter
by Mr Simelane to Mr Pikoli’s attorneys
was dated 1
November 2007.
95
It
is not clear from the papers whether the processes followed were
those appropriate to the performance of functions by the President

as Head of State or as the head of the national executive. Section
179(1)(a) requires the President to appoint the National Director
in
his capacity as “head of the national executive”.
Section 84(2)(e) applies to appointments the President makes,
in the
words of the section, “other than as head of the national
executive”. There is a difference between the two
provisions.
See
Chonco 1
above n 69 at paras 28-40.
96
No
appropriate basis has been advanced not to interfere with the
unusual costs order granted by the Supreme Court of Appeal, which

included the costs of three counsel.
97
The
PSC is established in terms of section 196(1) of the Constitution
which provides that “[t]here is a single Public Service

Commission for the Republic.” In terms of section 196(4)(f)
the PSC has the power to, of its own accord or on receipt of
a
complaint, investigate, evaluate and monitor the public service
sector particularly in relation to its personnel. The
Public Service
Commission Act 46 of 1997
provides further for the powers, functions
and operation of the PSC.
98
For
example, commissions of inquiry as contemplated in the Commissions
Act 8 of 1947.
99
32
of 1998. See section 12(6)(a).
100
An
example of a case where the opportunity to be heard that was given
to workers did not cover the critical issue on which they
should
have been heard is
Zondi and Others v
Administrator, Natal, and Others
[1991] ZASCA 35
;
1991
(3) SA 583
(A) at 591D-G.
101
Sections
3(7)(b), 16A(1)(a) and 16B(1)(a), read together with the definitions
provided for in section 1 of the Public Service
Act, 1994 make it
clear that the power to initiate a disciplinary process against the
Head of the Department for Justice and
Constitutional Development
lies with the Minister.