IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA

CASE NO: CCT 122/11

In the matter between:

DEMOCRATIC ALLIANCE Applicant

And

THE PRESIDENT OF THE REPUBLIC Respondents

OF SOUTH AFRICA & OTHERS

APPLICANT’S WRITTEN SUBMISSIONS

TABLE OF CONTENTS
pages
A. Introduction 2
B. Administrative or executive action? 3-4
C. Relevant legal provisions 5-6
D. NPA’s prosecutorial independence & MoJ’s final responsibility 6-8
E. ‘Fit and proper person’ 8-12
F. The process of appointment 13-15
G. The grounds of review 15-16
H. Ground one: Simelane’s fitness – the internal aspect 16-31
(1) Non-disclosure in Government’s submission to the GE 17-18
(2) The President’s letter of 17 September 2007 18-21
(3) The MoJ’s letter of 18 September 2007 21-24
(4) Non-disclosure of legal opinions 25-26
(5) Accusations of dishonesty against Pikoli 26-27
(6) Miscellaneous aspects going to integrity 27-28
(7) Conscientiousness, experience and past performance 29
(8) The GR’s findings in general 29-31
I. Ground one: Simelane’s fitness – the external aspect 31-33
J. Ground two: The appointment process and irrationality 33-34
K. Ground three: Ulterior purpose 43-49
L. Conclusion and remedy 49-50
 2

A. Introduction

1. In terms of s 172(2) of the Constitution the DA seeks confirmation of

the SCA’s order of 1 December 2011 in which it declared invalid and

set aside the President’s appointment of Adv Simelane as the NDPP.1

2. The President, Minister and Simelane filed papers appealing the

SCA’s decision and opposing confirmation.2 The President has

withdrawn his appeal and opposition.3 We understand that the

Minister also will not oppose confirmation on the merits but may

request this Court to ‘correct’ aspects of the SCA’s reasoning and will

ask the Court to limit the order’s retrospective effect. Simelane on our

understanding continues to oppose confirmation on the merits.

3. The DA advanced three grounds of review in the NGHC and SCA.

They were ultra vires, irrationality and ulterior purpose. The SCA

upheld the second and did not decide the others. Because Simelane is

opposing confirmation on the merits, and since the DA contends that

the SCA’s order can be supported independently on each ground, we

deal with all of them. A chronology of material facts is annexed to our

practice note.

1
The SCA’s judgment is now reported at 2012 (1) SA 417 (SCA).
2
Record 11/1061ff, 1070ff and 1080ff.
3
Record 11/1088.
 3

B. Administrative or executive action?

4. In its founding papers the DA characterised the President’s

appointment of Simelane as administrative action subject to review

under PAJA, alternatively as executive action reviewable on the

principle of legality. However in argument both before the NGHC and

the SCA the DA’s contention was (and remains) that it is unnecessary

to decide the issue, as its grounds of review are accommodated by the

principle of legality. This doctrine covers the case where the decision-

maker [a] acts in excess of the power conferred by the enabling

legislation (ie ultra vires); [b] acts mala fide or from ulterior or

improper motive; [c] has failed to apply his mind to the matter; [d] has

abdicated his power to another; or [e] has acted arbitrarily or in a way

which is, objectively viewed, not rationally related to the purpose for

which the power was given.4

4
This list is not necessarily exhaustive but is taken from the following cases: Pharmaceutical Manufacturers
Association of SA & Another: In Re Ex Parte President of RSA & Others 2000 (2) SA 674 (CC) paras 20 and
82-86; President of RSA v SARFU & Others 2000 (1) SA 1 (CC) para 38; Albutt v Centre for the Study of
Violence and Reconciliation & Others 2010 (3) SA 293 (CC) paras 49-50; Kaunda and Others v President of
the Republic of South Africa and Others 2005 (4) SA 235 (CC) at para 80. In essence, the above grounds of
review are those set out in Shidiack v Union Government 1912 AD 642 at 651 (as approved in this context in
the Pharmaceutical case para 83) together with the concept of rationality as expounded in the
Pharmaceutical and other cases. The Shidiack grounds would cover the way in which these were expounded
in cases such Johannesburg Stock Exchange & Another v Witwatersrand Nigel Ltd & Another 1988 (3) SA
132 (A) at 152A-D and During NO v Boesak 1990 (3) SA 661 (A) at 671H-672D and 675G-676D.
 4

5. The irrationality ground covers irrationality in process as well as on

the merits, as is illustrated by Albutt (cited in the last footnote5). The

President had embarked upon a process of considering pardons for

persons convicted of politically-motivated crimes. The High Court

granted an interdict on the basis that the granting of pardons was

administrative action and that the victims were entitled to procedural

fairness under PAJA. This Court confirmed the interdict but based its

decision on the principle of legality, which required pardons to be

‘considered and decided upon rationally’. This meant that the process

determined by the President had to be rationally related to the

achievement of the objectives of the process. Although the executive

has a wide discretion in selecting the means to achieve its objectives,

the courts are obliged to examine the means selected to determine

whether they are rationally related to the objective sought to be

achieved (paras 49-52). The exclusion of victims from the process did

not pass constitutional muster, having regard to the objectives of the

pardon process in question (paras 53-68 and 70-71).6

5
And see also the majority judgment in Walele v City of Cape Town 2008 (6) SA 129 (CC) para 27, quoting
with approval from the minority judgment of Ngcobo J (as he then was) in Masethla v President of RSA 2008
(1) SA 566 (CC).
6
See also Cora Hoexter’s essay in Law, Order and Liberty: Essays in Honour of Tony Mathews at p 62:
‘Albutt places it beyond doubt that the principle of legality and rationality encompasses procedural fairness
in appropriate cases.’
 5

C. Relevant legal provisions

6. Section 179(1) of the Constitution requires there to be a single NPA

structured in terms of an Act of Parliament, consisting, inter alia, of

an NDPP who is the NPA’s head, who ‘is appointed by the President,

as head of the national executive’. Section 179(2) states that the NPA

has the power to institute criminal proceedings on behalf of the state.

Section 179(4) requires there to be national legislation which ensures

that the NPA exercises its functions ‘without fear, favour or

prejudice’. In terms of s 179(5) the NDPP must, inter alia, determine

prosecution policy with the MoJ’s concurrence. Section 179(6) states

that the MoJ ‘must exercise final responsibility over’ the NPA.

7. In terms of s 179(7) all other matters concerning the NPA must be

determined by national legislation, which is the NPA Act.

8. Section 9 of the NPA Act sets out the requirements of a person

appointed as NDPP. Such person must [a] be a South African citizen;

[b] possess legal qualifications that entitle him or her to practise in all

courts in the Republic; and [c] ‘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 [of NDPP]’ (‘the

 6

fitness requirement’). Section 10 states that the President must, in

accordance with s 179 of the Constitution, appoint the NDPP.

9. Section 12(6)(a) makes provision for the suspension and removal of

the NDPP. The NDPP may be removed, inter alia, because he is no

longer a fit and proper person to hold office.

10. In terms of s 32(1)(a) members of the NPA are required to perform

their functions in good faith and without fear, favour or prejudice and

subject only to the Constitution and the law. In terms of s 32(1)(b),

and subject to the Constitution and the NPA Act, no organ of State

may improperly interfere with, hinder or obstruct the NPA in the

exercise of its functions.

11. In terms of s 33(1) the MoJ exercises ‘final responsibility over’ the

NPA. To enable the Minister to exercise this responsibility, the

Minister may request the NDPP to furnish information as set out in

s 33(2), including information concerning any case and reasons for

any decision taken by the NDPP.

D. NPA’s prosecutorial independence & MoJ’s final responsibility

12. The topic of prosecutorial independence rightly received full treatment

from the SCA (paras 76-90). Section 179(4) of the Constitution was
 7

described in the First Certification case7 as a constitutional guarantee

of independence. This is enforced by the provisions of s 32 of the

NPA Act. In Carmichele v Minister of Safety & Security 2001 (4) SA

938 (CC) this Court said that prosecutors have always owed a duty to

carry out their public functions independently and in the interests of

the public, and case law was cited to this effect (para 72 and footnote

72).8 See also the cases cited in paras 85-89 of the SCA’s judgment.

13. Although prosecution policy in South Africa is to be formulated by

the NDPP with the MoJ’s concurrence, this does not mandate

interference in individual prosecutorial decisions. The ‘final

responsibility’ which the MoJ exercises over the NPA in terms of

s 179(6) of the Constitution read with s 33 of the NPA Act must be

read in the light of the constitutional guarantee of prosecutorial

independence, the foundational constitutional value of the rule of law

(s 1(c) of the Constitution), the constitutional guarantee of equality

7
Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the RSA
1996 1996 (4) SA 744 (CC) para 146.
8
See also S v Yengeni 2006 (1) SACR 405 (T) paras 55-57; Bonugli v Deputy NDPP [2008] ZAGPHC 28
page 15; Pikoli v President & Others 2010 (1) SA 400 (GNP) at 405F-406F; S v Selebi [2010] ZAGPHC
53 para 421.
 8

before the law (s 9 of the Constitution) and also against the backdrop

of the break that this independence represents from the past.9

14. The MoJ’s ‘final responsibility’ thus does not mean the right to

instruct an NDPP to institute or not institute a prosecution or to

attempt to influence such a prosecutorial decision. The MoJ does not

have the ‘control and direction’ which in terms of s 20(2) of the NPA

Act the NDPP has over his prosecutors. The Minister’s final

responsibility connotes the right to be kept informed of the NPA’s

activities so as to be able to account for those activities to the

President and Cabinet and report thereon to Parliament.10

E. ‘Fit and proper person’

15. Section 9 of the NPA Act specifies three requirements for

appointment as NDPP: SA citizenship; the prescribed legal

qualifications; and fitness. The third is at issue here.

9
JA van S de Oliveira SC The Prosecuting Authority: Seeking a Bridle for the Unicorn? in Carpenter (Ed)
Suprema Lex: Essays on the Constitution Presented to Marinus Wiechers at 71ff. Prior to its repeal in 1992,
s 3(5) of the Criminal Procedure Act 51 of 1977 stated that an attorney-general was to exercise his authority
and perform his functions ‘subject to the control and directions of the Minister, who may reverse any
decision arrived at by an attorney-general and may himself in general or in any specific matter exercise any
part of such authority and perform any of such functions’. In 1992 s 3(5) was repealed (with effect from 31
December 1992) by the Attorney-General Act 92 of 1992, in terms whereof the Minister was henceforth only
empowered to co-ordinate the functions of the attorneys-general and to request information and reports on
the performance of their functions. Shortly thereafter s 108(1) of the interim Constitution confirmed that the
authority to institute criminal prosecutions vested in the attorneys-general.
10
See Ex Parte Attorney-General Namibia: In Re The Constitutional Relationship between the Attorney-
General and the Prosecutor-General 1995 (8) BCLR 1070 (NmS) at 1089C-F, approved in NDPP v Zuma
2009 (2) SA 277 (SCA) para 32.
 9

16. Each of the requirements is stated in objective terms. In regard to

fitness, the section does not say that the person must be one who ‘in

the President’s opinion’ is fit and proper (and thus stands in contrast

with other subjectively phrased powers in the same Act 11). As with

citizenship and legal qualifications, fitness must exist as an objective

fact (an objective rather than a subjective jurisdictional fact).12

Importantly for prosecutorial independence, the fitness test is also

stated objectively in regard to the President’s power to remove the

NDPP (s 12(6)(a)(iv)).13

17. This proposition is supported by the leading decisions on the question

whether an attorney or an advocate is a fit and proper person to be

admitted or remain on the roll. The cases show14 that the question is

one of objective fact, even though it entails a value judgement.

18. The SCA upheld the DA’s submission that fitness was objectively

justiciable (paras 115-121). We emphasise that the question whether

11
See ss 12(4), 12(8)(a)(ii), 15(2)(a) and 17(4).
12
See the SARFU case supra para 168 fn 132, referring to SA Defence and Aid Fund v Minister of Justice
1967 (1) SA 31 (C) at 34F-35D. Cf Hoexter Administrative Law at 265.
13
In Pikoi’s application he asserted and the respondents appear to have accepted that the test for removal was
objective: para 45 at 8/1429 read with para 52 at 10/1825.
14
In regard to attorneys, see Kudo v Cape Law Society 1977 (4) SA 659 (A) at 675; Nyembezi v Law Society
Natal 1981 (2) SA 752 (A) at 756B-758C and Law Society Transvaal v Behrman 1981 (4) SA 538 (A) at
551D-557A. In regard to advocates, see Kekana v Society of Advocates of SA 1998 (4) SA 649 (SCA) at
654C-E. In 1984 the Attorneys Act was amended to convert the test into one for the trial court’s discretion
(see Law Society of Cape of Good Hope v C 1986 (1) SA 616 (A) at 636H-637E). No similar change was
made in regard to advocates, hence the decision in Kekana (which followed Nyembezi). Cases on attorneys
decided after 1984 are thus not a reliable guide to the interpretation of s 9. Given the presumption that the
legislature is intended to be aware of authoritative interpretations (cf LAWSA First Reissue Vol 25(1) para
328 and fn 36), the absence of the language of discretion in s 9 is all the more significant.
 10

fitness is an objective jursidictional fact is relevant only to the first

ground of review (the merits of which the SCA ultimately found it

unnecessary to decide).

19. The fitness assessment in s 9 must pay due regard to the candidate’s

‘experience, conscientiousness and integrity’, and must be directed at

the candidate’s fitness to be entrusted with the specific office in

question (here, the office of NDPP).

20. [a] Integrity includes the high standards of honesty and candour the

law expects from all legal practitioners. Even an isolated incident of

dishonesty over something relatively trifling may render a person

unfit.15 It has been said that there must never be any compromise on

the standards of honesty and integrity required of officers of the

court.16 [b] The need for experience indicates a requirement above that

applicable to the admission of a legal practitioner. The word

‘experience’ connotes knowledge and skill acquired over time from

observing and from practical acquaintance.17 [c] Conscientiousness

conveys several things: ‘wishing to do what is right’, ‘obedient to

conscience, (habitually) governed by a sense of duty’. Flowing from

15
See, for example, the Kekana case supra at 655B-D. See also Fine v Society of Advocates of SA 1983 (4)
SA 488 (A) at 495A-H (writing a dishonest letter).
16
Aarons v Law Society of Tvl 1997 (3) SA 750 (T) at 758G-H. See also Society of Advocates of Natal &
Another v Merret 1997 (4) SA 374 (N) at 383B-G; Malan v Law Society Northern Provinces 2009 (1) SA
216 (SCA) para 10; Botha & Others v Law Society Northern Provinces 2009 (1) SA 216 (SCA) para 18.
17
Shorter OED.
 11

this is the sense of being hardworking, diligent and with a genuine

concern for the quality of one’s work.18 [d] These three qualities must

be gauged with reference to the particular office to which the person is

to be appointed. Experience in particular is a variable requirement –

greater and more responsible prior experience would be expected for

an NDPP than for a Deputy or Director.

21. In the light of s 179(4) of the Constitution and s 32 of the NPA Act,

further crucial aspects of fitness are the state of mind and strength of

character to act without fear, favour or prejudice. These qualities are

of paramount importance in the case of the NDPP, since as leader of

the NPA he or she sets the tone for the institution and since it is at the

level of the NDPP that decisions adversely affecting highly-placed

officials in government are likely to be taken.19

22. We submit that fitness has both an internal and an external aspect.

The internal aspect is concerned with whether the candidate possesses

experience and the qualities of integrity, independence and

conscientiousness for which the position calls. The external aspect is

concerned with whether the candidate will be perceived by society at

18
See definitions in New OED and Shorter OED.
19
In Pikoli v The President & Others 2010 (1) SA 400 (GNP) Du Plessis J said (406F): ‘As the head of the
[NPA] the NDPP has a duty to ensure that this prosecutorial independence is maintained. It follows that a
person who is fit and proper to be the NDPP will be able to live out, and will live out in practice, the
requirements of prosecutorial independence. That he or she must do without fear, favour or prejudice.’ The
particular importance that the legislature attaches to the NDPP’s independence is apparent from the fact that
he must be appointed for a non-renewable term of ten years (s 12(1)) and that his salary may not be less than
that prescribed for judges (s 17(1)(a)).
 12

large to possess these qualities. A person who is likely to be

reasonably viewed by a significant sector of society as partial or

malleable to the executive or as lacking in integrity is not fit for office

as NDPP, because confidence in the administration of justice would

be impaired by such an appointment.20 (In the courts below the

respondents did not take issue with this analysis.)

23. Section 9 of the NPA Act calls for an affirmative finding of fitness.

This means that if there is uncertainty as to whether the person is fit

for appointment, it is not lawful to appoint him. The decision-maker

may not legitimately reason that, even though there are question

marks as to the candidate’s fitness, the adverse allegations have not

been positively proved and that the candidate is thus entitled to the

benefit of the doubt. If there are material questions concerning the

candidate’s fitness, both the internal and external aspects of fitness

demand that those should be properly and transparently determined

before a candidate is appointed.

20
[a] Thus in Bonugli v Deputy NDPP [2008] ZAGPHC 28 Du Plessis J said that prosecutors must not only
act without fear, favour or prejudice but must be perceived so to act. [b] In Sharma supra the Privy Council
said, with reference to prosecutorial decisions, that the maintenance of public confidence in the
administration of justice required that it be, and be seen to be, even-handed (para 14). [c] In Ex Parte
Attorney-General, Namibia, supra the court quoted with approval from an address by Justice Ayoola where
the speaker said that if prosecutorial decisions were to lead to public confidence in the system and to be
consistent with human right norms, they not only had to be just but had to be seen to be so (1086A-B).
 13

F. The process of appointment

24. Given the requirements for a lawful appointment, the President must

satisfy himself, inter alia, that the candidate is a fit and proper person.

However the selection of the candidate out of the ranks of persons

who qualify is exclusively a decision of the President. The fact that

the requirements are objectively justiciable does not mean that the

court can set aside the appointment of somebody who complies,

merely because the court thinks that there was somebody better whom

the President could have appointed.

25. In reaching his decision on fitness and making his selection, the

President cannot lawfully act from ulterior or improper motives. For

example, if the President were actuated by a desire to have an NDPP

who would be malleable to the executive’s wishes, that would be an

improper motive and would violate the legality principle.

26. The President’s decision, objectively viewed, has to be rationally

related to the purpose for which it was given. The purpose of the

power in the present case is to secure for South Africa a head of the

prosecution authority with the experience and ability to lead the

institution in an independent way which will command broad public

confidence. If, objectively viewed, the decision to appoint a particular

 14

candidate is not rationally related to achieving this object, the decision

does not pass constitutional muster.

27. Not only the decision but the process of reaching it must be rationally

related to the said purpose (see Albutt supra). In the context of s 179

of the Constitution and s 9 of the NPA Act, this entails following a

process which, objectively viewed, can be seen as rationally related to

the object of securing for South Africa a fit and proper NDPP. We

submit that a rational process would generally entail at least the

following: [a] obtaining sufficient and reliable information about the

candidate’s past work experience and performance; [b] obtaining

sufficient and reliable information about the candidate’s integrity and

independence; and [c] in cases where the candidate is the subject of

allegations calling his fitness into question, a satisfactory process to

determine the veracity of the allegations in a reliable and credible

fashion. The SCA, correctly in our submission, accepted these

contentions (paras 97-107).

28. We submit, further, that the obtaining of information would require

the President to obtain written reports. While informal oral discussions

may obviously be part of the process, the importance of the decision is

such that it could never be rationally related to the objectives of the

appointment power for a process to be followed in which the President

 15

receives no written material at all. This is so for several reasons. [a] It

is not possible for a person to remember everything he is told in an

oral discussion. Since the President has to reflect on all the

information before making his decision, he would rationally need to

have a proper record of the information. [b] The production of written

reports by those assisting the President is an important discipline for

them and goes some way towards ensuring that they will be thorough

and diligent in compiling information. [c] A properly documented

process is necessary to make the appointment credible. The absence of

a paper trail inevitably leads to perceptions that there was not a proper

enquiry into or concern for the appointee’s fitness. [d] If there is a

purely verbal process and if the decision is later challenged, the court

and the litigants would be confronted with the President’s say-so. This

is unsatisfactory, given the undesirability that a serving President

should be compelled to give oral evidence.21

G. The grounds of review

29. The three grounds of review are: [a] that objectively Simelane was not

a fit and proper person to be appointed as NDPP and that the

21
See President of RSA & Others v SARFU & Others 2000 (1) SA 1 (CC) paras 234 and 240-245. The
SARFU case shows the importance and value of a proper process. In that case President Mandela, in
considering whether to appoint a commission of enquiry under s 84(2)(f) of the Constitution, had required a
written memorandum of motivation from the Minister of Sport. He received a 26-page memorandum with
three supporting files of documentation running to 725 pages (the so-called Tshwete file). He took some days
to consider this material before making his decision. The Tshwete file formed an important part of the
material on which this court was able to conclude that the President had properly applied his own mind to the
matter.
 16

President’s decision was for this reason unlawful; [b] that the process

followed by the President in arriving at his decision was not rationally

related to the objectives sought to be achieved by the Constitution and

the NPA Act and that for this reason his decision was unconstitutional,

arbitrary and did not involve a proper application of the mind; [c] that

the President’s decision was made not for the mandated purposes set

out in the Constitution and the NPA Act but in an attempt to ensure

that the NDPP would be malleable to the executive’s wishes.

30. The SCA upheld the second of these and did not decide the other two.

In this Court that ground would be a sufficient basis on which to

confirm the SCA’s order. Because Simelane intends to argue that the

SCA’s upholding of the second ground was wrong, we must explain

why the SCA’s order is in any event justified on the other grounds. It

is convenient to take the three grounds in the order mentioned in the

previous paragraph, because the arguments on Simelane’s objective

lack of fitness are also relevant to the second and third grounds.

H. Ground one: Simelane’s fitness – the internal aspect

31. We deal first with the internal aspect. The considerations are

cumulative.
 17

(1) Non-disclosure in Government’s submission to the GE

32. Although the Government’s submission to the Ginwala Enquiry

(‘GE’)22 was in the MoJ’s name, it was prepared by Simelane.23 The

submission explained the breakdown in the relationship between the

MoJ and Pikoli with reference to events over several years but made

virtually no mention of the events in the week immediately preceding

Pikoli’s suspension on 23 September 2007. Among the matters not

disclosed were the President’s letter to the MoJ of 17 September 2007,

the MoJ’s letter to Pikoli of 18 September 2007 (drafted by Simelane)

in which she instructed him not to proceed against Selebi until she was

satisfied, and Pikoli’s response to the MoJ.

33. The events over the period 15-23 September 2007 regarding the Selebi

arrest and Pikoli’s resistance to perceived interference from the

executive were clearly at the heart of President Mbeki’s decision to

suspend Pikoli. The Government’s submission, by omitting to deal

frankly with these matters, was misleading. When cross-examined on

this in the GE, Simelane conceded that the events in question were

22
Record 5/413-459.
23
FA 77 record 1/30.
 18

important but tried to justify their omission as mere detail.24 His

evidence was not credible and he was rightly criticised by the GE.

34. Simelane’s affidavit in the current proceedings gave the lie to his

attempt in the GE to downplay the significance of the events

immediately preceding Pikoli’s suspension. He said,25 in a different

context, that there were real differences between the President and the

MoJ on the one hand and Pikoli on the other ‘on how to manage the

investigation and arrest of Selebi’ and he then adds that this ‘was

ultimately the straw that broke the camel’s back’.

(2) The President’s letter of 17 September 2007

35. On 22 October 2007 Pikoli’s attorneys (‘DR’) wrote to Simelane,

stating that one of the issues for investigation was executive

interference in the Selebi prosecution and asking, inter alia, for ‘all

communications and other documents relating to the investigation and

prosecution of Mr Selebi which you or your department may have sent

or received from the president or anybody in the Presidency at any

time since 15 September’. Letters in similar terms were sent to the

MoJ and the President.26

24
FA 80 record 1/32.
25
Simelane 15 record 2/113; see also RA 40 record 3/296.
26
FA 84-87 record 1/33-34; transcript record 5/516.14-16.
 19

36. On 1 November 2007 Simelane responded on behalf of himself, the

Minister and the President. He stated that there were no such

documents. He failed to disclose the President’s letter to the MoJ

dated 17 September 2007.27 In that letter28 the President had informed

the MoJ that he deemed it appropriate that she obtain ‘the necessary

information’ from Pikoli regarding the intended arrest and prosecution

of Selebi so as to enable him to ‘take such informed decision as may

be necessary’ with regard to Selebi.

37. The President’s letter fell squarely within the terms of DR’s request.

Simelane conceded this when cross-examined at the GE.29 When

asked about the non-disclosure he said he had not been informed of

the President’s letter and had only become aware of it ‘much later’.

He was confronted with the fact that this could not be true because

earlier he had admitted drafting the MoJ’s letter to Pikoli to give effect

to the President’s request.30 Simelane then altered his version and said

that although he had indeed been ‘aware’ of the President’s letter he

had not ‘seen’ it. This now meant, once again, that Simelane had to

explain the non-disclosure. He could give no satisfactory answer. He

claimed that he had read DR’s request ‘narrowly’ as not covering the

President’s letter. This evidence is simply not credible.

27
FA 89 record 1/34; transcript record 5/519.
28
The letter is at record 4/386.
29
Transcript record 5/517.
30
Transcript record 5/519.
 20

38. Simelane also stated that he could only have disclosed the letter to DR

with the MoJ’s permission and that if he had been given instructions

to make reference to the President’s letter he would have done so.31

This explanation reflects a serious lack of integrity. A person of

integrity would not draft a dishonest letter merely because he did not

have instructions from the MoJ to disclose the President’s letter. Even

worse, Simelane affirmed this explanation in these proceedings.32

39. Simelane repeated under oath in this case that he had not seen or read

the President’s letter at the time he replied to DR, adding that because

this was his state of mind at the time he did not mention the

President’s letter ‘since he had no certain knowledge of its existence

except from what he had heard’.33 This version is particularly

damning against Simelane: [a] At the GE he said unequivocally that

he had been aware of its existence but had not seen it.34 Indeed, he

said that he thought about the President’s letter but did not mention it

because he felt it did not fall within DR’s request35 or because he did

not have instructions to do so.36 His version in the Simelane

submissions as affirmed in his answering affidavit was thus manifestly

31
Transcript record 6/524.1-7 and 6/525.24-26.
32
See para 14 of the Simelane submissions record 9/911 and para 46 thereof record 9/928. In para 22.1 of his
answering affidavit (record 2/128) Simelane refers to and incorporates the explanations in the Simelane
submissions.
33
Simelane submissions 43 record 9/927 read with his answering affidavit 22.1 record 2/128.
34
Transcript record 5/520.29-521.19; 5/521.29-30; 6/525.2-5.
35
Transcript record 5/522.6; 6/523.10.
36
Transcript record 6/525.24-26.
 21

false. [b] Even if it were so that he was uncertain of the letter’s

existence, he at least knew that there might be such a letter. No person

of integrity would in such circumstances write a letter positively

denying the existence of the requested documents without ascertaining

whether such a letter existed.

(3) The MoJ’s letter of 18 September 2007

40. The MoJ (Ms Mabandla) reacted to the President’s letter of 17

September 2007 by causing a letter dated 18 September 2007 to be

addressed to Pikoli.37 It is common cause that Simelane drafted this

letter for the MoJ.38 In this letter the MoJ asked Pikoli to furnish her

with all information on which he relied to arrest and charge Selebi.

She said that Pikoli had to consider not only the existence of prima

facie evidence but also the ‘national interest’. She continued:

‘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. You should therefore and with extreme
urgency cause for me to be briefed thoroughly in this regard.’

41. This passage is unambiguous. The MoJ instructed Pikoli not to arrest

and charge Selebi unless the MoJ was satisfied that the evidence

37
The MoJ’s letter is at record 4/388.
38
Simelane submissions 24 record 9/916; Simelane 20.8 record 2/121; see also transcript at record 5/489.2-7.
 22

justified this. (This letter was among the documents not mentioned in

the Government’s original submission to the GE. The MoJ mentioned

it in her subsequent affidavit to the GE but did not annex it.39 It was

Pikoli who produced the letter in his answering affidavit to the GE,40

whereafter it became the subject of some attention in the enquiry.41)

42. Although the MoJ’s letter invoked s 179(6) of the Constitution,

nobody on behalf of the Government attempted during the GE to

defend the position that the MoJ could lawfully instruct the NDPP as

to whether or not to pursue the prosecution of Selebi.42 We submit that

Simelane, by drafting the letter, displayed a fundamental lack of

appreciation for prosecutorial independence; or worse still, while

knowing what prosecutorial independence entailed, he was willing to

assist the MoJ to override it.

43. At the GE Simelane could not defend the plain meaning of the letter

as lawful or proper. Instead of admitting that he had made a grave

error, he asserted that the letter meant merely that Pikoli should delay

the arrest until he had furnished the MoJ with the requested report.43

We submit that this explanation was dishonest. The letter is not

39
See para 70 of SCA record 12/2232. She said that she had written to Pikoli seeking full particulars but that
his attitude had been that he did not have to give her full information (a most inaccurate summary of her
letter and his response).
40
GR 271 record 8/755. And see para 70 of Ms Mabandla’s affidavit to the GE SCA record 12/2232.
41
GR 285-302 record 8/762-773.
42
This was admitted in President Motlanthe’s answering affidavit in the Pikoli application: para 53.9
SCArecord 10/1828.
43
Transcript record 5/481.10-482.27; record 5/492.21-494.20; record 5/498.9-16.
 23

capable of this meaning, and Simelane’s cross-examination on this

aspect casts him in a poor light.

44. As the GE held, Simelane’s conduct was ‘reckless to say the least’ as

the letter was ‘tantamount to executive interference with the

prosecutorial independence of the NPA,44 and on its literal meaning –

which left no room for doubt45 – amounted to a criminal offence.46

(We note that the GE did not find that the MoJ had not intended to

interfere with Pikoli’s discharge of his duties. The GE merely

recorded that the MoJ’s version given on affidavit was that this had

not been her intent but that she had elected not to give oral evidence to

clarify the matter.47)

45. In his answering affidavit in the current proceedings Simelane

compounded his misconduct in several respects. Firstly, he persisted

with his attempt to give the MoJ’s letter an interpretation it cannot

bear.48 Persisting with this version reflects negatively on his fitness.49

46. Secondly, and in an endeavour to support his interpretation, he

claimed that the letter ‘should be read together with’ the President’s

44
GR 159 record 7/690-691; FA 123.7 record 1/44-45.
45
GR 347 record 8/790.
46
GR 286 record 8/763.
47
GR 286-288 record 8/763-764.
48
Simelane 20.11 record 2/122-3; para 21.3 at 2/125-6.
49
RA 41.3 record 3/297-8.
 24

letter of 17 September 2007.50 The President’s letter certainly did not

go as far as the MoJ’s letter. Simelane was cross-examined on this at

the GE, but for present purposes the important points are these51: [a]

Pikoli did not know about the President’s letter. To Simelane’s

knowledge, Pikoli would understand the MoJ’s letter on its own terms.

[b] Simelane’s attempt to justify his drafting with reference to the

President’s letter is at odds with his evidence that he himself had not

seen or read the President’s letter. This is also the version in the

Simelane submissions, where he said that he did not even have certain

knowledge of the existence of the President’s letter.52 [c] He

incorporated the assertion made in the Simelane submissions53 that,

contrary to the GE’s findings, the MoJ indeed disclosed the letter to

the GE. That is simply untrue. It was not mentioned at all in the

Government’s submission of 18 October 2007 and was inaccurately

summarised in (but not attached to) the MoJ’s subsequent affidavit to

the GE. [d] He also incorporated the untenable contention in the

Simelane submissions54 that the cross-examination at the GE on the

terms of the letter was directed at the wrong person (him, instead of

Ms Mabandla). This shows a clear lack of insight. He drafted the letter

and had to take responsibility.

50
Simelane 20.8 record 2/121; para 21.6 at 2/127.
51
Cf RA 41.4 record 3/298-9.
52
Simelane submissions 43 record 9/927, confirmed by him in these proceedings: 22.1 record 2/128.
53
Simelane submissions 13.3 record 9/909-10, incorporated in 22.1 of Simelane’s affidavit record 2/128.
54
Paras 13.3, 18 and 19 record 9/909-913.
 25

(4) Non-disclosure of legal opinions

47. One of the issues in the GE was the extent of the DG’s authority in

relation to the NPA arising from his accounting functions in s 36 of

the NPA Act, and whether Pikoli had failed to recognise the DG’s

powers in that regard.55 The complaints under this head were rejected

by the GE as baseless and spurious.

48. During Simelane’s cross-examination on the DG’s functions in

relation to the NPA he was asked whether he had taken legal advice

thereon. His unequivocal answer was no.56 The cross-examiner

returned to this matter some minutes later and only when Simelane

saw him turning to a document did Simelane change his version and

admit that he had taken opinions on the issue.57 From the cross-

examination that followed58 it is clear that the opinions dealt squarely

with the issue under investigation, that Simelane knew what the

opinions said, and that he could not have forgotten about them or

believed them to be irrelevant.

49. Simelane agreed that in part the opinions supported Pikoli and refuted

his own views but he could provide no satisfactory explanation why

55
See 11.5 of the executive summary in the GR record 6/593, and GR 133-136 record 7/677-8 for the
detailed findings and GR 317-322 record 8/780-1 for the conclusions.
56
Transcript record 6/550.28-551.4.
57
Transcript record 6/555.28-556.22.
58
Transcript record 6/556.7ff.
 26

he had not shared the opinions with Pikoli with a view to reaching

common ground.59 More significantly, Simelane failed to disclose in

the Government’s submission that he had taken opinions on one of the

central complaints and that the opinions in part supported Pikoli’s

views. His lame response when challenged was that he did not think

there was a need to disclose the legal advice.60

50. It is submitted that the GE was thus fully justified in concluding that

Simelane deliberately withheld the opinions from the GE and that this

could have led to the GE being misled; that this was highly irregular

and not consonant with his responsibilities as a senior official; and

that he attempted to suppress the opinions during cross-examination,

only acknowledging their existence when they were produced to

him.61

(5) Accusations of dishonesty against Pikoli

51. Initially in his cross-examination at the GE Simelane accepted that the

differences of opinion between himself and Pikoli had been ‘purely

professional’.62 However, to counteract the picture of two officials

with genuine differences of opinion as to their respective functions, he

59
Transcript record 6/559.21-563.21.
60
Transcript record 6/564.1-566.9.
61
GR 153-158 record 7/685-690.
62
Transcript record 6/544.28-545.16.
 27

tried to shore up the Government’s case against Pikoli by saying that

Pikoli was feigning ignorance of Simelane’s powers as accounting

officer for the NPA and was advancing a view that he knew to be

incorrect. With justification, we submit, it was put to him that this

imputation of dishonesty against Pikoli was a recent fabrication, and

he had no satisfactory explanation for having failed to include these

allegations in the Government’s submission and affidavits.63

(6) Miscellaneous aspects going to integrity

52. In Pretoria Portland Cement Co Ltd & Another v Competition

Commission & Others 2003 (2) SA 385 (SCA) the SCA found that

Simelane (as the Competition Commissioner) had used deception in

gaining entry to a company’s premises. The judgment also contained a

scathing criticism of the Commission’s abuse of its search powers in

that matter.64 Simelane chose, in his answering affidavit in the present

proceedings, not to respond to or refute these findings.65 The SCA

rightly remarked that the Pretoria Portland judgment reflected on his

integrity (para 111).

53. In the Glenister application to set aside the dissolution of the

Scorpions, Simelane made an affidavit on 29 April 2008 stating that

63
Transcript record 6/545.20-550.7.
64
SFA 24 record 1/80-2.
65
Simelane 29 record 2/132 in response inter alia to para 24 of the SFA.
 28

no decision had been taken by the Cabinet to dissolve the Scorpions,

whereas the very next day the Cabinet approved the draft legislation

for the Scorpions’ dissolution. In the hearing in this court Simelane

was rebuked by Justices O’Regan and Yacoob for not complying with

the Government’s obligation to respond fully, frankly and openly.66

54. In paras 145-147 of the founding affidavit67 reference was made to a

probe by the GCB into Simelane’s conduct. Simelane did not traverse

these paragraphs in his answering affidavit.68 However, in paragraph

11.2 of his affidavit69 he said that there had never been a complaint of

unprofessional conduct against him and that the GR was the first

occasion on which his integrity and honesty had been called into

doubt. In reply70 the DA challenged the truthfulness of Simelane’s

assertion in paragraph 11.2 by referring to the way in which his

integrity had been called into question in the Pretoria Portlands

Cement and Glenister cases. Regarding the professional probe, the DA

referred to the public reports concerning the GCB enquiry which had

appeared in the press in December 2009 and January 2010, saying that

Simelane must have been aware of these. Simelane was invited to

correct the untrue statement. He did not respond to this invitation.

66
RA 36.5 record 3/289-293 and Glenister heads of argument paras 10-11 record 5/467 and paras 52-58
record 5/469-472, all as confirmed in the affidavit of attorney Kevin Louis SCA record 7/1395-8.
67
Record 1/57.
68
His traversal of the founding affidavit stops, curiously, at FA 144 – see record 2/130-1.
69
Record 2/108.
70
RA 36 record 3/288-293.
 29

(7) Conscientiousness, experience and past performance

55. The Court can also take into account that Simelane’s experience and

past performance are equivocal in relation to the high standards one

would expect of the NDPP.71

(8) The GR’s findings in general

56. In conclusion on the internal aspect of fitness, it is necessary to assess

the status of the findings in the GR. On most of the issues we have

analysed the matters in question and submit that the Court can come to

its own findings. In general, though, the matter goes further than this,

given the attitude which President Zuma adopted in his answering

affidavit. President Zuma could have said that the GR’s findings were

wrong and unreliable, but this was not his stance.

57. Already in the Pikoli proceedings, the President realised the difficulty

of blowing hot and cold on the GR, given that the Government was

relying on certain adverse ancillary findings in the GR in order to

71
Simelane’s CV (record 10/948-952) indicates that he was only 38 at the time of his appointment, with
virtually no experience in the investigation and prosecution of crime and nothing out of the ordinary by way
of tertiary qualifications (SFA 15 record 1/73-74). Regarding his performance as the head of the Competition
Commission (February 2000 – June 2005), Simelane claimed in his answering affidavit that an OECD peer
review had concluded that the SA competition authorities were compliant with international best practice
(11.4.3 record 2/110-1). In the replying papers the DA produced the OECD report (SCA record 7/1310-
1383). The report does not contain the conclusion alleged by Simelane and reflects a rather mixed bag insofar
as the Commission’s performance is concerned (see the analysis in RA 38 record 3/294-6). During his period
as DG (and thus accounting officer) of the DoJ (June 2005-October 2009) Simelane’s department received
qualified reports from the Auditor-General in each year, with the list of items of concern increasing rather
than diminishing (SFA 22-23 record 1/78-80). Simelane declined to traverse these allegations in his
answering affidavit (cf 29 record 2/132).
 30

justify Pikoli’s dismissal.72 Accordingly, when Pikoli – in an affidavit

filed on 26 October 200973 – accused the Government of double

standards by relying on these ancillary findings in the GR to dismiss

him while ignoring the GR’s findings when appointing Simelane as

Deputy NDPP, President Zuma responded in an affidavit by saying

that he had appointed Simelane

‘because I considered that this young man still has a useful role in
providing legal services in the public interest and that the findings
against him made by the Ginwala Enquiry should not constitute an
insuperable obstacle to this appointment. Only time will tell whether
my decision was right or not...’.74

58. This explanation by President Zuma contained no suggestion that the

GR’s findings against Simelane were wrong, and any such admission

by President Zuma would have been disastrous for the Government in

the pending case against Pikoli. President Zuma adhered to this

position in his answering affidavit in the present proceedings. He said

(in response to an allegation that he should have considered the

evidence in the GE) that he was not required ‘to go behind’ the GR to

interrogate the testimony and that to do so would ‘undermine’ the

GE.75 He also said that the Government accepted the GR ‘in its

entirety and I do not quarrel therewith’. He stated that he was thus not

72
See, eg, President Motlanthe paras 10-11 at 9/841-842.
73
Pikoli application record 4/318ff.
74
Zuma 11 record 4/328, quoted in SFA 37 record 1/97.
75
Zuma 30 record 2/146.
 31

in a position to contradict the GR’s finding that Simelane’s evidence

was contradictory and without basis in fact or law.76

59. In the light of this attitude by the person vested with the power to

appoint the NDPP, the Court is entitled to assess Simelane’s fitness on

the basis of an acceptance of the GR’s findings. Most of those

findings are set out in the founding affidavit.77 Their acceptance

cannot stand with a conclusion that Simelane was a fit person for

appointment.

I. Ground one: Simelane’s fitness – the external aspect

60. The external aspect of fitness is concerned with how the appointee

will be perceived by society at large. This in turn depends largely on

what is publically known concerning the appointee. What was

publically known about Simelane in November 2009 included the

following: [a] that there was a strong suspicion that the previous

NDPP had been suspended because of his decision to proceed with the

arrest and prosecution of Selebi; [b] that Simelane was the lead figure

for the Government in the widely publicised enquiry that ensued and

was viewed as Pikoli’s main accuser; [c] that in its report the GE had

76
Zuma 41.2 record 2/150. In para 42.4 at 2/152 he said the GR ‘remains unblemished’.
77
FA 123 record 1/43-45. See also GR 158 and 160 record 7/689-692, where Dr Ginwala found that
Simelane’s personal views had informed many of the complaints against Pikoli and that some were so remote
that it could be inferred that he had intended ‘to throw a wide net to try to make something stick on Adv
Pikoli’.
 32

recommended Pikoli’s reinstatement and found him to be a person of

the utmost integrity; [d] that the same report had made damning

criticisms of Simelane; [e] that the Government had rejected the GR’s

recommendation and latched onto some minor criticisms of Pikoli in

the GR to justify Pikoli’s dismissal; [f] that subsequent to Pikoli’s

dismissal the Acting NDPP had dropped the corruption charges

against Mr Zuma that had been investigated and initiated under

Pikoli’s leadership of the NPA, whereafter Mr Zuma became

President of the country; [g] that Pikoli’s dismissal had led to a high-

profile application by Pikoli to set aside his dismissal, which in

November 2009 was settled on the basis that the Government paid

Pikoli R7.5 million; [h] that all of this had occurred against a

background in which crime in general and corruption in particular

have been seen as major challenges facing the country.

61. It was thus to be expected that a significant body of public opinion

would be dismayed by the appointment as NDPP of a person who

appeared to lack strong credentials of integrity and independence. The

appointment of Simelane was, in these circumstances, just about the

worst choice that could be made. It is unsurprising that the

appointment was condemned by a large number of interest groups and

 33

commentators.78 This public reaction is an accurate barometer of the

external aspect of Simelane’s fitness – his public reputation as at 23

November 2009 made him utterly unfit for appointment.

J. Ground two: The appointment process and irrationality

62. We submit that the means chosen by President Zuma to satisfy

himself of Simelane’s fitness were not rationally related to the objects

of s 179 of the Constitution and the NPA Act and that this resulted in

an irrational and arbitrary appointment to which President Zuma did

not properly apply his mind.

63. President Zuma did not call for or receive any written reports

concerning Simelane. Minister Radebe (who gave President Zuma

oral briefings) did not call for or receive reports concerning

Simelane’s performance as Competition Commissioner or as DG nor

did he call for documents such as Simelane’s annual performance

agreements and annual performance assessments.

64. Regarding the oral briefings, President Zuma and Minister Radebe

were vague as to when these occurred, how long they lasted or

78
See the schedule at SCA record 7/1384-1390 read with RA 52 record 3/3041. Apart from the DA, dismay
was expressed by the ACDP, the ID, COPE and the IFP. Other interest groups and commentators who
condemned the appointment included Judith February of IDASA, Adv De Havilland of the Centre for
Constitutional Rights, Jay Kruse of the Public Service Accountability Monitor, Pierre De Vos (a
constitutional law expert) and Archbishop Emeritus Desmond Tutu, who said (SCA record 7/1391) that the
appointment (which he described as an aberration) distressed him deeply.
 34

precisely what was said. Neither of them disclosed the dates of the

briefings and one must assume that neither of them had a written note

of when the briefings took place.79

65. Their version appears to be that there was a first briefing before

Simelane’s appointment as Deputy NDPP (an appointment which also

required a finding of fitness – s 11(1) of the NPA Act read with s 9),

though when this occurred is left vague: the Minister chooses a

curious formulation, saying that Simelane’s eligibility had been

discussed ‘as at 5 October 2009’.80 There was a second briefing prior

to Simelane’s appointment as NDPP on 25 November 2009, though

again the participants do not say when this occurred.

66. Regarding the first briefing, the Minister says he conveyed his

‘unequivocal support’ for Simelane.81 This was apparently a

generalised view, based on the fact that the Minister had been part of a

panel which had interviewed Simelane for the DG post (this must

have been in or prior to June 2005) and on the unspecified ‘value’

Simelane had added at various cabinet sub-committee meetings and

lekgotlas.

79
See RA 21-35 record 3/278-288 for a detailed response to the respondents’ version concerning the
briefings.
80
Radebe 105.6 record 3/266.
81
Radebe 55 record 3/222.
 35

67. What is telling about the first briefing is the treatment of the GR’s

findings and the PSC’s report:

67.1. As at 5 October 2009 no decision had yet been taken (on the

respondents’ version) as to whether the PSC’s

recommendation of a disciplinary enquiry into Simelane’s

conduct would be accepted or rejected. The Minister had not

yet even sent the Simelane submissions to the PSC for

assessment and the possible hearing of oral evidence. His

version is that the decision to reject the PSC’s

recommendation was only made on 23 November 2009.82

67.2. In the face of the GR’s findings and the unresolved PSC

recommendation, it could not have been rationally concluded

on 11 October 2009 that Simelane was fit and the Minister

could not rationally have given Simelane his ‘unequivocal

support’.

67.3. President Zuma did not say in his affidavit that as at 11

October 2009 he was not aware that the GR had voiced serious

criticisms of Simelane or that the PSC had recommended to

82
That this is his version appears from the introductory remarks in his decision of 23 November 2009 at
record 10/939 and in his press statement of 30 November 2009 record SCA 6/1122-3. See also Radebe 48-50
record 3/219-221 and 62-66 record 3/226-228.
 36

the MoJ that a disciplinary hearing be convened.83 He had

been President since 9 May 2009 and was aware of the Pikoli

application. A rational process of enquiry into Simelane’s

fitness would undoubtedly have brought these matters to his

knowledge (if he was not already aware of them).

67.4. Rationally, President Zuma, before appointing Simelane as

Deputy NDPP, would have had to make enquiries as to the

status of the GR’s findings and the PSC’s recommendations.

Yet neither he nor the Minister in their affidavits says that in

the first briefing the pending PSC report was discussed.84 If

they did not talk about it one would be dealing with utter

irrationality: if a disciplinary enquiry into Simelane’s past

conduct might still have taken place, there could be no

affirmative finding of fitness as at 11 October 2009. (If they

did talk about the PSC recommendation and failed to disclose

the discussion in their affidavits, the explanation would have

to be more sinister – we deal with this in the context of

improper motive below. There is simply no basis on which an

actual discussion of the issue and the maintaining of an open

83
See RA 25 record 3/279.
84
Their versions as to whether even the GR was discussed are inconsistent. The Minster makes no mention
of such a discussion at the first briefing whereas the President claims (20 record 2/142) that the GR was
discussed.
 37

mind pending further developments could be reconciled with

an appointment of Simelane at that time as Deputy NDPP.85)

68. The irrationality of the appointment of Simelane as Deputy NDPP is

relevant for several reasons, even though it is the subsequent

appointment as NDPP that is the subject of the review:

68.1. The respondents themselves relied on the first briefing as part

of the material to justify the rationality of Simelane’s ultimate

appointment as NDPP.

68.2. Since the two appointments occurred so close to each other in

time, the irrationality which attended the first appointment can

be seen as part of a pattern of irrationality.

68.3. Most importantly, in the circumstances of this case the

appointment of Simelane as NDPP on 25 November 2009

cannot be divorced from his appointment as Deputy NDPP on

11 October 2009. By 15 July 2009 the President was intending

to appoint an NDPP. He would not have notified Pikoli’s

attorneys of his intention to make an appointment86 and

precipitated the interim interdict application unless he had a

85
RA 34.9 record 3/285-6.
86
See the Presidency’s letter to the State Attorney of 15 July 2009 and the State Attorney’s resultant letter of
the same date to DR: 10/934-937.
 38

candidate in mind. He did not say in his answering affidavit

that the candidate was someone other than Simelane.87

Because of the interdict granted on 11 August 200988 the

President could not appoint Simelane as NDPP until after the

settlement of the Pikoli application but he could appoint him

as a Deputy NDPP. It is inconceivable that Simelane, as DG of

the DoJ, would have accepted a position of lower status on any

basis other than as a temporary or holding move.89

68.4. In his answering affidavit in the Pikoli application (made on

17 April 2009) President Motlanthe said that the process of

identifying the new NDPP was underway but that he had

undertaken to notify Pikoli’s attorneys before an appointment

was made.90 (This was repeated by Minister Radebe in these

proceedings.91) It is simply not credible that when, three

months later, President Zuma notified DR of an intended

appointment, this process of identification was not complete.

87
SFA 26.3 record 1/84-5. This allegation is not specifically traversed by the President and is at best met by a
vague and bare denial which is insufficient to create a genuine factual dispute – Zuma 89 record 2/188 (and
see RA16-20 at 3/277-278).
88
Judgment of Du Plessis J reported at 2010 (1) SA 400 (GNP).
89
Simelane denied that he was given any assurance, when appointed as Deputy NDPP, that he would be
appointed as NDPP once Pikoli was out of the way – para 30 record 2/132. However, neither he nor the
Minister or President denied the allegation in SFA 27.3 (record 1/86-7) that from the perspective of status the
position of Deputy NDPP was below that of DoJ.
90
Para 46 SCA record 10/1823.
91
Radebe para 23 record 3/202.
 39

68.5. In the circumstances, by the time President Zuma appointed

Simelane as Deputy NDPP on 11 October 2009 he must have

already decided that Simelane was a fit person to be appointed

as NDPP and that such an appointment would follow if and

when the Government had disposed of the Pikoli litigation.

69. The second briefing seems to have focused on the GR and the PSC’s

report.

70. On the GR’s findings, the Minister says that he had a good sense of

the Cabinet’s views on the GR, including the criticisms therein of

Simelane, and that he shared these views ‘fully’ with the President.92

Presumably the Minister’s point is that the GR had been considered by

Cabinet before Mr Zuma’s appointment as President and hence he was

able to convey to President Zuma Cabinet’s views pre-dating Mr

Zuma’s inauguration.

71. The Minister does not say what he actually told President Zuma. What

is known, though, is that President Zuma himself understood that the

Cabinet had accepted the GE’s findings in their entirety.93 In the

circumstances, what the Minister told the President concerning the

Cabinet’s position on the GR could not have been favourable to

92
Radebe 58 record 3/223.
93
Zuma 30 record 2/146; Zuma 41.2 record 2/150.
 40

Simelane’s appointment (unless the Minister and the President had

differing understandings of the Cabinet’s position).

72. On the PSC’s report, the Minister in his affidavit set out his own

actions and views in relation to the PSC process94 and then

concluded95 by stating that because the PSC’s report was flawed and

one-sided he had told the President that no purpose would be served in

presenting the PSC’s findings to him. In this regard:

72.1. If the President had received and read the PSC’s report, he

would at least have seen the main findings made in the GR

against Simelane. However, the Minister told the President

that the PSC report was not worth looking at and the President

seemingly accepted this. It is submitted that no rational

process of consideration by President Zuma could involve

such an abdication of responsibility to assess important

material. President Zuma had to obtain key documentation and

reflect on it himself.

72.2. In any event, if President Zuma chose to rely so totally on the

Minister’s assessment of the GR and the PSC’s findings, the

94
Radebe 60-65 record 3/224-227.
95
Radebe 66 record 3/227.
 41

irrationality of the Minister’s assessment and advice must

necessarily taint President Zuma’s decision.

72.3. In our submission, the Minister’s reasons for concluding that

the PSC’s recommendation (and thus by necessary implication

the GR’s findings) did not deserve President Zuma’s attention

were utterly irrational. The reasons were set out fully in the

DA’s papers.

72.4. In this regard we emphasise the following. The Minister’s first

and fundamental criticism of the PSC was that it had failed to

give Simelane a hearing.96 This overlooks the obvious point

that the PSC was not recommending that Simelane be

dismissed; its recommendation was that a disciplinary enquiry

be held in which there would be proper compliance with the

audi principle.97 In order to render Simelane’s appointment

lawful the President had to be able to conclude affirmatively

that Simelane was a fit and proper person. Even if the GR did

not conclusively establish that Simelane was unfit for

appointment, it went a long way and established a strong

prima facie case. As against this, the Minister had the unsworn

96
Record 10/939-940.
97
Paras 5.1.5 and 6.1 record 9/901-2. For the process followed by the PSC, see paras 2.3, 2.4 and 4 at record
9/866-8.
 42

and untested submissions from Simelane’s counsel. The

Minister personally could not know where the truth lay.

72.5. Regarding the incidents of misconduct themselves, the

Minister confined himself to the specific matters on which the

PSC had recommended Simelane be charged, without

apparently appreciating that the GR contained other criticisms

which went to Simelane’s fitness.

72.6. On the specific proposed charges, the Minister in his decision

essentially adopted the Simelane submissions. As we have

shown in addressing the various fitness issues, the Simelane

submissions on the key issues are untenable and in several

respects make Simelane’s position worse, not better.

73. The irrationality of the process, as summarised above, is enough to

taint the decision, though in our submission the irrationality of the

process resulted (unsurprisingly) in an appointment which on its

merits was arbitrary, irrational and the product of a failure by

President Zuma properly to apply his mind. The submissions we have

made on the fitness question bear this out. Even if fitness is not

objectively justiciable but a matter for the President’s subjective

opinion, our submissions on fitness justify the conclusion that

 43

President Zuma’s decision was so poor and inappropriate that it can

properly be labelled as arbitrary and irrational

K. Ground three: Ulterior purpose

74. The DA’s argument on ulterior purpose to some extent posits an

alternative explanation for a decision which would otherwise be

branded as innocently irrational: the true explanation for a decision

which is objectively irrational may be [a] that it was the product of an

‘innocent’ (but nevertheless reviewable) failure to apply the mind; or

[b] that it was taken for an ulterior purpose. There are features of this

case other than pure irrationality which point towards the ulterior

purpose alleged by the DA, namely that of attempting to secure as

NDPP a person who would be susceptible to influence by the

executive in regard to high-profile prosecutorial decisions.

75. The existence of an ulterior purpose is almost always a matter of

inference. We have already discussed most of the evidential material

which supports the inference, namely [a] that Simelane was,

objectively, not a fit appointee in the internal sense of fitness; [b] that

Simelane was reasonably and predictably perceived in many quarters

to be unfit for appointment; [c] the utter inadequacy of the process

followed in appointing Simelane.

 44

76. These matters, and others mentioned below, must be viewed in the

light of a factual matrix in which a desire by President Zuma and his

confidantes to appoint a malleable NDPP would have been entirely

plausible. Selebi was President Mbeki’s appointee. There is clear

evidence of an attempt by the executive to interfere in Pikoli’s

independence in the Selebi arrest and prosecution. There must, to put

it no higher, be a strong suspicion that it was Pikoli’s resistance to this

interference that led to his suspension by President Mbeki in

September 2007.

77. Pikoli was also the NDPP who had caused Mr Zuma to be indicted on

corruption charges. Pikoli was finally removed as NDPP in December

2008 by President Motlanthe who, following the ousting of Mr Mbeki

at Polokwane in December 2007, had succeeded Mr Mbeki as

President in September 2008. But for the pending corruption charges

against Mr Zuma, the latter and not Mr Motlanthe would have

succeeded Mr Mbeki as President.

78. While Pikoli’s suspension by President Mbeki was concerned with the

prosecution of Selebi, Pikoli’s final removal in December 2008 by Mr

Mbeki’s successor clearly had a different motive. Ostensibly President

Motlanthe relied on some minor negative findings against Pikoli in the

GR in order to override the GE’s recommendation that Pikoli be

 45

reinstated.98 But in his application Pikoli alleged, on grounds that we

submit are unanswerable,99 that this was not the true reason, and that

the new guard removed him because of his erstwhile leadership in the

prosecution of Mr Zuma.100 Even leaving Pikoli’s refutation aside, one

only needs to read the relevant paragraphs of the GR to see that its

residual criticisms of Pikoli were minor; that several of the complaints

(as the GR itself noted) were ancient and had not previously been the

subject of criticism; and that in some instances Simelane himself bore

equal or greater blame.101 What was put up as supposed justification

for Pikoli’s dismissal was truly risable.

79. A few months after the final removal of Pikoli, the Acting NDPP in

April 2009 announced the dropping of corruption charges against Mr

Zuma, clearing the way for his inauguration as President a month later

on 9 May 2009. Even before the hearing of the Pikoli application,

President Zuma had been anxious to appoint a new NDPP, an

intention he notified to Pikoli’s attorneys on 15 July 2009. He has not

98
See the dismissal letter of 8 December 2008 record 9/839-844.
99
The Pikoli papers were incorporated into the present application and Pikoli confirmed all his evidence:
SFA 31-38 record 1/95-98; Pikoli affidavit record 1/101-3.
100
Pikoli FA 242-248 SCA record 10/1511-1515.
101
The residual complaints upheld (though generally only in minor part), and on which President Motlanthe
relied in finally dismissing Pikoli concerned: [i] the DSO listing, dating back to November 2006 (GR 11.4
read with 161-170 record 6/593 and record 7/693-697 ; and see Pikoli’s submissions to the President paras
24-24 record 8/821-822 [ii] the Browse Mole Report, dating to March 2006, with most of the complaints
being rejected (GR 11.6 read with 171-189 record 6/594 and record 7/698-707; and see Pikoli submissions
paras 36-39 record 8/827-829) [iii] the Malawian investigation, going back to the first half of 2006, with
Simelane’s conduct in the episode coming in for greater criticism (GR 11.7 read with 190-198 record 6/594
and record 7/708-714; and see Pikoli submissions paras 33-35 record 8/825-827) [iv] search of Union
Buildings, going back to August 2005 (GR 11.9 read with 214-238 record 6/595 and 8/723-737; and see
Pikoli submissions paras 27-32 record 8/822-825) [v] the Selebi investigation (GR 11.10 read with 239-302
record 6/595-6 and 8/738-773; and see Pikoli submissions paras 40-45 record 8/829-837).
 46

said in the present matter that he ever considered a candidate for the

post other than Simelane, the Government’s chief accuser against

Pikoli.102

80. Quite apart from the impressive merits of Pikoli’s application, one has

the simple fact that on the eve of the hearing of Pikoli’s application he

was paid R7.5 million to drop the case. Within a matter of a couple of

days Simelane had been appointed by President Zuma as NDPP.

81. These are powerful circumstances which should make a court less

hesitant than it might otherwise be to draw adverse inferences from

facts such as Simelane’s unfitness for appointment, his negative public

reputation and the utter inadequacy of the process followed in his

appointment. But in addition to the foregoing we wish to emphasise

certain other features.

82. In dealing with the appointment process, we have submitted that the

President must have had Simelane in mind as his appointee by 15 July

2009 (when Pikoli was notified of the President’s intention to make an

appointment) or by 11 October 2009 (when Simelane was appointed

as Deputy NDPP). In our submission the President was not candid on

this issue. The supplementary founding papers squarely alleged that

102
And see para 46 of President Motlanthe’s affidavit in the Pikoli application SCA record 10/1823,
indicating that the process of identifying the new NDPP had begun by April 2009, as confirmed by Radebe
para 23 3/202.
 47

Simelane had in all probability already been identified as the new

NDPP by mid-July 2009.103 The President’s response was vague and

unsatisfactory. In particular, he did not say whether he had anybody in

mind as at 15 July 2009, if so who it was, and why he was willing to

precipitate an interdict application if he was not ready to proceed with

an appointment.104

83. Furthermore, the President and Minister are curiously silent on the

subject of the GR’s findings and the PSC report in the context of

Simelane’s appointment as Deputy NDPP in October 2009. There are

really only two possibilities: the one, utter irrationality (since they

failed to think about and discuss the pending PSC recommendation);

the other, a knowing intention to appoint Simelane despite the GR and

PSC report and despite the fact that the process of determining what

action should be taken on the strength of the PSC report was still

pending (a scenario in which the GR’s findings and the PSC’s report

were simply obstacles to be managed105).

84. Although the President has denied the ulterior purpose, such a denial

would not create a genuine dispute of fact if the denial is far-fetched

103
SFA 26 and 27 record 1/84-87.
104
Zuma 89 record 2/188 (and see RA16-20 at 3/277-278 remarking on the vagueness and submitting that
there was no genuine factual dispute).
105
RA 34.9 record 3/285-6.
 48

or clearly untenable.106 Our courts have endorsed the tendency

towards a more robust approach in assessing whether genuine disputes

of fact exist.107 A robust approach is particularly apposite here since

the DA had no choice but to launch proceedings by application and

since the case is one which cried out for expeditious determination.

There is the further consideration that in terms of the SARFU decision

our courts should exercise great caution before ordering the country’s

President to present himself for oral evidence.108 The SARFU case

supports an approach in which a court should more readily decide a

factual dispute involving the President on the papers if the

probabilities are clearly weighted in favour of the applicant. In

reaching a conclusion on the papers, the court can also take into

account that the President did not ask for the opportunity to give oral

evidence and to be cross-examined with a view to counteracting the

balance of probabilities on the papers (see SARFU at 107D-E).109

106
Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 635C. And see also
Wrightman t/a JW Construction v Headfour (Pty) Ltd & Another [2008] 2 All SA 512 (SCA) paras 12-23.
107
See SA Veterinary Council & Another v Szymanski 2003 (4) SA 42 (SCA) paras 25-26; Fakie NO v CCII
Systems (Pty) Ltd 2006 (4) SA 326 (SCA) paras 55-56.
108
SARFU supra paras 240-245.
109
See also Associated South African Bakeries (Pty) Ltd v Oryx & Vereinigte Bäckereien (Pty) Ltd & Andere
1982 (3) SA 893 (A) at 916E-917D. The process of inferential reasoning on which we rely and the vagueness
in material respects of the President’s version as to the process he followed make the President’s denial in our
submission clearly untenable, in much the same way as the court in City of Cape Town v Premier Western
Cape & Others 2008 (6) SA 345 (C) was able on the papers to find that Premier Rasool had established a
commission with an ulterior purpose even though he denied it in his affidavit. See paras 96-166, where the
court emphasised, inter alia, that the absence of reasonable grounds for a professed belief may itself provide
cogent evidence that the belief was not honestly held (para 109.3).
 49

L. Conclusion and remedy

85. We submit that the SCA’s order (at 452G-453C) was correct save for

two oversights on the question of costs. Firstly, in the NGHC and the

SCA the DA did not seek costs against Simelane. Paras 1 and 2(c) of

the SCA’s order should thus not have referred to the fourth

respondent. Secondly in para 123 the SCA upheld the DA’s

submission that the matter had been of sufficient importance and

complexity to warrant the employment of three counsel but

mistakenly referred to only two counsel in para 2(c) of the order.

Subject to the correction of these matters, we submit the SCA’s order

should be confirmed.

86. We understand that the Minister intends to make submissions in

favour of limiting the retrospectivity of the order. Without knowing

precisely what he contends, we make the following brief submissions.

87. Neither in the affidavits nor in written or oral argument in the courts

below was the question of retrospectivity raised by the respondents. It

was for the respondents to put up evidence to show that material

public prejudice would occur if retrospectivity were not limited.110

110
See Mistry v Interim Medical and Dental Council of South Africa 1998 (4) SA 1127 (CC) para 37; Chief
Lesapo v North West Agricultural Bank & Another 2000 (1) SA 409 (CC) para 33.
 50

88. Furthermore, decisions taken by Simelane would not cease to have

legal effect simply because his appointment was invalid. All such

decisions would, in accordance with the Oudekraal principle,111 stand

until set aside. A court hearing an application for the setting aside of

any particular decision would still need to consider whether the

discretionary remedy of review should be granted.112 In the course of

such a review the court would be placed in possession of all the facts

typically relevant to the analogous question whether an order of

invalidity should have retrospective effect and could thus make an

appropriate assessment tailored to the facts of the case.

OWEN ROGERS SC

ANTON KATZ SC

DAVID BORGSTRÖM

NCUMISA MAYOSI

Counsel for the Applicant

111
Oudekraal Estates (Pty) Ltd v City of Cape Town & Others 2004 (6) SA 222 (SCA) paras 26-38.
112
Ouderkraal para 36.