THE findings of the Ginwala Commission report took centre stage yesterday during a hearing in which the Constitutional Court was asked to decide whether the president's appointment of Menzi Simelane as national director of public prosecutions was valid.

The issue was whether or not President Jacob Zuma had applied his mind when appointing Mr Simelane in 2009, following concern by Frene Ginwala over Mr Simelane's conduct during an inquiry to look into the fitness of his predecessor, Vusi Pikoli.

The judgment in this matter is expected to set guidelines on how far courts can go in reviewing an executive decision by the president.

Mr Zuma appointed Mr Simelane in November 2009 after Ms Ginwala published her report in 2008.

In that report, she expressed displeasure at Mr Simelane's conduct in the preparation of government submissions and in his oral testimony. She found his submissions to be inaccurate in many respects or without any basis in fact and law.

The Democratic Alliance (DA) took the matter to the high court in 2010, saying he was not fit and proper for the job, and the appointment was irrational and unconstitutional. The DA lost the case.

However, the Supreme Court of Appeal set aside Mr Simelane's appointment on the grounds that Mr Zuma had made material errors of fact and law in the process leading up to the appointment.

Mr Simelane was then placed on special leave - pending the confirmation of the appeal court's decision by the Constitutional Court.

Yesterday's hearing was an application by the DA seeking confirmation of the Supreme Court of Appeal order, which set aside the president's appointment of Mr Simelane. While Mr Zuma has said he will abide by the decision of the Constitutional Court on whether he acted irrationally when he appointed Mr Simelane, Justice Minister Jeff Radebe and Mr Simelane are opposing confirmation of the judgment and appealing against it.

Owen Rogers SC, for the DA, told the court the president did not have enough information on whether Mr Simelane possessed the requirements to be national director of public prosecutions. "All Mr Zuma had in front of him was a CV of Mr Simelane. There were no reports of his performance as (director-general) of justice and as competition commissioner," Mr Rogers said.

He also said the Public Service Commission's (PSC's) recommendation that disciplinary action be taken against Mr Simelane was ignored.

Mr Rogers said Mr Radebe had concluded that because in his view the PSC report was flawed and one-sided, he had told Mr Zuma that no purpose would be served in presenting its findings to him.

When asked by Chief Justice Mogoeng Mogoeng what the president did to investigate findings that cast doubt on Mr Simelane's integrity, counsel for Mr Radebe, Marumo Moerane SC, said the president did not accept the import of the Ginwala report.

Justice Johan Froneman asked Mr Moerane why only one person was considered for the post. He replied that the president saw Mr Simelane as a fit and proper person. "In spite of his foibles, here is a person that fits the bill."

When Chief Justice Mogoeng said it would have been appropriate for Mr Zuma to consider more than one person, Mr Moerane said the choice was the president's to make.

The court reserved judgment

mabuzae@bdfm.co.za