THE Constitutional Court on Friday unanimously held that the appointment of prosecution head Menzi Simelane was constitutionally invalid.
The judgment means President Jacob Zuma will now have to decide who to appoint as the new national director of public prosecutions.
Mr Simelane’s deputy, Nomgcobo Jiba, has been acting in his stead since Mr Simelane was put on “special leave” in November last year.
The court’s order also specifically addressed what its judgment meant for Mr Simelane’s decisions during his time as prosecutions head, saying they were “not invalid merely because of the invalidity of his appointment”.
In handing down judgment, Justice Zak Yacoob said that when President Jacob Zuma appointed Mr Simelane, he should have taken into account the harsh criticism against Mr Simelane by former speaker of Parliament, Frene Ginwala, in her report on the fitness for office of Mr Simelane’s predecessor, Vusi Pikoli.
Instead, Justice Minister Jeff Radebe advised the president to ignore the report, said Justice Yacoob.
In her report, Ms Ginwala questioned Mr Simelane’s honesty as a witness and said his conduct at her inquiry “left much to be desired”.
Justice Yacoob said Mr Simelane’s evidence at Ms Ginwala’s inquiry was “contradictory and, on its face, indicative of Mr Simelane’s dishonesty”.
“It raised serious questions about Mr Simelane’s conscientiousness, integrity and credibility.”
Dishonesty was inconsistent with the conscientiousness and integrity required for the proper execution of the responsibilities of the national prosecutions director, he said. “Indeed, I would say that dishonesty is the enemy of integrity and conscientiousness.”
Justice Yacoob said the requirement that the national director must be a fit and proper person, with due regard to his conscientiousness and integrity, was something to be determined objectively.
In looking at the legal test for rationality, Justice Yacoob said the test obliged courts evaluate the “relationship between the means employed to reach a decision, on the one hand, and the purpose for which the power to make the decision was conferred on the other”.
Each and every step in the process of reaching the decision must be rationally related to the outcome, he said.
A failure to take into account relevant material “that colours the entire process with irrationality” would render the decision irrational, said Justice Yacoob.
Addressing the relationship between a court’s power to review executive decisions and the separation of powers, Justice Yacoob said the rationality test was “the least invasive form of legal scrutiny”.
“Its applicability in respect of executive decisions flows from the acceptance and recognition of the separation of powers, not the converse,” he said.
The judgment is a resounding victory for the Democratic Alliance (DA), which has been fighting the court case since 2009.
DA leader Helen Zille said it was an “important victory for all those South Africans from all parties who value and treasure the constitution, and hope to see it respected by our leaders”.
“The ruling demonstrates that power abuse can be prevented by the courts, even when it is perpetrated at the highest levels of our government,” she said.
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