- Shamila Batohi will retire in January, leaving President Cyril Ramaphosa with less than two months to find a replacement.
- The panel tasked with identifying suitable candidates for the vacancy said six of the 32 applicants had met the “minimum requirements” for the post.
- One of them was ousted NDPP Menzi Simelane.
Ousted prosecutions head Menzi Simelane applied for the National Director of Public Prosecutions (NDPP) post weeks after the Johannesburg Society of Advocates (JSA) launched a court application for him to be struck from the roll – because he was not “fit and proper” to serve as an advocate.
Less than two weeks before the NDPP appointment advisory panel announced that Simelane was one of just six candidates to meet the “minimum requirements” for the position, he applied for the striking off case to be reviewed and set aside, on the basis that the JSA had unreasonably delayed in launching the litigation.
“By any standards, the delay in bringing these proceedings is inexplicable and inexcusable, and therefore unlawful,” Simelane states in an affidavit filed in the Gauteng High Court in Johannesburg.
In the JSA’s application for Simelane to be struck from the roll of advocates, its recently appointed chairperson, Don Mahon, acknowledges “there has been an inordinate delay in bringing this application”, which was launched eight years after a JSA disciplinary panel found the advocate guilty of all nine professional misconduct charges against him.
“After careful reflection, the collective view of the Bar Council was that the allegations against [Simelane] are of such seriousness, going to the very heart of the standards of honesty and integrity expected of an advocate, that [the JSA] would be failing in its duty if it did not place these matters before the Court,” he said.
The [JSA] has a responsibility, not only to its members but also to the public and the administration of justice, to ensure that allegations or serious professional misconduct are dealt with transparently and decisively, regardless of any embarrassment caused by institutional delay.
He later stresses that “the central question before this Honourable Court is whether the lapse of time should shield [Simelane] from answering for his conduct, and whether, if the conduct is established, it is of such gravity that striking from the roll or suspension remains the appropriate sanction notwithstanding the delay”.
The professional misconduct charges against Simelane all stem from the adverse findings made against the then justice department director-general in the Ginwala Inquiry into NDPP Vusi Pikoli’s fitness to hold office.
In her final report, inquiry chairperson Dr Frene Ginwala made her disquiet at Simelane’s apparent dishonesty very clear.
“I must express my displeasure at the conduct of the DG: Justice [Simelane] 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,” she said.
According to Ginwala, six of the accusations levelled against Pikoli by Simelane were “spurious, and are rejected [as being] without substance, and may have been motivated by personal issues”.
Simelane’s apparent duplicity and failure to hand over key documents would be the subject of hours of devastating cross-examination by Pikoli’s advocate, Wim Trengove.
Ultimately, however, none of this stopped then president Jacob Zuma from appointing Simelane to lead the National Prosecuting Authority (NPA) in 2009 – a decision that the Constitutional Court later found to be irrational and unlawful, and set aside in 2012.
Despite a professional misconduct complaint being laid against Simelane in 2009, he would only be investigated by a JSA disciplinary panel, which consisted of advocates Dali Mpofu, Sias Reynecke and Daniel Berger, in 2015.
READ | Fit and proper? Menzi Simelane an NDPP candidate despite ConCourt questioning his integrity
That process took two years to complete.
In what the panel later described as a “deeply disturbing incident”, Simelane was also found to have passed a note that asked his lawyer whether he should clarify or explain his answer “or should I say yes, no, disagree” during his cross-examination by JSA prosecutor Mike Hellens SC.
Hellens pointed out that Simelane was barred from speaking to his legal representative during cross-examination. While acknowledging this, Simelane initially denied that he had passed the note and then later said that, while he was not consulting with his own lawyers, he asked for advice from “friends that I am engaging with on a continuous basis”.
The disciplinary panel found that Simelane’s attempt to explain the note “must be rejected as false”.
“The note was passed to his attorney, who sat next to him to assist in identifying files and handing them to him. Within the context of the occurrence, the note could only be directed at seeking advice from his attorney as to the way in which he should reply to questions during cross-examination. His attempt at an explanation displays willingness, continuously, to adapt his answers instead of testifying truthfully. The explanation offered was also palpably false,” it stated.
Whilst not charged with this conduct, Simelane’s attempt to seek advice from his attorney while under cross-examination constitutes serious misconduct. It also tends to confirm Simelane’s willingness to adjust his evidence to advance a version that suits the forum and the current circumstances.
In a scathing assessment of Simelane’s conduct during the Ginwala Inquiry, about which he testified and was cross-examined at length by Hellens, the panel found that his denial of having a leadership role in the government team was a “fabrication aimed at avoiding responsibility for his role preceding the hearing of evidence and his evidence at the Inquiry”.
They found that Simelane, “as the head of the legal team representing government, in an attempt to mislead the Ginwala Inquiry: drafted and submitted written submissions to the Ginwala Inquiry that failed to disclose relevant facts and correspondence; drafted letters on behalf of government that were false and misleading; and gave false and contradictory evidence at the Inquiry”.
They further established that Simelane “failed to disclose relevant facts and correspondence” between then president Thabo Mbeki and Justice Minister Brigitte Mabandla, “which provided evidence that the Minister unlawfully sought to intervene in the prosecutorial independence of the NPA” by trying to block Pikoli from pursuing the corruption arrest of then national police commissioner Jackie Selebi.
Simelane was also found to have “failed to disclose the existence of a written legal opinion”, which confirmed that Pikoli’s understanding of the independence of the NDPP was correct. That opinion also undermined Simelane’s insistence that, as Justice Director-General, he had certain powers over the NPA.
In addition, the panel said, Simelane “made serious but false and spurious accusations against Pikoli giving rise to an alleged breakdown of the relationship between the Minister and Pikoli; and falsely accused Pikoli of dishonesty in his evidence to the Ginwala Inquiry”.
“The panel finds that the aforesaid conduct constitutes professional misconduct and conduct unbecoming of an advocate,” it concluded.
The panel finds further that Simelane’s conduct renders him a person unfit and not proper to be and remain an advocate of the High Court. The panel recommends that the JSA launch an application to the High Court to have Simelane removed from the roll of advocates.
However, in a dissenting ruling, Mpofu disagreed with his colleagues that Simelane – who he agreed was guilty of morally reprehensible misconduct – should be struck from the roll. He instead recommended that Simelane should be suspended from practicing as an advocate for two years “provided that he issue a public apology approved by the Johannesburg Bar Council”.
In an apparent nod to this, the JSA now asks that – if the High Court elects not to strike Simelane from the roll of advocates – it should suspend him from practicing “for three years on condition that [he] pays a fine of R500 000 in monthly instalments of R50 000, commencing from the date of judgment to the date of settlement of the R500 000 into the special fund to assist impecunious pupils”.
Simelane must also not be found guilty of unprofessional dishonourable or unworthy conduct during the period of suspension.
In court papers, Mahon says the panel’s findings and recommended sanction were adopted by the JSA’s bar council on 15 August 2017. Two months later, Simelane then appealed the decision that the JSA would launch litigation to have his name struck from the roll of advocates to the General Council of the Bar (GCB).
For reasons that have yet to be explained, the GCB only responded to that appeal application over seven years later, when it informed Simelane on 28 April 2023 that it did not have the legal power to hear an appeal that involved the possible striking of an advocate.
Simelane was then invited to make written submissions on any new facts or circumstance which he believed had a bearing on the JSA’s decision to apply for him to be struck from the roll. He provided a response on 14 August 2023.
While Mahon said the JSA resolved on 16 October 2023 to apply for Simelane to be struck from the roll of advocates, that application would only be launched two years later. These delays are now the basis for Simelane’s application for the striking off application against him to be quashed.
READ | Serjeant at the Bar | Menzi Simelane: Rejected by ConCourt but still on NPA shortlist
Given that Simelane has not successfully overturned the scathing findings of dishonesty and professional misconduct made against him, however, his hopes of convincing the NDPP advisory panel that he is “fit and proper” and should be appointed to the powerful prosecutorial post are looking increasingly poor.
He will also need to disclose the JSA disciplinary process against him in a questionnaire that Justice and Constitutional Development Minister Mmamoloko Kubayi has told News24 will now be used to confirm whether the six NDPP candidates are “fit and proper” before they are interviewed in December.
