Constitutional Restraints on the Executive Powers of the President: South Africa

The case Democratic Alliance v President of South Africa deals with the extent of the constitutional constraints that exist in relation to the exercise of power by the president. s179 of The Constitution together with s10 of the National Prosecuting Authority Act stipulates that a National Director of Public Prosecutions, who is the director of public prosecutions is appointed by the president, as the head of the national executive.

In Democratic Alliance v President the issue was whether the appointment of Menzi Simelane as the Director of Public Prosecutions by the President of the Republic of South Africa was within the bounds of the Constitution. The Minister for Justice and Constitutional Development and Mr Simelane sought to challenge the decision of the SCA that found that the president erred in the process by which Menzi Simelane was appointed as the National Director of Public Prosecutions.

Mr Simelane, as Director-General of the Department of Justice and Constitutional Development was intimately involved in the dispute concerning the then National Director of Public Prosecutions, Mr Vusi Pikoli. The dispute related to the powers of the Minister of Justice and Constitutional Development and the National Director of Public Prosecutions. This tension resulted in Mr Pikoli being suspended by the then President on the 23rd of September 2007.

Shortly after that the President appointed the Ginwala Commission to inquire into Mr Pikoli’s fitness to hold the office of National Director of Public Prosecutions. Mr Simelane presented the government’s submissions to and gave evidence under oath before the Ginwala Commission. Upon the evidence given by Mr Simelane the report of the Ginwala Commission criticized the manner in which Mr Simelane presented the government’s submissions and brought into question the credibility of his evidence.

This lead to the Minister of Justice and Constitutional Development requesting the Public Service Commission to investigate Mr Simelane’s conduct during the Ginwala Commission. The Public Service Commission then recommended disciplinary proceedings against Mr Simelane due to his conduct and falsified evidence before the Ginwala Commission. The Minister rejected the recommendations of the Public Service Commission and subsequently the President controversially appointed Mr Simelane as National Director soon thereafter.

The SCA considered that the President erred in numerous respects and these mistakes rendered the process by which Mr Simelane was appointed as National Director of Public Prosecutions irrational and hence invalid. The President had the view that Menzi Simelane was the right man for the job without considering whether he was a fit and proper individual to take up the position. Secondly, the President incorrectly reasoned that the absence of evidence contradicting the idea that Mr Simelane was a fit and proper person for appointment justified the conclusion that he was indeed a fit and proper person.

The correct approach, according to the SCA was that the President had to determine positively whether Mr Simelane was indeed a fit and proper person for the position of National Director of Public Prosecutions. Thirdly, the President disregarded the criticisms that were made of Mr Simelane by the Ginwala Commission, on the basis that the Commission was not appointed to investigate Mr Simelane, but Mr Pikoli. Lastly, the recommendations of the Public Service Commission that the criticisms of the Ginwala Commission against Mr Simelane merited a disciplinary enquiry and were not taken seriously.

As a result of these oversights on the part of the President it became apparent that this appointment was controversial and did not adhere to the provisions of the Constitution (s. The Minister for Justice and Constitutional Development argued in SCA that neither the Constitution nor the National Prosecuting Authority Act 32 of 1998 prescribes any procedure for the appointment of the National Director of Public Prosecutions. The Minister further stated that it was for the President to determine the eligibility of the National Director, by evaluating the candidates’ qualities, strengths and weaknesses.

The Minister argued that the SCA went beyond rationality and this subsequently amounted to an unauthorized intrusion into presidential and executive authority. The Democratic Alliance, however, supported the reasoning and conclusion of the SCA concerning rationality. In addition, the Democratic Alliance contended that the evidence brought before the SCA showed that Mr Simelane was not a fit and proper person to be appointed as the National Director of Public Prosecutions, which they argue was a jurisdictional fact prior to the appointment of Mr Simelane Issues.

In as much as the President had the vested right to appoint the National Director of Public Prosecutions conferred by the Constitution the fundamental issue at hand was whether this executive decision was rational, especially in light of the findings and recommendations made by the Ginwala Commission pertaining to Mr Simelane. Due to the findings of the Ginwala Commission which cited Mr Simelane as a dishonest person a pivotal question arose pertaining to whether Mr Simelane was a fit and proper person to take the office of National Director of Public Prosecutions.

Sarah from Law Aspect

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