Pretoria - Justice Minister Jeff Radebe says he supports President Jacob Zuma's decision to appoint Advocate Menzi Simelane as National Director of Public Prosecutions (NDPP).
Simelane, whose appointment was announced by Zuma last week and will be effective from 1 December, has been employed as the Deputy National Director of Public Prosecution at the National Prosecuting Authority (NPA) since October 2009.
Radebe, speaking at a press briefing on Monday, said while the fitness of Advocate Simelane had been called into question by the media and certain commentators, he was satisfied that he was well-suited for the position.
The criticism came against the backdrop of a report by the Ginwala Enquiry. The report of the Ginwala Enquiry was referred by the former Justice Minister Enver Surty to the Public Service Commission (PSC) for investigation into the conduct of Advocate Simelane.
The minister said that the PSC had brought a report which he had studied. However, he realised that the PSC had not provided Advocate Simelane with the opportunity to explain or to respond to the allegations made against him by the Ginwala Enquiry.
He said he had requested the PSC to consider his response and to consider oral representations from Simelane in order to canvass with him the allegations against him.
"My request was ignored by the PSC and the PSC did not create the opportunity for Simelane to comply with his obligation to cooperate with the PSC as provided for in items C.1.5 and C.4.11 of the PSC's code of conduct.
"My view is this amounts to a fatal flaw in the approach employed by the PSC which means that I could not rely on their report in order to consider the issue whether or not disciplinary action should be taken against Advocate Simelane," said Radebe.
He described the action as a violation of Simelane's rights to the principle that any person who is to be affected by a finding must be given the opportunity to defend himself.
"This failure of the PSC notwithstanding a request by me to create the opportunity for Advocate Simelane to state his case is actually a flagrant abuse of his fundamental rights, especially after Advocate Simelane offered to make himself available to cooperate with the PSC. This in itself was regarded by me as a sufficient basis to reject the findings of the PSC," added Radebe.
He said after considering the relevant factors as well as the recommendations made by the PSC in its report, he found that there was no reason to justify conducting a disciplinary hearing against Advocate Simelane.
The minister said he had further been assisted in considering the recommendations of the PSC by a submission on behalf Advocate Simelane prepared by Advocate D Unterhalter SC and Advocate G Malindi who had concluded that there was no merit in any of the findings by the PSC recommending a disciplinary enquiry against Advocate Simelane.
"I found the submission persuasive and consequently accepted it. I therefore have at my disposal the recommendations by the PSC and the submissions by the Advocates and I have no hesitation to accept the opinion of the Advocates," said Radebe.
He added that he was satisfied that the decision not to subject Advocate Simelane to a disciplinary hearing was correct as there was no reliable evidence of misconduct which justifies a disciplinary enquiry.
"On the whole I am indeed satisfied that Advocate Simelane is in fact a fit and proper person to provide leadership at the NPA. Furthermore, I am confident that as a cabinet member responsible for the administration of justice, I will continue to have a healthy professional relationship with the NPA founded on the provisions of the Constitution and the law."
He added that there was no doubt Advocate Simelane would ensure that the NPA continued to discharge its prosecutorial mandate and independence in accordance with the Constitution.
