Neutral citation:Democratic Alliance v The President of the RSA & others (263/11)  ZASCA 241 (1 December 2011)
CORAM: Navsa, Heher, Mhlantla, Majiedt JJA and Plasket AJA
HEARD: 31 October 2011
DELIVERED: 1 December 2011
SUMMARY: Appointment of National Director of Public Prosecutions in terms of s 179 of the Constitution read with sections 9 and 10 of the National Prosecuting Authority Act 32 of 1998 ─ purpose of empowering provisions is to safeguard prosecutorial independence ─ requirement that candidate for position must be a fit and proper person with due regard to his or her experience, conscientiousness and integrity and must, having regard to the importance of the office be properly scrutinised by the President of the Republic of South Africa who has the power to make the appointment ─ qualities required of candidate are jurisdictional facts that must exist before an appointment can be made ─ have to be objectively assessed ─ importance of prosecutorial independence discussed with reference to constitutional scheme and comparable jurisdictions. ______________________________________________________________________
On appeal from: North Gauteng High Court (Pretoria) (Van der Byl AJ sitting as court of first instance):
1 The appeal succeeds and the first, second and fourth respondents are ordered jointly and severally, the one paying the others to be absolved, to pay the appellant’s costs, including the costs of three counsel;
2 The order of the court below is set aside and substituted as follows:
‘a. It is declared that the decision of the President of the Republic of South Africa, the First Respondent, taken on or about Wednesday 25 November 2009, purportedly in terms of section 179 of the Constitution of the Republic of South Africa (the Constitution), read with sections 9 and 10 of the National Prosecuting Authority Act 32 of 1998 to appoint Mr Menzi Simelane, the Fourth Respondent, as the National Director of Public Prosecutions (the appointment), is inconsistent with the Constitution and invalid;
b. The appointment is reviewed and set aside;
c. The first, second and fourth respondents are ordered jointly and severally, the one paying the others to be absolved, to pay the appellant’s costs, including the costs of two counsel.’
NAVSA JA (HEHER, MHLANTLA, MAJIEDT JJA and PLASKET AJA concurring)
The issue  This appeal is a matter of national and constitutional importance. It involves an institution integral to the preservation and maintenance of the rule of law, namely the National Prosecuting Authority (the NPA), which consists of the National Director at the head of prosecutorial offices, located at high courts, and further comprises Deputy National Directors, Directors and prosecutors.1 This case is about whether the fourth respondent, Mr Menzi Simelane, was properly appointed as National Director of Public Prosecutions (NDPP) by the first respondent, Mr Jacob Zuma, the President of the Republic of South Africa (the President). Put simply, the question for decision is whether the President, in appointing Mr Simelane on 25 November 2009, complied with the prescripts of the Constitution and s 9(1)(b) of the National Prosecuting Authority Act 32 of 1998 (the Act). I will in due course deal with the wording of that section read against constitutional provisions, values and norms and in conjunction with related provisions of the Act.
The background  The litigation culminating in the present appeal was launched in December 2009 in the North Gauteng High Court, Pretoria, by the appellant, the Democratic Alliance (the DA), a registered political party, which is also the official opposition in Parliament.
 The high court was approached on an urgent basis for an order declaring that the President’s decision, purportedly taken in terms of s 179 of the Constitution read with ss 9 and 10 of the Act, was inconsistent with the Constitution and invalid. The high court was asked to review and set aside the appointment. The Minister of Justice and Constitutional Development was cited as second respondent, for such interest as he might have in the matter, being the Cabinet member responsible for the administration of justice and the Act and because of his alleged conduct in relation to the fourth respondent’s appointment. The NDPP, in his official capacity, was added as the third respondent. As already stated, that post is currently held by the fourth respondent. The third respondent chose to abide the court’s decision. The other respondents all opposed the relief sought by the DA.
 The primary challenge to the appointment of Mr Simelane is that he was appointed contrary to the requirement of s 9(1) of the Act, which provides:
‘(1) Any person to be appointed as National Director, Deputy National Director or Director must-
(a) possess legal qualifications that would entitle him or her to practise in all courts in the Republic; and
(b) be a fit and proper person, with due regard to his or her experience, conscientiousness and integrity, to be entrusted with the responsibilities of the office concerned.’
More specifically, the DA’s case is that Mr Simelane is not a fit and proper person within the meaning of that expression in s 9(1)(b) of the Act, alternatively, when the President made the appointment he did not, as he was required to, properly interrogate Mr Simelane’s fitness for office in the manner contemplated in the subsection. It is uncontested that Mr Simelane meets the requirements of s 9(1)(a). Furthermore, as required by s 9(2) of the Act, he is a South African citizen.
 In its founding affidavit the main factual foundation on which the DA’s case is built is the ‘misleading and untruthful evidence’ given by Mr Simelane, during 2008, before an official enquiry into the fitness for office of his predecessor, Mr Vusumzi Patrick Pikoli. The Ginwala Enquiry (the GE) was conducted in terms of s 12 of the Act,2 subsequent to Mr Pikoli’s suspension from office on 23 September 2007 by the then President of South Africa, Mr Thabo Mbeki.3 The DA also submitted that regard should be had to the provisions of s 179(4) of the Constitution, which requires the NPA to execute its duties without fear or favour. Having regard to Mr Simelane’s lack of integrity, so it was contended, it is an obligation the NPA through him cannot discharge. In a supplementary affidavit the DA alleged that the only document that was before President Zuma when he made his decision to appoint Mr Simelane was the latter’s CV, fortifying its view that the former did not properly apply his mind in compliance with s 9(1)(b) of the Act. In his opposing affidavit President Zuma’s response to this point is as follows:
‘I have made it clear that I did not rely exclusively on Adv Simelane’s curriculum vitae in deciding to appoint him. In addition to his curriculum vitae, I had personal knowledge of him and I received information from the Minister. I based my decision on the totality of the information, written and oral, that I had received.’
 The full extent and nature of the exchanges between President Zuma and the second respondent, Minister Radebe, concerning Mr Simelane’s appointment, as alleged by them, will be dealt with later in this judgment.
 In its supplementary affidavit the DA pointed out that when it suited President Motlanthe, President Zuma’s predecessor, he used the GE’s minor criticisms of Mr Pikoli to remove him from office and that when it suited President Zuma he ignored the GE’s trenchant criticism of Mr Simelane.
 Furthermore, the DA was critical of President Zuma’s decision to appoint Mr Simelane to such an important position on the basis that he was only 38 years old at the time of his appointment, had practiced for only two years as an advocate and had only held positions at the Competition Commission and at the Department of Justice, neither of which could have involved court work or the investigation and prosecution of crime. The DA pointed out that Mr Simelane had only served the NPA for about six weeks as one of four Deputy National Directors of Public Prosecutions and thus had extremely limited experience.
 A further basis of attack by the DA on Mr Simelane’s fitness for appointment as the NDPP is that his CV was shoddily prepared and was littered with incorrect spelling and errors. This is an aspect in respect of which I do not intend to expend any further energy or thought.
 In its supplementary affidavit the DA contended that if President Zuma had properly interrogated Mr Simelane’s performance during his tenure as Competition Commissioner he would have discovered the criticism of Mr Simelane’s conduct by this court in Pretoria Portland Cement Co Ltd & another v Competition Commission & others 2003 (2) SA 385 (SCA). At paras 62 and 63 of that judgment this court was critical of the manner in which the Commission went about its business and in particular it was critical of Mr Simelane, who had participated in the Commission’s activities:
‘I can only conclude that the Commission was intent on advertising itself, with no regard to the harm it might do to its suspects. Not all firms suspected of monopolistic practices are guilty of them and it must be remembered that the innocent among the suspects might be harmed, or even put out of business by bad publicity, with consequences not only for the shareholders but also the workers, and indeed the public at large.
The impression of publicity-seeking is reinforced by Simelane’s uninvited media interview held in PPC’s own car park. There is another aspect of his conduct that deserves comment. In his replying affidavit Gommersall stated that the book kept at the entrance gate reflected that at 12:40 Simelane had signed and stated in the “Whom visited” column, “MD”. Gommersall added that it was simply untrue for Simelane to have said that he intended visiting the managing director. And we know from one of the Commission’s witnesses that the meeting in the car park was pre-arranged. Now it is true that Simelane had no right or duty to answer this allegation, made in reply, but I would have expected him to offer to do so if Gommersall’s imputation of dishonesty were false.’
 During December 2008, Minister Radebe’s predecessor, Minister Surty, had asked the Public Service Commission4 (the PSC) to investigate, evaluate and to advise on the criticisms of Mr Simelane in the GE report. On 6 April 2009 the PSC furnished its report to Minister Surty, recommending a disciplinary enquiry into Mr Simelane’s conduct. On the same day the then acting NDPP, Advocate Mpshe, announced that the NPA was dropping corruption charges against Mr Zuma. President Zuma was inaugurated on 9 May 2009. Thereafter Minister Radebe succeeded Mr Surty.
 On 4 June 2009 counsel for Mr Simelane made written submissions to the Minister about the PSC’s recommended action. On 15 July 2009 Mr Pikoli was informed that President Zuma was now intending to appoint a new NDPP. On 11 August 2009 the North Gauteng High Court granted Mr Pikoli an interdict against the appointment of a new NDPP. Mr Pikoli’s main application to have his removal as NDPP set aside was due to be heard on 23 November 2009. On 11 October 2009, President Zuma announced the appointment of Mr Simelane as a Deputy NDPP. Meanwhile, on 9 October 2009, Minister Radebe wrote to the PSC asking for its assessment of the submissions made on behalf of Mr Simelane and requested that it hear evidence from Mr Simelane. On 19 October 2009 the PSC replied that it had already presented its report and that it was for Minister Radebe to decide whether to proceed with disciplinary action against Mr Simelane. On Saturday 21 November 2009 the Government and Mr Pikoli reached a settlement in terms of which he was paid R7.5 million. Two days later, on Monday 23 November 2009, Minister Radebe announced that he was rejecting the PSC’s recommendations and would not order a disciplinary enquiry into Mr Simelane’s conduct. As stated above, on 25 November 2009, President Zuma appointed Mr Simelane as the NDPP. The DA contended that the President ought himself to have considered the relevant parts of the transcript of GE proceedings, its report and the PSC’s recommendations, and ought not to have relied solely on the Minister’s assurances about Mr Simelane’s fitness for office. The DA contends that these events and circumstances and all the others that will be dealt with in detail in later paragraphs show that the President and Minister were single-mindedly intent on installing Mr Simelane as someone through which they could ‘tame and control’ the NPA.5 Thus, the DA contended, the appointment was made for an ulterior purpose.
 The three (linked) legal bases on which the DA relied in the court below are as follows:
(a) The statutory requirement that the appointee to the position must be ‘a fit and proper person’ has to be objectively assessed, taking into account that he or she must discharge professional duties without fear or favour. Whether the President’s power is classified as executive or administrative or otherwise, it must be exercised lawfully, which it is submitted was not done in the present case, in that the President failed to make a proper objective assessment of Mr Simelane’s fitness for office;
(b) The decision by the President to appoint an NDPP constitutes administrative action, subject to review in terms of the Promotion of Administrative Justice Act 3 of 2000, and because the President did not make an objective assessment of Mr Simelane’s fitness for office, his decision falls to be reviewed and set aside;
(c) To the extent that the President’s decision constituted executive action as contemplated by s 85(2)(e) of the Constitution, it falls to be set aside on the basis that it was unlawful, irrational, arbitrary, biased, based on a ulterior motive and inconsistent with the Constitution. The significance of s 85(2)(e) of the Constitution will become evident later in this judgment.
 The North Gauteng High Court (Van der Byl AJ) held that there was no basis on which to interfere with President Zuma’s decision to appoint Mr Simelane as NDPP. It dismissed the DA’s application and made no order as to costs. The appeal is before us with the leave of that court. The material findings and conclusions of the court below are dealt with extensively later in this judgment.
Further details  At this stage, it is necessary to set out further details so as to provide as full a picture as possible against which the questions that arise in this appeal can be answered. Mr Simelane was appointed Director-General of the Department of Justice during June 2005. During his time as Director-General a dispute arose with Mr Pikoli, the then NDPP, concerning the degree of accountability of the NPA to the department. Mr Pikoli saw the exchanges between them as an attempt to intrude upon prosecutorial independence. Mr Simelane saw it differently. In his view, as appears from his admitted testimony before the GE, the NPA was ultimately accountable to the Ministry and not only in respect of finances. One of the criticisms levelled by the DA against Mr Simelane is that his evidence before the GE clearly shows his lack of proper regard for the level of independence of the NPA as guaranteed by the Constitution and the Act. All the respondents adopted the view that the difference between Mr Simelane and Mr Pikoli, and Mr Simelane and the DA, is to be found in their interpretations of constitutional and legislative provisions concerning interaction between the NPA, the legislature and the executive.
 During Mr Simelane’s tenure as Director-General of the Department of Justice and Constitutional Development, Mr Pikoli, as NDPP, contemplated the arrest of the then Commissioner of Police, Mr Jackie Selebi, on charges of corruption. A letter, in relation to the arrest and prosecution of the Commissioner, drafted by Mr Simelane for the Minister of Justice and Constitutional Development at the time, Ms Bridget Mabandla, dated 18 September 2007, was sent to Mr Pikoli. In the letter Minister Mabandla required Mr Pikoli to furnish her with all the information on which he was relying for the proposed arrest and charges. She also instructed him not to proceed with the arrest until she had satisfied herself that the public interest would be served and that sufficient evidence existed for the arrest and the charges. Mr Pikoli’s response was that the Minister was not entitled to give him such an instruction. He did, however, furnish her with the information sought. There had been meetings and exchanges between Mr Pikoli and President Mbeki concerning the arrest of Commissioner Selebi and related search warrants. These were about the time required by the President to make security and other arrangements in preparation for the arrest and execution of the warrants. The Commissioner was arrested and the search warrants were executed against the background of developing tensions between the South African Police Services and the office of the NDPP.
 On 23 September 2007, Minister Mabandla asked Mr Pikoli to resign. He refused to do so. Later that day President Mbeki informed Mr Pikoli that he would suspend him if he did not resign. Mr Pikoli refused to resign, whereupon he was suspended by President Mbeki, purportedly in terms of s 12 of the Act. Advocate Mpshe was appointed acting NDPP shortly thereafter.
 On 3 October 2007 President Mbeki appointed Dr Frene Ginwala to chair an enquiry into Mr Pikoli’s fitness to hold office. On 18 October 2007 the Government filed its submissions with the GE, setting out the grounds of Mr Pikoli’s lack of fitness for the post he held. It is uncontested that Mr Simelane played a leading role in drafting those submissions. He, in fact, led the Government’s team.
 At the same time, political power was shifting within the African National Congress, the ruling party in Parliament. During December 2007, at the annual conference of the African National Congress, Mr Jacob Zuma ousted President Mbeki as president of the African National Congress.
 In April 2008 the GE directed that oral evidence be heard in relation to Mr Pikoli’s fitness to hold office as NDPP. Evidence was led during May and June 2008. Both Mr Pikoli and Mr Simelane testified and were cross-examined.
 On 25 September 2008 Mr Kgalema Motlanthe succeeded President Mbeki as President of South Africa. At that stage the NDPP was still pursuing corruption charges against Mr Zuma. Mr Surty replaced Ms Mabandla as Minister of Justice.
 The GE issued its report on 4 November 2008 and although criticizing Mr Pikoli for not being sensitive enough in relation to matters of national security, it found that most of the charges against Mr Pikoli were unsubstantiated and recommended his reinstatement. It found positively that he was a fit and proper person. That notwithstanding, President Motlanthe took a decision to remove Mr Pikoli as NDPP.
 In para 15 of the executive summary of the report, the following appears:
‘I need to draw attention to the conduct of the DG: Justice in this Enquiry. In general his conduct left much to be desired. His testimony was contradictory and without basis in fact or in law. The DG: Justice was responsible for preparing Government’s original submission to the Enquiry in which the allegations against Adv Pikoli’s fitness to hold office were first amplified. Several of the allegations levelled against Adv Pikoli were shown to be baseless, and the DG: Justice was forced to retract several allegations against Adv Pikoli during his cross-examination.’
 The following parts of the GE report (paras 320-322) criticised Mr Simelane:
‘I must express my displeasure at the conduct of the DG: Justice 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. These complaints related to matters such as the performance agreements between the DG: Justice and the CEO of the NPA; the NPA’s plans to expand its corporate services division; the DSO dealing with its own labour relations issues; reporting on the misappropriation of funds from the Confidential Fund of the DSO; the acquisition of new office accommodation for NPA prosecutors; and the rationalisation of the NPA.
All these complaints against Adv Pikoli were spurious, and are rejected [as being] without substance, and may have been motivated by personal issues.
With regard to the original Government submission, many complaints were included that were far removed in fact and time from the reasons advanced in the letter of suspension, as well as the terms of reference. This further reflects on the DG: Justice’s disregard and lack of appreciation and respect for the import for an Enquiry established by the President.’
 It was submitted on behalf of the DA that in its written submissions to the GE, which were prepared by Mr Simelane, relevant documentation was deliberately omitted. In this regard it was submitted that the submissions were misleading. The DA contended that Mr Simelane’s explanations for their omission during cross-examination were simply not credible. A further point of criticism against Mr Simelane was his evidence at the GE, about whether he had taken legal opinions in relation to the powers of the DG as opposed to those of the NDPP. It was pointed out that initially, during cross-examination, he had denied taking legal opinions on the issue but later conceded that he had done so when he saw the cross-examiner turn to a document. Furthermore, so the DA submitted, Mr Simelane agreed, that in part, the opinions supported Mr Pikoli and refuted his own views, but he could not provide an explanation as to why he had not shared those opinions to reach common ground. He had not disclosed these opinions to the GE as part of government’s submissions.
 In its supplementary affidavit, the DA pointed out that if the President had properly scrutinised Mr Simelane in considering his worthiness for appointment as NDPP he would have discovered that in each of the financial years of Mr Simelane’s tenure as DG, the Department of Justice had received a qualified audit from the Auditor-General. It listed the details of the deficiencies in the financial management within the Department.
 The DA pointed out that if President Zuma had been truly intent on fulfilling his statutory and constitutional obligation to properly scrutinise Mr Simelane’s fitness as head of the NDPP he could quite easily have had regard to a plethora of documentation, including annual performance agreements in relation to his tenure as DG, and reports by the Auditor-General concerning the Department of Justice and Constitutional Development, in respect of which Mr Simelane was the accounting officer. Similarly, documentation must have been available concerning his performance as a commissioner with the Competition Commission.