Two conflicting takes on the future of the National Prosecuting Authority have been placed before the Justice select committee of Parliament in recent weeks. The one envisages business as usual, the other some radical departures from the status quo. This ought to be perplexing to members who attended the presentations made first by Menzi Simelane, the National Director of Public Prosecutions and then by the Minister of Justice, Jeff Radebe. A meeting between the two men will take place soon and has not been possible in recent weeks because the Minister has been preoccupied with his duties in the Judicial Service Commission, selecting new judges. It is a necessary and overdue meeting at which their differing approaches will have to be reconciled.

This lack of communication may explain a curious covering document which accompanied Simelane’s presentation of his “Strategic Plan for the NPA” which he claims is “compiled with the latest available information from business units and other sources”. The covering document is headed “Approval” and there is provision for him, the Minister and the Director General of Justice, Ms N Msomi, to sign and date the approval, but none of them has done so. It now appears unlikely that the Minister and DG will do so. The Minister has to concur in the prosecution policies of the NDPP as this is constitutionally required. After his presentation on 21 April 2010 he told the press that he was in the dark about the plans to extensively redesign the prosecuting authority and branches reporting to it. His presentation makes no reference to radical changes. In particular, the Minister, in answer to a question from Dene Smuts MP, indicated that the highly successful assets forfeiture unit led by Willie Hofmeyr is not being disbanded and “will not be disbanded”.

This is starkly contradicted by the strategic plan earlier presented by the NDPP. In it the following is stated:
“Although the specialised support function of asset forfeiture resides in a separate sub-programme, the unit has been disbanded and included as a division in the regional offices”

The Minister insists that this dismantling has not happened, notwithstanding media reports that the staff has been told to report directly to Simelane. This, if true, relieves Hofmeyr of the burden of choosing between his role as head of a unit that no longer exists and his job in the special investigation unit. Radebe, still under the impression that there is an assets forfeiture unit, confirmed that he is ad idem with Simelane on the latter’s decision to force Hofmeyr to choose between the two jobs, because, according to Radebe, the assets forfeiture unit needs a full time head. Why Simelane thinks there is a choice to be made when his plan states that the assets forfeiture unit has been disbanded is impossible to explain.

Hofmeyr has been keeping his head down in all this confusion. His rights to fair labour practices under the Bill of Rights, to proper career development under s 195(1) of the Constitution and to be consulted about the changes under the Labour Relations Act are all being violated by the developments whether on the version of the Minister or that of the NDPP.

Hofmeyr is not the only one being prejudiced by the absence of the Minister’s necessary concurrence in the plans hatched by Simelane and presented so curiously. Under the heading “Operations Management” the startling announcement is made that:
“Litigation and management as career-paths will be separated allowing skilled litigators to advance in their careers without having to become managers. The current structuring of the DPP offices is aimed at achieving this goal.”

The way in which this hare brained scheme is being implemented flies in the face of all of the legal tenets of employment of public servants mentioned above. An internal memorandum on the subject of reassignment of officials in the offices of Directors of Public Prosecutions is generated by Simelane, instructing DPPs to effectively demote senior personnel to lower court prosecutorial functions and promote others to take the place of those demoted. The purpose of this nefarious and ill-considered redeployment scheme is:
“To re-assign duties and responsibilities of the officials mentioned in order to enhance the operational efficiency of the whole DPP office in the courts indentified; to provide leadership and to provide mentorship to junior staff.”

It is a most unsatisfactory way of addressing the shortage of well trained and competent junior prosecutors. An analogous move in banking circles would be to make a branch manager who was once a good teller go back to the counter. It can not be done without the consent of the individuals concerned (which is neither asked for by anyone on behalf of Simelane, nor likely to be given) and it will not address the dysfunctionality of the system. Managers who have no idea of what is involved in actually prosecuting will add to the dysfunctionality, not cure it. The Minister will be well advised to refuse to concur in so remarkable a departure from the normal way of running the public administration according to the values and principles of the Constitution. It does not help to say that salaries will not change, reducing any senior public prosecutors to the role of a district court prosecutors is effectively a demotion, their sapiential authority or clout is taken away. It is a devastating blow to the human dignity and feelings of self worth of employees to treat them in this way and is obviously an unfair labour practice. One of the victims of an internal memorandum from Simelane has died of a heart attack brought on by the stress the memorandum caused him. The law and the Constitution protect employees against high-handed conduct of this nature.

It appears that Simelane is overlooking the legal requirements in his eagerness to redeploy left and right. Employees are not redeployed, that is reserved for cadres who volunteer for revolutionary service. Simelane said when he joined the NPA for the first time last year that he was there to implement the ANC vision for the future of the NPA. He ought to be there to function without fear, favour or prejudice, to devise policies that are constitutionally compliant and, in particular, to put good human resource management practices in place. He has done none of these. Instead his appointment is under review in the High Court, his probity and honesty is under investigation by the Johannesburg Bar Council and he has presented a strategic plan to Parliament covering the next five years, radical aspects of which he has improperly not yet shared with the Minister who has final responsibility for the NPA.

Another feature of the report is its repeated fawning references to the policies of the ANC and the speeches of President Zuma. Simelane needs to know that he is gifting material to the litigants who are seeking cancellation of his appointment. The Constitutional Court has long held that the NDPP should be an independent functionary, akin to a judge. The office is not one for a deployed cadre of the national democratic revolution; the incumbent should at all times act in a manner which is objective and does not favour the government of the day. In the words of the Constitution :
“National legislation must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice.”

Simelane seems to be incapable of living up to these high standards. Will Radebe take stern corrective action in his capacity as the minister finally responsible in law? If not, the “ruination” of the NPA foretold by Smuts is staring the nation in the face. Legality and rationality are all that the final responsibility entails.

Paul Hoffman SC
22 April 2010