Honourable Minister M. Kubayi

Chairperson, Advisory Panel for the selection of the National Director of Public Prosecutions

Per e-mail: NDPPpanel@justice.gov.za

Dear Honourable Minister Kubayi,

SUBMISSION ON THE SUITABILITY OF ADVOCATE MENZI SIMELANE FOR THE POSITION OF NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS

Introduction

1. We write to you in your capacity as chair of the Advisory Panel for the selection of the National Director of Public Prosecutions (NDPP). 

2. Freedom Under Law (FUL) is a not-for-profit company registered in terms of section 21 of the Companies Act 61 of 1973. FUL’s purpose is, inter alia, to promote democracy under the law, and to advance understanding and respect for the rule of law and the principle of legality.    

3. This submission is made in response to the call by the panel for comments on candidates who had “met the minimum requirements” for the position of NDPP. 

4. In this submission, we specifically address the suitability of advocate Menzi Simelane (“Simelane”) for the position of NDPP. We focus solely on the candidacy of Simelane, as we believe that the unique circumstances of his track record warrant specific consideration by the panel. We do not comment on the suitability or otherwise of the other candidates, although we suggest that all candidates deserve careful consideration given the importance of the position and the well-recorded controversies around past appointments. 

5. Our submission is based primarily on the findings made by the Ginwala Enquiry in respect of Simelane.   We consider three main sources: the report of the Ginwala Enquiry; the judgment of the Constitutional Court following a legal challenge to Simelane’s prior appointment as NDPP; and a complaint to the Pretoria Society of Advocates (which incorporates a complaint to the Public Service Commission) relating to Simelane’s conduct at the Ginwala Enquiry. We submit that the concerns highlighted in these sources render Simelane unsuitable for appointment as NDPP.

Background

6. Simelane served as Director-General at the Department of Justice and Constitutional Development between 2005 – 2009. He served as NDPP between 2010 – 2011 before his appointment was set aside by the Constitutional Court.  

7. The Ginwala Enquiry was established to investigate the fitness of advocate Vusi Pikoli (“Pikoli”) to hold the office of NDPP. The Enquiry made several adverse findings in respect of Simelane, who was serving as Director-General at the time. These findings are set out in further detail below. Relevant extracts from the report of the Ginwala Enquiry are attached to this submission as annexure 1.

8. In the aftermath of the Ginwala Enquiry, the Minister of Justice requested the Public Service Commission (“PSC”) to investigate Simelane’s conduct during the Ginwala Enquiry. The PSC recommended that disciplinary proceedings be instituted against Simelane, but the new Minister rejected the recommendation.   

9. Following Simelane’s appointment as NDPP, the Democratic Alliance brought a legal challenge to the validity of the appointment. The challenge was unsuccessful in the High Court, but the Supreme Court of Appeal (SCA) set aside Simelane’s appointment, finding it to be inconsistent with the Constitution and invalid.   

10. The Constitutional Court confirmed the SCA’s decision.  The court held that concerns over Simelane’s evidence to the Ginwala Enquiry were “highly relevant to Mr Simelane’s credibility, honesty, integrity and conscientiousness”, and that for those matters to be ignored “coloured the rationality of the entire process and thus rendered the ultimate decision irrational.”

11. Relevant extracts from the Constitutional Court’s judgment are attached to this submission as annexure 2. 

12. In November 2009, advocate Patrick Ellis SC laid a complaint against Simelane with the Pretoria Society of Advocates. The complaint accused Simelane of misconduct based on the evidence before, and report of, the Ginwala Enquiry. It highlighted that the Enquiry “made serious adverse comments about the honesty and truthfulness” of Simelane.

13. The complaint annexes a memorandum to the PSC, flowing from a referral of the Ginwala Enquiry report by the Minister of Justice. The memorandum tabulates a comprehensive summary of the allegations and adverse findings against Simelane at the Ginwala Enquiry. The memorandum also raises additional issues relating to Simelane which were not dealt with at the Ginwala Enquiry.  

14. The complaint by advocate Ellis SC is attached to this submission as annexure 3.  As explained below, it is understood that the Johannesburg Society of Advocates disciplinary panel ultimately concluded that Simelane was guilty of misconduct and that an application has been brought to strike him from the roll.    

15. According to a media report by journalist Karyn Maughan, in November 2025 the Johannesburg Society of Advocates brought an application to strike Simelane off the roll of advocates. The article reports that the application was brought some eight years after a JSA disciplinary panel found Simelane guilty of misconduct. The article is attached to this submission as annexure 4. (It is not clear whether these proceedings were based on the complaint by Ellis SC).        

The Legal framework

16. The Constitution establishes that the NDPP is the head of the NPA and is appointed by the President as head of the national executive. 

17. The National Prosecuting Authority Act (“NPA Act”) requires that the NDPP possess the qualifications to practise law in all courts in the country, and furthermore must:

“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.”  

18. The NDPP holds office for a non-renewable term of 10 years and must vacate the office on attaining the age of 65.

19. The Constitution requires that national legislation “must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice.” The NPA Act requires that all members of the NPA “shall serve impartially and exercise, carry out or perform his or her powers, duties and functions in good faith and without fear, favour or prejudice and subject only to the Constitution and the law.” The Act further provides that the NDPP must take an oath or affirmation to “uphold and protect the Constitution and the fundamental rights entrenched therein and enforce the Law … without fear, favour or prejudice”.    

The Ginwala Enquiry

20. The Ginwala Enquiry found that many of the allegations made against advocate Pikoli had not been proven, and that it had not been demonstrated that Pikoli was no longer fit to hold office as NDPP. Nor had it been demonstrated that there had been an irretrievable breakdown in the relationship between Pikoli and the Minister of Justice. However, their relationship had “been marred by differences in understanding of the respective duties and responsibilities of each office with regard to the prosecuting authority.” These differences “were precipitated by the DG: Justice’s [i.e. Simelane’s] misconception of his authority over the NPA, which influenced his reports to the Minister”. (emphasis added). The report also expressed concerns about Pikoli’s interactions with the President relating to the potential arrest of then-police commissioner Jackie Selebi.

21. The Enquiry went further and raised several concerning issues about Simelane’s conduct during the enquiry. The report summarises these concerns as follows:

“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.” (emphasis added).

22. These concerns were elaborated on in the report. The relevant extracts of the report are attached in annexure 1. 

24. The report dealt with the issue as follows:

23. One of the issues considered by the Enquiry concerned an allegation that Pikoli had failed to account to the Director General (Simelane), thereby preventing Simelane from accounting fully to the Minister. Simelane was cross-examined on whether he had sought an opinion from senior counsel on the responsibilities of the accounting officer in relation to the NPA, and ultimately conceded that he had refused to give Pikoli copies of the opinion, which supported Pikoli’s view.

“It is clear that the DG: Justice deliberately withheld these legal opinions from Adv Pikoli and the Enquiry. By persisting in this conduct he could have misled the Enquiry.” (emphasis added).

“It is unacceptable that the DG: Justice elected not to heed the legal advice that he sought and obtained from senior counsel relating to the relationship between his office and the NPA. The legal advice furnished to him clearly shows that his accounting responsibilities over the NPA were limited and did not extend to the areas of responsibility that he claimed. Not only did he ignore this legal advice; he did not share it with Adv Pikoli and he also did not disclose it to the Enquiry when it was his responsibility to do so – not even after it was requested. He attempted to suppress the disclosure of the information that was of significance to the work of this Enquiry. He only acknowledged the existence of these legal opinions when they were presented to him by Adv Pikoli’s legal representatives during his cross examination.” (emphasis added).

25. The Enquiry found that it was “probable” that many of the difficulties between Pikoli and the Minister relating to the discharge of their respective responsibilities “were based on the DG: Justice’s incorrect understanding of his accounting responsibilities vis-à-vis those of the NDPP.”

26. The Enquiry further criticised Simelane for “highly irregular” conduct:

“His failure to include all the relevant material at his disposal in the original submission by Government was not consonant with the responsibilities of a senior state official furnishing information to an investigative enquiry established by the President. He had a duty to place all relevant information before the Enquiry. His testimony before the Enquiry was also not particularly helpful to me; his evidence was contradictory and I found him to be arrogant and condescending in his attitude towards Adv Pikoli.” (emphasis added).

27. The Enquiry found that Simelane’s personal view had “informed the complaints … that formed part of Government’s submissions to the Enquiry”, causing him to make “statements in his evidence in chief that he was forced to retract under cross examination.” The report sets out several examples, before turning to deal with a letter written to Pikoli by the Minister, requesting information relating to the prospective arrest and preferring of charges against Selebi.

28. The report indicates that only during his cross-examination had it emerged that Simelane had prepared the letter and finds that the letter did not confirm to the President’s request to the Minister. The Enquiry’s finding on this issue is worth highlighting:

“The Minister has since on affidavit said that it was not her intention to stop Adv Pikoli from discharging his duties or performing his functions as the NDPP. Assuming this is correct, the conduct of the DG: Justice in drafting the document in the manner it reads was reckless to say the least. The DG: Justice should have been acutely aware of the constitutional protection afforded to the NPA to conduct its work without fear, favour or prejudice. The contents of the letter were tantamount to executive interference with the prosecutorial independence of the NPA, which is recognised as a serious offence in the Act.”  (emphasis added).

29. In its conclusions, the report of the Enquiry again expresses “displeasure” at Simelane’s conduct in preparing the Government’s submissions and in his oral testimony. Simelane’s oral evidence was found “in many respects to be inaccurate or without any basis in fact and law.” Simelane had been “forced to concede during cross-examination that the allegations he made against Adv Pikoli were without foundation.” The inclusion in the original Government submission of allegations “far removed in fact and time from the reasons advanced in the letter of suspension” were found to reflect Simelane’s “disregard and lack of appreciation and respect for” the importance of the Enquiry.  

The Constitutional Court judgment

30. The findings of the Ginwala Enquiry were not reviewed or challenged.  They are extant in law.  What is more, the gravity of those uncontested findings made against Simelane by the Ginwala Enquiry featured prominently in the Constitutional Court’s judgment in Democratic Alliance v President of the Republic of South Africa.

31. The court held that “dishonesty is inconsistent with the hallmarks of conscientiousness and integrity that are essential prerequisites to the proper execution of the responsibilities of a National Director.” The Enquiry’s comments on Simelane “represented brightly flashing red lights warning of impending danger to any person involved in the process of Mr Simelane’s appointment to the position of National Director.” Failure to take the comments into account would be irrational.

32. Four issues arising from Simelane’s evidence at the Ginwala Enquiry were in issue in the Democratic Alliance case. These were Simelane’s failure to disclose the letter drafted by him and sent by the Minister to Pikoli, and the contents of the letter; Simelane’s failure to disclose a letter from the former President to Pikoli’s attorneys in response to a request for the letter; Simelane’s failure to disclose the legal opinion; and Simelane’s evidence accusing Pikoli of dishonesty.

33. On the non-disclosure and content of the letter, the court held that the letter “can be nothing but conduct by Minister Mabandla amounting to improper interference with, as well as hindrance and obstruction of, the National Director of Public Prosecutions in the exercise, carrying out or performance of his powers, duties and functions.”

34. The court sets out lengthy extracts of Simelane’s cross-examination on the issues of non-disclosure and the content of the letter, and holds that Simelane:

“having conceded that the letter was both relevant and important, found himself driven to irrelevancies in the attempt to explain the failure to disclose it. These extracts reflect on Mr Simelane’s credibility and conscientiousness.” (emphasis added).

35. On the failure to disclose the former President’s letter, the court again sets out Simelane’s cross-examination at length, and finds that Simelane’s various statements under cross-examination could not be true:

“If he read the letter, he must have known about it and if he knew about it he could not say he got to know about it much later. If he did not know about the letter, he could not have read it, could not have thought that it was privileged, could not have focused on something else and could not have been waiting for instructions. It is inconceivable that the former President’s letter was not in his possession when he drafted the follow up letter to Mr Pikoli …”   

36. The court held further that:

“Either Mr Simelane drafted the response on behalf of Minister Mabandla without reading the former President’s letter or he had it in his possession and read it. If he did not have the letter when he wrote the reply, this raises serious questions about his conscientiousness. If he did indeed have the letter, sharp questions about his dishonesty rear their heads.” (emphasis added).

37. The Court held that the contradictions evident “reflect on Mr Simelane’s credibility, integrity and conscientiousness”, and were material to a decision-making process involving Simelane’s credibility.

38. Regarding the failure to disclose the legal opinion, the court again examines the record of Simelane’s cross-examination, and comments as follows:

“Mr Simelane must have deliberately taken the decision to obtain the legal opinion. He could in all probability not have forgotten about it. Absent any explanation, his failure to disclose a legal opinion adverse to his (and I may say adverse to the case he was making before the Commission) was seemingly aimed at misleading the Commission. His denial that he had obtained that legal opinion would, absent any explanation, be dishonest. What is more, when asked why the opinion had not been disclosed to the Commission, Mr Simelane did not say that he had forgotten to include it but rather that he did not think there was a need to disclose that he took advice on the issue. How does this statement square with conscientiousness? Important questions remain unanswered once again.” (emphasis added).

39. As to the accusations of dishonesty, the court noted that Simelane had not accused Pikoli of dishonesty in any of the papers before the Enquiry, but during cross examination had “tried to improve his case by falsely accusing Mr Pikoli of dishonesty.” (emphasis added). The court held that the evidence from Simelane’s cross-examination “require urgent answers about Mr Simelane’s integrity and conscientiousness”, and that absent a proper explanation for the contradiction between whether there was a genuine difference of opinion or whether Pikoli was being dishonest in holding his opinion, “there is cause for grave concern.”

40. In summarising the evidence arising from the Ginwala Enquiry, the court finds that “all the criticisms of the evidence and approach of Mr Simelane by the Ginwala Commission have, on the face of it, a sufficient basis in the evidence before it.” 

41. The court set aside the decision to appoint Simelane as NDPP on the basis that it was irrational to ignore issues relating to Simelane’s “credibility, honesty, integrity and conscientiousness.” It must be noted that the court specified that it did not find that Simelane could not validly be appointed as NDPP, and did not make a finding on whether or not Simelane was in fact a fit and proper person to be appointed as NDPP. But these comments must not be understood as an endorsement of Simelane’s suitability. They instead reflect the court confining its decision to the specific issue before it, namely whether the President’s failure to take into account the issues raised in the Ginwala Enquiry rendered the decision to appoint Simelane as NDPP irrational.     

The JSA disciplinary findings and striking off application

42. The news report by Karyn Maughan highlights several adverse findings made against Simelane by the JSA disciplinary committee.

43. According to the report, Simelane was found to have passed a note to his lawyer during his cross examination at the disciplinary enquiry. The panel is quoted as describing Simelane’s explanation as “palpably false” and finding that “[h]is [Simelane’s] explanation displays willingness, continuously, to adapt his answers instead of testifying truthfully.”

44. The report sets out several serious adverse findings made against Simelane by the disciplinary committee:

1. Simelane’s denial of holding a leadership role in the government’s team was found to be a “fabrication aimed at avoiding responsibility for his role preceding the hearing of evidence and his evidence at the Inquiry.” (emphasis added).

2. Simelane was found to have “as the head of the legal team representing government, in an attempt to mislead the Ginwala Inquiry: drafted and submitted written submissions … 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.” (emphasis added).

3. Simelane was found to have failed to disclose relevant facts and correspondence which demonstrated that the Minister of Justice had unlawfully attempted to intervene in the NPA’s independence by attempting to block the arrest of former police commissioner Jackie Selebi.

4. Simelane was found to have failed to disclose the existence of the legal opinion confirming Pikoli’s understanding of the independence of the NDPP. 

45. Consequently, the committee held that Simelane’s conduct constituted professional misconduct and conduct unbecoming of an advocate.      

Conclusion

46. The material set out in the submission reveal very serious adverse findings against Simelane. These have their origin in the report of the Ginwala Enquiry, and their seriousness was confirmed by the Constitutional Court’s decision that the failure to take them into account rendered Simelane’s previous appointment as unlawful. It must be emphasised again that none of the findings or criticisms raised in the Ginwala Enquiry report have been set aside or contradicted.

47. Simelane was found to have misconceived his role as Director-General, impacting on the relationship between the Minister of Justice and the NDPP. His testimony, to a highly consequential enquiry, was found to have been contradictory, and he was found to have made baseless allegations. He was found to have deliberately withheld relevant material, to have failed to heed legal advice, and to have drafted a letter which was found to be tantamount to executive interference with prosecutorial independence. He was found to have given inaccurate evidence not based in the law. His conduct was aimed at misleading the commission, and false accusations of dishonesty were made. 

48. As we have seen, the Constitutional Court has emphasised that dishonesty is contrary to the requirements for the exercise of the role of the NDPP. The NDPP must be fit and proper and must exercise their functions impartially and without fear, favour and prejudice. The adverse findings against Simelane are fundamentally at odds with the requirements for the role of NDPP.

49. The fact that there the JSA has found him guilty of serious misconduct as an advocate is an obviously serious factor.  What is more, he misconducted himself during the disciplinary process too – where the panel is quoted as describing Simelane’s explanation as “palpably false” and finding that his “explanation displays willingness, continuously, to adapt his answers instead of testifying truthfully.”  The fact that there is a pending striking-off application against Simelane is also an important factor which must be taken into account. Even though the proceedings are still ongoing, the facts underlying the application and the possible outcome are nevertheless relevant to Simelane’s suitability.       

50. Any one of those findings would have rendered Simelane unfit for appointment to such an important office.  When considered together, they confirm indubitably that he is neither a fit nor proper person for the position of NDPP.  An attempt to appoint Simelane in light of the multitude of concerns highlighted in this submission would be unjustifiable, irrational, and vulnerable to further legal challenge. It is also damaging to public confidence in the process of appointing the new NDPP.  The fact that the events described in the Ginwala Enquiry occurred some time ago does not make a difference to their impact on Simelane’s suitability.  The recent public attention arising from Simelane’s candidature has again rightly placed a spotlight on the very real concerns about his past conduct and the ongoing impact his appointment would have on the credibility and integrity of the NPA.  The JSA’s disciplinary process confirms that his conduct in that Enquiry was worthy of disciplinary sanction, and his conduct during the JSA’s disciplinary process indicates that he is prone to continuing the very conduct that the Ginwala Enquiry and the Constitutional Court was concerned about – answers that are “palpably false” and explanations that display his “willingness, continuously, to adapt his answers instead of testifying truthfully.”  

51. We accordingly submit that Simelane is not a fit and proper person to be appointed as NDPP.  His improper conduct highlighted in the Ginwala Enquiry, by the Constitutional Court, and through the JSA disciplinary finding, render him uniquely unfit for the highest office in the National Prosecuting Authority. 

FREEDOM UNDER LAW

5 DECEMBER 2025