Democratic Alliance v President of the Republic of South Africa and Others

The President appointed Mr Menzi Simelane as National Director of Public Prosecutions (NDPP) in November 2009. Prior to this, Mr Simelane, as Director-General of the Department of Justice, had been centrally involved in disputes surrounding the suspension and dismissal of the former NDPP, Mr Vusi Pikoli. Mr Simelane testified under oath before the Ginwala Commission of Inquiry into Mr Pikoli’s fitness for office, where his credibility and conduct were severely criticised. The Public Service Commission subsequently recommended disciplinary proceedings against Mr Simelane based on that conduct, but the Minister of Justice rejected these recommendations. Two days later, the President appointed Mr Simelane as NDPP. The Democratic Alliance challenged the appointment, arguing that it was irrational and unconstitutional. The High Court dismissed the challenge, but the Supreme Court of Appeal set aside the appointment as irrational and invalid, prompting an application to the Constitutional Court for confirmation of constitutional invalidity.

The Constitutional Court confirmed the order of the Supreme Court of Appeal declaring the President’s decision to appoint Mr Menzi Simelane as National Director of Public Prosecutions inconsistent with the Constitution, reviewed and set aside the appointment, and upheld the associated costs order.

This case is a leading authority on the application of the principle of legality and rationality review to presidential executive decisions. It clarifies that courts may scrutinise not only the outcome but also the decision-making process for rationality, even in high-level executive appointments. The judgment reinforces prosecutorial independence and underscores the constitutional importance of integrity and credibility in the office of the NDPP.