Advocate Menzi Simelane, a contender for the position of national director of public prosecutions, is contesting a court application by the Johannesburg Society of Advocates seeking his disbarment.
Simelane, among six candidates racing to replace advocate Shamila Batohi as head of the National Prosecuting Authority (NPA), has opposed the application by the Johannesburg Society of Advocates (JSA), which wants to stop him practising as a legal practitioner.
The JSA applied to the high court in Johannesburg in October for Simelane to be struck from the roll of legal practitioners, or alternatively, for him to be suspended from practising as an advocate for three years and pay a fine of R500,000.
The legal action is based on a JSA panel finding eight years ago that deemed him unfit and improper to remain an advocate of the high court, mainly based on his involvement in the suspension of former NDPP advocate Vusi Pikoli in 2007.
In 2008, Pikoli faced an inquiry into his fitness to hold office, which was established by former president Thabo Mbeki. He was accused by the department of justice & constitutional development, headed by Brigitte Mabandla, of several transgressions, but the inquiry chair, Frene Ginwala, cleared him.
Pikoli insisted his suspension was based on the case against national police commissioner Jackie Selebi. The allegation however, could not be proven.
In September 2007, Mabandla sent a letter to Pikoli calling for him to stop the arrest of Selebi until she had been apprised of all the evidence. She sent the letter after Mbeki had communicated with her about the matter.
Simelane drafted the minister’s letter as the director-general of the justice department.
Though Ginwala did not make recommendations against Simelane, she found his wording of the letter, on behalf of Mabandla, conveyed a meaning that Pikoli was to stop any plan to arrest and prosecute Selebi until Mabandla was satisfied that there was sufficient information and evidence to do so.
Ginwala found Simelane should have been aware of the constitutional protection afforded to the NPA to conduct its work without fear and that the contents of the letter amounted to executive interference with the prosecutorial independence of the NPA.
The JSA panel found Simelane failed to disclose relevant evidence to the Ginwala inquiry and was involved in an action in which the “minister sought to unlawfully interfere in the prosecutorial independence of the NPA”.
“The first respondent [Simelane] knowingly overstepped his area of responsibility as the director-general of justice and attempted to assert the powers that the first respondent did not have for an ulterior purpose,” JSA papers read.
Ginwala dismissed most of the state’s allegations against Pikoli. The JSA described Simelane as responsible for the government’s submissions at the inquiry, adding, “Those submissions were inaccurate and without basis in fact or law.
“The panel determined that the conduct of the first respondent constituted professional misconduct and conduct unbecoming of an advocate. It further determined that the first respondent’s conduct rendered him unfit and not proper to be and remain an advocate of the high court.”
Simelane, in his answering affidavit, challenged the JSA, criticising why it took eight years to bring the application in the high court if it really believed his conduct was a risk to the public.
He contends that the JSA case and the allegations levelled against him do not implicate his conduct as a practising advocate but as a public servant in the service of the state. He was the director-general of the justice department when he was involved in Pikoli’s suspension.
“At the outset, I vehemently and categorically deny that I am not a fit and proper person to be admitted to practice as an advocate of the high court. I state without any reservation that I have conducted my professional life with the requisite levels of integrity, honesty and ethics,” Simelane argues.
“Had the applicant acted on its decision to bring this application as far back as 2015 when it concluded its investigations. I would have proven this application is meritless.”
It has taken the applicant 17 years from the time a complaint against me was registered in 2009 to come to this point of bringing this application in 2025.
— Advocate Menzi Simelane
Simelane argues that the JSA unreasonably delayed its case against him and questions the legitimacy of its probe.
“It has taken the applicant 17 years from the time a complaint against me was registered in 2009 to come to this point of bringing this application in 2025.
“There was no recommendation based on the adverse comments by Dr Ginwala against me to the effect that I should be disciplined. If indeed the adverse comments were of a nature that my fitness to remain admitted as an advocate of the high court was questionable, the JSA had a duty from 2008 to conduct an inquiry.”
Simelane will be interviewed for the NDPP post this week alongside Independent Directorate Against Corruption (Idac) head Andrea Johnson, former Investigating Directorate head Hermonie Cronje, and advocates Nicolette Bell, Adrian Mopp and Xolisile Khanyile.
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