The Johannesburg Society of Advocates (JSA) has defended its decision to initiate a disbarment application against Menzi Simelane — eight years after it found he was unfit to be an advocate.
It argues that there is no fixed period within which to institute an application to strike an advocate from the roll of advocates.
The JSA, led by Don Mahon in the application, filed its answering affidavit this week, pushing aside Simelane’s accusation that the legal body’s application to have him struck from the roll was nothing but an abuse of court processes.
Simelane, a former head of the National Prosecuting Authority (NPA), lambasted the JSA’s arguments that he was a risk to the public. He argues that the legal body delayed initiating the application and did so eight years after it found him unfit to be an advocate.
The JSA applied to the high court in Johannesburg last 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.
‘Unfit and improper’
The legal action is based on a JSA panel finding in 2017 that deemed him unfit and improper to remain an advocate of the high court. The finding considered his involvement in the suspension of former national director of public prosecutions Vusi Pikoli in 2007.
Pikoli was accused by the department of justice & constitutional development, headed by Brigitte Mabandla, of several transgressions, but the inquiry chair, Frene Ginwala, cleared him. Simelane was the director-general of the department at the time.
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 JSA panel finding from 2017 also found Simelane to have not conducted himself in an honest manner during the Ginwala inquiry and during its own probe.
The timeframe from 2017 until 2025 has dominated the legal action and been strongly used by Simelane in his defence.
Mahon, in JSA court papers filed this week, argues the apparent delay should not be a factor used to stop the court from deciding on the merits of the case.
“Although there was a delay in bringing this application to strike the first respondent [Simelane] from the roll of advocates, it is important to note that there is no fixed period within which to institute an application to strike an advocate from the roll of advocates,” he contends.
The court should consider the matter by determining whether it is in the interest of justice and whether there are prospects of success to consider the JSA’s application, Mahon argues.
Simelane accused the JSA of having ulterior motives for launching the application last year, the same time he was vying for the NPA head position. He was interviewed last December.
President Cyril Ramaphosa did not appoint any of the six candidates but appointed Andy Mothibi of the Special Investigating Unit.
Mahon disputes the accusation that the JSA has an ulterior motive in wanting Simelane to be struck from the roll. “The allegation of ulterior motive is unfounded and speculative. The applicant’s decision to strike the first respondent was taken in 2017, long before the recent political events he cites.”
The fact that the JSA wants to give effect to the decision “is a fulfilment of its professional duty, not the abuse of the court’s machinery”.
Mahon maintains the period between the 2017 decision and the filling of the application was not a result of a “political waiting game” but was occasioned by JSA procedural events.
“The Bar Council resolved on October 16 2023 to persist with the 2017 decision. This resolution was communicated to the first respondent’s attorneys nearly two years ago.
“It is therefore logically impossible for the applicants’ conduct to be characterised as a ‘pre-emptive strike’ against political events or nominations occurring in 2025.
“The applicant is simply seeking to give effect to a long-standing disciplinary resolution that was delayed primarily by the first respondent’s own attempts to exhaust internal appeal remedies and the applicant’s subsequent commitment to procedural fairness.”
The delay benefited Simelane because he was able to continue to practise as an advocate, earning himself money after being found unfit to practise, Mahon argues.
He also opposes Simelane’s defence that he cannot be stripped of his advocate status based on decisions he took when he was the director-general of the department of justice.
Simelane 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.
Mahon, however, argues Simelane remained an officer of the law even when he took the contested decisions and was rightly criticised by the JSA. “The first respondent is, and remains, a risk to the public. The passage of time did not correct the unethical characteristics of the first respondent.”
