Constitutional Restraints on the Executive Powers of the President: South Africa

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The case Democratic Alliance v President of South Africa deals with the extent of the constitutional constraints that exist in relation to the exercise of power by the president. s179 of The Constitution together with s10 of the National Prosecuting Authority Act stipulates that a National Director of Public Prosecutions, who is the director of public prosecutions is appointed by the president, as the head of the national executive. In Democratic Alliance v President the issue was whether the appointment of Menzi Simelane as the Director of Public Prosecutions by the President of the Republic of South Africa was within the bounds of the Constitution. The Minister for Justice and Constitutional Development and Mr Simelane sought to challenge the decision of the SCA that found that the president erred in the process by which Menzi Simelane was appointed as the National Director of Public Prosecutions. Mr Simelane, as Director-General of the Department of Justice and Constitutional Development was intimately involved in the dispute concerning the then National Director of Public Prosecutions, Mr Vusi Pikoli. The dispute related to the powers of the Minister of Justice and Constitutional Development and the National Director of Public Prosecutions. This tension resulted in Mr Pikoli being suspended by the then President on the 23rd of September 2007. Shortly after that the President appointed the Ginwala Commission to inquire into Mr Pikoli’s fitness to hold the office of National Director of Public Prosecutions. Mr Simelane presented the government’s submissions to and gave evidence under oath before the Ginwala Commission. Upon the evidence given by Mr Simelane the report of the Ginwala Commission criticized the manner in which Mr Simelane presented the government’s submissions and brought into question the credibility of his evidence. This lead to the Minister of Justice and Constitutional Development requesting the Public Service Commission to investigate...
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