It does not matter whether Menzi Simelane turns out to be the right person for the job of NDPP, the question is whether the president applied his mind when appointing him, the Constitutional Court heard on Tuesday.
"With respect, it is not for this court or any court to say who is the best person for the job," said advocate Owen Rogers, counsel for the Democratic Alliance, which wants the invalidity of Simelane's appointment confirmed by the court.
It has asked the court to confirm an order by the Supreme Court of Appeal that his appointment as National Director of Public Prosecutions is invalid and that it be set aside.
It has argued that President Jacob Zuma did not apply his mind when appointing him, that the appointment was irrational, and that Zuma wanted a malleable official in that position.
Rogers submitted that the president had a statutory obligation to consider whether Simelane was a fit and proper candidate. He said it was not enough to show after the fact that, fortuitously, the person selected was fit and proper.
If that was the case, the president could have put names on a wall and "thrown darts at them".
The person had to meet the criteria for the job, and the president had to go about the appointment in a rational way. There was nothing to show that the president had done so when replacing Simelane's predecessor Vusi Pikoli.
Rogers said former president Nelson Mandela had sought files and information to back up his decision to set up a commission of inquiry into the SA Rugby Football Union.
However, neither the president nor Justice Minister Jeff Radebe had disputed in lower courts that there had not been any other candidate besides Simelane.
Rogers submitted that Simelane's appointment was "inexplicable and irrational".
He said the minister of justice told the president that a Public Service Commission (PSC) report on Simelane before his appointment was flawed because he had not been given a hearing, and so it served no purpose.
This report was based on Simelane's conduct during the Ginwala Inquiry into Pikoli's fitness to hold office.
The Ginwala report found that Simelane lied, deliberately withheld certain opinions and that his conduct was highly irregular during the inquiry, and did not fit a senior state official.
The minister told the president that this should be disregarded because Simelane was not the focus of that inquiry.
"If a person lies in a case in which he is not a litigant that can be a case for a disciplinary -- that is how misconduct comes about," said Rogers.
"The president didn't apply his mind to the matter properly...," he said.
The DA first challenged Simelane's appointment as NDPP in the High Court in Pretoria, but lost. On appeal, the Supreme Court of Appeal reversed that decision on December 1, finding that both Zuma and Radebe had made fatal errors in law.