South Africa

ANALYSIS

NPA interviews impress and depress, but are at least transparent

Advocate Matodzi Rachel Makhari, Advocate Silas Ramaite and Advocate Siyabulela Xhanti Mapoma during an interview for the position of National Director of Public Prosecutions at the Union Buildings on November 14, 2018 in Pretoria, South Africa. The interviews are conducted by an advisory panel led by Minister of Energy Jeff Radebe. (Photo by Gallo Images / Phil Magakoe).

The first five hopefuls for the National Prosecuting Authority’s top job were interviewed on Wednesday, broadcast for the first time to the public. The interviews highlight the lack of transparency in previous appointments.

Former president Jacob Zuma appointed three National Directors of Public Prosecutions (NDPP) during his two terms in government, announcing each appointment in a press release. The Presidency statements on Menzi Simelane, Mxolisi Nxasana and Shaun Abrahams each followed the same structure. The announcement was made, followed by a summarised CV (Abrahams prosecuted Nigerian terrorist Henry Okah) and the president wished them well.

For the first time, interviews with candidates who want to head the National Prosecuting Authority (NPA) were broadcast publicly on Wednesday. The interview panel headed by Energy Minister Jeff Radebe asked tough questions about the first five candidates’ suitability for the NDPP job, providing the public with far more information than a sanitised career history.

The panel probed the candidates, who accepted their nomination to lead the prosecuting authority, on how they would reform the NPA. They focused on issues of personal integrity, dealing with political interference, professional experience, and improving public trust in the institution.

NPA veteran and acting NDPP Silas Ramaite was first up, a suitable introduction to prove just how bankrupt leadership at the institution is. The panel appeared to have little doubt that the NPA has been making prosecutorial decisions on the basis of political influences and that the public has lost faith in the institution. But is Ramaite, appointed deputy director of public prosecutions in 2003, the man to restore it?

The shadow of the Zuma era loomed over the interviews. Former acting NDPP Mokotedi Mpshe dropped the corruption charges against him, a decision which has since been overturned, and Abrahams delayed reinstating them. Nxasana was pressured to take a golden handshake when the former president thought he threatened his personal political interests. While Zuma used his presidential prerogative to appoint NPA leaders seemingly for his own benefit, the institution’s leadership has been beset by factionalism.

Ramaite was one of four deputies at the NPA throughout the rot and the panel wanted to know what happened. He was vague on the NPA’s challenges and denied it was in crisis. Panellists raised concerns with his answers multiple times.

Truth be told… ” Ramaite started.

That’s exactly what we’re looking for,” said one panellist.

Auditor General Kimi Makwetu, a panellist, said, “The reality is that you have deprived us from getting insights from you in the real world of work.”

South Gauteng Director of Public Prosecutions Andrew Chauke probably faced the toughest time. He said he had been sidelined from promotions for refusing to be captured. He further said Abrahams and Nxasana limited his career prospects because they believed he had said was more qualified for the NPA’s top job.

I’ve never been captured; in fact I don’t believe anyone would capture me,” he said.

Most of Chauke’s interview focused on his decision to provisionally withdraw murder and 17 related charges against former crime intelligence boss Richard Mdluli and instead hold an inquest, which a North Gauteng High Court decision called “dubious” questioning his motives.

You’re asking me if I’d still make the same decision now. I would,” said Chauke.

The Supreme Court of Appeal (SCA) overturned a decision to withdraw charges of fraud and corruption against Mdluli, but it upheld Chauke’s decision to provisionally withdrew the murder charges against him.

A frustrated Chauke tried to explain that the SCA exonerated his decision, but the panelists continued to question whether he made the right move, asking why he could not have at least persisted with assault and kidnapping charges and for his thoughts on the SCA’s comment that the NPA was “obstructive” in the case.

My understanding of my conduct in relation to Mdluli’s matter – I was not obstructive, I was not obstructionist,” he said.

Asked about factions in the NPA, Chauke said provincial teams work well together but leaders at the national office are divided among themselves.

Another candidate, NPA chief prosecutor Matodzi Makhari’s steam ran out under questioning.

I have proved to be a woman of integrity. Where I have worked as a chief prosecutor, my prosecutors know you can’t be next to me and not be on the straight and narrow,” she said.

Integrity, you can have it or you don’t. There are no grey areas,” she said in an interview that at times became more of a motivational speech.

Makhari has been in the same position, a relatively junior position to apply for the NPA’s top job, and has never appeared in the High Court. She said the NDPP requires management skills rather than direct court experience and she had reached the highest position she could apply for before appointments are made.

Advocate Siyabulela Mapoma, a former NPA employee who is now in private practice, had an uneventful interview except for questions on his lack of higher court experience. He has never appeared in the Constitutional Court and only appeared in the SCA once as a junior counsel.

NPA chief prosecutor Matric Luphondo was the most impressive of the day’s candidates. He has completed a master’s degree in prosecutorial discretion and is writing his doctorate thesis on the same topic, looking at political interference in prosecutions.

Regardless of the personality of the person that comes to me, regardless of whether you are politically connected, whatever background you come from, that does not influence the decision that I take as national director. You should be guided by the facts of the case,” he said.

Luphondo said he was twice offered incentives to influence cases. Someone at a party offered him alcohol to get him to drop a case. On another occasion, he was offered a BMW to steal a case docket. He said he refused both times but did not refer the matters to police due to a lack of details about the offenders.

Luphondo said NPA provincial offices are working “quite well” but the national office faces challenges, exhibited by it leading prosecutions that should be led by provincial offices.

People did not just stand up at the moment they needed to stand up and say, ‘We’re not being moved. We refuse to be moved. We’re standing up for the independence of this organisation’,” he said on the deterioration of the NPA’s independence. He criticised Abrahams for visiting the ANC’s Luthuli House headquarters.

Luphondo was repeatedly questioned on why he dropped charges against the three men accused of stealing R17-million from the State Security Agency in 2015. He said there was insufficient evidence to pursue the case.

Twelve candidates were short-listed as potential NPA heads, but the DA’s Glynnis Breytenbach, a former prosecutor, withdrew from the race on Tuesday due to the perceptions on her political affiliations and the quality of the other candidates.

The panel will interview the six other candidates on Thursday before making suggestions on who should be appointed NDPP to President Cyril Ramaphosa, who will make the final appointment.

The NDPP position became available after the Constitutional Court ruled in August that Abrahams’ appointment was invalid. Ramaphosa has slightly more than a month to appoint a new NDPP.

Opposition parties have long called for the NDPP appointment process, a sole prerogative of the president, to be more transparent, and the North Gauteng High Court on Tuesday ruled in favour of an application of Right2Know to have the interviews open to the media.

The days of meeting our new NDPP through a pithy press release are behind us. DM

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