South Africa

OP-ED

Appointing a new NDPP — what are the requirements?

PRETORIA, SOUTH AFRICA – NOVEMBER 14: The panel waits to interview candidates 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 / Phill Magakoe)

The shortlist of candidates for the position of National Director of Public Prosecutions has been finalised and, following a successful application from Right2Know, the interviews were open to the public. This is unprecedented but an important modification to an appointment process which was previously rather opaque. In view of this, it is worthwhile to look more closely at what the requirements are for the position of NDPP against the background that the appointment is of great public interest.

The requirements for the National Director of Public Prosecutions (NDPP) are rather slim when compared with those of the Public Protector and Auditor-General. In the case of the NDPP it is required merely that the person be fit and proper and “possess legal qualifications that would entitle him or her to practice in all courts in the Republic”.

There is no requirement of specialist knowledge or numbers of years of experience. While it may not be possible or even desirable to set specific criteria in respect of qualifications, a structure identifying the suitable candidate would benefit from the advice of experts from the legal community and civil society. The current relatively low threshold is particularly worrisome given the powerful position of the NDPP.

In DA v President of South Africa the Supreme Court of Appeal found that the appointment of Menzi Simelane as NDPP was irrational in that the president failed to take into consideration relevant information emanating from the Ginwala Inquiry, in which negative findings were made about Simelane.

The court found that the president must take all information into consideration, that the appointment process has to be rational, and that the president cannot cherry-pick the information on which he or she bases the decision to make an appointment. Even if the legislation itself is not particularly helpful in guiding the president to appoint the correct person, the duty rests with the president to be as thorough, rational and objective as he or she could possibly be.

Given the power held by prosecutors and the discretion with which they are entrusted, it follows that they need to possess certain qualities of character to prevent the misuse of such power and discretion. It has been recommended by an EU commission that prosecutors “must act to a higher standard than a litigant in a civil matter” and that the qualities required of a prosecutor are similar to those of a judge, and thus require a suitable procedure for appointment and promotion.

There is, however, little guidance in law on what fit and proper means, an issue noted by the parliamentary Ad Hoc Committee that dealt with the dismissal of advocate Vusi Pikoli as NDPP. The Ginwala Inquiry, which investigated Pikoli, also paid some attention to the notion of “fit and proper”:

There must be an appreciation of the significance of the role a prosecuting authority plays in a constitutional democracy, the moral authority that the prosecuting authority must enjoy and the public confidence that must repose in the decisions of such an authority.”

With the NPA Act being rather vague about the NDPP being a “fit and proper person”, the Supreme Court of Appeal placed the issue under scrutiny in 2011 when it considered the appointment of Menzi Simelane as NDPP in Democratic Alliance v President of the Republic of South Africa and others.

The court agreed with the DA’s position that the law does not use the expression “in the President’s view” or some other similar expression, but requires an objective assessment. Further, that the requirement of being fit and proper is couched in imperative terms, stating that the appointee “must” be a fit and proper person. The court noted also that qualities such as “integrity” can be objectively assessed and that such an assessment of a person’s personal and professional life ought to reveal whether he or she has integrity.

The judgment lists several synonyms and antonyms for integrity to support the court’s interpretation, noting that the Oxford Dictionary indicates synonyms of integrity to be “unimpaired or uncorrupted state; original perfect condition; soundness; innocence, sinlessness; soundness of moral principle; the character of uncorrupted virtue; uprightness; honesty, sincerity”. Further clarification was sought in the Collins Thesaurus — “honesty, principle, honour, virtue, goodness, morality, purity, righteousness, probity, rectitude, truthfulness, trustworthiness, incorruptibility, uprightness, scrupulousness, and reputability”. The following were noted as antonyms — “corruption, dishonesty, immorality, disrepute, deceit, duplicity”.

The Supreme Court of Appeal went on to state:

Consistent honesty is either present in one’s history or not, as are conscientiousness and experience.”

The court added that “conscientious” is defined as “wishing to do what is right and relating to a person’s conscience”. On this point the court concluded that there is no doubt that the appointment of the NDPP is not to be left to the subjective judgment of the President, but needs to be “objectively assessed to meet the constitutional objective to preserve and protect the NPA and the NDPP as servants of the rule of law”.

When the matter of Simelane’s appointment reached the Constitutional Court, the court agreed with the Supreme Court of Appeal’s reasoning as to what is “fit and proper”, and confirmed the objective assessment against jurisdictional facts as exist in the NPA Act. The court acknowledged that while the “fit and proper” requirement does involve a value judgement, “it does not follow from this that the decision and evaluation lies within the sole and subjective preserve of the President” and is therefore immune from objective scrutiny.

The two Simelane decisions brought much clarity to the “fit and proper” requirement. Identifying a “fit and proper” NDPP is thus not a simple task and that the interviews have now been conducted in public is a significant step in restoring confidence in the National Prosecuting Authority.

In identifying a suitable candidate, the panel can find significant guidance from the Supreme Court of Appeal and the Constitutional Court decisions. DM

Lukas Muntingh is co-founder and project co-ordinator of Africa Criminal Justice Reform (ACJR), formerly the Civil Society Prison Reform Initiative (CSPRI). He holds a PhD (Law) from UWC and an MA (Sociology) from Stellenbosch University. He has been involved in criminal justice reform since 1992 and was deputy executive director of Nicro prior to joining UWC.

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