South Africa

EXPLAINER

All you’ve ever wanted to know about the National Prosecuting Authority

PRETORIA, SOUTH AFRICA – NOVEMBER 4: Newly appointed National Director of Public Prosecutions (NDPP) Advocate Shamila Batohi and President Cyril Ramaphosa during the announcement of her appointment at the Union Buildings on November 4, 2018 in Pretoria, South Africa. Batohi, who is the first woman to be appointed the National Director of Public Prosecutions (NDPP), will start her new role in February next year. (Photo by Gallo Images / Netwerk24 / Felix Dlangamandla)

As whispering campaigns have become embedded in South Africa’s fractured body politic, innuendos come all too easy as prosecutions of the politically connected and State Capture unfold. But it’s the Constitution, the 1998 National Prosecuting Authority Act and prosecution policy that define the National Prosecuting Authority’s conduct.

The National Prosecuting Authority (NPA) gets its power from where – and who does what?

Section 179 of the Constitution stipulates a unitary structure headed by a national prosecutions boss, and directors of public prosecution.

“The prosecution authority has the power to institute criminal proceedings on behalf of the state, and to carry out any necessary function incidental to instituting criminal proceedings…” says the Constitution, adding: 

“National legislation must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice.”

Those powers are carried into the 1998 NPA Act that in section 35 sets out accountability:

“The prosecuting authority shall be accountable to Parliament in respect of its powers, functions and duties under this Act, including decisions regarding the institution of prosecutions.”

The NPA Act sets out a prosecution structure headed by a national director of public prosecutions (NDPP), national deputies and directors of public prosecutions linked to the seats of high courts. That’s why Gauteng has two prosecution authority offices – Johannesburg and Pretoria – as has the Eastern Cape, in Makhanda and Mthatha. 

Central are the directors of public prosecutions (DPPs) who, according to section 24 of the NPA Act, institute and conduct criminal proceedings, supervise and direct prosecutors, and “supervise, direct and coordinate specific investigations”, and run their respective offices.

The president appoints the DPPs, in consultation with the justice minister and the national prosecution boss, under section 13 of the NPA Act. 

Section 9 of the law requires that everyone from the NDPP to directors must be able to practise in all courts — and be “a fit and proper person with due regard to his or her experience, conscientiousness and integrity…” 

While the legislation says little about national deputy directors of public prosecution – the Constitution is silent on this – national deputies head the Asset Forfeiture Unit (Ouma Rabaji-Rasethaba), the National Prosecution Service (Rodney de Kock) and legal affairs division (Nomvula Mokhatla). And acting national deputy Karen van Rensburg heads administration and witness protection.

President Cyril Ramaphosa appointed De Kock and Rabaji-Rasethaba from 1 June 2020, in consultation with justice minister Ronald Lamola and the NDPP as required by the NPA Act in section 11(1). 

Mokhatla was appointed in December 2010 by former president Jacob Zuma. In addition, special DPPs are responsible for, among others, sexual offences prosecutions, priority crimes and Specialised Commercial Crimes Unit (SCCU) cases, many in acting capacity.

Prosecutors are appointed on recommendation of the NDPP in line with public service terms and conditions, according to section 16 of the NPA Act. 

So what about the National Director of Public Prosecutions?

NDPP Shamila Batohi was appointed, as the Constitution requires in section 179(1)(a) by the president, from February 2019 following the first public interviews in November 2018. It’s a non-renewable 10-year term of office, according to section 12 of the NPA Act that sets an age limit of 65.

A significant part of the NDPP’s work is administration and organisational governance — from responsibility for prosecutor training programmes to annual reports, and budget cuts. Some matters, like prosecutors training programmes, must be done in consultation with the justice minister and the DPPs, according to section 22(7) of the NPA Act.

But, as prosecutions boss, the buck stops with the NDPP. And so the NPA Act not only stipulates a duty to assist DPPs and prosecutors to achieve “the effective and fair administration of criminal justice”, but also the power to check on how the DPPs are doing their jobs by, for example, requesting a report on a specific case, a prosecution process or directions and guidelines.

It all goes back to the Constitution, which in section 179(5)(c) states the prosecutions boss “may intervene in the prosecutions process when policy directives are not complied with”, while section 179(5)(d) allows for the review of a decision to prosecute, or not, after consulting the relevant DPP and getting representations of the accused persons, the complainant and anyone else.

In terms of both Constitution and statute, the NDPP issues policy directives that must be observed in prosecutions. And the NDPP must also determine prosecution policy — “in concurrence” with the justice minister and after consulting DPPs.

That prosecution policy

It goes back three NDPPs, or to June 2013, when Nomgcobo Jiba was acting prosecution boss, and was posted on the NPA website dated 27 November 2014 when Mxolisi Nxasana was at the helm of the NPA.

The prosecution policy is a public document; amendments must be included in the NPA’s annual report tabled in Parliament. Coincidentally, also publicly available are the code of conduct, dating back to 2010, policy directives and associated documents.

For those who believe narrowly in the letter of the law from a technicist view, the prosecution policy would be an anathema. Its provisions “are meant to ensure consistency by preventing unnecessary disparity, without sacrificing the flexibility that is often required to respond fairly and effectively to local conditions”, says the policy.

“In deciding whether or not to institute criminal proceedings against an accused person, prosecutors must assess whether there is sufficient and admissible evidence to provide a reasonable prospect of a successful prosecution (the policy’s emphasis). There must indeed be a reasonable prospect of a conviction, otherwise the prosecution should not be commenced or continued.”

Prosecutions should be “in the public interest”. Acting in the interest of victims of crime and the community is a refrain throughout, from deciding on whether or not to institute criminal proceedings, the charges and in what court. Considerations of the State’s case strength, whether evidence was lawfully acquired and if it’s available – important, given the massive backlog in SAPS laboratories and witnesses.

And while it’s usually the police that start and conduct investigations that result in dockets submitted to the NPA, the prosecution policy provides for earlier prosecutorial involvement in “major or very complex investigations”.

But sometimes, laws require the NDPP to step in to approve prosecutions…

That happens, quite narrowly, in racketeering and corruption laws – 1998 Prevention of Organised Crime Act and the 2004 Prevention and Combating of Corrupt Activities Act.

The Prevention of Organised Crime Act requires the NDPP to sign off on any person being charged with racketeering related offences, including receiving, retaining and using property derived from racketeering. As does starting an investigation against persons in possession of information or documentary material relevant to offences.

Under the Prevention and Combating of Corrupt Activities Act, the NDPP may write to a DPP to start investigating property that’s reasonably suspected to be involved in the commission of an offence, or to be the result of an offence. That’s before any asset forfeiture or criminal proceedings.

Written authorisation from the NDPP, or a national deputy or a DPP is required before the start of prosecuting a public official for having acquired and holding a stake in a contract, agreement or investment connected with the public body(bodies) they are employed by, if the public body prohibits this. But that investigation can’t go ahead until the person concerned had the chance to explain how that interest and/or property was acquired. 

So what about this State Capture Investigative Directorate?

Established by presidential proclamation under section 7(1) of the NPA Act, it needed more than a swoosh of the presidential pen. An investigative directorate can only be established “on recommendation” of both the justice and police ministers, and the NDPP.

The presidential proclamation sets specific terms of reference, which for the investigative directorate under NPA special director Hermione Cronje, includes fraud, forgery, uttering, theft and “any offence involving dishonesty”.

Crucially, the terms of reference in Proclamation 20 of 2019 also allow investigations under the Prevention and Combating of Corrupt Activities Act, the Prevention of Organised Crime Act, the 2004 Protection of Constitutional Democracy Against Terrorist and Related Activities Act, effectively financing terrorism – and the 1999 Public Finance Management Act and its local government equivalent, the 2003 Municipal Finance Management Act. And any matter arising from the Zondo State Capture Commission.

The investigative directorate moves under its own steam, but reports to the NDPP. Chapter 5 of the NPA Act sets out the powers – from summonsing anyone, with legal representation present, and any document to inspecting premises.

Is everything hunky-dory?

No. The NPA is emerging from a battered period. None of Batohi’s predecessors since 1994 served their full 10-year terms, from the resignations of Bulelani Ngcuka in July 2004 and Nxasana in May 2015 to the Constitutional Court judgments that in October 2012 confirmed the invalidity of Zuma’s appointment of Menzi Simelane – and in August 2018 the invalidity of Shaun Abrahams’s June 2015 appointment.

In April 2019, the president sacked deputy national director Jiba and Special Commercial Crimes Unit head Lawrence Mrwebi within the six months suspension period set in law. The statutorily required inquiry under section 12(6) of the NPA Act, headed by retired Constitutional Court Judge Yvonne Mokgoro, found neither were fit and proper to hold office. It’s one of four reasons for removal from office, alongside ill-health, incapacity and misconduct.

A presidential decision to dismiss a top NPA official goes to Parliament, which must confirm it or restore the official.

Jiba’s court challenge to the Mokgoro report, and thus to interdict Parliament’s processes, was dismissed by the Western Cape High Court. Subsequently, both Houses of Parliament in December 2019 confirmed Jiba’s and Mrwebi’s sackings.

The Mokgoro report did not mince its words. 

“The recent history of the NPA demonstrates that the NPA may be vulnerable to executive and political interferences,” it said, adding it damaged public confidence in the NPA when officials are “mired in controversy and are consistently being taken on review for irrational decision-making, and being found wanting by the Courts…”

But public confidence in the prosecution service was central to underscoring the social contract between state and person. 

“The NPA must instil a strong sense of constitutional values and belief in the rule of law. When these values are internalised and fought for vociferously from within the NPA, only then will the institution enjoy the confidence of the citizenry and become the prosecuting authority that South Africans deserve.”

Back to that prosecution policy, code of conduct, NPA Act and Constitution…

They all say the same – NPA members must serve with impartiality, fairly and in good faith, without fear, favour or prejudice.

And all from NDPP, national deputies, DPPs, special directors to prosecutors swear the same oath of office — to “uphold and protect the Constitution and the fundamental rights entrenched therein and enforce the Law of the Republic without fear, favour or prejudice and, as the circumstances of any particular case may require, in accordance with the Constitution and the Law”. DM

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Comments - Please in order to comment.

  • Glyn Morgan says:

    Great article. But why no action? Sure, there has been a little bit, a tinsy token bit of action. The People need the Big Shots in orange overalls! Soon!

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