Process to appoint Shamila Batohi’s successor must be handled with great care and expertise

In January next year, National Director of Public Prosecutions Shamila Batohi will reach the mandatory retirement age and vacate her office. This moment presents South Africa with a crucial opportunity — not only to appoint a mission-critical leader, but to restore credibility to a deeply damaged institution: the National Prosecuting Authority (NPA).

If we are serious about rooting out corruption, prosecuting State Capture and re-establishing the rule of law, then we must recognise that, as it stands, the NPA is failing to execute its constitutional mandate. This is not a criticism of one individual, but a reflection of a systemic crisis.

Unless the appointment of Batohi’s successor is handled with great care and expertise, we risk entrenching the dysfunction that has made justice so elusive for the perpetrators of State Capture.

The Centre for Development and Enterprise recently released a report outlining two urgent, interlinked interventions: the creation of a robust and transparent appointment process for the new National Director of Public Prosecutions; and the establishment of an inquiry into the NPA’s performance, led by a retired senior judge.

Neither step can wait. And both, if implemented correctly, could help revitalise one of the most important institutions in South Africa’s democracy.

The NPA is the constitutional bulwark against the abuse of power. Yet it has been weakened by decades of political interference, flawed appointments, and institutional mismanagement. Since its establishment in 1998, no National Director of Public Prosecutions has completed a full term. Several were removed by court rulings that found their appointments to be unlawful or irrational. That revolving door at the top has undermined stability, effectiveness, and morale.

Turmoil of the Zuma years

Shamila Batohi has brought a measure of steadiness to the role after the turmoil of the Jacob Zuma years. But the structural damage done during the State Capture era has proved hard to reverse.

Even Batohi recently acknowledged that the prosecuting authority was “not out of the woods yet”, and admitted that — despite progress with general conviction rates — the NPA had failed to successfully prosecute any major State Capture cases involving high-level political actors.

This is a devastating admission.

The Zondo Commission and investigations by various journalists have laid out, in painstaking detail, the networks of corruption and abuse that hollowed out the state. But far too many implicated individuals are still at large.

The withdrawal of charges in the case of Moroadi Cholota, a former assistant of former Free State premier Ace Magashule, is the latest reminder that something is fundamentally wrong with how high-level cases are being pursued.

These failures embolden wrongdoers and erode public confidence in the state’s ability to hold the powerful to account.

That is why the Centre for Development and Enterprise is calling on the president to act swiftly and decisively.

Reformed process

Our first proposal is that the president should reform the process for appointing the National Director of Public Prosecutions. The current practice, governed by the NPA Act, gives the president broad discretion with little built-in transparency or accountability. This has led, time and again, to poor outcomes.

President Jacob Zuma’s disastrous appointments of Menzi Simelane and Shaun Abrahams — both ultimately declared invalid by the Constitutional Court — still cast a long shadow.

We need to do better.

The Centre for Development and Enterprise recommends a two-stage appointment process, modelled on the one used in 2019 to appoint the current Commissioner of the South African Revenue Service (SARS), Edward Kieswetter. That process emerged from the Commission of Inquiry into Tax Administration and Governance by SARS, headed by a retired senior judge, which exposed deep dysfunction and offered actionable recommendations to restore good governance. Its impact is evident in SARS’s turnaround since then.

We believe a similar approach can rescue the NPA.

In terms of our proposal, the president would begin by identifying candidates who meet clearly defined criteria: they would have to be legal practitioners qualified to appear in all courts, as well as individuals with significant prosecutorial and managerial experience, unblemished integrity, and a demonstrable commitment to the NPA’s independence and constitutional role.

These candidates would then be assessed by a high-level, independent panel. This panel should comprise individuals with high credibility across sectors: a retired judge, a senior advocate or attorney, a former National Director of Public Prosecutions or experienced prosecutor, a respected civil society leader, a retired senior public servant, and a business leader with considerable turn-around managerial experience.

This diverse and balanced composition would ensure that legal, managerial, ethical, and governance expertise are all represented in the evaluation process.

Importantly, while the panel’s membership, criteria, and final recommendations should be made public, the actual interviews and deliberations should remain confidential.

As we have seen with the Judicial Service Commission, public interviews can dissuade good candidates, encourage superficial discussions, and turn serious assessments into media spectacles. A more discreet approach fosters thoughtful deliberation and single-minded focus on finding the best person for this vital job.

Shortlist

Once the panel has concluded its work, it should submit a reasoned recommendation — or shortlist — to the president, who retains the final decision but must publish both the panel’s advice and the rationale for his choice (even if it is different from that of the panel). This process would significantly enhance public trust and reduce the risk of political manipulation.

Legally, the president has the option of extending Batohi’s term by up to two years. The Centre for Development and Enterprise believes this would be a mistake. The NPA needs new leadership and a reinvigorated mandate. Extending the status quo would squander a rare opportunity to introduce fresh energy into a flailing organisation.

To ensure a smooth transition, the next National Director of Public Prosecutions should be named by December 2025. That provides enough time for a meaningful appointment process and ensures there is no leadership vacuum at the top.

Appointing a capable National Director of Public Prosecutions alone will not solve the NPA’s challenges. The incoming leader must know what they are up against. That is why the Centre for Development and Enterprise’s second recommendation is equally urgent: the establishment of an inquiry, led by a retired senior judge, into the structure, leadership, independence, and performance of the NPA.

This inquiry — ideally completed by the end of 2025 — would provide a detailed, independent diagnosis of the challenges facing the prosecuting authority. Like the Nugent Commission did for SARS, it would offer a roadmap for reform based on facts, not speculation.

The inquiry should deliver an interim report to the president and minister of justice before the new National Director of Public Prosecutions takes office, with a final report tabled in Parliament within eight weeks of its completion. Where the state decides not to adopt a recommendation, it must provide reasons publicly. Transparency and accountability must be central throughout the process.

Political test

Reviving the NPA is not just a legal necessity — it is a political test.

The Government of National Unity has promised to fight corruption and restore trust in state institutions. That pledge will ring hollow if it fails to act boldly on one of the most important appointments of the next five years.

The office of the National Director of Public Prosecutions is not merely another job; it is a vital instrument in the defence of democracy. It must be filled by someone of real capability and independence, chosen through a process that inspires confidence rather than suspicion.

Done right, this appointment could mark the beginning of a new chapter for the NPA. Done wrong, it will confirm the worst fears of a public that has waited far too long for justice. DM

Ann Bernstein is head of the Centre for Development and Enterprise.