New NPA boss Andy Mothibi sets sights on a fully independent prosecuting authority

Since the National Prosecuting Authority (NPA) was established in 1998, there have been calls for it to have operational and financial independence to shield it from political interference.

Now, it appears that change may finally be on the cards — at least if its new boss, advocate Andy Mothibi, gets his way.

At his first media briefing, in Pretoria on Thursday, 12 March, the National Director of Public Prosecutions (NDPP) made it clear that giving the NPA real independence is central to rebuilding trust and capacity, and as such, he revealed that a draft amendment to the NPA Act would be tabled in Parliament in the next financial year.

“I have been in discussions with the Ministry of Justice and Constitutional Development on this subject, and I am pleased to say that the ministry and department are fully supportive and have committed to drive the legislative reform process,” said Mothibi.

If passed by Parliament, the legislation would let the NPA have its own accounting officer, giving it more control over its finances and administration.

Speaking two months into the job, Mothibi acknowledged that although the NPA is constitutionally required to prosecute cases “without fear, favour or prejudice”, its governance structure limits its independence.

The big question is: Can such a major structural reform realistically be achieved during Mothibi’s expected two-year term as NDPP?

He is 63 and must, by law, retire at the age of 65. The NDPP is supposed to serve a 10-year term, which no one has ever completed.

‘Critically important’

Dr Jean Redpath, a senior researcher at the University of the Western Cape’s Dullah Omar Institute, believes the legislation is “critically important” and can be achieved because there is a different director-general in the department and a new justice minister, Mmamoloko Kubayi, who has committed to supporting the independence of the NPA.

“There is some hope that it’s more likely to happen now than previously,” she said.

Lawson Naidoo of the Council for the Advancement of the South African Constitution agreed, admitting that while parliamentary processes took time, the legislation would be an important milestone for Mothibi and for the future of the NPA.

“The likelihood is that it will probably take two years for that legislation to be passed if it were to be introduced earlier in the financial year. It’s something that really needs to be started, even if it’s not completed by the time he leaves, to at least say, well, we’re on the verge of achieving this.

“I think that it's an important milestone for him, but it’s not within his power. He’s got to rely on the minister and Parliament to see it through,” said Naidoo.

Currently, the NPA operates as a subdivision of the Department of Justice and Constitutional Development. This structure places core administrative and financial oversight outside the authority’s direct control, something with which Mothibi’s predecessor, Shamila Batohi, who left office in January, often took issue.

On her last day of work, she conceded that the NDPP’s position was contradictory. While the NDPP runs the NPA, they cannot determine their own budget, control spending, set salaries, or decide who to hire and fire, which is why the question of the accounting officer is critical.

Under the proposed amendment, the NPA would have all these powers and its own accounting officer.

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Mothibi said his first month in office was spent diagnosing the institution and conducting a full “situational analysis”, looking at the people, including staff and leadership, the processes, how prosecutions and management work, and the systems, including technology and overall capacity.

State Capture cases

The NPA has faced widespread criticism for failing to secure prosecutions in major State Capture matters. Mothibi said the Investigating Directorate Against Corruption was dealing with 134 recommendations, while only three cases had been finalised.

The most recent successful case is that of the former ANC MP Vincent Smith, who was sentenced to seven years in prison in relation to the Bosasa matter.

Daily Maverick reported that although Smith may be headed for jail, several other ANC members accused of similar offences are walking free. Mothibi promised that more people would end up in “orange overalls” in State Capture-related cases.

Other priorities

As part of his NPA reform strategy, Mothibi intends to fill key senior vacancies — including four deputy positions — and will soon submit his recommendations to President Cyril Ramaphosa.

Beyond those positions, the NPA still has a large number of staff vacancies in key positions and struggles to attract staff with the expertise to prosecute complex cases.

Redpath said, “Advocate Mothibi seems to think that just filling the vacancies will fix the skills problem, but the real issue is that people don’t want to work at the NPA permanently. You need a workaround for that.”

Mothibi spoke extensively about organised crime, noting that the NPA’s Strategy Against Organised Crime — finalised in August 2024 — was now entering an intensive implementation phase.

Part of the strategy is a focus on kingpins, syndicates, money-laundering networks and enablers, including accountants, lawyers and intermediaries.

“I am satisfied that [in] two years, if we execute and implement the annual performance plans as we have planned, we are going to see a positive difference,” said Mothibi.

State of the NPA

When Batohi took office seven years ago, she lamented the dire state of the NPA. This was also reflected in the NPA’s 2024 annual report, in which she said she had inherited an institution emerging from “a decade of grand corruption perpetrated during the State Capture era” and conceded that she could not have fully anticipated the scale of the challenges ahead.

Asked whether she had been able to turn things around, Batohi said this depended on various factors and on the lens through which one looked at the NPA.

Asked the same question on Thursday, Mothibi said, “I found an NPA that has evolved and is really, really focusing on executing its mandate.” DM