It has been almost eight months since the Constitutional Court found that President Jacob Zuma had acted irrationally when he appointed Adv Menzi Simelane as National Director of Public Prosecutions (NDPP) and declared that disastrously unwise appointment invalid. For eight months Adv Nomgcobo Jiba has been acting as NDPP, fuelling the perception that the NPA is beholden to powerful political and business interests. This failure on the part of President Zuma to appoint a NDPP constitutes a breach of the Constitution. But given President Zuma’s own entanglement in various criminal prosecutions, it is unclear whether he is constitutionally entitled to appointment a NDPP at all.
The appointment of a new NDPP by President Jacob Zuma (whose own prosecution for fraud and corruption still looms large in many people’s minds, surely not least in the mind of President Zuma himself) raises truly interesting and novel constitutional law questions.
In terms of section 179(1) of the Constitution, the President has the duty to appoint the NDPP. When this provision was drafted, Nelson Mandela was President of South Africa, which suggests that the drafters of the section probably did not imagine that a President would be required to appoint a NDPP who might ultimately have to decide on whether to prosecute the very President who appointed him or her. To grasp the stark nature of the conflict of interest that arises with the appointment of a new NDPP by President Jacob Zuma, you first have to understand what the constitutional purpose of such an appointment is.
As the Constitutional Court pointed out in the Simelane judgment, the drafters did foresee that a politically pliant NPA would endanger the effective and impartial functioning of that institution and hence guaranteed its independence (from both politicians and private business interests) in the Constitution itself. As Justice Yacoob pointed out in that judgment, this required that the NDPP had to be viewed as a “non-political chief executive officer directly appointed by the President”. The office of the NDPP had to “be non-political and non-partisan”. Its role, said Yacoob, was “closely related to the function of the judiciary”.
In the Simelane judgment it was thus made clear that the purpose of appointing the NDPP was to ensure that the person appointed as NDPP is sufficiently conscientious and had the integrity required to be entrusted with the responsibilities of the office and, in particular, to ensure amongst other things that:
Of course, given the fact that the original decision of the (then acting) NDPP to drop all fraud and corruption charges against President Zuma is being challenged in court, an NDPP appointed by Zuma may well in future be required to make a decision on whether to pursue criminal charges against him. It would obviously be in the personal interest of President Zuma to appoint a NDPP who would favourably consider his requests not to resurrect charges against him and not to pursue a criminal case of fraud and corruption against him.
There is therefore a direct conflict between President Zuma’s personal interest (in appointing a person that could be trusted never to pursue charges against him) and President Zuma’s constitutional duty to appoint a person for the laudable purposes set out above.
When he decided to appoint an acting NDPP eight months ago, it is far from clear that the latter consideration trumped the former in the mind of the President. This is because as acting NDPP, Adv Jiba has seemingly flouted a court order requiring the NPA to hand over various spy tapes and other information (used as an excuse for dropping the charges against President Zuma) to the litigants. Adv Jiba has also pursued a vendetta against a prosecutor who has displayed a (in retrospect, unwisely principled) determination to pursue criminal charges against the head of crime intelligence who had indicated that he would help to protect Zuma.
The fact that President Zuma had for the past eight months failed to appoint a permanent NDPP, also suggests that the constitutional obligation to ensure an impartial and independent NDPP may have taken a back seat to the President’s more urgent personal considerations.
One of the aspects generally associated with the independence of a constitutional body is a guarantee of security of tenure. An individual who acts in a position for eight months does not enjoy such security of tenure. In fact, such a person is peculiarly vulnerable to political pressures as she can be removed as acting head without following the procedure prescribed in the NPA Act. A President who is willing and able to safeguard the independence of the NPA as required by the Constitution would therefore avoid a situation in which somebody serves in an acting capacity as NDPP for any length of time.
Moreover, section 237 of the Constitution explicitly states that “[a]ll constitutional obligations must be performed diligently and without delay”. What constitutes diligence and action without delay would, of course, depend on the specific context. In the case of the appointment of a NDPP, where the independence of a NDPP serving in an acting position would be inherently compromised, the President would have to act within w few weeks. This never happened, meaning that President Zuma is in breach of his constitutional duty to appoint an NDPP forthwith.
But because the appointment of a NDPP by the President raises the spectre of a direct conflict between his own personal interest and the constitutional duty to appoint an independent NDPP, I am not sure that the President is constitutionally capable of validly appointing a NDPP himself. Doing so would leave the appointment of NDPP extremely vulnerable to constitutional challenge on the basis that the conflict of interest would render the President unable to appoint the NDPP.
In the SARFU judgment the Constitutional Court made it clear that the President could not delegate the powers bestowed on him by the Constitution to an underling. This means that if the President wished to avoid the conflict of interest inherent in his duty to appoint a new NDPP, he could not delegate that power to, say, the Minister of Justice.
I would suspect that section 90 of the Constitution is applicable in this situation and should regulate the constitutionally correct course of action. This section states that where the President is, inter alia, “unable to fulfil the duties” of President, the Deputy President must act as President. I would argue the President is “unable” to appoint the NDPP because of the clear and direct conflict of interest. In such a situation, section 90 of the Constitution could be invoked by President Zuma in order to allow Deputy President Kgalema Motlanthe to make the decision on who to appoint as permanent NDPP and then to make the appointment.
If I was President Zuma’s legal advisor I would therefore advise him that it is imperative that a NDPP is appointed forthwith. I would also advise him that because of the direct conflict of interest he is rendered unable to appoint the NDPP and hence the Deputy President will have to fulfil this task. To avoid any perceptions of impropriety, the Deputy President would then have to make the decision without any involvement of the President himself. But whether President Zuma would be prepared to take such a chance on his own future freedom is, of course, another matter. DM
Pierre De Vos teaches Constitutional law at the University of Cape Town Law Faculty, where he serves as deputy dean and as the Claude Leon Foundation Chair in Constitutional Governance. He writes a regular blog, entitled 'Constitutionally Speaking', in which he attempts to mix one part righteous anger, one part cold legal reasoning and one part irreverence to help keep South Africans informed about Constitutional and other legal developments related to the democracy.