Politically the appointment by President Jacob Zuma of Mxolisi Nxasana as National Director of Public Prosecutions (NDPP) – and the subsequent eruption of open warfare between various factions inside the National Prosecuting Authority (NPA) – has been a monumental embarrassment for our government. But the instruction allegedly subsequently issued by Justice Minister Michael Masutha to NPA leaders not to comment on any organisational matters was almost certainly illegal, as it interfered with the independence of the NPA.
Regardless of the legal technicalities or the merits of his appointment, it is clear that President Jacob Zuma should never have appointed Mxolisi Nxasana as NDPP.
The appointment was a monumental political blunder as it further eroded the legitimacy of the NPA. The organisation’s credibility had already been badly dented by the various scandals and political controversies which have plagued that body ever since it first started investigating allegations of corruption against President Jacob Zuma more than ten years ago.
It has now emerged that Nxasana had previously twice been convicted of assault, and – according to the mother of one of his former lovers – had also assaulted his former lover and is thus allegedly a women beater.
Politically, it matters not that Nxasana may well today be a man of the highest integrity who will always act in a fearless manner to apply the law impartially. What matters is that the unsavoury facts about his criminal record and allegations of past involvement in gender-based violence had given his many enemies ammunition to tarnish his name and to further discredit the integrity of the NPA.
Not that his enemies inside the NPA are necessarily people of high integrity. Nxasana fingered both Nomgcobo Jiba (who acted as NDPP before Nxasana’s appointment) and Lawrence Mrwebi (who heads the NPA’s specialised commercial crimes unit) as his enemies, working to oust him from office. Both have had had their honesty called into question by court judgments.
Earlier this year the KwaZulu-Natal Local Division of the High Court found in Booysen v Acting National Director of Public Prosecutions and Others that then Nomgcobo Jiba, had misled the court when she had claimed that she had considered four statements before deciding to prosecute. As the Court stated:
“In response to Mr Booysen’s assertion of mendacity on her part, there is a deafening silence. In such circumstances, the court is entitled to draw an inference adverse to the NDPP.”
The character of Lawrence Mrwebi was also torn to shreds in the judgment of the North Gauteng High Court in Freedom Under Law v National Director of Public Prosecutions and Others.
It is therefore difficult to come to grips with the exact contours (and the political significance) of the toxic infighting that is destabilising the NPA.
The independent media often report on these fights in a simplistic manner – as if these squabbles simply relate to disagreements between those whose only aim is to protect President Zuma from prosecution and those who are prepared to enforce the law without fear, favour or prejudice.
I suspect that the matter is far more complex.
Not that some of those NPA leaders involved in what often appears to be petty squabbles about power and positions do not see loyalty towards President Zuma as the pivotal issue.
On Wednesday the suspended head of the NPA’s internal integrity unit, Prince Mokotedi, phoned in to a Gauteng radio station and made the remarkable statement that he welcomed the opportunity to clear his name at a disciplinary hearing:
“because it will be the first time a so-called Zuma man will come out and enter the public platform to put across my side, or their side, of the story”.
Whether there are indeed a “Zuma camp” and a camp opposed to President Zuma inside the NPA may be of less concern for most many ordinary citizens concerned about the prosecution of criminals. For many of more concern would be the fact that the political infighting must surely have affected the morale of NPA members as well as the efficiency of that organisation.
These squabbles may well make it more difficult for ordinary prosecutors to get on with the job of prosecuting those accused of crime and of achieving high conviction rates.
This is why even those citizens who could not care less that some politicians and well connected businessmen and women are (for political reasons) not being prosecuted for corruptions while political enemies of the dominant faction inside the ANC may be targeted for prosecution must worry about the chaos and infighting at the NPA.
When the organisation is ripped apart because of political infighting, when its legitimacy is destroyed by political meddling, when morale plummets and the good prosecutors start to leave the sinking ship, it becomes more difficult for the NPA to go after ordinary criminals (of the non-political kind) and leave us all more vulnerable to criminals.
Moreover, where perceptions take root that the NPA is not independent and that it takes decisions on who to prosecute for corruption and fraud (and who not to prosecute) based on the suspects’ political affiliations or his or her access to leaders of the dominant faction of the governing party, the legitimacy of the entire criminal justice system is called into question.
It is then when every two-bit crook will try to undermine the NPA and the criminal justice system by making wild allegations that he or she is being prosecuted as part of a political conspiracy.
It is for this reason that section 179(4) of the Constitution states that “national legislation must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice”.
Because section 179(6) further states that the “Cabinet member responsible for the administration of justice must exercise final responsibility over the prosecuting authority” it is often wrongly assumed that the NPA operates under the control of the Minister of Justice and that it is therefore not a truly independent body but one directed by the Minister.
But as the Supreme Court of Appeal explained in National Director of Public Prosecutions v Zuma although “these provisions may appear to conflict… they are not incompatible”. There is nothing wrong with the Minister interacting with the NPA, discussing issues relating to the prosecution of criminals and even making suggestions on how best to solve internal disputes. But what the Minister is not authorised to do is to instruct anyone in the NPA to do or not to do something.
As the SCA made clear in the Zuma judgment:
“[A]lthough the Minister may not instruct the NPA to prosecute or to decline to prosecute or to terminate a pending prosecution, the Minister is entitled to be kept informed in respect of all prosecutions initiated or to be initiated which might arouse public interest or involve important aspects of legal or prosecutorial authority.
The fact that the NPA is independent and that the Minister cannot instruct its members to do or not to do something, but can ask it to provide it with information in order to exercise final responsibility for the NPA, is further made clear by various other provisions of the NPA Act that give effect to section 179 of the Constitution.
Section 32(1)(a) of the Act requires members of the NPA to serve “impartially” and to exercise, carry out or perform their powers, duties and functions “in good faith and without fear, favour or prejudice” and subject only to the Constitution and the law.
Section 32(1)b) further prohibits anyone (including the minister or the president) from improperly interfering with the NPA in the performance of its duties and functions. Where somebody interferes in the affairs of the NPA this constitutes a criminal offence.
Section 33(2) reaffirms that the minister must exercise final responsibility over the NPA and obliges the NDPP, at the request of the minister, to furnish the latter with information or a report with regard to any case and to provide the minister with reasons for any decision taken.
To ensure this independence of the NPA neither the Minister of Justice nor the president can easily remove the NDPP from office. Section 12(6) of the NPA Act states that the president may provisionally suspend the NDPP, pending an inquiry into his or her fitness to hold the office of NDPP.
However, the president can only remove the NDPP from office on account of the following objective criteria:
“(i) for misconduct;
(ii) on account of continued ill-health;
(iii) on account of incapacity to carry out his or her duties of office efficiently; or
(iv) on account thereof that he or she is no longer a fit and proper person to hold the office concerned.”
When Vusi Pikoli was removed from office this was almost certainly done unlawfully as – objectively – there was no clear evidence that Pikoli had been guilty of misconduct or was no longer fit and proper.
If Pikoli had pursued his case in court he would almost certainly have been reinstated. The reason for this is that a court would have asked whether – objectively – the Ginwala Inquiry provided any proof that Pikoli had been guilty of misconduct. As it did not, there was no legal basis for his removal.
This means that if an NDPP is prepared to fight for his job it will not be easy for the President to remove him – especially not on the basis of having been convicted many years ago of a criminal offence.
As President Zuma ponders how to fix the political mess created by his appointment of Nxasana as NDPP, his lawyers – if they are reasonably well informed – will warn him to think twice before attempting to remove him from office, given the difficulty of doing so in a legally valid way. DM
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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.
"Look for lessons about haunting when there are thousands of ghosts; when entire societies become haunted by terrible deeds that are systematically occurring and are simultaneously denied by every public organ of governance and communication." ~ Avery Gordon