As the leaders of the thousands of prosecutors who make it their daily task to present the state’s case to the criminal courts of the land, you will be all too aware of the oath of office that binds you and your staff, as set out in section 32 of the enabling legislation of the National Prosecuting Authority:

Impartiality of, and oath or affirmation by members of prosecuting authority

(1) (a) A member of the prosecuting authority shall serve impartially and exercise, carry out or perform his or her powers, duties and functions in good faith and without fear, favour or prejudice and subject only to the Constitution and the law.

(b) Subject to the Constitution and this Act, no organ of state and no member or employee of an organ of state nor any other person shall improperly interfere with, hinder or obstruct the prosecuting authority or any member thereof in the exercise, carrying out or performance of its, his or her powers, duties and functions.

(2) (a) A National Director and any person referred to in section 4 must, before commencing to exercise, carry out or perform his or her powers, duties or functions in terms of this Act, take an oath or make an affirmation, which shall be subscribed by him or her, in the form set out below, namely- ‘I …. (full name) do hereby swear/solemnly affirm that I will in my capacity as National Director/Deputy National Director of Public Prosecutions/ Director/Deputy Director of Public Prosecutions/ prosecutor , 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. (In the case of an oath: So help me God’).

(b) Such an oath or affirmation shall-

(i) in the case of the National Director, or a Deputy National Director, Director or Deputy Director, be taken or made before the most senior available judge of the High Court within which area of jurisdiction the Office of the National Director, Director or Deputy Director, as the case may be, is situated; or

(ii) in the case of a prosecutor, be taken or made before the Director in whose Office the prosecutor concerned has been appointed or before the most senior judge or magistrate at the court where the prosecutor is stationed, who shall at the bottom thereof endorse a statement of the fact that it was taken or made before him or her and of the date on which it was so taken or made and append his or her signature thereto.

It is in Chapter Two of the Constitution that the fundamental rights referred to in the official oath of office are set out as the Bill of Rights. Section 7(2) of the Constitution in particular obliges the state to respect, protect, promote and fulfil the rights in the Bill of Rights.

It is also of relevance that the rule of law is regarded as supreme in Section 1 of the Constitution while Section 165(5) specifically provides that:

“An order or decision issued by a court binds all persons to whom and organs of state to which it applies.”

It is for the national director of public prosecutions to determine prosecution policy, with the concurrence of the minister of justice and after consulting the directors of public prosecutions. That minister must exercise final responsibility over the prosecuting authority. National legislation must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice.

These matters are spelt out in detail in Section 179 of the Constitution.

NPA ‘independence’

The NPA is run as a programme in the Department of Justice and its accounting officer is the director general of justice.

In the structural and operational confines set out above it is plain that the NPA is not independent of the executive. All efforts hitherto made to enhance the independence of the NPA have been thwarted by government despite the fact that the Chapter Nine Institutions and the judiciary enjoy constitutionally entrenched independence free of the fetters of executive concurrence, influence and final responsibility. This can be gleaned from sections 165 and 181 of the Constitution in which the executive does not feature at all.

The Chapter Nine institutions have a reporting line to our multi-party Parliament. They are accountable to the National Assembly and must report on the activities and the performance of their functions at least once annually. The opportunities for executive control, influence, interference or impedance do not arise; on the contrary, other organs of state must assist and protect the Chapter Nine Institutions to ensure their independence, impartiality, dignity and effectiveness.

Both the lack of independence and the final responsibility of the minister have impacted adversely on the NPA. No national director of public prosecutions has seen out the prescribed term of office since the inception of the NPA.

For example, Vusi Pikoli was suspended for prosecuting Jackie Selebi, the politically well-connected chief of police, and was dismissed for charging Jacob Zuma, then a private citizen, for the offences on which he is still standing trial.

All efforts by the current NDPP, Shamila Batohi, to secure an independent status for the NPA have come to nought, despite her best efforts and endeavours.

Read more in Daily Maverick: From New Dawn to Dusk: Has Shamila Batohi’s National Prosecuting Authority failed South Africans?

The NPA was dealt a mighty blow by Parliament, at the behest of the national Cabinet, when its anti-corruption unit, the Directorate of Special Operations, was closed in 2009.

Anti-corruption machinery

The legislative changes that followed included removing all investigative functions from the NPA and transferring them, and the investigative staff of the Scorpions, as the DSO was known, to the SAPS or elsewhere outside the NPA. A new unit within SAPS, with a reporting line to the chief of police and thence to the minister of police, called the Directorate of Priority Crime Investigation or Hawks, was set up to take over the investigative functions of the Scorpions in 2009.

Read more in Daily Maverick: Who’s watching the Hawks?

These changes were impugned for their lack of compliance with the Constitution. The courts took note of the international obligations of the state to establish and maintain adequately independent anti-corruption machinery of state and also regarded anti-corruption work as a human rights issue on the basis that delivery of the expensive promises of the Bill of Rights would not be possible with corruption running rampant and the public purse being looted.

Flowing from these considerations the Constitutional Court, in the case now known as Glenister 2, fashioned the criteria applicable to the anti-corruption machinery of state. The court was careful not to tread on the functions of other spheres of government. It required no more than the decision of a reasonable decision-maker in the circumstances in the remedial legislation it ordered Parliament to pass, but it did prescribe the criteria by which to assess compliance with international and human rights obligations.

The details are set out in binding terms in the joint majority judgment in Glenister 2 as confirmed in Glenister 3. The main criteria for efficient and effective anti-corruption machinery of state that conforms with Section 195(1)(b) of the Constitution have become known as the Stirs criteria, an acronym for specialised, trained, independent, resourced in guaranteed fashion and secure in tenure of office.

The new dispensation for countering corruption set up in 2009, and corrected after both Glenister 2 and Glenister 3 in 2012 and 2014 respectively, has not been a success. Without competent investigations by the Hawks, the NPA has not been able to mount successful prosecutions at the scale required to deal with the “tenderpreneurism”, kleptocracy and State Capture which has been ongoing with impunity since the demise of the Scorpions.

It is apparent from the findings of the Zondo Commission of Inquiry that during the Zuma presidencies serious corruption of all kinds was rife in SA. President Ramaphosa has labelled the ANC as “Accused Number One” before the Zondo Commission, an accurate description. The criminal justice administration has been incapable of securing convictions in respect of the material unearthed by the commission and a huge, decade or more long, backlog of cases has built up over time.

In 2019 President Ramaphosa proclaimed an Investigating Directorate within the NPA despite the fact that the investigation of all crime is the legislated preserve of the SAPS and the investigation of serious corruption is the duly legislated mandate of the Hawks.

Investigating Directorate has not been a success

This Investigating Directorate’s constitutionality is questionable, its resources limited and its capacity to fulfil its intended function as proclaimed in 2019 extremely lacking. In the four years of its existence, the directorate has opened 97 cases, but it has yet to secure a conviction of any “big fish” named and shamed by the Zondo Commission. Its first head was asked to quit and did. Its second head refuses to investigate the minister of police preferring to refer the matter to the Hawks.

While the proclamation was made on the recommendation of the NDPP and the ministers of police and justice, it is plain that investigation of serious corruption is statutorily reserved to the Hawks. Parliament was not involved in and did not approve the proclamation made.

On 29 August 2023 a bill that envisages another Investigating Directorate within the NPA, into which the existing Investigating Directorate is intended to be folded, has been mooted by Cabinet and tabled in Parliament for its consideration.

The bill is both ill-conceived and unconstitutional.

Ill-conceived because it does not take proper cognisance of the legislated role reserved to the Hawks for the investigation of serious corruption. This failure is a recipe for conflict between SAPS and the NPA of the kind that raged when the Scorpions were investigating senior politicians and senior police personnel.

Unconstitutional because the carefully crafted and painstakingly worded considerations formulated by our highest court for the criteria for countering of corruption that are required in law are absent from the bill despite the claim in the media release of the Department of Justice that all five main criteria, the Stirs criteria, are in place:

“The bill is a significant step towards enhancing the NPA’s independence and ability to prosecute high-level crimes. It creates a specialised entity within the NPA, staffed with trained individuals who enjoy the requisite level of independence, resources, and security of tenure to tackle corruption head-on.”

You know, and have openly revealed, that the NPA is saboteur-infested and hollowed out by the ravages of State Capture. You are working at suspending, disciplining and sidelining the culprits at a glacial rate. You are aware that specialised prosecutors and suitably qualified investigators in sufficient numbers will not be recruited. You have already tried to do so, without much success.

You are also aware that the official Opposition has proposed a Chapter Nine Anti-Corruption Commission (C9C) which will be modelled on the suggestion Accountability Now made to you in August 2021. You noted our suggestion at the time but have not criticised it or suggested any improvements. (Deputy National Director of Public Prosecutions) Anton du Plessis hints that we don’t understand the Glenister judgments, but does not say why.

Your fealty to the rule of law obliges you to work towards the proper implementation of the Glenister criteria “in the circumstances” which currently prevail in SA. Chief among these circumstances is that serious corruption with impunity is threatening to destroy constitutional democracy under the rule of law, as anticipated in Glenister 2.

You have three choices:

1. Do nothing to assert your fealty to the rule of law;
2. Support the IDAC bill Cabinet has tabled; or
3. Support the C9C envisaged in the private members bills of the DA.

It appears that you have already elected to do nothing about your future independence and institutional trajectory on the basis that you wish to leave politics to the politicians.

Given the considerations set out above, the purpose of this memorandum is to appeal to you to reconsider your position, assert your duty to uphold the rule of law and respect the binding precedent created by the Glenister litigation. If you think that the minister is right that the Stirs criteria are satisfied by his bill, say why you think so; if, on the other hand, you prefer the (Glynnis) Breytenbach-sponsored private member’s bills say why too.

History will judge you harshly if you do not live up to your aspirations to be “the peoples’ advocates” by taking a stance that you believe serves the interests of the people you have sworn to serve. DM