Much attention has, understandably, been given to the interviews for candidates for the soon-to-be-vacant post of National Director of Public Prosecutions (NDPP).
South Africa is engulfed by violent crime and endemic corruption, which may well have become even worse under Cyril Ramaphosa’s presidency. The National Prosecuting Authority (NPA) has not risen to the challenge.
Notwithstanding the Zondo Commission’s comprehensive findings, prosecutions have been few and convictions even less. Of course, the fault cannot be attributed to the NPA alone.
As revelations that have emerged at the Madlanga Commission have shown, the cancer of corruption has mined deep into the body of the police. Cadre deployment, appointments which bear no link to merit, and disastrous police ministers and commissioners of police have ensured institutional degradation. In summary, the criminal justice system, at best, is on life support.
However, police ineptitude cannot detract from the focus that should be concentrated on the NPA. As an illustration, the evisceration of the current NDPP during the Chauke hearing has shown that weighty questions must be asked of the current NPA leadership. The NPA is in desperate need of expert leadership that can prevent the ship from sinking, in a similar way to how the SA Revenue Service was saved under the leadership of Edward Kieswetter.
(As a footnote, Kieswetter’s term of office expires early next year, yet there is an ominous silence about steps being taken to appoint his replacement.)
It is obvious that the NPA requires a change agent — someone who can weed the organisation of the inefficient and those who may well be corrupt, and who can then attract a coterie of talented lawyers to bolster the many dedicated prosecutors presently in the NPA. At the same time, the institution will need a significant cadre of data specialists and lawyers who are commercially trained and hence able to ensure the successful prosecutions of complex commercial crimes.
As several experts have argued, the existing legislation that governs the NPA needs a radical overhaul to ensure the body’s independence. While prosecutorial independence is vital, the idea that the President holds the power to dismiss key personnel is at war with institutional independence.
Whatever the outcome of the process to determine whether Andrew Chauke should be dismissed, this case reveals the problem that an NDP is totally reliant on the President, both to suspend and finally dismiss a senior prosecutor. At the same time, even a superb NDPP will fail unless the NPA obtains financial independence from the Department of Justice. It would also assist if fixed terms of office for a deputy director of the NPA were introduced.
And then there is the skill to prioritise cases. At present, decisions seem to be taken after political pressure. Ad hoc measures seem to rule. Thus, too many petty cases are enrolled. For example, the NPA claims success in tax evasion cases. But an examination of the cases documented in its reports reveals success in less important non-compliance cases, but a startling absence of the Al Capone strategy of going after serious crooks.
The present appointment process has been a great disappointment from the get-go. Agreed, the current minister of justice, Mmamoloko Kubayi, has been a great improvement on her predecessors. While it is arguable whether she should have chaired the interview panel for the new NDPP, she has generally done a good job in the department.
Dire situation
But the absence on her panel of anyone with serious experience of the criminal justice system, the lack of a retired judge to add knowledge to the inquiries, the absence of civil society and no one with a record of running a large and complex institution, raised the obvious question — how serious is the President in appointing an NDPP who can meet the challenges of the institution? Could the panel not have included advocate Vusi Pikoli, the one NDPP who was outstanding? And why has the usually noisy DA said so little about this dire situation?
The shortlisting of the widely discredited Menzi Simelane added to this disquiet. But, contrary to some coverage, mainly from those with little, if any, knowledge of the criminal justice system and its intricacies, the balance of the short list hardly inspires any confidence. Indeed, senior members of the present NPA who are well versed in the record of the applicants claim that none are up to the task. Most have been or are members of the NPA, and none were significantly successful during their tenure or have the required gravitas to transform the NPA.
If South Africa is serious that it needs an NPA to credibly restore confidence in the criminal justice system, it is not too late to search for a person who can do the job of leading the institution in a fresh and credible direction. None of the candidates on the present short list is manifestly up to the task. DM