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Given the present list of NDPP candidates, what should be the criteria for the job? In an ideal world we would be searching for the South African equivalent of Robert Mueller, the special prosecutor who is investigating the alleged interference into the US election of 2016, writes Serjeant at the Bar.
Thanks to a court ruling, the public are able to assess the quality of the long list for appointment as the next National Director of Public Prosecutions (NDPP).
A transparent process is clearly required. South Africa has seen five national directors come and go since the office was established after democracy dawned. In the case of three of them, namely Menzi Simelane, Mxolisi Nxasana and Shaun Abrahams, the appointment and subsequent removal became the stuff of sustained litigation. As a result, the very structure of the National Prosecuting Authority (NPA) is rotten and is no longer fit for purpose.
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That is not to suggest that there are not numerous dedicated and capable prosecutors of great integrity within the authority. Indeed there are, but it is to argue that a decade and more of dubious promotions and appointments designed to aid the Zuma-led state capture project has had a devastating effect on the capacity and legitimacy of this key institution.
It is for this reason that the appointment of the next NDPP is so crucial to the re-establishment of open, transparent governance which adheres to the highest standards of integrity.
Within legal circles, including those who are in contact with the existing cadre of capable and dedicated lawyers who remain in the NPA, there is grave doubt about the capacity of the institution to mount a successful or indeed even a credible prosecution of those who may have caused the crash of Steinhoff.
Similarly, the Zondo commission’s work notwithstanding, there must be equal doubt that the present NPA would be able to prosecute key participants in state capture, particularly where ill-gotten gains were secreted out of the country by way of sophisticated financial planning and where the prosecution would, as with a Steinhoff case, be confronted with an army of wily and experienced commercial lawyers.
The question arises as to the requirements for the job and the criteria to be employed in the appointment to this key role. The relevant legislation, being the National Prosecution Authority Act of 1998 as amended, is suitably enigmatic. Section 9 provides thus: "Any person to be appointed as National Director, Deputy National Director or Director must - (a) possess legal qualifications that would entitle him or her to practice in all courts in the Republic; (b) be a fit and proper person, with due regard to his or her experience, conscientiousness and integrity, to be entrusted with the responsibilities of the office concerned."
Having the necessary legal qualifications means very little on its own. Giving adequate content to the requirement of experience, conscientiousness and integrity is of course the challenge for the panel which must recommend a shortlist to the president and for the latter who has the ultimate power of appointment.
Some representatives from the NGO sector have argued that it is best if the appointee comes from the ranks of the NPA, thereby having a person with the necessary prosecution experience. Of course, it does not necessary follow that being senior in the NPA means that the person has significant prosecution experience in court. At least one, and possibly more, of the present long list have not been in court for years.
Further, the best national director that we had was Vusi Pikoli who came to the position after being the director-general of the Department of Justice and Constitutional Development. He had no previous experience of prosecution. Yet he proved to be an excellent director, whose integrity and independence ironically was too much to bear for the executive at that time.
Ask members of the legal profession who are in the know and they will doubtless tell you that at present the finest prosecutor in the country is Billy Downer SC. It may be as a result of his continuing role in the prosecution of Jacob Zuma that he does not appear on the list; a pity indeed that neither he nor Pikoli are available for selection.
The point however is that the position of national director may not have to be filled by a top flight legal technician nor by someone who comes from the ranks of the existing NPA.
Looking at the present list, one would be hard pressed to argue that any of the present applicants are on any informed person’s list of the top ten criminal lawyers in South Africa (as is Downer) or has the experience of running as massive an organisation as is the Department of Justice and Constitutional Development (as did Pikoli for a number of years).
Given the present list, what should be the criteria for the job? In an ideal world we would be searching for the South African equivalent of Robert Mueller, the special prosecutor who is investigating the alleged interference into the US election of 2016. Mueller has shown us the ideal qualities: courage under political fire, fierce determination to continue a politically loaded inquiry without fear or favour, tact in not responding to political provocation, the ability and legal knowledge to fashion a calculated and well-designed prosecution strategy and the willingness to appoint hugely capable staff.
The president may consider that one of the longlist can fit this bill; if not, he should do a very quick headhunt given that the clock set by the Constitutional Court for him to make the appointment is ticking very quickly.
- Serjeant at the Bar is a senior legal practitioner with a special interest in constitutional law.
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