Appointing a new NPA boss does not seem to be a priority
President turns to experts with just one month until the deadline to appoint a successor to Shaun Abrahams
When the Constitutional Court ruled that national director of public prosecutions (NDPP) Shaun Abrahams’s appointment was invalid, it gave President Cyril Ramaphosa what seemed like a legacy-defining gift: the chance to appoint a truly independent and ethically unassailable prosecutions boss.
However, two months after the highest court gave Ramaphosa 90 days to appoint a replacement for Abrahams, he has still not done so — and has now turned to a panel of legal experts to help him.
While Ramaphosa’s precedent-setting decision to utilise the advice of some of the top legal minds in selecting the new NDPP will arguably be a positive change from a previously opaque and unilateral presidential appointment process, the question remains: why did it take him so long?
And why has Ramaphosa taken more than two months to decide whether to institute inquiries into prosecutions heavyweights Nomgcobo Jiba and Lawrence Mrwebi, despite clear public interest in the resolution of questions about their leadership?
The National Prosecuting Authority (NPA) is undeniably in crisis and in desperate need of strong and decisive leadership. When Ramaphosa gave his maiden state of the nation address in February, he identified resolution of “leadership issues” at the NPA as one of his administration’s top priorities.
The president was hamstrung at the time in addressing those issues by the Constitutional Court, which had heard argument on whether or not Abrahams should be removed in the month that he gave that speech. Ramaphosa waited six months before the court finally ruled that his predecessor, Jacob Zuma, had unlawfully removed previous prosecutions boss Mxolisi Nxasana with a R17.2m golden handshake.
Because Abrahams had been appointed as a consequence of this “abuse of power”, his appointment was invalid.
“The NPA plays a pivotal role in the administration of criminal justice. With a malleable, corrupt or dysfunctional prosecuting authority, many criminals, especially those holding positions of influence, will rarely if ever answer for their criminal deeds,” justice Mbuyiseli Madlanga wrote in the court’s majority ruling.
Equally, functionaries within that prosecuting authority might, as the Council for the Advancement of the SA Constitution, submitted, be “pressured ... into pursuing prosecutions to advance a political agenda”.
“All this is antithetical to the rule of law, a founding value of the republic. Also, malleability, corruption and dysfunctionality are at odds with the constitutional injunction of prosecuting without fear, favour or prejudice. They are thus at variance with the constitutional requirement of the independence of the NPA.”
Madlanga’s words continue to reverberate in the post-Zuma political landscape, where serious evidence of alleged criminality has emerged against senior government officials and corporate heavyweights alike, without any one of those implicated facing any charges. Never has democratic SA so needed a functional NPA as it does right now.
In the face of rising violent and sexual crime, and growing evidence of endemic financial crime in the corporate space and the government, it is more crucial than ever that those who commit such crimes know they will face a real prospect of punishment.
Right now, though, it seems little is being done to change that. With Ramaphosa turning to his expert NDPP panel only a month before his Constitutional Court deadline to appoint Abrahams’s replacement, there is a distinct possibility that he may have to ask that court to extend the deadline. The president has yet to explain this delay — and one can only hope he does. In the absence of any explanation, Ramaphosa may well be accused of paying lip service to the restoration of the NPA.
He also has yet to make any decision on whether Jiba and Mrwebi should face inquiries into their fitness to hold office, despite receiving submissions from them on these questions more than two months ago. Both came under fire for their handling of cases involving Zuma, as well as their decision to drop corruption and murder charges against self-proclaimed Zuma loyalist and former crime intelligence boss Richard Mdluli.
Freedom Under Law won a court order in late 2017 compelling Zuma to institute inquiries into both officials and suspend them pending these inquiries. Ramaphosa abandoned Zuma’s bid to appeal against that ruling.
Jiba has been admonished as dishonest in four damning court rulings, but the Supreme Court of Appeal, in a 3-2 majority decision, overturned a separate ruling that she was unfit to practise as an advocate and should be struck off the roll. While the majority finding delivered by judge Jerry Shongwe was that Jiba could not be found guilty of misconduct, he suggested she might well be incompetent for the senior position she occupies at the NPA.
“Perhaps one may infer some form of incompetence with regard to her duties, which may be a ground to remove her from being the DNDPP (deputy national director of public prosecutions) but not sufficient to be removed from the roll of advocates,” the judge said.
The General Council of the Bar is now seeking to appeal against that ruling in the Constitutional Court. Ramaphosa may well have received advice that he should wait for the court to rule before he makes any decision on her and Mrwebi’s suspensions.
At this stage, we simply do not know.
In letters sent to Jiba and Mrwebi in August, the president did, however, make it clear that he regarded the allegations against the pair as serious. “The allegations made in these various judgments have been in the public domain for many years now, and despite the litigation at issue not reaching conclusion the pronouncements by these various members of the judiciary have negatively tainted the image of the NPA and will continue to do so until fully ventilated and addressed.”
In a paragraph that now seems distinctly at odds with his failure to take a decision on Jiba’s or Mrwebi’s fates, Ramaphosa stated: “I cannot underscore [enough] the importance of the public’s trust in the NPA and its most senior management. It is a constitutional institution that is central to the proper administration of justice. Doubt about the fitness and integrity of anyone in so senior a position as you hold jeopardises this trust and the ability of the NPA as a whole.”
Two months on, and those same doubts in the minds of the public may very well remain — perhaps uneasily mingled with a sense that building a resilient, effective and apolitical NPA is not one of this government’s real priorities. At least, it doesn’t seem to be.
● Maughan is a Tiso Blackstar Group contributor.