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

Business Day - - FRONT PAGE - Karyn Maughan

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.

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