Disturbing pattern in official probes of prosecution chiefs
The grounds may differ, but the hidden agenda rumoured to be behind the commission of inquiry into the fitness of Mxolisi Nxasana sounds awfully familiar, writes Kessie Naidu
RECENT media reports, shorn of all contradictions, disputes and denials, present a worrying picture of the office of the head of South Africa’s National Prosecuting Authority, the national director of public prosecutions.
President Jacob Zuma has announced an inquiry into the fitness for office of the present national director, Mxolisi Nxasana. Having appointed Nxasana in terms of the constitution, Zuma has the power to suspend him pending the outcome of the inquiry.
Once again, we are all going to be silent and helpless witnesses to what is likely to turn out to be another public interrogation of the highest office bearer of such an important institution in the fight against crime.
The national director is, in terms of our constitution, that single official who determines prosecution policy; issues policy directives; may, when justifiable, intervene in the prosecution process; and may even review a decision to prosecute or not to prosecute.
His powers, although immense, may in appropriate circumstances be limited by judicial decree. Critical to the exercise of such powers are the qualifications necessary for such an appointment.
In terms of the relevant provisions of the National Prosecuting Authority Act, he must possess the requisite legal qualifications and “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”.
The high attributes and stringent qualification criteria are not without justification. One of many examples will suffice.
The Prevention of Organised Crime Act of 1998 was enacted to combat organised crime, money laundering and criminal gang activities. Any person convicted of an offence in terms of this act could be sentenced to a fine of a billion rands or imprisonment for life. In addition, evidence not ordinarily admissible may be admitted in prosecutions under the act.
In terms of this law, a person may only be charged under the act if the prosecution is authorised in writing by the national director. It follows that any person holding office as national director must possess the attributes required by the law that created his office.
A disquieting feature of this whole sorry saga, which is likely to unfold before an inquiry in the not too distant future, is that there are precedents involving previous incumbents of this very high office.
The first incumbent, who was appointed in 1998, was Bulelani Ngcuka. Arising from accusations, published in a Sunday newspaper, that Ngcuka was once suspected of being an apartheid-era spy, the then president, Thabo Mbeki, appointed retired Supreme Court of Appeal Judge Joos Hefer chairman and sole member of a commission to investigate these allegations.
After a protracted hearing — widely publicised and costing millions of rands — Hefer came to the conclusion that the allegations of spying had not been established and that Ngcuka probably never acted as an agent for the pre-1994 security services.
What Hefer did find, beyond any doubt, was that someone in Ngcuka’s office had leaked information of a pending investigation to the press — a worrying trend that still seems to rear its ugly head every now and again in the office of the national director.
In September 2007, Mbeki suspended the then national director, advocate Vusi Pikoli, apparently on the grounds of an irretrievable breakdown in the working relationship with the then minister of justice, Brigitte Mabandla.
Mbeki instituted an inquiry into Pikoli’s fitness to hold office under the chairmanship of Frene Ginwala. By the time the inquiry had been concluded, the country had a new president, Kgalema Motlanthe. Ginwala found that the allegations made against Pikoli on behalf of the government did not show that he was not a fit and proper person to hold office.
Despite Ginwala’s recommendation that Pikoli be reinstated, Mot- lanthe announced in December 2008 that he was to be removed from office.
A striking similarity between the cases involving Ngcuka and Pikoli is that, in the case of the former, it was contended that the accusations that led to the Hefer commission had been contrived in order to have him removed from office because he had been “vigorously” pursuing charges of corruption against Zuma. And Pikoli asserted that the reason for his suspension was to
It is of serious concern that a possible reason for the inquiry is the revival of the prosecution of Richard Mdluli
stop the prosecution of the police commissioner at the time, Jackie Selebi.
Fast-forward to the present national director. There are allegations (although nothing more than conjecture at this stage) that the reasons for placing in issue his fitness to hold office pertain to Nxasana having revived the prosecution of the former head of crime intelligence, Richard Mdluli.
Whatever the reason, the forthcoming inquiry into Nxasana’s fit- ness should be welcomed. The sooner it gets off the ground, the better.
Nxasana’s fitness or otherwise is a matter of monumental significance to every member of the public and the legal profession.
Any instability in the office of the national director is bound to filter down to lower levels of the prosecutorial hierarchy. The prosecutorial arm of our legal justice system is fundamental to any effective response to the ravages of crime that are fast approaching epidemic proportions in South Africa.
All the efforts by our police services will come to nought if the prosecutor seized with the matter does not present the case with sufficient integrity, diligence and conscientiousness to enable the judge or other judicial officer trying the alleged offender to arrive at a just, fair and proper decision.
Most people who appear in the criminal courts, whether as complainants, witnesses or accused persons, would welcome their cases being handled with enthusiasm, integrity and conscientiousness. All lawyers would feel likewise.
All prosecutors in our courts take their direction from the example set by their superiors. It follows that their superiors must lead by example. Any instability in the office of the national director invariably tarnishes its image and could provide opportunistic fodder for those who fall foul of the law.
With regard to the complaints by the two previous incumbents about the reasons they perceived they had been targeted, it is of serious concern that a possible reason being proffered for the forthcoming inquiry regarding Nxasana is that relating to the revival of the prosecution of Mdluli.
Any interference with the office of the national director in order to hinder any prosecution or even influence a prosecution should be discouraged in the strongest possible terms. In this regard, I sound a note of warning to those who frequent the portals of power.
I do so by reference to a story of the time when the US was riddled with such dissension that it ultimately led to the Civil War of 1861 to 1865. The French ambassador to Great Britain inquired of his colleague, US Ambassador James Lowell: “Tell me, Excellency, tell me: How long will this republic of yours last?”
The response was as restrained as it was prophetic: “Excellency, as long as its leaders live up to and cherish the ideals of its founding fathers.”
Naidu is a senior counsel. He was evidence leader at the Hefer commission of inquiry