Section 179 of the Constitution provides for the establishment of a single national prosecuting authority structured in terms of an Act of Parliament. It also provides for the President to appoint a NDPP as head of such prosecuting authority. The National Prosecuting Authority Act 32 of 1998 (the Act) accordingly determines that the President must, in accordance with section 179 of the Constitution, appoint the NDPP. Read with section 237 of the Constitution (which determines that all constitutional obligations – including those of the President – must be performed “diligently and without delay”), the President must appoint a NDPP within a reasonable time.
The National Prosecuting Authority (NPA) has, however, effectively been without a permanent NDPP since December 2011, when the Supreme Court of Appeal (SCA) ruled that Simelane’s appointment was inconsistent with the Constitution and invalid. This judgement, subsequently confirmed by the Constitutional Court in October 2012, gave rise to the appointment of Nomgcobo Jiba as acting NDPP in December 2011.
Considering the invalidation of the President’s decision to appoint Simelane – which the latter Court held to be unreasonable and irrational – the NPA has, at least in theory, had an acting head since the designation of Mokotedi Mpshe as acting NDPP following the suspensions and subsequent dismissal of Vusi Pikoli in September 2007.
The NPA – and in particular the NDPP as head of the NPA – are the gatekeepers to the criminal justice system. Although the South African Police Service and other departments are initiating investigations, the NPA, in terms of the Constitution, determines whether a case gets prosecuted or not. Moreover, in terms of section 179(5) of the Constitution, the NDPP ultimately makes that decision – whether based on adherence to prosecution policy and directives, or after taking representation from the accused, the complainant or other relevant parties. In this regard, the Constitutional Court, in Democratic Alliance v The President of the Republic of South Africa & Others, asserted that “the determination of prosecution policy, the decision whether or not to prosecute and the duty to ensure that prosecution policy is complied with are… fundamental to our democracy”. As such, the Court stated that the position of NDPP is “closely related to the function of the judiciary broadly to achieve justice and is located at the core of delivering criminal justice”. For this reason, the NDPP, as head of the NPA, must not only ensure effective and professional prosecution services, but he or she also has a duty to ensure that prosecutorial independence is maintained.
It is hence unclear why the President has failed to appoint a permanent NDPP nine months after the Constitutional Court invalidated his decision to appoint Menzi Simelane. It is, considering her well reported and alleged murky past, also unclear why the President appointed Nomgcobo Jiba as acting NDPP. It is even more worrisome that the President, instead of appointing a fit and proper permanent head of the NPA, decided to oppose CASAC’s application to compel the President to appointment a permanent NDPP.
In terms of section 9 of the Act, any person to be appointed as NDPP must possess legal qualifications that would entitle him or her to practise in all courts in South Africa. Such person must also 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”. Although the Constitutional Court in the case of Simelane did not make a finding on if he was a fit and proper person to be appointed as the NDPP (or whether the President had an ulterior purpose in making the appointment), the Court crucially remarked that although the NDPP is appointed by the President, it does not mean that the incumbent must be “a political appointee”. Instead the NDPP “must be non-political and non-partisan” – a “non-political chief executive officer directly appointed by the President”. An NDPP must therefore be able to maintain and live out, in practice, the requirements of prosecutorial professionalism and independence – without fear, favour or prejudice. Perhaps the latter guidance provided by the Court is the reason why the President has delayed – and appears to continue to delay – appointing a permanent NDPP: not only should the next NDPP be a person who is qualified, fit and proper, but a fit and proper person in a “non-political and non-partisan ” way.
By Adv Johan Kruger, Director: Centre for Constitutional Rights