According to media reports the National Director of Public Prosecutions (NDPP), Advocate Shamila Batohi, recently addressed Parliament’s Portfolio Committee on Justice & Correctional Services and argued for the full independence of the National Prosecuting Authority (NPA) of South Africa.

Reports indicate that Adv Batohi, also in an affidavit submitted to the State Capture Commission, argued for “a fully independent NPA in law, finance and operations”.

This is not the first time Adv Batohi has engaged Parliament on this important issue. During 2020 Adv Batohi made similar submissions when she addressed the National Assembly’s Justice Committee on the issue of separating the NPA from the Justice Department. During the deliberations it was made clear to the Justice Committee that the NPA should be moved from under the umbrella of the Justice Department in order for it to operate more like a Chapter Nine institution in terms of the Constitution – like the Public Protector or the Auditor-General.

Similar calls for the NPA to be more independent were made in 2019 by now outgoing Chief Justice Mogoeng Mogoeng.

If the NPA were to move away from the Justice Department, it would be a crucially positive development in SA’s constitutional democracy. It would also serve to bolster South Africa’s commitment to the foundational value of the rule of law as set out in section 1 of the Constitution.

Although the NPA is a creature of the Constitution and forms neither part of the executive nor the legislative arms of the state, it falls under the Department of Justice, which controls the budget the authority receives, while its accounting officer is the department’s Director General. Section 179(1)(a) of the Constitution currently states that the National Director of Public Prosecutions, who is the head of the prosecuting authority, is appointed by the President, as head of the national executive.

Added to the above, section 179(5) of the Constitution makes it clear that the NDPP (appointed by the president) must determine – with the concurrence of the Cabinet member responsible for the administration of justice and after consulting the Directors of Public Prosecutions – prosecution policy.

This means – de jure and de facto – that the NDPP is unable to determine prosecution policy and/or decisions, ultimately, without final input from the Minister of Justice and Correctional Services.

The National Prosecuting authority (NPA) has been at the heart of SA politics for many years, playing a central role in the saga of corruption. Control of the NPA was a prime objective of the Mbeki, Motlanthe and Zuma presidencies – because controlling the NPA determines who should – and who shouldn’t – be prosecuted.

During 2020, NPA spokesperson, Sipho Ngwema, confirmed that, unfortunately, it was known that the NPA did not ‘escape the tentacles of state capture’ notwithstanding the constitutional, legislative and other guarantees of prosecutorial independence both institutionally and functionally’. Ngwema also stated that ‘clearly, these have not prevented the independence of the NPA from being compromised’.

Should the National Director of Public of Prosecutions (NDPP) continue to be appointed by the president? Should the NDPP of South Africa not be appointed in a similar fashion as judges and by an independent judicial body such as the Judicial Services Commission (JSC) in terms of section 178 of the Constitution? Should the Department of Justice and Constitutional development enjoy oversight of the NPA?

If the NPA is to be more independent in terms of the Constitution, a constitutional amendment might be required – will this be possible and how practical would it be? As we have seen, the NPA is not immune to undue political influence and abuse for political gain.

Prosecutors play a crucial role in the administration of justice in any country. They contribute to ensuring transparent accountability, fair legal as well as equitable criminal justice processes and the effective protection of citizens against crime. It is imperative that they vigorously protect the public interest and act with objectivity and integrity.

In a country like South Africa, where there is rampant corruption, severe political abuse of power and blatant state capture, the need for a vibrant and independent prosecuting authority is even greater.

As such, any step to increase the independence of the NPA must be fully supported.

By Adv Jacques du Preez, CEO of the FW de Klerk Foundation

17 November 2021