Issued by Ismail Joosub on behalf of the FW de Klerk Foundation on 19/06/2025

The National Prosecuting Authority (“NPA”) of South Africa was originally envisioned as a central institution to uphold the rule of law and combat crime through impartial prosecution, operating “without fear, favour or prejudice” as stated in section 179(4) of the Constitution. However, the commonly held perception that the NPA is fully independent is legally inaccurate. Under section 179(6) of the Constitution, the Minister of Justice exercises “final responsibility over” the NPA and must concur with all its policy decisions. Furthermore, the NPA is administratively housed as a programme within the Department of Justice, with its accounting officer being the department’s Director-General. These structural arrangements have raised serious questions about the NPA’s insulation from executive influence.

Adding to these concerns, a landmark 2011 Constitutional Court judgment in Glenister v President of the Republic of South Africa (“Glenister”) clarified that the NPA’s corruption-fighting powers were constitutionally inadequate. Following this decision, the responsibility for investigating corruption was moved from the NPA’s Scorpions unit to the Directorate for Priority Crime Investigation (“DPCI”), also known as the Hawks, a body within the South African Police Service. This shift, widely regarded as a blow to prosecutorial effectiveness, has had disastrous consequences for the administration of criminal justice, as the Hawks are not institutionally independent in the manner required by the Court.

Despite these constraints, the NPA did perform its role with relative success during earlier years, securing key prosecutions and contributing to accountability. But over time, systemic issues – exacerbated by political interference, poor leadership appointments and under-resourcing – have severely undermined its performance. The NPA has never had a National Director of Public Prosecutions (“NDPP”) serve a full term. Particularly during the Zuma administration, politically-aligned appointments to the NDPP position compromised the institution’s perceived impartiality and damaged public confidence. Institutional instability, combined with a hollowing out of internal capacity, has left many specialised units like the Asset Forfeiture Unit significantly understaffed. In fact, it is reported that nearly 50% of key positions remain vacant, leaving the NPA understaffed and ill-equipped to handle the increasingly complex cases before it.

The consequences of these failures are apparent in several recent high-profile prosecutions that have collapsed. In the case of Moroadi Cholota, an aide to former Free State Premier Ace Magashule, the NPA’s failure to use the correct legal authority for an extradition request led to charges being dropped. In the corruption trial of former Eskom CEO Matshela Koko, the NPA could not process the extensive digital evidence in time. These are not isolated mishaps, but indicative of a deeper institutional breakdown. They undermine public faith in the justice system and perpetuate the dangerous perception that politically connected individuals are above the law.

Importantly, these institutional failings do not merely represent technical or administrative shortcomings. They directly impact the constitutional promise of justice, fairness and accountability. Section 179(2) confers on the NPA the responsibility to institute criminal proceedings on behalf of the state. When it fails to perform this mandate effectively, the public’s confidence in the state’s ability to uphold the rule of law is seriously eroded – especially in an era still reeling from the damage caused by state capture.

The disillusionment is most acute among the youth. A generation born into constitutional democracy expects equal treatment under the law, not a justice system defined by impunity for the powerful and delays for the powerless. When prosecutions stall or collapse due to incompetence or manipulation, young South Africans internalise a dangerous lesson: That justice is negotiable and the system cannot be trusted. This undermines democratic development and perpetuates cynicism toward public institutions.

Yet, despite its dysfunction, the NPA still holds potential, but only if the political will and public pressure align to drive meaningful reform. The process for appointing the NDPP must be depoliticised, transparent and subjected to rigorous scrutiny. While the Constitution currently vests appointment powers in the President, proposals to amend this – such as those by the Democratic Alliance (“DA”) – deserve serious consideration. The DA has called for the appointment of the NDPP by Parliament following a transparent vetting process, removing undue executive influence.

Meanwhile, the ANC appears to be pursuing a separate institutional path, drawing on the recommendations of the National Anti-Corruption Advisory Council (“NACAC”), which has proposed the creation of an Office of Public Integrity. However, serious constitutional questions have been raised about this approach. Critics argue that NACAC’s favoured multi-agency model has already failed in South Africa, contradicts the Glenister rulings, and lacks the independence required by both the Constitution and international anti-corruption obligations. As Paul Hoffman SC warns, adopting these recommendations over the DA’s court-compliant proposals could trigger litigation and further delay the establishment of effective anti-corruption machinery.

Moreover, broader reform proposals point the way to a prosecutorial system that functions with both credibility and efficiency. These include:

• Establishing an independent Anti-Corruption Commission through the “Scorpions 2.0” Bill to reinstate the NPA’s former corruption-fighting power in line with Glenister.
• Introducing dedicated parliamentary oversight of the NPA and performance audits by institutions like the Auditor-General.
• Enhancing recruitment and retention of experienced prosecutors through competitive incentives and better working conditions.
• Launching a student legal support programme to fast-track young talent into court administration and case preparation.

Furthermore, South Africa should also draw lessons from countries like Canada and Australia, where independent prosecutorial services function with institutional safeguards that protect against political interference. These systems offer models worth emulating, especially in areas such as transparency, prosecutorial accountability and digital evidence processing.

To realise this vision, we must also invest in the next generation of prosecutors. Programmes like the Aspirant Prosecutor Programme should be expanded. New initiatives, such as a Young Prosecutors Council and a Digital Evidence Task Force, could help build capacity for the types of crimes that increasingly define the 21st century. The youth must not only observe reform from the sidelines, they must be actively involved in rebuilding the NPA into an institution they can trust and eventually lead. At the same time, South Africa must prioritise the development and retention of highly skilled legal professionals within the prosecutorial system. This includes creating specialist career tracks for complex financial crimes, cybercrime, and racketeering; offering continuous professional development through accredited legal training; and partnering with universities and law societies to introduce prosecutorial fellowships and judicial clerkships that attract top legal talent. Reform will not succeed unless it is driven by both youthful innovation and professional excellence.

Let us be clear about it – reforming the NPA is a moral imperative and not just a technical or administrative challenge. If South Africa is to restore the rule of law, ensure accountability and foster public trust, the NPA must be rebuilt from the ground up. This task will require strong leadership, political will and a commitment to justice. It will also require the active participation of young South Africans who can bring new ideas, energy and vision to the institution. The future of the NPA, and indeed the future of South Africa’s democracy, depends on it.

In the words of President Nelson Mandela, “There is nothing like returning to a place that remains unchanged to find the ways in which you yourself have altered.” The NPA must return to its core values and in doing so, it must alter itself to meet the challenges of a new generation. South Africa’s young people deserve nothing less.