SA's new NDPP selection under scrutiny

South African President Cyril Ramaphosa’s announcement of the panel that will recommend the next National Director of Public Prosecutions (NDPP) was profoundly worrying, writes Ann Bernstein, head of the Centre for Development and Enterprise (CDE) in a Business Day analysis. The composition of the NDPP selection panel is not a procedural requirement under the NPA Act. But it should not be a tick-box exercise, either. ‘Get this process wrong, and we risk another decade of impunity for the corrupt, drift and “infiltration” – and worse – in the NPA (National Prosecuting Authority),’ warns Bernstein. SA faces crises which cannot be resolved unless the economy grows and the state becomes more effective. ‘The inability of law enforcement agencies to pursue powerful people who use their positions for self-enrichment and patronage makes this impossible. The government cannot protect itself from the looting of scarce resources needed to boost growth and address poverty without an effective NPA,' she argues. The weakening of the NPA was at the centre of state capture, which began with the closure of the Scorpions and the defenestration of Bulelani Ngcuka. ‘Hopes were high when the current NDPP, Shamila Batohi, was appointed … but seven years later there is widespread dissatisfaction with the NPA’s performance,’ she notes, adding that the NPA has a dismal record regarding securing convictions in corruption cases. ‘It has failed to conclude a prosecution of a single high-profile person implicated in forensic reports and commissions of inquiry, including those relating to the Passenger Rail Authority of SA (2017), Transnet and Eskom (2018) and the Zondo commission (2022). In several instances these reports provided the NPA with a clear picture of the alleged crimes that ought to have been quickly translated into indictments. Progress, however, has been desperately slow,’ Bernstein laments. She observes a widespread sense that organised crime has settled into the SA landscape.

The CDE called for an independent selection panel comprising a retired judge, senior legal experts, a respected civil society representative, a business leader and a former senior public servant. ‘We proposed that the panel’s selection criteria be made public. However, we suggested its interviews and deliberations take place in private to avoid turning the process into a political spectacle, which might deter good candidates. The President would commit to publishing his rationale for the ultimate appointment,’ Bernstein explains in Business Day. However, she adds, this proposal and those of the business sector have been ignored. Instead, the President’s panel consists of the Minister of Justice & Constitutional Development, the HRC chair, the Commission for Gender Equality chair, the AG, the PSC chair, one representative from the Black Lawyers Association and one representative from the National Association of Democratic Lawyers. ‘Despite the merits of particular individuals, the panel lacks the necessary independence and breadth of professional experience: no representative of the judiciary, no leader from civil society nor the organised legal profession,’ she writes. Bernstein notes the position demands first-rate legal competence, an unshakeable sense of justice, absolute integrity and courage to withstand political pressure. ‘The new NDPP will need to fight to ensure the essential support from the Ministry of Justice and the President to truly reform the organisation … we all hope, despite this flawed panel, a good appointment will be made. It is still possible the right person could emerge,’ she notes. The NPA’s failures over the past decade have devastated public trust. Bernstein concludes: ‘The next NDPP must be someone who can change that … the person chosen must be strong enough to face down political interference, honest enough to act without favour and pragmatic enough to rebuild an institution that has been hollowed out and demoralised.’

Full Business Day report