MANDY WIENER
When the President rode the wave of “Ramaphoria” into the Union Buildings earlier this year and the country was swept up in the exuberance of a “new dawn”, the one institution that remained paralysed was the National Prosecuting Authority (NPA). At the South African Revenue Services, Tom Moyane was pushed out. At the State Security Agency, Arthur Fraser was removed. At the South African Police Services, a new head of the Hawks and of Crime Intelligence were appointed in Godfrey Lebeya and Peter Jacobs respectively. But at the prosecuting authority, Ramaphosa’s hands were tied as he waited for the apex court to mull its decision on the Abrahams/Mxolisi Nxasana matter for nearly six months.
The results of the damage that has been wrought at the NPA over the past decade have been devastating. The organisation has been ravaged by factional infighting and personal vendettas, as well as a deliberate patronage campaign that undermined the credibility of the institution.
It is an agency that claims to operate without influence, yet it was grossly abused for political gain. Since its inception, no National Director of Public Prosecutions has ever served out their full ten-year term of office.
The net result of this is very low public confidence and scepticism about its capacity to pursue justice on behalf of the country’s citizens. Over the past few months, as Abrahams presided over an apparently catatonic organisation, scant little was done to advance major cases.
It took months for prosecutors to move on the Gupta and state capture matters, and many other high-profile cases are still gathering dust. It’s an organisation in dire need of renewed leadership.
Ramaphosa must now decide who he will appoint as NDPP. It is a weighty decision, and one he no doubt would have taken wise counsel on.
He would have seen how politics has interfered in the position in the past, most obviously in the fallout between Thabo Mbeki and Vusi Pikoli, and then again between Jacob Zuma and Nxasana.
His appointee would have to be someone he trusts implicitly, and who he is unlikely to suffer a similar fallout with. However, it cannot be a straight-up acolyte or political appointment.
It is absolutely crucial that whoever takes over the main office in the Victoria & Griffiths Mxenge building in Silverton, is someone who is beyond reproach, who has enormous credibility. He or she needs to be objective, and restore public faith in the rule of law.
The choice will have a considerable impact on how South Africans perceive justice in the country, and whether or not those who abuse the law will be held to account. After years of being let down, a cynical public needs renewed faith.
For now, deputy NDPP Silas Ramaite will keep the seat warm as we wait for a permanent appointment, but already names are being bandied about. The peoples favourite, it seems, is former Public Protector Thuli Madonsela, who is a lawyer and meets the requirements for the job and of course, is a public darling.
However, she has stated that she would not want the job so soon after having served as Public Protector, as it would appear as though she is prosecuting her detractors.
Others have suggested that Vusi Pikoli be reinstated, but although he has integrity, he would come with a large amount of baggage.
There is also talk that former Prosecutor and DA Shadow Minister of Justice, Glynnis Breytenbach, has been approached to return to the NPA. It would be quite something if Ramaphosa was to consider an opposition politician for the role, but he may see it as an opportunity to illustrate a genuine attempt at restoring independence at the NPA. Appointing Breytenbach could also raise concerns that internal vendettas at the prosecuting authority would be prolonged rather than being relegated to history.
In my view, it is critical that an entirely objective, independent, and credible candidate be appointed as NDPP, preferably a retired judge. Someone who would wipe the slate clean, and sweep away the years of factionalism and infighting. Ideally it would be someone like Dikgang Moseneke or Kate O’Regan. However, age could be a factor as the term of office is ten years, and according to the law, the director should not be older than 65 for some unfathomable reason.
Ramaphosa has an extraordinary opportunity to restore faith in the prosecuting authority and the rule of law. He can reinvigorate the public’s belief that in this country, you don’t experience a different kind of justice if you are wealthy, politically connected, or have the right influence.
Whoever gets the job will have to wake the NPA out of its slumber, and initiate a flurry of prosecutions in cases that have ground to a halt. One of the basic tenants of the law is that justice not only needs to be done, but needs to be seen to be done. Here is a real chance for that to happen.
- Mandy Wiener is a journalist and author. She has been reporting on the NPA for more than a decade.
