1. The judgment of the High Court of South Africa, Gauteng Division, Pretoria handed down on the 8th of December in the matter between Corruption Watch and the Freedom Under Law (RF) NPC versus the President of the Republic of South Africa and Others comes as a sharp and painful reminder of the compromised integrity of the National Prosecuting Authority (NPA) and the need to strengthen it.
2. The judgment amongst other things, set aside and declared as unlawful the settlement agreement between the President, the Minister of Justice and Correctional Services and the former National Director of Public Prosecution (NDPP), Mr Mxolisi Nxasana, which terminated Mr Nxasana’s appointment as NDPP. The court also found that the incumbent president is conflicted and thus unable to appoint, suspend or remove a NDPP because of multiple Criminal charges pending against him. The Deputy President was ordered to be responsible for decisions relating to the appointment, suspension or removal of the NDPP while the incumbent president is in office and he (the deputy president should appoint a NDPP within 60 days or until such time as the Deputy President has appointed a NDPP, whichever is the shorter period.
GLOOMY STATE OF AFFAIRS – A WEAKENED NPA
3. In terms of the constitution the National Prosecuting Authority (NPA) is vested with the power to institute criminal proceedings on behalf of the state, and to carry out any necessary functions incidental to instituting criminal proceedings. The prosecuting authority must exercise its functions without fear, favour or prejudice, this is to ensure that the rule of law is upheld and functions in an effective manner. A weak NPA will be incapable of fulfilling its constitutional mandate. The office of the NDPP is supposed to represent the strongest arm of justice in uprooting corruption, advancing the highest standards expected of a powerful democracy and a leading light in the search for truth and justice for all persons in our country, regardless of status, race, religion, class, sexual orientation and , in particular, position in government.
4. South Africa finds itself in a very sorry state of affairs where our institutions of justice, with particular reference here to the NPA, have lost their independence and are fraught with political interference and morally questionable conduct. Our current NDPP himself has failed our country in almost every regard, aided and abetted by all those with vested interests in corruption and the undermining the rule of law.
5. The term for any given NDPP is 10 years however in the past 17 years our country has seen a total of seven NDPP, this is despite stringent Legislative and parliamentary protection of the tenure of a NDPP. We have witnessed how easily our heads of state have dismissed NDPP. If someone can easily dismiss you from your employment it makes it easy for that person to control you. Unfortunately for us as a country the problems in the NPA are not unique to the tenure of President Zuma, the “spy Tapes” and the dismissal of Vusi Pikoli provide an example of abuse and/ or undue control of the NPA. Unless the independence of the NPA is strengthened this may occur again. Slowly the public’s confidence in the independence in the NPA fading.
WHAT SHALL WE DO ABOUT THESE THINGS?
6. In an ideal state, a president who knew that he faces a possibility of being criminally charged and took seriously his role as a constitutional being would resign from office or at the very least recuse himself from making any decisions in connection with NPA (especially if such decision will involve the hiring of the person that will eventually decide on whether or not to proceed with criminal charges against the president). Perhaps the president has no intentions of interfering with the functioning of the NPA but for the sake of restoring public trust of the NPA or any sitting NDPP of the office of the NDPP he would have to admit that there is a reasonable perceived biasness on his side. We do not for a second believe that giving the power to appoint the next NDPP guarantees that there will be no manipulation of and the interference with the NPA, we do however believe that this would go a long way in restoring the public’s trust in the NPA and in the president in so far as it relates to the NPA.
7. The National Association of Democratic Lawyers (NADEL) note the President’s and Mr Abrahams intention to appeal this decision. Should this matter go on appeal we intend to join in the proceedings as amicus as the matter deals with the development of our law and jurisprudence. While we encourage all discussions whether or not in support of the court’s decision we condemn any attacks on the judiciary that seek to undermine the judiciary’s integrity and independence.
8. NADEL remains unapologetically appalled by the state of affairs within the NPA and calls upon the government of the day to take all necessary steps strengthen it and ensure that it is able to carry out its functions without interference.
9. We also call for the rise of the ethical lawyers. The type of lawyers who will not yield to any temptation to sell their souls and that of the NPA should they be appointed to head it.
ISSUED ON BEHALF OF THE NATIONAL ASSOCIATION OF DEMOCRATIC LAWYERS (NADEL), SOUTH AFRICA
By: Memory Sosibo
Publicity Secretary, NADEL Executive Committee,
Contact: 081 710 7910