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NPA probe should assess whether Zuma is to blame for the mess

SARJEANT AT THE BAR

The National Prosecuting Authority is too important to be captured by a faction. A transparent, comprehensive inquiry is now essential.

Vusi Pikoli testifies at the Ginwala commission. He describes the state of the NPA as 'shameful' in his autobiography. (Paul Botes)

Vusi Pikoli, one-time national director of public prosecutions and head of the National Prosecuting Authority, was removed from office by then-president Thabo Mbeki for moving to charge the national police commissioner, Jackie Selebi, with corruption. In his autobiography, Pikoli concludes that “the current state of the NPA, one of the most crucial institutions in South Africa, is shameful. Some of the appointments that have been made are truly shocking.”

He states: “The fact that Nomgcobo Jiba was acting as national director of public prosecutions for over a year and a half, Lawrence Mrwebi is head of the Specialised Commercial Crime Unit … and Prince Mokotedi is in charge of the Integrity Management Unit is astonishing.”

In two key cases, the courts have taken a similarly critical line. In Democratic Alliance vs Acting National Director of Public Prosecutions, the Supreme Court of Appeal ordered the production of the record on which the then acting NPA head, Mokotedi Mpshe, decided in 2009 to stop corruption proceedings against Jacob Zuma, clearing the way for Zuma to become president.

In his judgment, Judge Mohammed Navsa reminded the NPA that the institution is fundamental to demo–cracy and integral to the rule of law, so it must act in a manner consistent with constitutional precepts.

The NPA, then under Jiba’s leadership, tenaciously opposed the relief sought by the DA and compelled further litigation by the DA to gain access to the infamous tapes. This must make us ask why a supposedly independent institution of such critical importance should not welcome transparency in respect of its most controversial decision.

In NDPP vs Freedom under Law, concerning the application for the reinstatement of criminal charges against former crime intelligence boss Richard Mdluli, Judge Fritz Brand, on behalf of the appeal court, adopted a far more deferential approach to the work of the NPA than had the high court. But Brand still found that the decision not to prosecute Mdluli was unlawful and that Mrwebi’s evidence on affidavit was totally unreliable.

In the light of these findings, Pikoli’s devastating insider critique, coupled with the finding of the Constitutional Court – that Menzi Simelane was not a fit and proper person for the job of national director of prosecutions – the very minimum that could and should have been expected of the president was that his legal advisers give him precise and accurate advice on the appointment of the NPA chief. So it boggles the mind that, less than a year after appointing Mxolisi Nxasana, the same president wants a commission to inquire into Nxasana.

It is said that Nxasana’s previous criminal record makes him patently unsuitable for the job. But opposition spokesperson Glynnis Breytenbach, herself a previous member of the NPA, claims Nxasana is doing a sound job, thus implying that the attempts to remove him may have to do with his assumption of independence.

These disturbing developments again focus attention on the NPA as an institution that is not fulfilling its mandate to be an independent, transparent institution that complies with the Constitution. Worse, they shine a light on the appointment process of the NDPP and the subsequent decision to institute an inquiry.

After the Simelane case, in which Justice Zak Yacoob criticised the president for not paying sufficient attention to the Ginwala commission’s findings on Simelane before appointing him, the least the president, guided by his advisers, should have done was to ensure rigorous diligence prior to Nxasana’s appointment.

We arrive at two possible implications. One is that of executive incompetence. The other is that information available to the president was deemed irrelevant as to whether Nxasana was “fit and proper” to assume the post.

An open and fair inquiry may provide the answer, but the terms of reference should include an investigation of all senior NPA personnel who have been the focus of critical attention, including Jiba and Mrwebi. The NPA is too important to be captured by a faction. A transparent, comprehensive inquiry is now essential.

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