Howard Barrell and Mungo Soggot
The relatively unknown African National Congress politician appointed as South Africa’s top prosecutor has shrugged off fears that he will follow the dictates of his political masters when he takes up his new job in two weeks’ time.
Cape Town lawyer Bulelani Ngcuka, deputy chair of the National Council of Provinces (NCOP), says he will “demonstrate impartiality and independence” when he becomes the country’s first national director of prosecutions on August 1.
Senior members of the legal profession have criticised the appointment, raising fears that Ngcuka is insufficiently experienced and could be vulnerable to political influence.
Opposition parties are dismayed at what they see as another political appointment to what should be a non- political post – following hot on the heels of the row over the appointment of former labour minister Tito Mboweni as Reserve Bank governor-designate. But a number of opposition representatives paid warm tribute to Ngcuka as an individual.
The post of national director of prosecutions was established by Parliament to try to restore health to the country’s ailing criminal justice system and to co-ordinate the nine provincial prosecuting authorities.
Douglas Gibson, Democratic Party justice representative, condemned the government’s choice of “someone knee- deep in politics to a post which should be non-political”. But he said Ngcuka had shown himself to be “a very able man” in Parliament.
For the Inkatha Freedom Party, MP Koos van der Merwe said if the only issue was Ngcuka’s merits as an individual, he could “hardly think of a better person for the job”. But it was “wrong to appoint a politician to the post – just as it was in the case of Mboweni to the Reserve Bank”.
The Freedom Front’s chief whip in the NCOP, Rosier de Ville, also distinguished between Ngcuka’s personal qualities and what he said was an ill- advised political appointment. National Party representative Roelie Groenewald said: “I have the greatest respect for him, but I fear he will have a political agenda.”
Ngcuka told the Mail & Guardian: “I recognise these fears [of political partiality]. It is going to be incumbent on me when I assume this post to demonstrate my impartiality and independence. It would be foolish of me to advance the ANC and to prejudice other parties. Certainly I have no intention of doing that.”
He added that South Africans should not be alarmed that a politician has been chosen to be national director of prosecutions. In the United States, Britain and many other countries, attorneys general are also political appointments.
Ngcuka developed sound “struggle” credentials as a lawyer-activist in the 1980s. He finished his articles at the Durban law firm of Griffiths Mxenge in 1981, the same year the attorney was assassinated by apartheid hit men.
His political activities frequently disrupted his legal career: he spent eight months in solitary confinement in 1981 and was jailed for three years in 1982 for refusing to give evidence in a political trial. While in prison, he completed his LLB through Unisa. After a two-year stint in Switzerland, he returned to South Africa in 1987 and joined a firm called Yekiso & Associates.
He set up his own firm in 1989, but became increasingly involved in politics after being appointed chair of the United Democratic Front in the Western Cape. He also helped set up the National Association of Democratic Lawyers, an alternative legal association to the established, white law societies.
Ngcuka is relatively unknown in legal circles, having conducted a modest practice as an attorney who focused on criminal and human rights matters. Three senior lawyers contacted for comment on his appointment expressed their surprise at the choice, noting that he has been out of practice for several years, is not steeped in the art of prosecution, and will have to prove his independence.
The legislation which creates the post does not specify that the incumbent be independent, but says he should carry out his job without fear, favour or prejudice. The main prerequisites for the job are that the occupant must be a South African and have 10 years’ practice experience.
The General Council of the Bar (GCB)expressed strong reservations about the appointment. Its chair, Peter Hodes, SC, said the GCB had always opposed the legislation which created the post because of fears about the incumbent’s political independence and possible lack of experience.
“The appointment of Ngcuka underscores our objections to the Bill. It is clear he is a party-political man who could be susceptible to political influence. There is also nothing to indicate that from his limited years as an attorney, he has the necessary experience for this very important position.”
The director of the Centre for Applied Legal Studies, David Unterhalter, said: “The nature of the positition requires proven experience and a commitment to independence.”
Ngcuka’s appointment is unlikely to go down well with the attorneys general he will be controlling, who were briefed on the appointment on Thursday before a press conference. State prosecutors have privately expressed their reservations about the post, which gives the incumbent the power to intervene in individual prosecutions.
The post is supposed to help the government impose its stamp on a prosecution service staffed mainly with NP appointees. The lack of prosecutions in KwaZulu-Natal in cases involving political violence, and the apparent apathy of some attorneys general in prosecuting old-order policemen and generals, are obvious examples of the state’s failure to adapt to the new regime.
Prosecutors say they fear the national director of prosecutions could quash cases against members of the ruling party.
However, one advocate noted Ngcuka is unlikely to be involved directly in cases, and will probably devote most of his time to the administration of the prosecution service, which has suffered an exodus of experienced practitioners lured by lucrative private practice.
Ngcuka’s rapid promotion has been welcomed within the ANC. An ANC official who is often a critical voice in party affairs said Ngcuka has a reputation for independence of thought and integrity. “He has always been very much his own man, willing to take positions which are not popular, sometimes at a risk to himself.”
Ngcuka’s wife, Phumzile Mlambo-Ngcuka, is the deputy minister of trade and industry, and his brother, Vuyani, is mayor of Khayelitsha.