President Cyril Ramaphosa has appointed a panel to help him appoint a new National Director of Public Prosecutions (NDPP). The panel will interview candidates in November and make its recommendations to the president by December. 

A short history

The National Prosecuting Authority (NPA) is a nominally independent state institution that reports to the Minister of Justice and is responsible for all prosecutions in the country. The NPA was established after 1994 and its functions are enshrined in the Constitution: “National legislation must ensure that the prosecuting authority exercises its function without fear or favour.”

How the appointment is made

The NDPP is the head of the NPA and ultimately responsible for running the organisation. All deputy directors of public prosecutions report to him. The appointment of the NDPP is governed by both the Constitution and the NPA Act  and gives the president the sole authority to do so. The NPA Act does however stipulate that the NDPP must possess a legal qualification and “be a fit and proper person”. It is silent on the process the president must follow when appointing a NDPP.

Why so many NDPPs?

South Africa has had five NDPPs since the establishment of the NPA. Bulelani Ngcuka left in 2004 in the wake of his famous comment that he would not charge then-deputy president Jacob Zuma even though “prima facie” evidence of corruption existed. His successor, Vusi Pikoli, was forced out in 2009 after he refused to bow to political pressure, while Menzi Simelane, who was appointed by Zuma in December 2009, was removed from office in 2011 after the Constitutional Court found that his appointment was invalid.

Mxolisi Nxasana was appointed in 2013, but he also left under a cloud in 2015. The last NDPP was Shaun Abrahams, who left the position in 2018 after the court found his appointment by Zuma to also be invalid.

A politically fraught appointment

The appointment of the NDPP is both a legal and bureaucratic as well as a political one. The head of the NPA must have a commitment to the prosecution of justice as well as the safeguarding of the institution’s independence from political interference. But he (or she) also needs the ability to navigate the turbulent political environment and be able to make politically unpopular decisions or resist public pressure. Not one NDPP has completed his term and all have been victims of political machinations.

How will this appointment work?

The appointment process announced by Ramaphosa is unprecedented. Historically, presidents have made the decision on who to head the NPA by themselves, in accordance with law. After Pikoli’s removal the DA started lobbying to amend the appointment process and to bring it more in line with the appointment of judges. Two of Zuma’s appointments were overturned by the courts because the process Zuma followed as found to be invalid. Ramaphosa has now opened up the process, opting to advertise the position to the general public and asking a panel to assist him in shortlisting candidates. The ultimate decision however remains the president’s to make.

Who is on the panel?

The panel has representatives from all major legal formations in the country serving on it, including the General Council of the Bar, the Law Society and the Black Lawyers Association. It also includes Auditor General Kimi Makwetu. They will consider nominees before making a recommendation to the president. Judicial nominees by contrast are interviewed by the Judicial Service Committee that consists of politicians and representatives from the legal fraternity. They similarly make recommendations to the head of state, who takes the final decision.

Why is Ramaphosa doing it like this?

The NDPP’s appointment has always been a political one, and often seen to have been made with political expediency in mind – as was the case under Zuma. Ramaphosa is attempting to depoliticise the process by making it more transparent and inclusive, and also bringing it into line with the Constitutional Court (Simelane) and the High Court (Abrahams) judgments which found that the president needs to apply his mind properly when making a decision on a new NDPP. A new NDPP that has gone through an open and competitive process could just have enough legitimacy in both the NPA and in the political environment.