As from 1 February, 2026, SA has a new National Director of Public Prosecutions, Andy Mothibi, who faces many daunting challenges in his new post, a post  he did not want nor apply for when nominations were invited last year.

The precariousness of leadership of the National Prosecuting Authority is well documented. No previous NDPP has seen out the full ten year term the law allows to those under 65 years of age on appointment. Shamila Batohi, the outgoing NDPP, lasted seven years but was obliged to retire at the end of January 2026 upon reaching the compulsory retirement age of 65 years. All of her predecessors did not see out their terms of office. Batohi still has unfinished business with the Nkabinde Inquiry into the fitness for office of the South Gauteng DPP, Andrew Chauke.

Andy Mothibi, age 63 years, takes the reins of leadership with less than three years available to him, as the law stands, to make his mark on the NPA. Due to death, resignations and retirements, he has the opportunity to participate in  changing the face of the entire national leadership of the NPA in ways that serve the rule of law, respect the decisions of the courts, and improve the effectiveness of the institution he now heads.

The conundrum facing Mothibi is the binding decision of the Constitutional Court in the case now called “Glenister Two.” That decision, never properly implemented by government, set the criteria by which to structure and to operate the anti-corruption machinery of state. These requirements have become known as the STIRS criteria, an acronym invented to refer to the qualities required in terms that bind government and the NPA itself as parties to the litigation:

Specialisation dedicated to dealing effectively and exclusively with corruption

Trained personnel able to match the firepower of the legal eagles engaged to defend the corrupt

Independence both in its structure and operationally

Resources that are both adequate and guaranteed

Secure tenure of office.

These qualities are conspicuously absent in the NPA.

It has a general mandate, derived from the Constitution, as it stood pre-Glenister, to prosecute crimes of all kinds without specialisation of any kind

The NPA lacks enough personnel who are sufficiently capable in anti-corruption work; it is in the Special Investigations Unit, previously headed by Mothibi, that the skills necessary currently reside. The SIU is not part of the criminal justice system at all. It operates at the behest of presidential instructions given in selected cases that attract presidential attention. The task of the SIU is to rake back the loot purloined by those who prey upon the state and state owned enterprises. The SIU works to the civil standard of proof, an easier task than that facing prosecutors, who are obliged to adduce proof beyond reasonable doubt to the satisfaction of the judicial officers hearing the criminal trials the NPA takes to court.

Despite the contrary view of the minister of justice, the NPA is not an independent body in any way, shape or form. On the contrary, as appears from Section 179 of the Constitution, it is under the final responsibility of the minister of justice who must concur in all prosecution policy that is devised by Mothibi and his leadership team. The director general of justice controls the NPA’s purse strings as its accounting officer and it is operated as a programme within the department of justice.

The investigative capacity of the NPA, which resided in the Scorpions until 2009, was taken away by parliament and handed over to the SAPS when the Hawks were established to deal with Priority Crime Investigation. The Hawks have been singularly unsuccessful in the anti-corruption work they have attempted to tackle.

The NPA has suffered budget cuts during the tenure of Batohi and is hopelessly underfunded when it comes to countering corruption, a secretive, deliberate and difficult to combat crime. It has no guaranteed resources to equip it for corruption-busting.

Those currently working on corruption cases for the NPA have been located in a new structure, the Investigating Directorate Against Corruption, since August 2024. IDAC was created to give permanence to the Investigating Directorate that preceded it or as a “stop gap measure”, depending on which government spokesperson is given credence.

IDAC was established by passing ordinary legislation; it is a flimsy copy of the Scorpions in its structure but not in its functioning. As a creature of ordinary legislation it can, like the Scorpions, be dissolved by a simple majority vote of parliament. This is not the secure tenure of office the court requires with its imposition of the STIRS criteria. Indeed, IDAC lacks all of the STIRS requirements listed above.

The nub of the Glenister judgment, set out in its paragraph 200, is both pithy and pointed:

“Our law demands a body outside executive control to deal with corruption effectively.”

Because the NPA is not outside executive control, it has no business dealing with corruption despite what academic commentators may say on television.  Mothibi is faced with a conundrum, the apex court has ordered a body outside executive control and the executive appears to be unwilling to work toward the proper implementation of the binding decision of our apex court.

The legislature has under consideration two bills that address the conundrum. The NPA is not STIRS compliant, nor is it required to be as far as its main work on crime in general is concerned. IDAC itself is an executive inspired unconstitutional innovation, as was painstakingly explained to the president before he signed the IDAC legislation into law.

Where the “body outside executive control” should be located is a matter on which the legislature is obliged to make “the reasonable decision of a reasonable decision-maker in the circumstances”. It is discussed in the judgment itself at paragraph 205:

“We add that any obligation binding upon the Republic under international law must not conflict with express provisions of the Constitution, including those in the Bill of Rights. Here, there is no conflict. Far from containing any provision at odds with the obligation to create an independent corruption-fighting entity, the very structure of our Constitution — in which the rule of law is a founding value, [53] which distributes power by separating it between the legislature, [54] the executive [55] and the judiciary, [56] and which creates various institutions supporting constitutional democracy, which it expressly decrees must be independent and impartial [57] — affords the obligation a homely and emphatic welcome.”

The four footnotes to the paragraph quoted above draw attention to section 1 ( c ) and Chapters 4, 5 and 8 of the Constitution.

The “various institutions supporting constitutional democracy” are of course our Chapter Nine Institutions. They enjoy constitutionally guaranteed independence and impartiality and have reporting lines that do not involve the executive branch of government in any way, shape or form. Instead, they report to their relevant portfolio committees of parliament and have done so without incident since their establishment at the dawn of democracy in SA.

Currently pending before parliament are two private members bills that envisage the enablement and establishment of a new Chapter Nine Anti-Corruption Commission. This body will not be a toothless commission of inquiry. It will be a standing commission akin to those already established under Chapter Nine.

It will deal with all aspects of serious corruption and organised crime. Meticulous appointments of its leadership will ensure that it rises above the morass now in evidence before the Madlanga Commission and the ad hoc committee of parliament, both of which are investigating the complaints aired by Lt Gen Mhkwanazi on 6 July 2025. How to go about making suitable appointments to the leadership of the single anti-corruption body is canvassed in the judgment delivered by Justice Cameron in the last round of the Glenister litigation.

The effectiveness of anti-corruption machinery of state in any jurisdiction in which the probity and integrity of the executive is as questionable as it is in SA today (and has been for many years) is clearly dependent on that machinery being operated independently without control, influence or interference on the part of the executive. The attempt by the minister of police currently on gardening leave to close down the political killings task team is a classic example of  attempted executive interference that the Constitutional Court addresses in the Glenister litigation.

His experience as leader of the SIU has equipped Mothibi with first-hand knowledge that will stand him in good stead in leading the NPA.

Hopefully, the seventh parliament will move towards a more constitutionally compliant course by generating the necessary political will to effect the Glenister litigation based reforms that are so urgently needed and so long overdue. Mothibi deserves help and encouragement as well as a clear eyed conspectus of what the law requires of him in his new post.

Parliament should  give its urgent attention to accelerating the passage of the two private members bills referred to above.

Paul Hoffman SC is a director of Accountability Now and was lead counsel in the Glenister litigation.