Under the Constitution SA has a single national prosecuting authority (NPA) led by a National Director appointed by the president, with Directors of Public Prosecutions for all provinces and, at the bottom of the organisation, legions of prosecutors. According to Section 179(2):

The prosecuting authority has the power to institute criminal proceedings on behalf of the state, and to carry out any necessary functions incidental to instituting criminal proceedings.

It is generally accepted that the NPA should be allowed to operate independently, or to use the flowery legal phrase “without fear, favour or prejudice”. Indeed Section 179(4) provides that:

National legislation must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice

That phrase is repeated for the judiciary in Section 165 and for the Chapter Nine Institutions in Section 181; the notion of impartiality is also added in these sections, but not in any section relating to the NPA, presumably because it prosecutes on behalf of the state and is part of the executive.

Unfortunately, given the propensity of the ANC to run the country according to the tenets of its national democratic revolution (NDR), the NPA has not been given a snowball’s hope in hell of operating as it should: without fear, favour or prejudice. The desire for ANC hegemony and the corrupt ways of many in its leadership has left the NPA in tatters, especially after it was gutted during the heyday of the State Capture period.

The current NDPP, Shamila Batohi, has warned that in SA the rule of law is “in the ICU on life support measures.” She is wise to sound this warning but she is also not sufficiently pro-active in her efforts to tackle the structural problems which impact negatively on the structural independence of the NPA, these problems  preclude the NPA from acting independently.

While a government which takes the rule of law more seriously that the ANC has done, (at least during its recently expired period of political dominance, ) could notionally make the NPA work as it should, the desire of the ANC for what it calls “hegemonic control of all the levers of power  in society” has effectively sabotaged the NPA with matters going from bad to worse over the years. The history of the NPA is a national tragedy.

The first NDPP was Bulelani Ngcuka, an ANC MP and a practicing attorney before politics and public service in the NPA diverted his career.  He is the husband of former Deputy President of South Africa Phumzile Mlambo-Ngcuka. The family was regarded as “ANC royalty”  after he served the ANC during the Codesa negotiations that led to the liberation of SA from apartheid and parliamentary sovereignty. The Ngcukas lost their ANC royal status after, as NDPP, Ngcuka took an interest in countering corruption in high places and in investigating suspected malfeasance in the arms deals. ANC bigwigs led by the Schaik brothers, Mac Maharaj (and egged on by Jacob Zuma) created a furore around Ngcuka by falsely accusing him of being an apartheid era spy. A commission of inquiry chaired by a senior judge, Joos Hefer, in his own words:  “ had to determine whether Mr Ngcuka had in fact been an agent of the pre1994 security services…” In the course of his report Judge Hefer remarked that:

The establishment of a single prosecuting authority as an institution and the appointment of a National Director of Public Prosecutions derive from the Constitution itself. From this it follows that anything which may discredit either the institution or the office of the National Director or the person holding the office, is manifestly of constitutional significance and indubitably of public importance. It also follows clearly that an inquiry into allegations of the misuse of power on the part of the National Director is of national interest. But one must also bear in mind the immense power which the National Director wields and that such a power should only be entrusted to a person of unquestionable proficiency and integrity. Accordingly, whenever there is even the slightest doubt that an incumbent possesses these attributes, he or she ought to be exposed to a transparent inquiry in which concerned members of the public may freely and openly state their perceptions.

Hefer exonerated Ngcuka, finding the claims against him not proven by Mo Shaik and Mac Maharaj, but sufficient mud stuck to impel Ngcuka to resign four years before the expiry of his term of office which is statutorily set at a non-renewable term of ten years.

He was succeeded by Vusi Pikoli, a former director general of justice. As the incumbent in that office, to this day, serves as the accounting officer of the NPA, Pikoli was well versed in the situation on the ground and no doubt familiar with the remarks made by Judge Hefer as quoted above.

Pikoli got onto the wrong side of the then minister of justice who has “final responsibility over” the NPA under Section 179 (6) of the Constitution and of then president Thabo Mbeki because he was prepared to charge then National Commissioner of Police (and head of Interpol), Jackie Selebi, with corruption. Pikoli was suspended, and the Ginwala Commission of Inquiry into Pikoli’s fitness to hold office largely exonerated him.

When parliament had to vote on the fitness for office of Pikoli it was under the spell of Jacob Zuma who was being targeted as corrupt by Pikoli and the now disbanded NPA unit known as the Scorpions. Parliament voted for his dismissal. He won millions in damages when he litigated the irregularity of his dismissal. Pikoli now serves as a special advisor to the minister of police having also served as police ombudsman in the Western Cape.

Pikoli was succeeded by Menzi Simelane, coincidentally also his successor as director general of justice. Simelane had lied on oath during the Ginwala Commission. The Constitutional Court ruled that no good purpose of government could be served by appointing a mendacious person to the office of NDPP. Next a deputy NDPP,  Nomgcobo Jiba acted; she was succeeded by Mxolisi Nxasana who was bribed by Jacob Zuma to resign shortly after he took office and after he indicated his willingness to prosecute Zuma should the DA win its review of the decision not to prosecute him (taken by an earlier acting NDPP, Mpshe.) Jiba’s acting reign ended when Shaun Abrahams was appointed as NDPP, but the Constitutional Court also ruled that appointment invalid in proceedings concerning the irregularity of the resignation of Nxasana.

Rather usefully, bearing in mind that a ten year fixed term of office is intended for NDPPs, Wikipedia has published details of those who have led the NPA since its inception:

History of appointments

There has been remarkable instability in the office of the NDPP – no NDPP has ever served his full ten-year term. Two of the three permanent appointments made by Jacob Zuma during his presidency were later invalidated by the Constitutional Court, and two other incumbents were subjected to official inquiries, instituted under Section 12(6) of the National Prosecuting Act of 1998, into their fitness to hold the office. Controversial extraordinary changes in NPA leadership have been attributed to political interference.^{[2][3][17][18][19]} In June 2014, former NPA prosecutor Glynnis Breytenbach, a Member of Parliament for the Democratic Alliance (DA) and Shadow Minister of Justice,^[20][21] called for an end to ongoing political interference in the NPA, which she said had compromised its integrity.^”

In theory only three NDPPs should have been in office by now, instead SA has had the nine listed above with Silas Ramaite acting repeatedly for various periods.

Shamila Batohi is due to retire in January 2026 due to her age and not because of the expiry of ten years.

Batohi will engage with civil society during April 2025, a sort of swan song, and will be asked various questions during the engagement. The most important of these questions concern the independence of the NPA given its chequered history as outlined above are four in number:

1. Given that section 179(4) of the Constitution [C 179] requires that “national legislation must ensure that the prosecuting authority exercises its functions without fear favour or prejudice,” and given that there is no such legislation, what has and is being done by the NPA about the failure to put any such legislation on the statute book in SA? Does the NPA have any drafts? Will it share them with civil society?
2. Does the NPA plan to do anything in future about the failure of the government to enact the legislation required by C 179(4)? If so, what exactly is planned; if not, why not?
3. Does the NPA recognise that it lacks the operational and structural features to enable it to act without fear, favour or prejudice? If not, why not?
4. Is it appropriate in a dispensation in which the NPA is required to act without fear, favour or prejudice, that it operates as a programme within the department of justice under the final responsibility of the minister of justice, who must concur in all prosecution policy and whose director general is the accounting officer of the NPA?

The NPA and the government are bound by the findings of the Constitutional Court in relation to the countering of corruption in SA. That court has created the criteria by which any anti-corruption  body should be known, all these criteria are miserably absent in the NPA, The court  has ruled that a body outside of executive control should be created to deal with corruption. No such body has ever been established or enabled in SA. It is largely due to this failure that the phenomenon known as State Capture took place and is still ongoing. Former Chief Justice Raymond Zondo, who chaired the Commission of Inquiry into State Capture has, during his retirement sounded a serious warning  in November 2023 which a country “in rule of law ICU” (according to its NDPP) ignores at its peril:

“The levels of corruption in our country have reached completely unacceptable proportions, and unless something very drastic and effective is done soon, we will have no country worth calling our home.”

While the failure to establish a body outside the control of the executive is the fault of government, the NPA is complicit in that failure due to its supine and unnecessarily subservient  attitude.

Vusi Pikoli, like Thuli Madonsela, understood the supremacy of the Constitution and was prepared to take on the executive when it attempted to interfere in his work. The prosecution of Jackie Selebi was a success, the prosecution of Jacob Zuma is ongoing. And remember, if Thuli Madonsela did not demonstrate her fealty to the Constitution, there would not have been a Zondo Commission.

On the corruption front, serious remedial legislation is required in order to give effect to the judgment of the Constitutional Court in the Glenister litigation referred to above. The only good news is that two bills for the establishment and enablement of a new Chapter Nine Anti-Corruption Commission are before parliament.

Paul Hoffman

Accountability Now

7 April 2025.