Independence and secure tenure of office are not possible in any unit within the NPA because it has neither of these prescribed attributes
Your comprehensive coverage of the views of South Africa’s CEOs (Cover Story, September 21-27) — those who have volunteered to help the government get South Africa onto a better trajectory — is most instructive. But it is essential to highlight two conflicting statements in the welter of words:
Adrian Gore of Discovery: “Parliament must, this year, promulgate the National Prosecuting Authority (NPA) Amendment Bill, to empower the Investigating Directorate.”
Neal Froneman of Sibanye-Stillwater: “Implement a well capacitated independent investigations directorate immune to political influence and which cannot be dismantled.”
Gore has a commendable sense of urgency but has not done his homework, Froneman has. Here’s why:
The bill to which Gore refers is not constitutionally compliant and cannot be made so. It does not embody the binding “independence” and “secure tenure” criteria set by the Constitutional Court in the Glenister litigation. Any act based on the bill will be struck down as unconstitutional in the litigation already foreshadowed by the DA.
That party instead proposes a Chapter Nine Anti-Corruption Commission — an initiative supported by the IFP, the Defend Our Democracy Campaign and faith-based groups. A body of this kind should be supported and funded by the CEOs too.
No self-respecting specialists will be successfully recruited to IDAC, the body envisaged in the bill as the “Investigating Directorate Against Corruption”. Deputy justice minister John Jeffery regards IDAC as a mere “stopgap measure”, thereby contradicting the “permanence” promised by his minister. And former Scorpions will remain “once bitten, twice shy”.
Independence and secure tenure of office are not possible in any unit within the NPA because the NPA itself has neither of these prescribed attributes, much as its leadership would like to have them.
Froneman, on the other hand, demonstrates an appreciation of the centrality of both criteria and has clearly not been taken in by shiny false promises. The bill is a recipe for turf wars between the police and the NPA, the likes of which have not been seen since Jackie Selebi was police chief.
Until the criteria set by the court are properly implemented, serious corruption with impunity will continue in South Africa. The rule of law will remain where NPA head Shamila Batohi found it — in the ICU.
None of the CEOs should be taken in by the false promises of the IDAC bill. If made law, it will shipwreck their worthy initiative.
Paul Hoffman SC
Director, Institute for Accountability in Southern Africa