Director General in the Presidency
Dr Cassius Lubisi
Private Bag X1000
7th August 2015
Dear Dr Lubisi
Re: enquiry into the fitness for office of three Deputy National Directors of Public Prosecution in order to ascertain whether or not they should be removed from office.
We note the contents of your letter of 4 August 2015.
We are aware of the fact that proceedings have been commenced by the GCB against the three Deputy Directors concerned. If those proceedings culminate in a striking off of the respondents then they will not be able to continue to occupy their posts because they will lack the qualification required in terms of s 15(2)(a) of the NPA Act.
If any lesser sanction is imposed by the High Court, the President remains obliged to consider whether or not steps should be taken in terms of the provisions of the NPA Act to which we have referred.
It follows that the disposition of the applications by the GCB may not be decisive of the question whether or not the three Deputy Directors are fit and proper persons to occupy their posts.
It is clear that the former NDPP, Mr Nxasana, is firmly of the view that they are not, and has recommended that the President take action against them. An enquiry chaired by a former Judge of the Constitutional Court has come to a similar conclusion.
It is, we submit, unacceptable for the President to refrain from or even delay using the powers available to him in terms of the NPA Act in order to determine whether or not these three Deputy Directors should be suspended. We remain of the view that his failure to do so is not conducive to promoting the confidence of the citizens of this country in the legal system and in particular in the prosecutorial system. It is neither legally tenable nor rational to leave it to the GCB to pursue the matter, especially as the GCB does not have the power of suspension which resides solely in the hands of the President in terms of s 16 of the NPA Act. No interdicts pendent lite are sought in the GCB striking off applications either.
In the addition to the judgments to which we referred in our previous letter, we would draw the attention of the President to the comments made by Gorven J in Booysen v Acting National Director of Public Prosecutions and Others 2014 (2) SACR 556 (KZD) at paragraph .
We note that the President is seeking advice from the Minister of Justice in relation to the matters to which we have referred. In the circumstances, we request you to communicate with us again once the Minister has reported to the President and would respectfully request that this letter also be drawn to the attention of the Minister so that he is apprised of our position and submissions in the matter. We respectfully contend that it would be irrational not to take appropriate disciplinary action in all the circumstances we have drawn to the attention of the President in this letter and our earlier letter to him.
As there is an element of urgency at stake, we would request that you revert to us before the end of the current month.
Adv. Paul Hoffman
Paul Hoffman SC
IFAISA (Accountability Now)