By Paul Hoffman
It is safe to assume that there lurk within the ranks of the State Security Agency persons who would prefer not to see the NPA perform ‘without fear, favour or prejudice’. The NPA itself has its saboteurs who cling tenaciously to their positions. Anton du Plessis is not among them.
Three Monday morning contributions to Daily Maverick call for a combined comment. Following weekend revelations in City Press of a kind perhaps best described as mischievous, the three relevant contributors are Neesa Moodley, Professor Balthazar and Dr Rachel Fischer:
While the latter two contributions were clearly written before the news broke of the attempt at thwarting any possible career ambitions of Advocate Anton du Plessis, they do contain material relevant to the issues that the attempt raises.
It appears that Du Plessis, a deputy national director of public prosecutions, has been with the NPA since 2021 and that since then the State Security Agency (SSA) has been sitting on an application for a top secret security clearance for him.
No rational basis for refusing the clearance has been put up by the SSA, which renders a refusal vulnerable to judicial review. The NPA Act does not stipulate any top secret security clearances for any staff, including Du Plessis, whose work does not involve exposure to any top secret documents or information, according to his boss, National Director of Public Prosecutions Shamila Batohi, who points out that not even ministers and directors-general are required to get any top secret level of clearance from the SSA.
The freshly raised and belated pretext for refusing to issue the clearance for Du Plessis is that he holds dual citizenship, SA and UK, a fact that was disclosed to the SSA back in 2021. The Department of Home Affairs has sanctioned this two-passport arrangement, which is not unusual, and it is perfectly legal in nature.
The proffered justification for raising this pretext is that it is feared that foreign influences will be brought to bear on the NPA or, as the unidentified informant of City Press put it: “If a person refuses to revoke their (dual) citizenship, they can’t handle sensitive information that has to do with state security.”
Quite apart from being a non-sequitur, this reasoning loses sight of the oath of office that Du Plessis, like all members of the NPA, is obliged to take pursuant to the provisions of section 32 of the NPA Act, which reads in relevant part:
“32 Impartiality of, and oath or affirmation by members of prosecuting authority
(1) (a) A member of the prosecuting authority shall serve impartially and exercise, carry out or perform his or her powers, duties and functions in good faith and without fear, favour or prejudice and subject only to the Constitution and the law.
(b) Subject to the Constitution and this Act, no organ of state and no member or employee of an organ of state nor any other person shall improperly interfere with, hinder or obstruct the prosecuting authority or any member thereof in the exercise, carrying out or performance of its, his or her powers, duties and functions.
(2) (a) A National Director and any person referred to in section 4 must, before commencing to exercise, carry out or perform his or her powers, duties or functions in terms of this Act, take an oath or make an affirmation, which shall be subscribed by him or her, in the form set out below, namely- “I …… (full name) do hereby swear/solemnly affirm that I will in my capacity as National Director/Deputy National Director of Public Prosecutions/ Director/Deputy Director of Public Prosecutions/prosecutor, uphold and protect the Constitution and the fundamental rights entrenched therein and enforce the Law of the Republic without fear, favour or prejudice and, as the circumstances of any particular case may require, in accordance with the Constitution and the Law…”
It is also a requirement of section 179(4) of the Constitution that national legislation must ensure that the NPA exercises its functions without fear, favour or prejudice. No such legislation exists due to the role of the executive in manipulating and dominating the legislature during the 30 years of dominant party statehood that ended in SA in May 2024.
Today, at least on paper, the GNU performs its functions in accordance with the rule of law and the Constitution. This means that Parliament ought to exercise oversight of the executive and must also ensure that legislation that is put in place is duly implemented.
‘Neither fish nor fowl’
The “neither fish nor fowl” status of the NPA has been exploited by ne’er do wells since its inception. Governance of the NPA by sleight of hand is thoroughly counter-productive if clean governance is, as it should be, the objective.
The brouhaha around Du Plessis highlights the failure to put in place legislation that ensures the ability of prosecutors to act without fear, favour or prejudice and the further failure, insofar as anti-corruption work is concerned, to establish “a body outside executive control to deal effectively with corruption” as is required by the rulings in the Constitutional Court in the Glenister litigation.
Dr Fischer cites other examples of the shortcomings that were prevalent in the pre-GNU era. It is to be hoped that Parliament in the GNU era will properly fulfil its various roles under section 55 of the Constitution in the future.
Professor Balthazar stresses that sound institutions are the hallmark of good governance and that with good governance prosperity follows. Nations fail when they do not have sound institutions of good governance.
A “neither fish nor fowl” NPA that enjoys ambivalent independence has not proved itself to be a sound institution through no fault of those who work for the NPA. It is the business of Parliament to ensure the implementation of Section 179(4) of the Constitution and the Glenister rules. By not doing so, Parliament fails the people of SA.
It is clearly not good governance to fail to pass the kind of legislation the Constitution calls for in relation to the level of functioning of the NPA. For too long the NPA through no fault of its own has been a square peg in a round hole.
Given that the minister of justice has “final responsibility over” the NPA, which is run as a programme within the Department of Justice and has as its accounting officer an outsider – being the director-general of justice – it is plain that the independence of the NPA is wanting from a structural, operational and financial perspective.
Worse still, the minutiae of the “final responsibility of the minister” are spelt out in great detail in the provisions of section 33 of the NPA Act. The minister also has to concur in all prosecution policy.
Unfit for anti-corruption work
These components of the NPA render it unfit for anti-corruption work, which should in any event and according to binding decisions of the Constitutional Court be the sole prerogative of trained specialists who are independent of the executive, properly resourced in guaranteed fashion and secure in their tenure of office (the STIRS criteria).
The NPA is not such a body. Its constitutionally imposed mandate is to prosecute all crime. This mandate has been tempered in relation to corruption by the findings in the Glenister litigation.
It is also not good governance to use the absence of an entirely unnecessary top secret clearance as a pretext for thwarting the career prospects of anyone who happens to hold legitimate and Home Affairs-sanctioned dual citizenship.
Why is the SSA making an issue out of what ought to be the entirely uncontroversial dual citizenship of Du Plessis?
It is true that he has advocated for the improvement of the independence of the NPA.
Some may argue that independence is like pregnancy – either you are or you are not.
In the case of the NPA, an institution of state created in terms of Chapter Eight of the Constitution, independence is a fraught topic. While it awaits national legislation that ensures its ability to act without fear, favour or prejudice, it remains handicapped on the independence front in the structural, operational and financial aspects of the execution of its mandate.
The “final responsibility over” it which the minister enjoys, the DG holding its purse strings, and the concurrence of the minister in its policy-making functions all militate against independence of action.
As far back as August 2020, the NEC of the ANC instructed Cabinet to form an independent, stand-alone and specialised body to deal with corruption as a matter of urgency. The Cabinet has remained steadfastly unresponsive to the resolution.
These shortcomings may suit those who face possible prosecution for the roles that they played in the State Capture projects of the Zuma era, the Covid period and beyond to the present day.
They may prefer to see the NPA hampered and handicapped by executive interference. They may rejoice when the department denies the NPA access to the treasure trove of documents of interest to it that were assembled by those who laboured long and hard in the Zondo Commission.
They may be relieved to see that the NPA is hampered in its efforts to bring those best described as “politically exposed persons” to book for their roles in State Capture.
It is a well-established fact that the NPA was itself “hollowed out” and captured during the Zuma presidencies. Two of his NDPPs were removed from office by the Constitutional Court. One was fired by Zuma himself in a crooked settlement that served the purpose of corruptly removing from office an NDPP who was, and said he was, willing to prosecute without fear, favour or prejudice.
Battleground
No NDPP has ever served his or her full term of office. The NPA has been a battleground on which the upholding of the rule of law has come under sustained attack going all the way back to the days of Bulelani Ngcuka and Vusi Pikoli.
The National Democratic Revolution informed the actions of the ANC-led tripartite alliance until May 2024. Its cornerstone was to secure hegemonic control of all the levers of power in society. The NPA has its hands on many levers of power throughout the country.
It is safe to assume that there lurk within the ranks of the SSA persons who would prefer not to see the NPA flourish and perform properly “without fear, favour or prejudice”. The NPA itself has its saboteurs who cling tenaciously to their positions. Anton du Plessis is not among them.
Dithering over Simelane
In May 2024 a new GNU was formed with the Constitution and the rule of law as its guiding lights. Those in the SSA who did not get this memo should be alerted to the fact that hegemonic control of all the levers of power is not an objective of the GNU.
The fact that the current minister of justice ought to have resigned from Cabinet by now simply complicates a fraught situation. The President has dithered for too long, he should dismiss and replace Thembi Simelane. His constitutional obligation is to act diligently and without delay. His decision is not a difficult one.
The circumstances revealed in the City Press report are characteristic of those in which the rule of law is likely to emerge victorious, but battered about by those who seek to abuse the perfectly regular and apparently absolutely innocent dual citizenship of Du Plessis.
They aim to use it as a tool with which to bludgeon him out of office or at least thwart any possibility that the President may appoint him to succeed to the office of NDPP after the retirement of the current incumbent. Making an issue of the dual citizenship of Du Plessis is unadulterated mischief.
A judicial review or an attack on the constitutionality of the conduct of the SSA is indicated, if wiser counsel does not prevail. Du Plessis does not need, but is palpably entitled to, a top secret clearance. There is no risk to SA involved in his case nor has his loyalty to SA – which shines through the career decisions he has made – been interrogated. DM
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