Last year Paul Pretorius SC and Matthew Chaskalson SC, both Zondo Commission evidence leaders, accepted temporary assignments with the NPA to help boost its skills and capacity in anti-corruption work. These appointments went off smoothly and without any fuss.

An attempt by the National Director of Public Prosecutions to secure the extension of the appointment of Pretorius has led to a great deal of criticism from the EFF and MK in which concerns about the rule of law, imagined conflicts of interest, and the supposed independence of the NPA have been raised without any proper legal foundation for doing so. These concerns are simply political posturing and interference in a legitimate appointment process that are masquerading as concern for the health of the rule of law in SA.

First out of the starting blocks was the EFF whose media release drips with hypocrisy and feigned concerns about the alleged irregularity of the move.

Then, in parliament on 13 May 2025, the MK parliamentarians took up the charge. Media coverage of their criticisms of the NPA’s plan for Pretorius has been well summarised in Legalbrief Today on 14 May 2025:

“The MKP complained that Pretorius’ involvement is a conflict of interest due to his Zondo commission role. During the National Assembly’s sitting, MKP MP Sibonelo Nomvalo delivered a members’ statement to ‘register our strongest possible objection to the reported imminent appointment of advocate Paul Pistorius (sic) to a senior position within the NPA’. ‘This is the same individual who served as an evidence leader at the Zondo commission, where he presided over volumes of hearsays (sic), speculation and untested allegations, most of which were never intended to meet prosecutorial standards. ‘That process lacked cross-examination, admissibility standards, and… rebuttal. It was not justice, but it was a political theatre,’ he said. News24 reports that Nomvalo said the MKP wanted the immediate withdrawal of Pretorius’ appointment. ‘The credibility and independence of the National Prosecuting Authority must not be sacrificed,’ said Nomvalo, whose party leader appointed Menzi Simelane and Shaun Abrahams as national directors of public prosecutions in decisions that would both be later found unconstitutional by the Constitutional Court.”

The criticisms are all unfounded, scurrilous and a menace to upholding the rule of law in SA.

It is perhaps most important of all in rebutting the attacks to pause, before plunging into refutation of the points made against Pretorius helping out at the NPA. It is vital to observe that none of the hue and cry would be happening had parliament implemented properly the binding findings of the Constitutional Court in the Glenister litigation in which it called for the establishment of “a body outside executive control” to deal with corruption efficiently.

Had that been done at any stage, the minister of justice would not now have any right to exercise her constitutional “final responsibility over” the NPA. The appointment could have been made to that body without all the fuss now created on spurious grounds that relate to and are intended to put pressure on the minister not to give her currently necessary imprimatur.

It is also relevant to observe that commissions of inquiry such as that presided over by former chief justice Zondo are mere instruments of the executive. All commissions of inquiry are given a mandate to establish the facts relevant to that mandate and to make recommendations of a non-binding nature to the executive concerning the facts so revealed. This is what was done in the Zondo Commission and others like it.

Its findings of fact are of a prima facie nature and bind no one in the same way as its recommendations are not binding unless accepted by government. A commission of inquiry is not a court of law. It does not insist upon proof beyond a reasonable doubt, as in required in criminal trials, nor does it require that evidence leaders establish proof on a preponderance of probabilities, as is required in civil cases.

The person presiding in commissions of inquiry is often, but need not be, a judge. No judicial functions are performed by any commission of inquiry. Judges sitting in commissions do not don their judicial robes and when things go awry, as they did when Jacob Zuma refused to testify on his role in State Capture, they take the issue to court so that a binding ruling on it can be made by the judiciary. The basic differences outlined above appear to have escaped the attention of both the EFF and MK.

As regards the matters raised by the EFF: Nobody is better placed than Pretorius to convert the prima facie findings and the recommendations of the commission into the proof beyond a reasonable doubt that is required to secure successful prosecutions of those fingered as corrupt in the work done by the commission. A commission which would not have seen the light of day had then public protector Thuli Madonsela not insisted on it.

Given the history of unfinished prosecutorial business in the discontinued On Point Engineering prosecution, which has lain fallow for years after the postponement of the criminal trial against Julius Malema and others after one of the accused fell ill, and the work of investigative journalists on the involvement of EFF leaders in the VBS Mutual Bank scandal, the EFF’s attack is remarkably misplaced and absolutely opportunist.

Pretorius has a long and unblemished track record as a faithful servant of the rule of law; nobody is better placed to advise on beefing up the capacity of the state to counter the corrupt.

It is not the fault of the NPA that SA’s politicians in parliament have not yet properly implemented the decision of the Constitutional Court that anti-corruption functions must be in the hands of “a body outside executive control”. Were that the case, no rubber-stamping of the recruitment of Pretorius, as currently needed from the minister of justice, would be required, and not a moment too soon.

As regards the criticisms by the MK parliamentary team, to the extent that they do not overlap with those of the EFF:  Section 38(1) of the NPA Act of 1998 says:

“The National Director [currently Shamila Batohi] may in consultation with the Minister , and a Deputy National Director or a Director may, in consultation with the Minister and the National Director , on behalf of the State, engage, under agreements in writing, persons having suitable qualifications and experience to perform services in specific cases.”

That Pretorius has “suitable qualifications”  is obvious. He is a silk of long standing at the Johannesburg Bar, a former acting judge in both the High Court and the Labour Court and a leader of the Bar in the past. His experiences as the chief evidence leader at the Zondo Commission distinguish him to perform services effectively and efficiently for the NPA in cases specifically related to the evidence led during the Zondo Commission. The economy involved in so doing is obvious. This is how resources should be used if one has regard to Section 195(1)(b) of the Constitution.

There is simply no conflict of interest between the role  of Pretorius at the commission and his role in assisting the NPA to turn the work of the commission into proof beyond a reasonable doubt in those cases in which a prima facie evidence supporting a prosecution arises.

MK suggests that the independence of the NPA is involved. The NPA is actually not independent and never has been. Ask Vusi Pikoli or indeed any of the other NDPPs all of whom have not seen out their term of office due to executive interference, influence and in the case of Nxasana an illegal payout as inducement to leave the NPA.

It is the lack of independence of the NPA that, at least in part, prompted the court to insist on the creation of a body outside executive control in the Glenister rulings.

As for MK’s concerns about the credibility of the NPA, it is necessary to observe that credibility is at a low ebb when it comes to countering the corrupt. The appointment of Pretorius over the baseless objections can only serve to enhance the tattered credibility of the NPA as an anti-corruption body, at least until parliament does the right thing by implementing the Glenister findings properly.

The pending bills for the establishment and enabling of a new Chapter Nine Anti-Corruption Commission are designed to set up a constitutionally compliant body to prevent, combat, investigate and prosecute serious corruption, long the most neglected aspect of the work currently entrusted to the NPA and SAPS. The progress of the bill through the legislative process should be accelerated.

Paul Hoffman SC is a director of Accountability Now