Johannesburg - Legal experts are concerned by the ongoing political battles, squabbles and scandals at the National Prosecuting Authority (NPA).
This comes in the wake of a study by the Institute for Security Studies (ISS) on how to restore, trust and improve accountability at the NPA, released this week.
The ISS said South Africa needed to consider creating an independent oversight body to scrutinise the performance of the NPA.
Gareth Newham, head of ISS governance, crime, and justice division, said: “The NPA’s ongoing credibility crisis raises the question whether it is timely to explore a dedicated prosecutorial oversight and accountability mechanism for South Africa.”
Newham said some aspects of the NPA’s activities were scrutinised by bodies including Parliament, the auditor-general and the National Treasury, but none focused exclusively on the NPA and their staff could lack a detailed understanding of how the NPA worked.
He said effective prosecutorial accountability empowers the public and makes prosecutors responsible to citizens for their actions.
“This is particularly important in a country like South Africa where officials have considerable public authority to decide who to arrest, prosecute, convict or imprison, or to award contracts worth millions to some but not others,” Newham said.
Constitutional law expert Professor Shadrack Gutto has welcomed this suggestion.
“The call is good and the question is how it should be done,” Gutto said.
He said South Africa needed an NPA that prosecutes without any fear, favour or prejudice.”
“In the past there have been reports about internal infighting in the NPA about whether a certain individual should be charged or not and that people have been removed if they differ. There have been so many scandals in the NPA. This is a cause for concern,” Gutto said.
He said the NPA was prosecuting the poor and the weak, but was not dealing with those who are politically powerful and the big shots in the private sector.
He said if the prosecution services were not strong, the courts would suffer. “That weakens the whole of the judiciary system and its credibility,” Gutto said.
He added the problem was that the National Director of Public Prosecutions (NDPP) was appointed by the president.
“If the candidates applied for the job and were interviewed like the judges, people like Menzi Simelane would not have been appointed. At the moment the president can appoint any of his friends,” he said.
The NPA has limped from one crisis to another.
Vusi Pikoli lasted only two years as the head before an inquiry into his fitness to hold the office was instituted.
Simelane spent three years in office, but President Jacob Zuma was forced to remove him after the Constitutional Court found that his appointment was irrational and invalid.
Nomgcobo Jiba was appointed to act in the position for almost a year.
Subsequently Zuma appointed Mxolisi Nxasana, but he was at the helm for only 10 months before he was asked to give reasons why he should not be suspended while an inquiry into his fitness to hold office commenced.
Last week presidential spokesman Mac Maharaj said Zuma had informed Nxasana of his intention to suspend him.
Dumisa Ntsebeza of Advocates for Transformation said he has not had time to analyse the study by ISS, but said he was “disturbed” by what is happening at the NPA.
“I think everybody should be disturbed by the things that have been happening at the NPA. What is going on there? There is always controversy and the NDPP won’t finish his term.
“I’m concerned by the squabbles at the NPA. I’m concerned even about the resignation of Prince Mokotedi. He said there are so many factions at the NPA,” Ntsebeza said.
Mokotedi, executive manager of the Integrity Management Unit (IMU), resigned on Thursday.
He was charged with nine contraventions and was to face a disciplinary hearing. However, the NPA wrote to Mokotedi on Friday saying it would not be necessary for him to attend a disciplinary inquiry.
The NPA said the disciplinary hearing would not be finalised during Mokotedi’s notice period.
Mokotedi was suspended in June, the day after The Star, sister publication of Sunday Independent, ran a story about a report on the IMU which recommended that former prosecutor Glynnis Breytenbach be criminally charged for misconduct, corruption, racketeering, conflict of interest and fraud.