Johannesburg - Newly appointed National Director of Public Prosecutions Mxolisi Nxasana does not have security clearance, raising questions whether he could handle the country’s top secrets, including the controversial spy tapes.
This comes after national police commissioner General Riah Phiyega was forced to withdraw the appointment of Major General Mondli Zuma as Gauteng provincial commissioner.
It was revealed that Major General Zuma had a pending drunk driving case.
Phiyega was embarrassed to admit that the top cop was not properly vetted.
On Nxasana’s security clearance, the National Prosecuting Authority (NPA) and the State Security Agency played the blame game, passing the buck to the Justice Department this week.
State Security Agency spokesman Brian Dube said: “The matter is for the Department of Justice and National Prosecuting Authority (that) process the employment.”
But NPA spokeswoman Bulelwa Makeke initially referred questions to Nxasana’s spokesman, Nathi Mncube.
Later, however, she referred questions back to the State Security Agency, saying that the country’s domestic intelligence service was responsible for security clearances.
Approached for the second time, Dube clarified: “We engage with the department. We do it for them.”
The Sunday Independent then contacted the NPA again.
Mncube responded: “I can’t comment on behalf of the (Justice) department.
“Either Mthunzi (Mhaga from the Justice Department) or Brian (Dube from State Security Agency) must answer.”
President Jacob Zuma’s spokesman Mac Maharaj also referred queries to the Justice Department.
Eventually Mhaga, spokesman for Justice Minister Jeff Radebe, admitted on Saturday that Nxasana’s security clearance was still being processed.
Mhaga said: “Mr Nxasana assumed duty on 1 October 2013 and his conditions of service and administrative (matters) including security clearance are being attended to.”
Mhaga however said it was “neither a constitutional nor a legislative requirement that a national director of public prosecutions must have undergone security clearance before he commences his duty”.
“The security clearance is a condition of service which every senior public official is required to undergo and occurs routinely after every five years for top security clearance,” he said.
“This administrative process may occur within such reasonable time as may be practical. It is not a requirement that it occur before the assumption of duty.”
All the directors-general and other top officials in the security services are required to undergo security clearance.
But the national director of public prosecutions is a direct executive appointment by the president.
Nxasana had been sworn in by Judge President Dunstan Mlambo, as all national directors of public prosecutions were required to take an oath of office, said Mhaga.
A former top justice official who has intimate knowledge of the NPA explained that although the national director was sworn in to affirm his or her allegiance to the constitution, security clearance was to ensure that the officials did not have criminal records, were not involved in financial misconduct and would not be an embarrassment.
He added that handling top security matters and documents required such clearance.
“The clearance process includes background checks, interviews with family and friends to make sure that you are neither a security risk to the country nor an embarrassment.
“There are issues and documents that cannot be given to anyone without such clearance,” said the former official, who could not be identified because of his oath of secrecy.
The Justice Department’s stance on Nxasana also contradicts an advertisement of vacancies at the NPA on its website.
The advertisement states: “Successful candidates will be subjected to security clearance up to a level of top secret. Appointment to this position will be provisional, pending the issue of security clearance.”
A Justice Department official, who could not be named as he is not mandated to speak to the media, said the security clearance would have had to be completed before the minister made the recommendation to the president.
Nxasana has been in office for 20 days.
Had the security clearance not been done prior to August 30, the Department of Justice and the State Security Agency had 30 more days before Nxasana assumed office to finalise the clearance.
Nxasana – the former chairman of the KwaZulu-Natal Law Society – had been practising as an attorney in the province at the time of the announcement and took the month before he assumed duty to wind up his affairs.
Nxasana’s appointment came after Zuma was put under pressure by the Council for the Advancement of the South African Constitution, a pressure group.
The organisation took him to court to force him to make a permanent appointment.
The authority had been without a permanent head since October 2012 when the Supreme Court of Appeal set aside Zuma’s appointment of Advocate Menzi Simelane one year earlier.
The prosecuting authority had been headed by acting deputy head Nomgcobo Jiba for nine months.
Jiba was central in refusing to hand over the spy tapes following the Johannesburg High Court decision in the case that was brought by the DA.
Zuma has since been given leave to appeal to the Supreme Court of Appeal.
Nxasana will have to make a call on the tapes after the court ruling.
But he admitted that he had not yet discovered what was on the controversial Zuma spy tapes, which relate to his predecessor Mokotedi Mpshe’s decision in 2009 to drop charges against Zuma.
At a press conference last weekend, Nxasana said: “I have only heard of the spy tapes in the media. I don’t want to comment on something I have not yet seen.”
This raises the question of whether he could not access the tapes because of his lack of security clearance.
Meanwhile, Nxasana has also lodged an application for leave to appeal the Pretoria High Court judgment that will reinstate criminal charges against the police’s suspended Crime Intelligence head Richard Mdluli.
Sunday Independent