Proposed amendments to the National Prosecuting Authority (NPA) Act will clip Ramaphosa’s powers as the new law states that the length of suspension may not exceed 12 months.
The Judicial Matters Amendment Bill 2018 follows the Constitutional Court’s confirmation in August of the North Gauteng High Court’s decision that parts of Section 12 of the NPA Act were constitutionally invalid to the extent that the section permits the suspension by the president of an NDPP and deputy NDPP for an indefinite period and without pay.
This was the same judgment in which the apex court found the appointment of Shaun Abrahams as NDPP unlawful and invalid and that his predecessor, Mxolisi Nxasana, must repay over R10.2 million of the R17.3m golden handshake he was paid after the deal was declared invalid.
The Council for the Advancement of the South African Constitution (Casac) had applied to the high court to have the section declared constitutionally invalid.
Casac argued that parts of the section permitted the president to suspend the NDPP or deputy NDPP without any form of parliamentary oversight while their removal can only happen with Parliament’s agreement, and that there were no time frames for when the head of state must initiate the formal inquiry after the suspension(s).
This allowed for a situation where the NDPP and the deputies could be suspended for lengthy periods before their fitness to hold office was actually determined.
The council also complained that the NPA Act also provided that the default is that the NDPP receives no salary, unless the president decides otherwise, which it said gave him a discretion that is untrammelled and unguided.
The new proposal states that when the NDPP and the deputies are provisionally suspended from office they shall receive their full salary for the duration of their suspension.
In December 2017, Gauteng Judge President Dunstan Mlambo, judges Natvarlal Ranchod and Willem van der Linde found the section of the act allowing the president to extend the term of office of an NDPP who reaches the retirement age of 65 unconstitutional and invalid.
The section empowers the president to extend the term of office by up to two years as long as it does not exceed 10 years.
In the amendment bill, the section giving the president powers to extend the NDPP’s term by up to two years upon reaching 65 has been completely deleted. If promulgated, the proposed amendments would mean newly-appointed NDPP Shamila Batohi, who turned 58 last month, will only serve seven years of her decade-long term of office.
None of Batohi’s five permanent predecessors finished their terms and the longest-serving was the first NDPP, Bulelani Ngcuka, who lasted six years in the hot seat.
This week, the Justice Development said it had formulated the amendments with the assistance and at the request of various stakeholders and had invited submissions until the end of next month.