THE National Prosecuting Authority Act outlines the requirements for directors of public prosecutions.
Such persons must have appropriate legal qualifications and importantly “be a fit and proper person, with due regard to his or her experience, conscientiousness and integrity, to be entrusted with the responsibilities of the office concerned”.
In my submission to the Mokgoro Inquiry last week, I sought to expand and unpack what this means in practical terms. Former Constitutional Court Justice, Yvonne Mokgoro, was appointed by President Cyril Ramaphosa to inquire into the fitness of the Deputy National Director of Public Prosecutions, Nomgcobo Jiba, and Special Director Lawrence Mwrebi, to hold office at the NPA.
There have been various court judgments that have criticised Jiba and Mwrebi’s attitude and handling of matters such as the charging of Johann Booysen in respect of the Cato Manor hit squads and the dropping of murder and kidnapping charges against former Crime Intelligence head Richard Mdluli.
They are alleged to have been key figures in a faction in the NPA that protected Jacob Zuma and served his interests and that of his alleged cronies - one Thoshan Panday comes to mind.
In addition, the General Council of the Bar has sought to have them struck off the roll of advocates, a matter that is currently on appeal to the Supreme Court.
The basic premise of the Council for the Advancement of the South African Constitution (Casac) submission was that: in order to determine whether one is a “fit and proper person” to be a Director of Public Prosecutions it is necessary to consider the matter in the context of their powers and responsibilities, including the decision to prosecute as one of the primary duties of a prosecutor.
In her report on the fitness of a former NDPP advocate Vusi Pikoli to hold office, Dr Frene Ginwala noted that in addition to appropriate legal experience, an NDPP must also possess managerial and leadership skills to enable her or him to effectively discharge their obligations.
Her report provides: “There must be an appreciation of the significance of the role a prosecuting authority plays in a constitutional democracy, the moral authority that the
prosecuting authority must enjoy and the public confidence that must repose in the decisions of such an authority.”
At the centre of the decision to prosecute is the following statement in the Prosecution Policy document: “In deciding whether or not to institute criminal proceedings against an accused person, prosecutors must assess whether there is sufficient and admissible evidence to provide a reasonable prospect of a successful prosecution.
“There must indeed be a reasonable prospect of a conviction, otherwise the prosecution should not be commenced or continued. This is the essence of the constitutional maxim that the NPA must prosecute “without fear, favour or prejudice”.
A criminal trial is not like a civil litigation in a different forum. The parties are not equals competing on a level playing field. In a democracy, the dice are intentionally loaded against the State, and this is fundamental to ensuring that the criminal justice system has public legitimacy.
The task of the NPA is not to seek a conviction but to put testimony before the criminal court if it considers that there is a reasonable prospect this will lead to a conviction, rebutting beyond all reasonable doubt the presumption of innocence.
When determining what the public interest demands, the Prosecution Policy (which guides all prosecutors) instructs them to consider “all relevant factors”, including the following:
The nature and seriousness of the offence.
The interests of the victim and the broader community.
The circumstances of the offender.
This is where the discretion or prosecutorial independence of the NPA is tested.
Prosecutors are not in the business of being loved; they should rather aspire to be respected for doing the right thing.
Their task is demanding and involves the exercise of discretionary powers, which requires strength of will and unswerving resolution in the teeth of what may be fierce pressure, especially from the national executive. Despite the constitutionally guaranteed independence of the NPA, the Constitution confusingly states that the Minister of Justice shall have “final responsibility” over the NPA.
This has led to tension between the executive and the NDPP, most notably when Pikoli was suspended by president Thabo Mbeki in 2007 on the grounds that there had been an irretrievable breakdown in the relationship with then Minister of Justice, Brigitte Mabandla.
Mabandla attempted to instruct Pikoli not to proceed with the execution of an arrest warrant and the institution of charges against then national police commissioner Jackie Selebi, unless she was satisfied that sufficient evidence existed and that it was in the public interest to proceed.
The minister clearly conflated the “final responsibility” over the NPA that the Constitution reposes in her to include individual prosecutorial decisions.
Ginwala concluded that Mabandla had exceeded her authority. However, this does not preclude the NPA from soliciting the views of the minister or indeed the president on high profile matters in order to reach a decision on whether to prosecute or not, but what it gleans must never be treated as an instruction or order. That would merely be among the factors they consider in determining whether or not to prosecute. These are among the factors that Mokgoro and her panel will use to determine Jiba and Mwrebi’s fitness to hold office.
They are required to report to the president by March 9. If Ramaphosa decides that they should be removed from office - he is not bound by their findings or recommendations - he will have to refer the matter to Parliament, which will take the final decision to remove them from office. Parliament may therefore override the recommendations of both Justice Mokgoro and the president. The matter is far from settled.
Naidoo is the executive secretary of the Council for the Advancement of the South African Constitution (CASAC)