010913: Mr Mxolisi Sandile Oliver Nxasana has been appointed as the National Director of Public Prosecutions with effect from 1 October 2013. Mr Nxasana currently practices as an attorney with a wealth of experience in criminal litigation, coupled with his having occupied senior positions in the legal profession including the Chairpersonship of the KwaZulu-Natal Law Society.

President deserves better support and service than he has received from the ministers involved, writes Paul Ngobeni.


President Jacob Zuma certainly does not need nor deserve the current controversy surrounding the appointment of National Director of Public Prosecutions (NDPP) Mxolisi Nxasana and the alleged denial of his security clearance.

In the past, such controversy would have been easily dismissed as a ploy emblematic of the tactics used by anti-Zuma forces, including elements of so-called civil society.

We know that forces opposed to Zuma have adopted a media-savvy strategy of picking only the high-level appointments in the Zuma administration and portraying them as reflective of Zuma’s bungling, incompetence and, at worst, corruption.

Inevitably, the tactics involve launching court applications to have some appointments invalidated. Litigation takes place in the real courts and in the court of public opinion.

Typically, the public gets a constant drumbeat of negative information about the public official while the case is commented upon extensively, wrongly and in a skewed fashion, unfairly subjecting the individual to the torture of public condemnation and violating his or her right to be presumed innocent until proven guilty.

But the current crisis involving Nxasana defies such beguilingly simplistic characterisation. The blame for the incompetent handling and the unnecessary constitutional crisis lies squarely on the shoulders of members of Zuma’s executive.

Zuma deserves better support and service than he has received from the ministers involved. Such incompetence makes the task of ushering in a capable developmental state that can give effect to the national plan appear like an impossible dream.

It is disconcerting that justice ministry officials appear to conflate the issue of whether an NDPP is “fit and proper” with the issue of his security clearance.

These are not the same. Security clearance is simply an official document indicating the degree of security competence of a person.

This reflects a person’s ability to act in such a manner that he does not cause classified information or material to fall into unauthorised hands, thereby harming or endangering the security or interests of the state.

Security competence is normally measured against certain criteria focusing on his susceptibility to extortion or blackmail, amenability to bribes, susceptibility to being compromised due to compromising behaviour and loyalty to the state or institution.

Measured against these standards, it is absurd to suggest that a murder charge which resulted in an acquittal could conceivably affect a person’s security competence.

In similar vein, a killing committed when Nxasana was a teenager, long before he qualified to be a lawyer and before he was declared fit and proper by a court during the attorney admission process, cannot be grounds for questioning his fitness now.

Nxasana’s appointment

as NDPP was supposed to be simple and uncontroversial.

Zuma appointed Nxasana in accordance with Section 179 of the constitution based on his determination that Nxasana met all the NDPP qualifications set forth in Section 9 of the NPA Act.

This requires that – in addition to possessing the requisite legal qualification and being a South African citizen – an NDPP must 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”.

Significantly, neither the constitution nor the act expressly stipulates a security clearance as a job requirement.

Once appointed, Nxasana enjoys security of tenure which is important to prosecutorial independence. In terms of section 12(6) of the NPA Act, there are only four permissible grounds for dismissing the NDPP from office, namely, misconduct; continued ill-health; incapacity to carry out his duties of office efficiently; or that he or she is no longer a fit and proper person to hold the office concerned.

Ministers are not free to invent other grounds for removal – no minister may circumvent the provisions of the statute by pressuring the NDPP into resigning on the basis of a denial of security clearance. After all, only Parliament makes the final decision about whether an NDPP can be removed from office.

Blindly engrafting the requirement of security clearance to the NDPP appointment process is constitutionally suspect.

Given that the NDPP is guaranteed independence and is in theory not a member of the security and intelligence community, why should he be subject to the requirement to obtain security clearance from the requisite intelligence community?

Do the broad powers granted to the NIA to “issue, degrade, withdraw or refuse a security clearance” in respect to prosecutors not pose a threat to their independence?

What prophylactic measures has the legislature put in place to prevent intelligence agencies with such sweeping powers from interfering with prosecutorial independence and security of tenure by unlawfully threatening to degrade or withdraw a security clearance?

I suspect that without proper safeguards similar threats to independence can extend to judges, public protectors and other Chapter 9 institutions. Those who use the security clearance issue as a battering ram against Nxasana must tread carefully.

The justice minister was skating on thin ice and without any lawful basis when demanding Nxasana’s resignation based solely on an alleged security clearance issue.

Assuming, for the sake of argument, that Nxasana was required to obtain a security clearance, it is clear that this aspect was badly mishandled, replete with procedural improprieties likely to be declared unconstitutional if challenged in court.

The National Strategic Intelligence Act (“the NSIA”) has clear procedures for security clearance – these require the applicant to complete a vetting form, which Nxasana presumably did, and following which he was subjected to screening by the NIA, which included polygraph testing as well as accessing personal records and relevant information.

Section 2A(6) of the NSIA empowers the head of the NIA to “after evaluating the information gathered during the security screening investigation, issue, degrade, withdraw or refuse a security clearance”.

If Nxasana was indeed denied such security clearance, it was incumbent upon the head of the NIA to issue a written decision specifically informing him of the reasons for the denial.

Apparently that was not done – the decision was conveyed orally and through the justice minister. The latter compounded the mistake further by demanding that Nxasana resign even before he had been served proper notice of the denial and even before he could exercise available administrative remedies, especially the right to appeal.

Section 2A (8) of the NSIA provides that a person whose security clearance has been refused, withdrawn or degraded may in the prescribed manner appeal to the “minister responsible for the relevant National Intelligence structure”.

The justice minister had no right to usurp power he did not have or to circumvent Nxasana’s rights including appeal to the state security minister.

By purporting to do so, the justice minister further strengthened Nxasana’s case even against the NIA. Under Section 2A (8) of the NSIA, Nxasana had 60 days within which to lodge an appeal which period is measured “from the date on which the decision was made known by the head of the relevant National Intelligence structure” although the state security minister has discretion to permit a later date filing.

By interposing himself between the head of the NIA and Nxasana and by not following due process, the minister contaminated the process and prevented proper notice from being served lawfully upon Nxasana.

This transgresses the terms of the statute and violates Nxasana’s constitutional rights.

The statute provides that an appeal from the denial of security clearance must be submitted to the state security minister, who has unbridled discretion to confirm, set aside or substitute the adverse decision.

One would have expected the ministers responsible to be vigilant and to scrupulously comply with all laws given that the appointment of Nxasana followed in the wake of the hotly litigated appointment of Simelane. Sadly, that was not done.

The justice minister grossly misinterpreted the various statutes and policies applicable to security clearances, including the Minimum Information Security Standards approved by the cabinet in December 1996.

The latter provides for the screening authority (the NIA) to investigate and advise on the security competence of a person on the basis of prescribed guidelines. Thereafter the screening authority “will merely make a recommendation regarding the security competence of the person concerned to the head of the requesting institution, and this should in no way be seen as a final testimonial as far as the utilisation of the person is concerned” (Paragraph 9).

The policy provides further as follows: “10.2: Notwithstanding a negative recommendation from the screening authority, for whatever reason, the head of the institution may still, after careful consideration and with full responsibility, use the person concerned in a post where he/she has access to classified matters if he/she is of the opinion that the use of the person is essential in the interest of the RSA or his/her institution, on the understanding that a person satisfying the clearance requirements is not available.”

A denial of a security clearance does not automatically require denial of employment or the removal of a duly appointed NDPP.

Unfortunately, the self-imposed shortcuts adopted by the justice minister have invited all kinds of speculations and accusations of political agenda.

The NIA’s handling of the Nxasana matter has troubling implications for the principles of rule of law and separation of powers. Regarding the murder charges, both the State and Nxasana had their day in court which rendered a verdict of acquittal for Nxasana.

Intelligence agencies do not have a licence to impugn the court judgment under the guise of security clearance investigation.

Moreover, in the case of acquittal, there is double presumption in favour of the accused.

First, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law.

Second, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

I am by no means denying that in some cases evaluating an arrest record, information indicating acquittal, dropped charges, or case dismissal does not negate the significance of the underlying conduct.

I agree that in security competence, determinations are made on available information concerning a person’s conduct and actions rather than the legal outcome of a criminal proceeding.

A judgment of acquittal does not establish that the acts constituting the offence charged were not committed by the defendant; it means only that they were not proved beyond reasonable doubt.

In some cases, defendants who were clearly guilty of the offences charged have been acquitted when their confessions were excluded for insufficiency of a legal foundation for their admission, where positive evidence of their guilt was excluded because it had been obtained illegally, and so forth.

However, there is an unacceptable risk of miscarriage of justice when the NIA is allowed to ignore court verdicts and to conduct a post-mortem re-evaluation of whether a person acquitted by a court was really innocent after all.

This danger is heightened when the NIA operates without clear guidelines or any rules restricting its reporting and reliance on obsolete information. The system is open to abuse by security agencies who may be tempted to selectively and arbitrarily use records of arrest resulting in dismissals and other non-conviction type records.

This is tantamount to granting the security agency veto powers over the appointment of senior government officials.


* Ngobeni is a member of the Progressive Professionals Forum, Western Cape.

** The views expressed here are not necessarily those of Independent Newspapers.

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