President Cyril Ramaphosa has until December 19 to appoint a replacement for ousted NDPP Shaun Abrahams. Picture: SOWETAN
President Cyril Ramaphosa has until December 19 to appoint a replacement for ousted NDPP Shaun Abrahams. Picture: SOWETAN

The presidency is fighting an urgent legal bid to ensure that the interviews of candidates for national director of public prosecutions (NDPP) are open to the media — on the basis that it could cause real “harm” and “prejudice” to the process. 

President Cyril Ramaphosa has until December 19 to appoint a replacement for ousted NDPP Shaun Abrahams, after the Constitutional Court found that his appointment was invalid and gave the president 90 days to appoint his replacement. 

Right2Know has now launched an urgent application — due to be heard in the high court in Pretoria  on Tuesday —  to allow for live media coverage of the interviews of the 12 shortlisted candidates . It argues that there is clear public interest in the interviews being broadcast. 

The presidency is opposing the application on multiple grounds — including that opening the process to public scrutiny could stop the panel appointed by the president from asking tough questions on potentially “sensitive” cases. 

“The need for robust engagement, a detailed debate on sensitive NPA matters and investigations forms an integral part to the evaluation of candidates’ abilities, strength of character, leadership abilities and the manner in which they outline the changes they view necessary to stabilise and cleanse the NPA of the ills that have plagued it,” Geoffrey Mphaphuli, acting chief director of the legal and executive services unit in the Office of the presidency, argued in court papers. 

“The potential harm in stifling this engagement between the advisory panel and the candidate will result in prejudice to the advisory panel and deprive them of properly ventilating issues that may arise.”

While R2K has suggested that  some sessions of the interviews may be closed, Mphaphuli says  this “does not ameliorate the potential harm”.  He further argues that granting R2K’s application could cause delays in the NDPP interviewing  process, which is due to start on Wednesday. 

Mphaphuli says the NDPP advisory panel, which includes representatives from the Law Society, Black Lawyers Association, General Council of the Bar, the auditor-general and the Human Rights Commission, needs to provide three to five names for prospective NDPPs to Ramaphosa by  December 7. 

He argues that if the high court agrees to hear R2K’s case on an urgent basis, this will  mean that the scheduled interviews can not go ahead on Wednesday —  and this could result in further delays of an extremely urgent process.

“The harm facing the presidency should the application be granted, is significant and falls to be taken into account by this court,” he states. 

Mphaphuli further argues that R2K’s application has been defined by “self-created urgency”, as the organisation has known for a week that the interviews would not be open to the public The procedure to be adopted for the appointment of the NDPP “is for the president’s determination”. 

Right2Know argues that the process of selecting the  new NDPP is an exercise of public power and therefore needs to be as transparent.  “Any imposition of secrecy must be justified,” it says.

But Mphaphuli argues that Ramaphosa has been as transparent as possible in the process he has adopted,  and has involved the public “through relevant stakeholders, to assist the president in an inclusive and meaningful way”.

He adds that Ramaphosa has also decided “to update the public at each stage of the process”. 

“The president’s involvement of several public stakeholders as part of the advisory panel is recognition by the presidency of the importance of the position of NDPP and the value that public stakeholders may have in providing the president with input. 

“As this is a new and unprecedented procedure, and wholly within the president’s purview to determine, the procedure ought to be welcomed.” 

Mphaphuli says it is “inappropriate” to liken the appointment of the new NDPP to that of a judge or the public protector, which are made after public interview processes.