Prosecutions boss interviews reveal the rot at NPA
Interviews for SA’s national prosecutions boss have laid bare a prosecuting authority riven with factions and political interference
President Cyril Ramaphosa made history last month when he asked an advisory panel to furnish him with a shortlist from which to appoint the national director of public prosecutions (NDPP).
For the first time since the National Prosecuting Authority (NPA) was established in 1998, the public was privy to the gruelling interviews of 11 candidates who were nominated or applied for the post. Previously — in line with the constitution and NPA Act — the president appointed the NDPP after consultation with the justice minister.
A properly functioning NPA is crucial for the administration of criminal justice. "With a malleable, corrupt or dysfunctional prosecuting authority [in place], many criminals — especially those holding positions of influence — will rarely, if ever, answer for their criminal deeds," the Constitutional Court said in a judgment earlier this year.
Given the importance of the institution, the NDPP interviews — in effect an inquiry into the state of the NPA — painted an alarming picture of interference and factionalism that have led to paralysis in some structures, and instability in the organisation as a whole.
Simphiwe Mlotshwa, the former acting director of public prosecutions (DPP) in KwaZulu-Natal (KZN) — who is on the shortlist — detailed one such instance: in 2012 he was called to a meeting at the NPA’s Pretoria headquarters by Nomgcobo Jiba, who was then acting NDPP and is now under suspension as deputy NDPP, for a meeting on the so-called Amigos case. Mlotshwa had assembled a four-person team to prosecute 25 accused in the R144m corruption scheme. Among those charged were former KZN economic development MEC Mike Mabuyakhulu and the speaker of the KZN legislature, Peggy Nkonyeni.
Mlotshwa said those at the meeting included the now suspended head of the commercial crimes unit, Lawrence Mrwebi, current acting NDPP Silas Ramaite and deputy NDPP Willie Hofmeyr. Jiba, in her opening comments, said Mlotshwa had asked for their assistance on the matter — a request he denied having made. Her second comment, he said, was: "Guys, we need to cut the loss in the sense that some of the accused must be removed."
After the leader of the prosecutions team presented the evidence against the accused, Mlotshwa said Mrwebi asked: "By the way, Simphiwe, why do you hate politicians?"
Though it was decided charges would not be withdrawn, this was the beginning of the end for Mlotshwa. In July that year, he was called back to Pretoria — this time to be informed that current KZN DPP Moipone Noko would be appointed in his post in an acting position. He was thanked for doing "an excellent job".
Three months later, Noko, who was also interviewed for the job of NDPP, withdrew the charges.
Asked if he was moved from the case so it could be withdrawn by those who replaced him, Mlotshwa said the facts seem to suggest so.
Mlotshwa was not the only interviewee to talk of being shifted within the NPA. Advocate Andrea Johnson, a firebrand prosecutor and deputy DPP in Pretoria, detailed how she was moved from the priority crimes litigation unit, where she was a co-ordinator, after Shaun Abrahams was appointed NDPP.
The unit is now headed by Torie Pretorius, who was involved in charging public enterprises minister Pravin Gordhan with fraud relating to the early retirement of former SA Revenue Service deputy commissioner Ivan Pillay. The charge was withdrawn shortly after the decision to prosecute, leaving the credibility of the team that took the decision badly dented.
Johnson said she was removed because "they would not have been able to do the work they thought they could do at [the priority crimes unit] if I was there". She believes there has been political interference in state capture cases at the NPA, also specifically noting the charges against Gordhan.
Johnson and other interviewees referred to factions in the NPA — particularly, said Johnson, at the level of deputy NDPP. These officials have "become complacent and part of factions", and the divisions have filtered down through the NPA, she said.
So if Ramaphosa wants wholesale change in the NPA, he will also have to deal with the deputies — for which the inquiry into the fitness of Jiba and Mrwebi to hold office is merely a start. More than that, the NPA needs a change of culture and to unite behind a common vision to prosecute without fear or favour.
Shamila Batohi, a former DPP in KZN and current senior legal adviser at the International Criminal Court — considered a favourite for the post — likened taking up the NDPP position to "jumping into a shark tank"; Johnson said even the pope would struggle in the post.
Whoever Ramaphosa chooses from the shortlist — Mlotshwa, Johnson, Batohi, advocate Siyabulela Mapoma or Western Cape DPP Rodney de Kock — will require steely determination and ironclad loyalty to the constitution. The institution cannot be seen as politically compromised, especially given the revelations of state capture that have so dented trust in the criminal justice system.