With six candidates having been shortlisted for possible appointment as the next National Director of Public Prosecutions (NDPP), Business Leadership South Africa CEO Busi Mavuso has stressed how critical this appointment is for business.

“The selection panel for the position must choose a candidate with prosecutorial experience and integrity, but structural reforms are essential to empower whoever is appointed,” she cautions.

President Cyril Ramaphosa appointed a committee to select the next NDPP as the current incumbent Shamila Batohi is set to retire next year.

Batohi has spent the last seven years rebuilding an institution that was deeply compromised by State capture, Mavuso explains; however, structural constraints limit what any NDPP can achieve under the current framework.

The National Prosecuting Authority (NPA) differs fundamentally from other institutions that were compromised by State capture. Mavuso mentions that the South African Revenue Service (Sars) has been able to recover more fully, in part because of structural advantages that the NPA lacks.

The Sars Commissioner has genuine authority over the organisation: he is the accounting authority, effectively the CEO, with the power to hire and fire senior staff. The appointment process for the Sars Commissioner was revised after the Nugent Commission to strengthen independence, though the President retains final decision authority.

In contrast, the NDPP does not have this independence or authority. The director-general of the Department of Justice and Constitutional Development is the accounting authority for the NPA, not the NDPP.

“The prerogative over senior appointments sits with the Justice Minister and the President, a power which, in the history of our democracy, has been invoked for good and ill. The NDPP is appointed for a non-renewable ten-year term, longer than the Sars Commissioner’s renewable five-year term. Yet tellingly, no NDPP has ever completed a full term,” Mavuso says.

The six-member NDPP selection panel is chaired by Justice Minister Mmamoloko Kubayi, with members including Auditor-General Tsakani Maluleke and South African Human Rights Commission chair Andrew Nissen, forming an experienced and credible group to guide the selection.

“They must make a wise decision, choosing someone with deep integrity and the skills to lead a complex organisation dealing with everything from organised crime to grand corruption. The next NDPP will need proven prosecutorial experience, the ability to rebuild institutional capacity and the courage to pursue justice without fear or favour,” Mavuso reiterates.

She continues that the new NDPP can only exercise powers available within the current framework and that reform is needed. The NDPP ought to have the authority to reshape the organisation into an independent and highly competent one.

“This means granting the NDPP real control over senior appointments, making them the accounting authority responsible for the NPA’s performance, and insulating prosecutorial decisions from political interference. Without these structural reforms, even the best appointment will face the same constraints that have affected previous NDPPs,” Mavuso highlights.

The shortlisted NDPP candidates – Advocates Nicolette Bell, Hermoine Cronje, Andrea Johnson, Xolisile Khanyile, Adrian Mopp and Menzi Simelane, will be interviewed for the position on December 10 and 11.

BROADER ISSUE

Mavuso says the damage that State capture inflicted on the NPA is still visible in failed prosecutions.

She explains that the R2.2-billion corruption case against former Eskom boss Matshela Koko and others was struck off the roll in November 2023 owing to unreasonable delays.

The case against Moroadi Cholota, co-accused with former Free State Premier Ace Magashule, collapsed when a judge found the State had presented false information to US authorities to secure her extradition.

Despite detailed forensic reports on corruption at State-owned enterprises such as Transnet, Eskom and the Passenger Rail Agency of South Africa, as well as the comprehensive Zondo Commission findings, successful prosecutions remain frustratingly rare, Mavuso points out.

She emphasises that the rule of law is essential to a functioning democracy, including to the business environment.

“An unreliable criminal justice system imposes huge costs on business, not only through increased crime but through the broader loss of trust across the economy.

“When counterparts can’t be relied on to stick to agreements, when the probity of those in business can’t be trusted, transaction costs multiply invisibly across every deal. This keeps a handbrake on our growth.”

Mavuso cites the example of South Africa’s greylisting by the Financial Action Task Force, which had indirect costs that are harder to measure but no less real – such as increased vigilance, risk premiums and deals that did not happen.

She believes the new NDPP appointment, the Madlanga Commission on policing and next year’s Financial Action Task Force peer review all provide opportunities to strengthen the entire criminal justice system and insulate it from political interference.

The Madlanga Commission, or the Judicial Commission of Inquiry into Criminality, Political Interference and Corruption in the Criminal Justice System, is a public inquiry that was launched in July to investigate allegations of collusion and corruption between politicians, senior police members, prosecutors, intelligence operatives and elements of the judiciary.

Mavuso concludes that the business sector would like to see an accelerated effort to empower high-quality leadership across the criminal justice system.

“This is not about politics; it is in fact the opposite, ensuring that politics stays out of it, leaving independent and highly competent institutions to do their jobs. That is the future that all South Africans deserve, and that our economy requires to thrive.”