Political parties on Wednesday expressed mixed reactions at the appointment of Special Investigating Unit (SIU) head Advocate Andy Mothibi as the National Director of Public Prosecutions (NDPP), criticising the advisory panel handling the selection process, chaired by Minister of Justice and Constitutional Development Mmamoloko Kubayi.

Mothibi is appointed with effect from February 1.

This after the advisory panel handling the selection process advised Ramaphosa that none of the interviewed candidates were suitable for the role of NDPP.

Democratic Alliance (DA) Spokesperson on Justice and Constitutional Development Glynnis Breytenbach said Mothibi’s appointment must be intended to translate into better management of the NPA, more prosecutions, and a reduction in crime.

“The appointment process itself is not without serious deficiencies, leaving much to be desired,” she said.

Breytenbach pointed out that Mothibi is well-suited to lead the NPA, however said a major stumbling block is his age.

“At 63 years of age, he has an extremely limited opportunity to make any impact at all and will have his work cut out for him. It is somewhat concerning that the President has seen fit to appoint someone of Mothibi’s age, given the serious and systemic issues currently within the NPA. The job itself is a much bigger one than that of Head of the SIU,” she explained.

The panel conducting the interviews to select a new NDPP was established in October by President Cyril Ramaphosa, ahead of the end of advocate Shamila Batohi’s term of office later this month.

Breytenbach stated that the panel lacked any form of prosecution experience.

“…it was devoid of criminal justice experts, and its inclusion of disgraced former NPA boss Menzi Simelane showed just how incapable the panel was,” she added.

Breytenbach also criticised Ramaphosa’s handling of the process of finding a new NDPP, calling it “appalling”.

“The president unnecessarily delayed the process for months, and when he finally initiated the process after sustained DA-led pressure, it had to be rushed due to time constraints. There is no doubt that this is a major reason why the ill-suited panel was unable to fulfil its mandate,” she said.

The DA urged Mothibi to prioritise the appointments of Deputy National Directors, calling on Ramaphosa to immediately initiate a public and transparent process to deal with the appointments.

The Economic Freedom Fighters (EFF) said it had long cautioned that South Africa is subject to what can be defined as an “executive dictatorship” in terms of critical appointments in the judiciary and in chapter 9 institutions, pointing to Ramaphosa unilaterally appointing Mothibi.

“This unique instance where the panel saw no one fit among those they interviewed to be an NDPP, presents another concerning legislative loophole that gives undue discretion to the executive, which requires attention,” the EFF said.

The party raised concerns regarding the way Mothibi’s NDPP appointment was handled, arguing that the interview panel and the public interviews were established to promote transparency and accountability.

The EFF called for a mechanism, through a consultative process, in instances where panels fail to identify a credible candidate.

The party urged Mothibi to prove that the NPA will function independently and decisively.

“…cases, regardless of who may be involved, or their political exposure must be prioritised and prosecuted without fear, favour or political consideration,” it said.

The uMkhonto we Sizwe Party (MKP) claimed that Mothibi’s appointment appears to be “pre-orchestrated, politically deliberate and part of a systematic process” to place Mothibi in a “constitutionally critical position.”

MKP national spokesperson Nhlamulo Ndhlela said the timing of the appointment was concerning as it coincided with Mothibi's own findings, during his tenure as head of SIU, that there was prima face evidence implicating Ramaphosa's nephew, Hangwani Maumela, in the Tembisa Hospital corruption scandal.

Ndhlela highlighted that the findings were formally handed over to the NPA, specifically the Investigating Directorate Against Corruption (IDAC).

The MKP believes that Ramaphosa's decision to appoint Mothibi as the NDPP is intended to shield his nephew from imminent arrest and prosecution.

The party called on Mothibi to act decisively in his new role and immediately arrest and prosecute Maumela, according to the evidence already presented.

The party reiterated its long-standing position that the appointment of leaders of key constitutional institutions, including Chapter 9 institutions and the NDPP, should not rest solely within the discretionary powers of the President.

Ndhlela said appointments to these critical institutions should involve direct public participation, including consideration of public voting mechanisms, to ensure that such decisions reflect the will of the people.

He said this clearly proves that the panel chaired by Kubayi was nothing more than a smoke screen.

“…this process amounted to fruitless and wasteful expenditure and served as a red herring designed to mislead the public, while concealing the President's predetermined intention to appoint Mothibi over many other capable and qualified Black legal professionals,” he explained.

CONFIDENCE

Meanwhile, the Parliamentary Portfolio Committee on Justice and Constitutional Development urged Mothibi to prioritise efficiency, integrity, and transparency in leading the NPA.

Committee chairperson Xola Nqola said cases must be handled decisively.

“Mothibi’s reputation and successes as head of the Special Investigating Unit speaks for itself. The committee takes comfort in the fact that he has shown exceptional leadership skills. We will, however, continue to do vigorous oversight over his work and that of the National Prosecuting Authority. We look forward to working with the new NDPP and the leadership of the justice system to advance accountability, justice and constitutional democracy,” Nqola said.

The Inkatha Freedom Party (IFP) said it believes that Mothibi is the right person for the role, at a time when South Africa requires capable leadership within the NPA.

“Mothibi’s track record speaks for itself. Throughout his career, he has demonstrated integrity, independence and a resolute commitment to the rule of law. His experience in combating corruption, strengthening accountability and restoring public confidence in key institutions makes him well suited to lead the NPA at this pivotal moment in our democracy,” explained IFP national spokesperson Mkhuleko Hlengwa.

The party commended the panel for what it termed a “frank and honest” assessment of the candidates and for upholding the highest standards of integrity.

“Its conclusion that none of the interviewees were suitable reflected a commitment to principle over expediency, and set an important benchmark for future appointments to senior positions in the criminal justice system,” said Hlengwa.

GOOD party secretary-general Brett Herron defended Ramaphosa’s decision to appoint Mothibi, however said it was "regrettable" that Mothibi was not shortlisted for position and subjected to the public interview process with the other candidates last year.

The party expressed confidence in Mothibi, pointing to his credentials and track record, which Herron said make him an excellent NDPP.

“He is an experienced prosecutor who has led the Special Investigations Unit with admirable success. The SIU, under his leadership, has recovered billions of rands looted from the State while avoiding the stench of political interference and corruption that have permeated other key components of the country’s criminal justice system,” he highlighted.

TRANSPARENCY

Corruption Watch (CW) acknowledged that while Mothibi was not one of the final six nominated candidates, he does have knowledge and experience being at the helm of the SIU since May 2016.

However, CW executive director Lebogang Ramafoko noted that in the interests of transparency, it would have been preferable for Mothibi to be subjected to the same interview process as the other candidates.

“…however, given the mandate of the SIU to investigate maladministration, malpractice, and corruption within State institutions and the private sector by way of proclamations issued by the president, Mothibi has fulfilled his role in executing that mandate with vigour and commitment,” she said.

CW highlighted that while it is satisfied that there was sufficient transparency in the initial process, there is concern that Mothibi was not part of that process.

The civil rights organisation Cape Forum agreed, adding that while it does not doubt Mothibi's abilities, it questioned his appointment above the six candidates who were on the initial shortlist.

“This while he was never even a candidate being considered. How then did the panel decide that the six candidates were competent enough to be invited for interviews from a longer list of 32 candidates,” questioned Cape Forum.

Cape Forum is concerned that race played a role in the outcome of the process, specifically because only one panel member from the minority groups was included.

“It does not escape our notice that after the interview process, allegations were suddenly made by lawyer Barnabas Xulu against Advocate Hermione Cronjé. She was widely regarded as a preferred candidate for the position,” said Cape Forum executive chairperson Heindrich Wyngaard.

Wyngaard claimed that given the country’s history of racial prejudice and the African National Congress-led government’s emphasis on redress for “black Africans in particular”, the organisation believes that Cronjé was disqualified because of this.

“We find this unacceptable. Coloured South Africans, as well as other minority groups, generally have a proven track record of faithful service to the country when appointed to critical government positions,” he said.

The organisation is challenging Ramaphosa to making the panel’s report public so that it can be known in what ways Cronjé and the other candidates fell short.

The Cape Forum also wants Ramaphosa to explain why he considered Mothibi to be suitable for the position without having been tested through a public interview process.