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NDPP panel committed to find a unicorn

News24
15 Nov 2018, 23:38 GMT+10

After the first day of NDPP interviews, the panel seemed to be carrying out its mandate with sufficient robustness. The process of selecting a new top prosecutor at least appears to be transparent and credible, writes Mandy Wiener.

The panel that has been meeting at the Union Buildings to interview candidates for the position of National Director of Public Prosecutions (NDPP) is looking for a unicorn.

They need to find a candidate that is fit and proper for the office of National Prosecuting Authoriy (NPA) head, but is so much more than that.

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The individual must have unimpeachable integrity, be beyond reproach and be deeply principled without a sniff of controversy about them. They must have sufficient legal experience and know the law and the Constitution of the country inside out. Crucially, they must have strong management and leadership skills required to control a staff of hundreds of prosecutors around the country and overwhelming case loads.

The candidate must also be politically astute in order to negotiate the inevitable unlawful interference from politically powerful individuals and attempts to unduly influence them. In addition, they must have sufficient empathy for victims of crime. They must be capable, competent, strong and steadfast without being dictatorial, arrogant or abusive.

The line of questioning from the panel, led by Energy Minister Jeff Radebe, reflected this as they interviewed the first batch of candidates on Wednesday.

In preparation for the interviews, each of the 11 potentials had been given a case study to examine. Although the details weren't specific to the public, the hypothetical appeared to be a classic South African case of corruption involving an arms deal, a whistleblower, Russian interests, spooks and political pressure which the NDPP had to resist.

Each candidate was quizzed about the case study and how they would have responded in this scenario. It's not exactly a far-fetched concept considering the previous cases which NPA heads have had to deal with in our recent history.

Initially these hearings were meant to be secret and behind closed doors. It was thanks to an urgent court application that they were open to the media and to public scrutiny. However, it was immediately apparent from the outset that the public had no real cause for concern about the robust nature of the questioning and the efficiency of the panel.

Ramaite fumbles

Current acting NDPP Silas Ramaite was evasive and rambling and members of the panel repeating attempted to reign him in. Radebe stepped in and urged him to be more practical and to demonstrate his answers better. The interviewers were persistent and hammered at him relentlessly as he became philosophical and verbose.

Questions were also in no way euphemistic about the current state of affairs at the NPA, the divisive infighting and recent court cases that have undermined the credibility of the leadership of the organisation.

Candidates were asked about the Ginwala inquiry into Vusi Pikoli's fitness to hold office, the Freedom Under Law case regarding the prosecution of Richard Mdluli and the CASAC legal challenge to Shaun Abrahams' appointment. This would have required the candidates to have read all the judgments, be au fait with the politics of the institution and to have developed opinions on these issues.

Advocate Siyabulela 'Saaks' Mapoma was asked a hypothetical question about what he would do if he had to prosecute a police general or a director-general. What would he do if the justice minister asked him to delay the arrest and prosecution? The hypothesis was almost an exact replica of a real life scenario when former NDPP Vusi Pikoli wanted to arrest ex-national police commissioner Jackie Selebi, but then Justice Minister Bridgette Mabandla intervened and President Thabo Mbeki controversially asked for a two week delay before Pikoli acted against Selebi.

Mapoma's response was pretty much in line with what Pikoli had said at the Ginwala inquiry regarding the accounting powers of the minister.

The issue of timing of prosecutions was floated throughout and this is an instance where there is no correct answer. In a utopian world, timing of prosecutions would be inconsequential but in reality, prosecutors have to consider the humanity of their decisions if an accused is in hospital or if a head of state needs to prepare security forces for a crisis, and candidates appeared to struggle with this concept.

Each candidate was also interrogated about what they perceived the state of the NPA was currently. The panel was evidently looking for honesty and candour but some were evasive and others tried to be diplomatic, particularly those employed within the NPA. Ramaite believed all was fine and dandy at the institution he was currently running and he was oblivious to any problems. As a result he was accused of "depriving the panel" of giving insights into the prosecuting authority.

Mapoma cites lack of discipline

Mapoma was strong in his answers around political interference and independence of the NDPP, but he appeared unwilling to acknowledge problems within the NPA beyond describing them as factionalism and a lack of discipline. He would not quite go as far as acknowledging that the organisation is broken, yet he vowed to commit to bring credibility back to the NPA.

"For you to have an action plan, you first have to have to have the facts," he told the panel. This was met with the response of, "If you are not aware of the instability, it means you will need time to further strategise an action plan."

Pretoria's chief prosecutor Matric Luphondo was initially reluctant to speak candidly about the troubles besetting the leadership at his employer but with a little prodding he hit his stride. He described Abrahams' visit to the ANC headquarters as an "error of judgment" and said that he respects the various court judgments levelled against senior managers.

Advocate Matodzi Rachel Makhari was also quizzed about her views on the state of the NPA and she was by far the most open and candid, going further than any of the others. She said that trust and confidence in the institution had been eroded and that the country had lost confidence in prosecutors and no longer respected them. In the past, she said, prosecutors were proud to be called prosecutors and that the organisation was vibrant. "You can't demand to be respected you have to earn that respect," Makhari told them.

Chauke grilled

When the candidate with arguably the most baggage of the day walked in, the panel did not shy away from confronting him. Joburg's chief prosecutor Andrew Chauke was pushed hard on whether or not he had declared a business interest in a transport company. Chauke was also grilled on the harsh criticism he received in the Murphy judgment regarding his decision to withdraw charges against Mdluli.

Chauke pointed out that the SCA had overturned Murphy, but still the interrogation continued. They asked about complaints against him relating to his appointment to the Bar and other grievances lodged by magistrates. Chauke insisted that this was part of the cycle of appointing a new NDPP and suggested that each time this process occurred, there was a smear campaign against him. "I haven't been captured and I don't believe anyone will capture me," he insisted.

Each potential NDPP was also asked to elaborate on what new, fresh ideas they would bring to the office. How would this be implemented practically? Some were innovative and had clearly spent some time thinking this through. Others thought the status quo was just fine.

Candidates were also asked, in conclusion, whether they felt that there was anything that could be used as leverage against them - in other words, any skeletons lurking in their closets. Remarkably, Ramaite's sex tape scandal was never mentioned.

Overall, after the first day of interviews, the panel seemed to be carrying out its mandate properly and with sufficient robustness. The questions were incisive and tailored to each individual. As a result, the process of selecting a new top prosecutor at least appears to be transparent and credible.

At the very least, it's a far cry from how Mxolisi Nxasa was plucked from obscurity by Michael Hulley to be the head of the NPA. This will go a long way to rebuilding the public's confidence in the prosecuting authority and the office of NDPP and satisfy citizens that the correct person will be selected for the role.

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