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The Centre for Development and Enterprise (CDE) has called on the panel appointed by President Cyril Ramaphosa to rigorously interrogate the six shortlisted candidates when it interviews them for National Director of Public Prosecutions (NDPP) on 10 and 11 December.

“The NDPP’s job is to lead the fight against corruption and crime, to ensure the prosecution of the powerful without fear, favour or prejudice, and to uphold the rule of law. This is a position that demands first-rate legal competence, an unshakeable sense of justice, absolute integrity, the thickest possible skin, and the courage to withstand immense political pressure,” said Ann Bernstein, CDE’s executive director.

“South Africa cannot afford another decade of drift and impunity. The panel must use these interviews to test which of the candidates would be willing and able to prosecute the powerful, have the determination, experience and capacity to rebuild the National Prosecuting Authority (NPA) and restore public confidence in the rule of law,” added Bernstein.

In addition to basic questions about legal qualifications and knowledge of the prosecutorial process, the panel should ask the following questions of all the candidates (Advocates Nicolette Bell, Hermione Cronje, Andrea Johnson, Xolisile Khanyile, Adrian Mopp and Menzi Simelane). “This is not a symbolic post. The NDPP must be a proven manager who can turn a large, struggling institution into an effective one,” said Bernstein.

Questions for NPA candidates

There are wide-spread concerns about the speed at which justice is done in South Africa, particularly in relation to high-profile cases involving powerful people. How would you assess the performance of the justice system in general in combatting grand corruption? Within that, how would you assess the NPA’s performance?

Why has the NPA failed to secure convictions in major state capture cases since for example the Zondo Commission?  Is this because proving these kinds of cases is very hard or because of issues/ challenges within the NPA itself? What would you do differently?

What are the most important reasons for the slow pace or lack of success of the cases through the courts? If you were NDPP, what measures would you put in place to accelerate cases and increase your prosecutorial success rate? In answering the question, assume that there is no significant increase in resources for either the police or the NPA.

What role, if any, do you see for the private sector and the legal profession as a whole in helping to strengthen the criminal justice system, and, in particular, the NPA?

Do you have any concerns about the extent to which the NPA’s decisions to prosecute or not to prosecute are being affected by factors other than the merits of the cases? Is the NDPP’s independence sufficiently secure or are there reforms you would propose to protect prosecutorial independence more?

Are there any past relationships, roles or affiliations that could raise questions about your independence, and how will you address them?

Do you have experience running large, complex organisations? What managerial and institutional changes would you seek to make to the NPA to improve productivity and strengthen the prosecution service? To the extent that there are limitations on the NDPP’s managerial authority because of the structure of the NPA and the relative autonomy of provincial and other structures, how would you address these?

If the NPA is struggling because it has not yet thrown off the bad elements or habits or processes of the state capture era, what would you do to fix this as quickly as possible?

In any of your previous roles, have you encountered forms of prosecutorial misconduct or incompetence? What kind? What did you do about it?

“South Africans are tired of promises. We need someone who can turn the state capture and corruption cases on the books into convictions in court,” said Bernstein.

Delay is preferable to appointing the wrong person

“These questions go to the heart of whether a candidate is strong enough, independent enough and experienced enough to turn the NPA around. If the panel cannot get clear, convincing answers to questions like these, the country will once again pay a very high price,” she added.

“If none of the candidates is able to answer these questions satisfactorily, the panel must reserve the right not to recommend any of them to the President.”  

“The President should also refrain from appointing someone from the shortlist merely because the panel recommends them, unless he, too, is satisfied with the answers to these questions.”

“While the appointment of the NDPP is urgent, a slight delay is preferable to choosing the wrong person,” Bernstein concluded.

Issued by CDE’s executive director Ann Bernstein