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South Africa needs credible leaders at the helm of its criminal justice system
7 May 2013

The media has been abuzz with speculation that South Africa’s President Jacob Zuma is poised to make permanent appointments to the leadership of the National Prosecuting Authority (NPA) and the Special Investigating Unit (SIU). Both of these organisations should be playing a crucial role in tackling the wave of corruption currently undermining South Africa. Given the remarkably poor appointments to the top management of criminal justice institutions during the Zuma presidency, there is a great deal of both interest and concern about who will be selected.

Indeed, these two institutions have arguably provided a barometer of the profound lack of political will to deal decisively with corruption. Since December 2011, neither the NPA nor the SIU has had a permanent head. Advocate Menzi Simelane was removed as the National Director of Public Prosecutions (NDPP) after the Supreme Court of Appeal unanimously ruled that his appointment was ‘irrational’ and ‘inconsistent’ with South Africa’s constitution and therefore invalid. This ruling was only to be expected given that the earlier Ginwala Commission had severely criticised Simelane’s approach to giving evidence and raised concerns about his integrity. The commission had been set up by then President Thabo Mbeki to make recommendations regarding the fitness of the former NDPP, Advocate Vusi Pikoli, to hold office. Pikoli was later vindicated when it became clear that he was removed primarily for resisting political interference in the work of the NPA.

A subsequent recommendation by the Public Service Commission that Simelane be subject to a disciplinary hearing for his disgraceful conduct was ignored by both the Minister of Justice Jeff Radebe and President Zuma, who had appointed him to head the NPA. Advocate Nomgcobo Jiba was appointed in an acting capacity despite allegations that she had misused her powers in an attempt to undermine the corruption investigation into former police chief Jackie Selebi. She had been suspended from the NPA but later reinstated after the case was not pursued for reasons unknown, and she did not have to face the charges in a hearing.

After years of sterling work by the SIU in its investigation of corruption, President Zuma suddenly removed its highly respected and capable head, Advocate Willie Hofmeyer, and replaced him with Judge Willem Heath. Heath was forced to resign shortly thereafter following his unsubstantiated claims that Mbeki had initiated the rape and corruption charges against then Deputy President Zuma. The parliamentary portfolio committee on justice has since repeatedly raised concerns about the performance of the SIU. The organisation was also the focus of a media exposé after its acting head, Advocate Nomvula Mokhatla, went against legal advice and reinstated a senior manager who had been fired for charges related to alleged dishonesty. Subsequently, media reports have detailed conflict among senior managers at the SIU, with a number leaving the institution.

The National Development Plan (NDP) recently adopted by the Cabinet aims to create an environment in which all South Africans are free from poverty and other crippling socio-economic challenges. To achieve this, the NDP envisions an efficient and effective criminal justice system (among others) that will uphold the public’s right to safety and security. It emphasises the importance of a stable and sound leadership that is able to implement practical strategies. Recognising the negative impact of poor appointments in the police, for instance, the NDP recommends setting up a national policing board with multi-sectoral and multidisciplinary expertise that will set standards for recruiting, selecting, appointing and promoting police officials. This includes the National Commissioner of the South African Police Service (SAPS) and his/her deputies. Since 1999, inexperienced civilians have consistently been appointed as SAPS National Commissioner with disastrous consequences for the morale and performance of the police. The previous two commissioners left the SAPS heaped in ignominy through their involvement in corruption and other illegal activities.

On 21 April 2013 the City Press reported that Magistrate Stanley Gumede and Advocate Guido Penzhorn would be appointed as the respective heads of the NPA and the SIU. This is yet to be confirmed by the Presidency. The report added that both individuals hailed from the president’s home province of KwaZulu-Natal. A colleague of Gumede stated that he was very knowledgeable of the law, while Penzhorn appears to have a solid record and received recognition for prosecuting companies involved in the Katse Dam corruption scandal on behalf of the Lesotho government.

If the reports are accurate, it may well be that they would make excellent heads of these institutions. However, there is no way for the public to know this given the opaque way in which these appointments are made. Considering President Zuma’s consistently poor track record in this regard, many people will be sceptical. It has already been reported that Gumede has various complaints lodged against him with the Magistrate’s Commission that are yet to be concluded. In addition, it was reported that President Zuma’s lawyer and legal adviser, Michael Hulley, had approached Gumede to gauge whether he would be interested in taking over the role of NDPP. Hulley’s reputation has been badly damaged given his alleged links to a variety of unsavoury dealings. For instance, there are claims that he illegally came into possession of the so called ‘spy tapes’ that were used by the NPA to withdraw the 786 criminal charges of corruption, fraud, racketeering and money laundering against President Zuma. More recently, it was reported in the City Press on 27 March 2013 that he might face criminal charges of fraud relating to the Aurora mining debacle. Hulley’s involvement in the appointment of the NDPP will no doubt raise concerns about the credibility of both the process and the appointment.

There is an urgent need to change the way in which individuals are appointed to lead key criminal justice institutions in South Africa. The NDP’s recommendation relating to top police appointments is just as appropriate for the appointments of the heads of the NPA and the SIU. An independent panel consisting of people known for their integrity should develop objective criteria of the skills, expertise and qualifications required to head these institutions. A transparent and competitive process should then be undertaken whereby applicants are publicly vetted against these criteria and interviewed. The panel could then recommend up to four suitable candidates to the President for appointment to head the NPA and the SIU. The rigorous vetting of candidates would help to prevent those with questionable integrity from being appointed. This will help to avoid the type of damage that has been done to these institutions in recent years as a result of poor leadership.

A transparent appointment process would substantially enhance the public credibility of both institutions. Until public interest, rather than the narrow interests of a coterie of political elites, guides the appointments of the heads of the criminal justice system and organisations tasked with tackling corruption, the vision of the NDP is unlikely to be achieved.

Hamadziripi Tamukamoyo, Researcher and Reitumetse Mofana, Intern, Governance, Crime and Justice Division ISS Pretoria

Media coverage of this ISS Today:

City Press

Polity.org.za video interview

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