One of the cardinal features of the separation of powers in our constitutional dispensation is that those institutions that do not form part of the executive or the legislature are giving the independence necessary to enable them to fulfil their role and functions properly.

The independence and impartiality of the judiciary and the Chapter Nine Institutions are unequivocally guaranteed by the relevant provisions of the Constitution. Some of the Chapter Nine Institutions have been commendably independent, think of the Office of the Public Protector on Professor Thuli Madonsela’s watch and the Auditor General since inception. Others have been prejudiced in their independence by an infestation of deployed cadres appointed via Luthuli House instead of legally and constitutionally.

Where then does the National Prosecuting Authority, par excellence an institution that needs to be independent in its prosecutorial decisions and functions, fit into the spectrum of independence in our constitutional order?

The NPA owes its existence to the provisions of Chapter Eight of the Constitution which bears the title “Courts and Administration of Justice”. In terms of section 179 (4) “National legislation must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice.” This phrase is a lawyerly way of saying, in as many words as possible, “independently”.

This interpretation is reinforced by the wording of section 32 of the NPA Act which reads:

32 Impartiality of, and oath or affirmation by members of prosecuting authority

(1) (a) A member of the prosecuting authority shall serve impartially and exercise, carry out or perform his or her powers, duties and functions in good faith and without fear, favour or prejudice and subject only to the Constitution and the law.

(b) Subject to the Constitution and this Act , no organ of state and no member or employee of an organ of state nor any other person shall improperly interfere with, hinder or obstruct the prosecuting authority or any member thereof in the exercise, carrying out or performance of its, his or her powers, duties and functions.

(2) (a) A National Director and any person referred to in section 4 must, before commencing to exercise, carry out or perform his or her powers, duties or functions in terms of this Act , take an oath or make an affirmation, which shall be subscribed by him or her, in the form set out below, namely- 'I ................................................................. (full name) do hereby swear/solemnly affirm that I will in my capacity as National Director/Deputy National Director of Public Prosecutions/ Director/Deputy Director of Public Prosecutions/ prosecutor , uphold and protect the Constitution and the fundamental rights entrenched therein and enforce the Law of the Republic without fear, favour or prejudice and, as the circumstances of any particular case may require, in accordance with the Constitution and the Law. (In the case of an oath: So help me God.)'.

It is plain, that in passing Section 32 of the NPA Act parliament was guided by the wording used in the Constitution in the provisions that apply to the courts, being sections 165(3) and (4) which require that: “No person or organ of state may interfere with the functioning of the courts” and the state “…must assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts.”

Furthermore, in Section 179(5) of the Constitution, the head of the NPA, our National Director of Public Prosecutions (NDPP) is given the power, with the concurrence of the minister of justice and after consulting the Directors of Public Prosecutions, to make prosecution policy. No other public servant has such power. Normally policies are made by members of the cabinet and are executed by the public administration. Uniquely so, the NDPP has the power to make prosecution policy.

The various provisions alluded to above are evidence of independence on the part of the NPA and its leadership. However, the Constitution does say, in section 179(6) that:

“The Cabinet member responsible of the administration of justice must exercise final responsibility over the prosecuting authority.”

It is also a fact of life that the accounting officer of the NPA is the Director General of Justice, not the NDPP or anyone else more intimately connected to the NPA than the director general.

The exercise of final responsibility over the prosecuting authority is contested terrain. A few examples will suffice:

When our first NDPP, Bulelani Ngcuka, was accused of being an apartheid era spy, his denial was not regarded as sufficient and the Hefer Commission of Inquiry was appointed to look into the allegations against him. Although he was cleared, Ngcuka felt obliged to resign as NDPP rather than limp along under a cloud of suspicion and unproven allegations. He did not finish his term of office and featured later in some intercepted telephonic conversations regarding the fate of then private citizen Jacob Zuma.

When Vusi Pikoli was NDPP he decided to charge the national commissioner of police, Jackie Selebi, with corruption arising out of his relationship with businessman Glen Agliotti. At the time Selebi was head of Interpol and a well-connected figure in the ANC. Pikoli also decided to charge then private citizen Jacob Zuma with corruption and related offences. In 2008 he was suspended from his duties by President Thabo Mbeki, a close confidant of Selebi, at the urging of Brigette Mbandla, then minister of justice.

He was subsequently fired by Mbeki's successor, Kgalema Motlanthe, who was then an ally of Zuma. Opposition parties and sections of the media have claimed Pikoli is the victim of two separate political conspiracies  both of which served to undermine his independence and prosecutorial policy making powers. Pikoli sued for damages for his unlawful dismissal and settled handsomely in a manner that has enabled him to take up other positions in the public service.

While Pikoli was suspended an acting NDPP, Mokotedi Mpshe, reversed the decision to charge Zuma in contested circumstances. He did so by relying on a Hong Kong court decision that had been overturned on appeal. Mpshe’s decision was overturned on review leading to Zuma being charged afresh. Mpshe stands by his decision despite the success of the review and the re-instatement of charges. He says:

“I made the decision given the prevailing circumstances at that stage. A person who makes a decision makes an informed decision as I did. And it does not mean that one who makes a decision and it gets turned later doesn't mean he is to be condemned and to be found to be completely wrong.”

These sentiments do not reflect well on the independence of the NPA.

Mpshe was not made NDPP. Instead Pikoli was succeeded by Menzi Simelane, who had lied on oath during the inquiry into the fitness for office of Pikoli. Simelane announced, on arriving at the NPA from his post as Director General of Justice, that his mission was to impose the vision of the ANC on the NPA.

The vision of the ANC is to secure hegemonic control of all levers of power in society. The NPA is such a lever and his deployment was designed to impose the thinking of a political party on a supposedly independent institution. Simelane did not last long, the courts described his appointment as irrational and set it aside on review at the instance of the official opposition.

The late Archbishop Emeritus Desmond Tutt described his appointment as “an aberration” while the Constitutional Court noted that "[The evidence] raises serious questions about Mr Simelane's conscientiousness, integrity, and credibility.”

Mendacious Menzi is not a poster boy for the independence of the NPA. Despite his mendacity, he has been taken under the wing of Lindiwe Sisulu as a special advisor after his court ordered ejection from the NPA.

The fate of his successor, Mxolisi Nxasana, reflects poorly on the current leadership of the NPA. In effect, President Zuma and his cabinet henchmen contrived to bribe Nxasana to leave office after only 22 months. The NPA was decapitated by this illegal and unconstitutional move on the part of Zuma.

The courts set aside the deal and required Nxasana to repay the bribe. Despite the laying of charges in 2015, and much badgering since then, the leadership of the NPA has not seen fit to charge anyone for the corruption and defeating the ends of justice in evidence in this sorry episode.

The less said about the tenure of Shaun Abrahams as NDPP the better.

In response the to publication of the first tranche of the report of the State Capture Commission the NPA stressed that:

“… it is crucial that the NPA’s de jure and de facto independence be assured.”

The current NDPP, Shamila Batoyi, insisted that this type of assurance be given before she was appointed three years ago. As long ago as May 2017 the NPA was calling for its independence from the department of justice.

It would appear that the NPA itself does not feel adequately insulated from executive influence and interference. This type of activity is incompatible with the notion of independence as it is used in the enabling legislation and in the concepts of acting “without fear, favour or prejudice” as they appear in the Constitution itself.

It is clear that the NPA is not going to succeed in mustering the “army of prosecutors” which the acting chief justice has said will be needed to give effect to the recommendations of the report of the State Capture Commission over which he has presided.

The NPA is not an attractive employment destination. On its own showing, it is hollowed out and under resourced as a consequence of the ravages of state capture. The ranks of the prosecutors include saboteurs whose main function is to see to it that the culture of corruption with impunity continues until there is nothing left to steal.

It is vital to the survival of constitutional democracy under the rule of law in SA that steps be taken urgently to reinforce the independence of the NPA. The NPA itself is not in a fit state to take on serious corruption. A new body, properly resources and comprising trained specialists who have secure tenure of office that enables them to work with the necessary independence is the right reform. A political consensus to this effect is emerging.

Paul Hoffman SC is a director of Accountability Now.