Andy Mothibi's challenges as new NDPP: A call for reform

Newly appointed National Director of Public Prosecutions (NDPP) Advocate Andy Mothibi has a tough task ahead of him as he takes office on Monday, as he will be faced with a number of cases that hang over from the Zondo, Mpati, and Nugent Commissions.

This is according to Accountability Now Director Advocate Paul Hoffman SC, who added that Mothibi will now also face possible prosecutions stemming from the Madlanga Commission.

But, Hoffman said, it is not legal for the National Prosecuting Authority to take these cases because it is not “a body outside executive control” that the law requires.

“Mothibi would be well advised to decline to prosecute corruption cases because they fall outside of the remit of the NPA and all other criminal justice bodies currently in existence".

Hoffman is of the opinion that this will prompt long overdue and necessary reform that does comply with the binding Constitutional Court judgment in the Glenister case and the “STIRS” requirements.

This acronym stands for Specialised, trained, independent, resourced in guaranteed fashion, and secure in tenure of office.

Hoffman said we currently do not have an operational and structural framework that effectively deals with the fraudsters and the corrupt in our midst.

He pointed out that international law, domesticated by South Africa, obliges the country to set up and maintain anti-corruption machinery of state that is independent in its operations and structure.

He pointed out that the Constitutional Court in the Glenister case found that “our law demands a body outside the executive control to deal effectively with corruption.”

Hoffman said no actual body answering to the STIRS criteria exists in South Africa, thus the need for the Madlanga Commission and others before it.

He pointed to the fact that the Constitutional Court ordered Parliament to create such a body by September 2011. “Parliament has not done so in any way, shape, or form. Instead, we have Hawks investigating, the SIU raking back loot, and the AFU seizing, freezing, and securing forfeiture of stolen assets, and the NPA prosecuting serious corruption".

Hoffman stressed that these are not independent bodies, as ordered by the Constitutional Court in its 2011 judgment.

As Shamila Batohi steps out of office after her seven-year tenure and Mothibi takes over as the new leader, several high-profile cases, some which stem from State Capture allegations, remain in various stages of investigation or prosecution.

Several accused linked to the Gupta network continue to face prosecution, while he will also have to deal with corruption-related cases involving former Eskom executives and former Speaker of Parliament Nosiviwe Mapisa-Nqakula’s corruption charges.

While this is a lot to deal with, Mothibi’s first day in office is also expected to be marked by the serving of court papers challenging his appointment as the NDPP.

Law firm Barnabas Xulu & Partners Inc. indicated that it would serve Mothibi with its court challenge on Monday when he officially assumed the office of the NDPP.

In its court papers, Barnabas Xulu & Partners Inc. stated that the firm does not dispute Ramaphosa’s powers to appoint the NDPP in terms of the Constitution or impugn Mothibi’s suitability for the position.

“As per the founding affidavit, we persist with the allegation that the entire process of appointing the NDPP that culminated in the appointment of Advocate Mothibi is unlawful,” it said.

zelda.venter@inl.co.za