NDPP choice 'is crucial for SA', says Tony Leon
Leon was reacting to the Constitutional Court’s decision this week to declare the appointment of Shaun Abraham as national director of public prosecutions (NDPP) invalid.
He said it was worrying that the country had had six NDPPs in the past decade.
The latest is Dr Silas Ramaite, who Ramaphosa appointed soon after the ConCourt decision.
The court ruled Ramaphosa had 90 days to make a permanent appointment.
“It’s up to the president. If he wants to continue with business as usual, he won’t apply his mind,” said Leon.
Leon singled out Jacob Zuma and said his “machinations were exposed by the ConCourt judges when they handed their ruling this week.
The court declared that Zuma had “illegally” bought out Mxolisi Nxasana from the position with a “huge” R17million payout to walk, using public funds, and promoted Abrahams.
Justice Mbuyiseli Madlanga said Zuma’s actions created an “inescapable” inference, which only served to compromise the independence of the office of the NDPP.
“But he (Ramaphosa) needs to make a bold appointment,” Leon suggested.
“We are in desperate need of a good director. There is probably more than one suitable candidate available.”
For Leon, the obvious place to go would be to the General Council of the Bar of South Africa, which has senior advocates as members.
“Someone in the bar might consider it their national service to take up the position, that person must be an independent thinker, competent, fearless, and have a proven track record.”
Leon became concerned when Ramaphosa said he needed to “consult” before making his decision.
“Consulting with who? Ace (Magashule, the ANC’s secretary-general) or DD (David Mabuza, Ramaphosa’s deputy in the ANC and government) who already have corruption allegations hanging over their heads.
“DD might even ask to be made the head of the NPA,” was Leon’s sarcastic response.
Leon commended Ramaphosa for the work he had done to fight corruption and state capture thus far and said if he wanted to continue on that trajectory, the president must ensure that the NPA was well resourced.
“He should bring in some privately sourced advocates to assist with the workings of the NPA.
“In that way, the NPA itself would be able to tackle state capture and other issues. Then we wouldn’t have to set-up things like the Zondo Commission, which costs a fortune and is taking so long to get off the ground,” Leon reasoned.
The Zondo Commission is a judicial commission of inquiry that was set-up by Zuma in 2017 to probe issues of state capture and will be headed by Deputy Chief Justice Raymond Zondo.
Leon was not in favour of Parliament having a hand in directing Ramaphosa when choosing the next NDPP. He agreed it would be more prudent to engage with a body of independent people when making appointments like the NDPP, the Sars and the SAPS commissioners, heads of state owned enterprises and other institutions.
He said if the Constitution needed to be tweaked to accommodate an appointments vetting body, it should be done.
“An extra day of scrutiny would do no harm.
“ If not, we depend entirely on the integrity of the president. If you had Nelson Mandela or even Ramaphosa, I would say yes to their appointments.
“But what if Ramaphosa had an heart attack and you have DD Mabuza replacing him and making appointments without anyone objecting. Therefore, all those appointments need a degree of checks and balances.’’
Legal and political commentator Lawson Naidoo, who is also the executive secretary of the Council for the Advancement of the South African Constitution (Casac) agreed with Leon.
“We have been calling for a change in the method of appointing the NDPP for a long time because it doesn’t make sense for the head of the executive to appoint the head of an independent body like the NPA.
“It’s a concern that the president has sole discretion in appointing the NDPP. But we take heart from Ramaphosa’s state of the nation address where he said it would be a priority to address the NPA’s leadership issues,” said Naidoo.
Constitutional law expert and political analyst Professor Shadrack Gutto said there was nothing wrong with the president making the appointment, but it should be done along the lines of how the public protector is appointed, after recommendations from the National Assembly.
Gutto said the appointment process must include proper nominations, transparent interview sessions and the president should make the final decision.
“At the moment, the process of the president simply deciding is wrong,” said Gutto.