With the clock ticking towards the January 2026 retirement of National Director of Public Prosecutions (NDPP) Shamila Batohi, the country has an important opportunity to reinvigorate the National Prosecuting Authority (NPA).

If we are serious about restoring the rule of law, prosecuting state capture, and ending the impunity of the politically powerful, then the NPA must be re-energised, and fast. In a recently released report, the Centre for Development and Enterprise (CDE) has laid out a bold plan that would enable a new broom to sweep the NPA clean.

At the heart of the proposal lie two major recommendations: the introduction of a transparent, independent process to appoint the next NDPP; and the urgent establishment, by the president, of an inquiry led by a retired senior judge into the performance and structure of the NPA.

Dysfunction at the top

The NPA is the constitutional bulwark against corruption, criminality, and abuse of power. Yet for years its capacity has been eroded by political interference, poor prosecutorial appointments, and weak leadership. Not a single NDPP has served a full term since the NPA’s founding in 1998. That is a stark indicator of dysfunction at the top.

Shamila Batohi’s tenure has brought some stability. However, even she has recently acknowledged that the NPA is “not out of the woods yet”, after the ravages of the state capture era, and that “there’s still a lot of work to do”. Her admission – that the prosecuting authority has failed to prosecute major state capture cases involving senior politicians despite making strides with overall crime convictions – underscores how deep the institutional rot goes.

Deep-seated problems

The problems are deep-seated and ongoing. Investigative reports – ranging from the Zondo Commission to detailed journalistic exposés on Prasa, Transnet and Eskom – have laid bare the extent of corruption in South Africa. But thanks to the NPA’s slow and erratic attempts at prosecution, many high-profile cases are still languishing. Some have been bungled.

The recent decision by the Free State High Court to withdraw charges against Moroadi Cholota, the former assistant to erstwhile ANC secretary-general and state capture accused Ace Magashule, underscores the seriousness of the crisis.

The NPA’s failure to issue indictments, initiate prosecutions or win cases emboldens criminals, erodes public confidence, and undermines the rule of law. The prosecuting authority must do better, and that requires new leadership in January 2026.

The president urgently needs to reform the process for selecting the next NDPP, drawing lessons from the appointment of the South African Revenue Service (SARS) Commissioner in 2019. That appointment process was based on a model proposed by the Commission of Inquiry into Tax Administration and Governance by SARS. The SARS inquiry was headed by a retired senior judge, and it made various recommendations to remedy serious governance abuses that had taken place at the revenue service during the state capture era.

he reformed appointment process involved a high-level, non-partisan panel and engendered broad public trust. It resulted in the appointment of Edward Kieswetter, whose leadership has revitalised SARS.

This model works. It’s time to apply it to the NPA.

Currently, the NPA Act allows the president to appoint the NDPP and other top prosecutors with minimal oversight. This lack of transparency has repeatedly led to poor, politically motivated appointments. President Jacob Zuma’s disastrous picks – Menzi Simelane and Shaun Abrahams – were both removed by the Constitutional Court for being unfit for office.

Two-stage appointment

We cannot afford a repeat. The new NDPP must not only be a skilled legal professional, but an experienced manager of unimpeachable integrity. The selection process should reflect this.

A two-stage appointment process is proposed.

The president should identify candidates for the position of NDPP based on clear public criteria, including suitable legal qualifications, managerial experience at a high level, prosecutorial expertise, and commitment to the independence of the NPA and its constitutional functions. In addition, the candidate should not be answerable to any constituency, or if so aligned, should be willing to renounce that alliance upon appointment

Next, an independent selection panel of six to eight individuals whose stature and qualifications for appointment will ensure widespread public confidence (retired judge, legal professionals, civil society representative, business leader, former senior public servant) would interview candidates.

While the composition of the panel, the criteria it is meant to apply, the names of the candidates and the reasoned outcome of the process are public, the interviews and deliberations of the panel should not be.

Interviews conducted in front of television cameras often produce poor results. Good candidates are dissuaded from applying; interviews are often more superficial; and the spectacle of public entertainment and point scoring often prevails over serious engagement. The experience of the Judicial Services Commission provides a cautionary example.

The appointment of the next NDPP must be announced by December, to allow the successful candidate time to prepare before taking over in January 2026.

New leadership needed

We would caution against extending Batohi’s term, even though this is legally permissible. The NPA needs new leadership. Extending the current NDPP’s term would represent a missed opportunity.

The next head of the NPA will only be able to turn the organisation around if they know what they are up against. That is why the CDE is also calling for a parallel initiative. The president should appoint an urgent inquiry into the performance and internal functioning of the NPA, led by a senior retired judge.

This inquiry – modelled on the SARS governance inquiry – should be completed by the end of 2025 and deliver actionable recommendations on how to improve overall leadership, performance, structure, and institutional independence.

With such a “roadmap”, the new NDPP will have an independent assessment of what is going wrong and will be empowered to take speedy action.

The inquiry’s interim report, alongside the outgoing NDPP’s response, should be submitted to the president and minister of justice with the final report completed by December. Its findings should be tabled in Parliament within eight weeks – and where recommendations are not adopted, reasons should be provided transparently.

The appointment of the next NDPP is about more than putting a competent person in a job. Good leadership matters because it can improve institutional culture, boost morale, attract talent, and enhance accountability. We have seen this effect at SARS. There is every reason to believe the same can happen at the NPA if the right leader is appointed through the right process.

Conversely, a poor or politically compromised appointment will further damage the NPA’s credibility. It will demoralise staff, delay justice, and undermine the fight against corruption. That risk is too great to ignore.

The establishment of a high-calibre, independent panel to interview and recommend the appointment of the next NDPP would be an important innovation. However, the new NDPP should inherit not just a job, but a clear mandate based on evidence and a commitment to reform. That is why we urgently need an inquiry, headed by a senior retired judge, into the NPA’s performance, with accompanying recommendations on how institutional performance can be significantly improved.

The actions we are proposing will strengthen the NPA. They will also send a strong message to the country and beyond our borders that the President and the GNU are committed to fighting corruption and restoring the rule of law.

– Ann Bernstein is head of the Centre for Development and Enterprise. This article is based on a new CDE report, “Appointing the next head of the NPA: Mission critical for the rule of law”.

This article was published on News24