In its second report on the National Prosecuting Authority (NPA) (see here), the Centre for Development and Enterprise (CDE) has called on President Ramaphosa to ensure the appointment process for the upcoming replacement of the National Director of Public Prosecutions is akin to that of the 2019 Nugent commission into SARS; and to appoint a retired judge to undertake an urgent inquiry into the structure, integrity and performance of the NPA.

The current NDPP, Shamila Batohi, will be required to vacate her office in January 2026 upon reaching the age of 65.

“Without the right appointment process, and an urgent inquiry into the NPA by a retired judge, the country risks repeating past mistakes and missing a chance to strengthen a vital institution to restore the rule of law,” said Ann Bernstein, executive director of CDE.

“An optimal selection and appointment process needs to be put in place speedily, overseen by an independent and widely respected panel,” she added.

Recently, Batohi admitted that while the NPA had made progress in some areas, it had failed to successfully prosecute any major state capture cases involving politicians. She acknowledged that the authority was still recovering from the destructive effects of the state capture era, saying: “We’re not out of the woods yet and there’s still a lot of work to do.”

This echoed CDE’s 2024 report, ACTION FIVE: Energise the NPA (see here), which stated:

“The NPA has failed to institute and successfully prosecute a significant number of the major cases of corruption long identified in the forensic reports into PRASA, Transnet and Eskom, in the reports of the Zondo Commission, and in numerous journalistic investigations.”

Since the NPA was established in 1998, no NDPP has served a full ten-year term. There have been nine National Directors over 27 years — three in an acting capacity — with several appointments declared invalid by the courts due to presidential misconduct or flawed processes.

“The NPA was captured and has yet to fully recover and rebuild an effective national organisation,” said Bernstein. “Getting the wrong people at the top has long-term consequences for the institution and the country.”

The process adopted in 2018 (which led to the appointment of Ms Batohi) was more consultative than before, with public interviews of potential candidates.

President Ramaphosa has long recognised the need for an appropriate amendment to the NPA Act but, so far, no progress has been made. In 2022, he responded to the recommendations of the Zondo Commission as follows:

[T]o address concerns with respect to the independence of the NPA, legislative amendments will be introduced to ensure greater transparency and consultation in the process for selection and appointment of the National Director of Public Prosecutions, drawing on the process adopted for the selection of the current NDPP [Shamila Batohi].

CDE urges President Ramaphosa to build on the process instituted in 2018, although it should be less reliant on the input of constituency nominations and representatives of legal bodies in developing the list of possible candidates.

The NPA Act sets a far lower bar for appointing the NDPP than the qualifications required for roles such as the Public Protector or Auditor General. The NPA Act requires only that the candidate be “a fit and proper person” with legal qualifications to practise in all courts of the Republic.

CDE is therefore proposing that it should be made clear in this 2025 process that candidates should be leaders who have unblemished integrity, legal qualifications to appear in all courts, proven experience managing a large organisation, and a clear commitment to the NPA’s independence.

“CDE recommends a new appointment model inspired by the 2019 SARS commissioner selection process. This would involve the President selecting one or more candidates who would then be interviewed by a high-level, independent and widely respected panel,” said Bernstein.

“What is equally if not more important is an additional phase in the appointment process — a deep dive by a selection panel of unaligned individuals of high standing, able to inspire confidence across society. This panel should interview the potential candidates in private — away from the glare of television cameras — and then deliberate carefully on the basis of clearly defined criteria before making their recommendations to the President,” said Bernstein.

The panel should include a judge or retired judge, senior counsel or attorney, a reputable former NDPP or senior prosecutor, a civil society leader, a captain of industry, and a former director-general of a successful national department. The NDPP is a managerial position as much as it is a legal position, and for that reason, there should also be people on the selection panel who understand management.

According to Bernstein: “While the composition of the panel, the criteria it applies, the candidates’ names and the reasoned outcome of the process should be public, the actual interviews and deliberations should not be. Public interviews often produce poor results: good candidates are dissuaded from applying, discussions become superficial, and media spectacle replaces serious engagement. The Judicial Service Commission provides a cautionary example.”

“The panel must make motivated recommendations to the President on the suitability or otherwise of the candidate or candidates,” said Bernstein. “Upon appointment of a candidate, the motivated recommendations made to the President by the panel – whether for or against the appointment of a particular candidate – should be made public.”

The NPA Act allows the President to extend the term of office of the current NDPP by two years after retirement age is reached.  “In our view, this option should not be considered by the President in this case. The NPA requires new leadership,” said Bernstein.

“The appointment of a new NDPP should be seen as an opportunity to inject fresh leadership into this vital institution,” said Bernstein. “The NPA must be strengthened and its ability to successfully prosecute state capture and corruption cases considerably enhanced.”

“In this regard, CDE’s second urgent proposal is of great importance,” she added.

Bernstein reiterated CDE’s call for an urgent inquiry into the performance of the NPA, headed by a retired senior judge. The goal of the inquiry would be to identify the specific causes of the NPA’s underperformance with regard to successfully prosecuting major cases of state capture and corruption. The inquiry should assess the NPA’s performance, structure, independence and overall leadership.

The comprehensive report flowing from such an inquiry, containing appropriate recommendations for remedial action, will provide the incoming NDPP with a ‘roadmap’.  Just as the report of the Commission of Inquiry into Tax Administration and Governance by SARS (the Nugent Commission) served as a lodestar for the new SARS commissioner appointed in 2019.

“Without an effective NPA, the prospect of turning the tide against corruption and crime is almost impossible,” Bernstein warned.

“Fixing the NPA is essential to building a capable state and growing the economy. Appointing the best possible candidate to lead the NPA, coupled with a report into what prevents it from dealing successfully with major corruption cases, requires urgent action by the President now,” she concluded.

For media enquiries and interview requests, please contact Refiloe Benjamin: media@cde.org.za | 011 482 5140

ABOUT AGENDA 2024: PRIORITIES FOR A NEW GOVERNMENT
AGENDA 2024, based on CDE’s extensive policy work and recent consultations with experts, business leaders, former public servants and academics, sets out to answer what is by far the most important question facing South Africa: what can a new government do to get the country back on track after 15 years of stagnation and decline?

Agenda 2024 sets out a series of carefully selected and crafted actions to signal a new approach to reform. The priority areas for action are: fix the state; drive growth and development by freeing up markets and competition; build a new approach to mass inclusion; deal with the fiscal crisis; and strengthen the rule of law. Previous reports in the series can be accessed here.

ABOUT THE CENTRE FOR DEVELOPMENT AND ENTERPRISE
CDE is an independent policy research and advocacy organisation. It is South Africa’s leading development think tank, focusing on critical development issues and their relationship to economic growth and democratic consolidation. Through examining South African realities and international experience, coupled with high-level forums, workshops and roundtables, CDE formulates practical policy proposals outlining ways in which South Africa can tackle major social and economic challenges.