New legislation needed to invigorate the National Prosecuting Authority

The term of office of the National Director of Public Prosecutions (NDPP), Shamila Batohi, comes to an end in 18 months. In October, she revealed that she hoped to leave behind a changed legislative framework, tacitly suggesting her record has been legislatively constrained.

Is this true, and what needs to change, given that the National Prosecuting Authority (NPA) Act was recently amended?

The NPA Amendment Bill passed just before the 2024 election made the NPA’s Investigating Directorate permanent; however, more needs to be done so that the NPA is better able to prosecute “without fear, favour or prejudice”, as required by section 179(4) of the Constitution.

Primary among the shortcomings of the NPA Act is the lack of financial independence for the NPA as an institution. Every civil society organisation making a submission to Parliament on the previous amendment Bill made this point.

Not only is the NPA a programme of the Department of Justice, so that the director-general of justice holds its purse strings, but whenever the hiring of outside expertise is needed, section 38 requires the concurrence, on a case-by-case basis, of the minister.

Current events are, however, pointing to other shortcomings of the legislation in the appointment and tenure of senior members of the NPA, in particular of the directors of public prosecutions (DPPs), who make decisions about whether to prosecute in their jurisdictions.

Controversial Kodwa prosecution withdrawal

Most controversial are DPP decisions not to prosecute. On 1 November 2024, it was announced that South Gauteng DPP Andrew Chauke had withdrawn the prosecution emanating from the Zondo commission of former minister Zizi Kodwa and former EOH executive Jehan Mackay, despite evidence that Kodwa had received large sums of money from Mackay.

Chauke’s decision to drop the charges may be seen as a direct challenge to Batohi: at the request of the Hawks, she has agreed to review Chauke’s decision to withdraw the case. The “reasons” publicly given by Chauke were vague in the extreme, and he did not face the media himself when the decision was announced.

The situation illustrates that DPPs are in some ways more significant than the NDPP at head office because they are responsible for their jurisdictions on a day-to-day basis. While the NDPP does have the power to overrule a prosecutorial decision of a DPP, this is on limited grounds and must be formally undertaken – the NDPP does not routinely review the decisions of DPPs, so unless a DPP’s decision to drop a case is brought to her attention, it will not be reviewed.

The importance of DPPs is underscored in that President Cyril Ramaphosa controversially declined to confirm the appointment of several DPPs that Jacob Zuma had made in the last few days of his presidency.

To appoint a DPP, the NPA Act does not require the president to undertake any public selection process. The public process adopted in 2018 for Batohi’s appointment is also not required by law and was adopted by Ramaphosa in an attempt to ensure greater public confidence in his appointment. This leaves these appointments almost entirely in the hands of the president “after consulting the Minister of Justice and the NDPP” – their consensus is not required.

Problematic DPPs

Institutionally, one would hope that important prosecutors with questionable records would have been removed by now. This has proven not to be so easy. In terms of the NPA Act, the NDPP cannot remove a DPP, but can only recommend such a removal to the president; it is the president who must remove, and only on the grounds of misconduct, ill-health, incapacity, or of the DPP no longer being a fit and proper person.

Protracted disciplinary proceedings also apply below the level of DPP. For example, Chauke’s wife, Pumeza Futshane, chief prosecutor in the magistrates’ courts in Johannesburg, had irrationally reassigned experienced sexual offences prosecutors to the maintenance court in 2015, inserted irregularities in court data for 2016 and 2017, and made racist utterances in writing on a WhatsApp group in 2019. But Futshane was suspended only in April 2021, and her disciplinary hearing finalised only a year later, after which she was dismissed.

Former Acting DPP in Mpumalanga, Matric Luphondo (also an NDPP candidate in 2018), was also dismissed via a disciplinary hearing as he had not yet been appointed as DPP. Luphondo was on paid suspension from 7 April 2021, being charged with gross misconduct, in this case, bribery and corruption. He was eventually dismissed only in August 2024, and his criminal trial continues. Had he actually been appointed as DPP, his dismissal would have had to go to the president.

North West DPP Moipone Noko tendered her resignation in February 2021, a day after she was informed that she would be facing an inquiry. A panel headed by Deputy NDPP Rodney de Kock reportedly concluded in 2019 that she and others had manipulated charges while she served as KwaZulu-Natal DPP, after which she was moved to North West; the inquiry relates to these 2019 findings which included the then withdrawal of charges against Toshan Panday, who is now facing tax fraud charges under a different KZN DPP.

Term of office

There is no fixed term of office for a DPP, who serves until the age of 65. While originally intended as a security-of-tenure measure to enhance independence, this “lifetime tenure” provision has in practice proven to work in favour of questionable appointments and tends to lead to a stagnant and moribund NPA.

Chauke was appointed Director of Public Prosecutions for the South Gauteng Division by then acting president Kgalema Motlanthe in 2011.

Infamously, Chauke’s name, as well as that of Nomgcobo Jiba (fired by Ramaphosa in 2019 after the Mokgoro inquiry) and “that woman down in Natal” (a reference to Moipono Noko) were all mentioned in the 2015 recording tendered at the Zondo Commission by Angelo Aggrizi of former Bosasa CEO Gavin Watson talking about the possibilities for the appointment of a compliant NDPP by Zuma.

Chauke’s term of office has already exceeded the 10 years which applies to an NDPP, but not to a DPP. In many democracies, regional DPPs or attorneys-general serve a term of only five, seven or 10 years. In August 2023, the NDPP initiated the process of removal of DPP Chauke by writing to the president; more than a year has passed but no action has been taken. In the NDPP’s letter were various allegations regarding questionable decisions and delays occasioned by Chauke’s decisions; Chauke has argued strongly against them.

Under Chauke’s watch, prosecutions in South Gauteng – especially those of the Specialised Commercial Crime Unit – have all but collapsed, from 183 prosecutions instituted in 2019/20 to only 60 instituted in 2022/23, and a commensurate drop in convictions, from 167 to 46.

In the latest NPA (2023/24) Annual Report, the data for complex commercial crime for Chauke’s division is missing.  Poor performance is not among the reasons for the removal of a DPP; however, had a 10-year term applied, Chauke would no longer be leading the division.

It seems obvious that the NPA Act must be amended to:

1. Require a public consultation process in respect of all senior appointments; and


2. Reduce the term of all senior appointments to 10 years, or some other fixed term.

Serving until the age of 65 was originally introduced in the NPA Act to get rid of ageing apartheid prosecutors; little thought was given to the fact that a young but questionable DPP might serve for decades, nor that someone who has reached the age of 65 might be at the peak of their legal skills. A fixed term seems appropriate, particularly if it overlaps unevenly with the political terms of a president.

Former Minister of Justice Ronald Lamola promised at the time of the passing of the NPA Amendment Bill before the election that more extensive amendments to the NPA Act would be tabled in 2025. It is unclear where the new minister stands on the issue. Certainly, the NPA needs a new legislative framework. The current legislation clearly does not ensure that it acts “without fear, favour or prejudice”.  While financial independence is needed, so too are better appointment and tenure provisions. DM

Dr Jean Redpath is senior researcher at the Dullah Omar Institute, University of the Western Cape.