The legal conundrum at the heart of any probe into Justice Minister Thembi Simelane

Minister of Justice Thembi Simelane finds herself in a difficult situation where there is suspicion that she may have misused her position as mayor of Polokwane to obtain a loan from the agent who was brokering loans for that municipality with VBS Bank. The bank itself is now the subject of an investigation.

The purpose of this piece is not to assess the merits of the allegations against the minister, nor the minister’s responses to date. Rather, we want to use the opportunity to draw attention to a particular provision in the National Prosecuting Authority Act.

The case at hand points to a structural vulnerability in the legislation. The issue was raised with the Parliamentary Portfolio Committee on Justice when the National Prosecuting Authority Amendment Bill was under consideration in 2023. The committee, however, did not respond to the issues raised.

The provision of concern in the act is to be found in section 38 under the heading, “Engagement of persons to perform services in specific cases”.

For the purposes here, it is important to cite the first subsection of the provision in full:

“The National Director may in consultation with the Minister, and a Deputy National Director or a Director may, in consultation with the Minister and the National Director, on behalf of the State, engage, under agreements in writing, persons having suitable qualifications and experience to perform services in specific cases.”

The purpose of the provision is to enable the contracting-in of specialist skills to, for example, investigate a particular matter or even conduct a prosecution.

There is in essence no problem with this purpose since the National Prosecuting Authority (NPA) may come across cases that it does not have the required skills or experience to investigate and/or prosecute.

Consequently, it may then draw upon skills and expertise from outside the NPA, including in the private sector or elsewhere.

The problematic aspect of the provision lies in the very first part where it reads: “The National Director may in consultation with the Minister”...

The requirement “may in consultation with the Minister” means that the national director of public prosecutions (NDPP) – or a deputy NDPP – requires the concurrence of the minister of justice to engage such specialised services. The terms and conditions for contracting such skills are furthermore determined by the minister, with the concurrence of the minister of finance.

This requirement is to some extent qualified in the subsequent subsection where this consultation with the minister is not required if there are no financial implications for contracting the skills.

It should be kept in mind that the accounting officer of the NPA is not the NDPP or the CEO, but the director-general of the Department of Justice and Constitutional Development, since the NPA is a programme in the Department of Justice’s budget.

Practically speaking, one can then foresee a scenario where the NDPP will approach the minister with a request to engage one or more specialists in pursuit of an investigation and prosecution, and with that request would come a budget of estimated costs.

Assuming that the minister agrees with the purpose and motivation, the minister would then engage the director-general of justice to see where funding can be found to secure the specialist skills. Assuming further that funds were found, the NDPP can proceed to engage the persons holding specialist knowledge.

It is very likely that section 38 is unfunded or that it competes with other needs, such as consultants. It should be noted that even with the best of intentions, the minister may take a considerable amount of time to decide on and secure the necessary funding.

The above is an ideal scenario and let us assume it was with these noble intentions that the drafters formulated the legislation.

A different scenario could be something along the following lines: preliminary investigations found that a criminal syndicate is suspected of a complex set of financial crimes extending deep into various government departments as well as private companies.

The investigations also point in the direction of the minister and his or her family, although further investigation is required to confirm this. The NDPP, being independently minded, is keen to investigate and hopefully prosecute this high-level case.

The NDPP makes an estimate of potential costs and establishes there will be significant financial implications that the NPA budget is not able to support.

The NDPP is now in the unenviable position where he or she must approach the minister, who may be a suspect, to ask for funding to investigate with a view to prosecute the crimes in which the minister and the minister’s family are implicated.

It is unlikely that the minister would support the case or approach the director-general for funding. The minister is more likely to delay a decision, de-prioritise funding, allocate too little funding, or institute any other measures that could delay if not paralyse the NDPP’s efforts.

From this position, there is very little that the NDPP can do. The case may of course find its way to another structure; perhaps the Special Investigating Unit or Public Protector, but the fact remains that the ability of the prosecution to execute its constitutionally mandated function – namely, to prosecute on behalf of the state – was blocked by a minister implicated in criminal conduct.

One may argue that this is a highly unlikely scenario, if not impossible, and that the provisions of section 38 are therefore sound.

However, events of the past 20 years have demonstrated that unlikely scenarios are not always altogether unlikely. DM

Dr Lukas Muntingh and Dr Jean Redpath are senior researchers at the Dullah Omar Institute at the University of the Western Cape.