Will the new NPA boss stand up?

2013-06-30 14:00

Adriaan Basson has some suggestions for President Jacob Zuma

The National Prosecuting Authority (NPA) is in desperate need of a permanent head since the former National Director of Public Prosecutions (NDPP), Advocate Menzi Simelane, was placed on special leave in December 2011.

This was after the Supreme Court of Appeal (SCA) held that President Jacob Zuma and Justice Minister Jeff Radebe did not properly assess Simelane’s fitness for the position before they appointed him.

Zuma appointed Advocate Nomgcobo Jiba, a deputy NPA head, as acting national director after Simelane and Radebe took the SCA’s decision on appeal to the Constitutional Court.

In October last year, the Constitutional Court turned down Simelane’s appeal and confirmed the SCA’s ruling that his appointment was irregular.

Since then, Zuma has failed to appoint a permanent head of the NPA – a crucial state institution in the government’s fight against crime and corruption.

A broken NPA means a broken justice system. By all accounts, the NPA is in a state of despair. Morale is low and the institution is practically bankrupt.

All vacant posts have been frozen, travel budgets have been shredded and the aspirant prosecutors programme canned.

On the side, Jiba has been fighting fires over her stubbornness to pursue disciplinary charges against top anti-corruption prosecutor Glynnis Breytenbach.

Although seen as a “no-nonsense person to the point of being brusque”, as a colleague once referred to her in court papers, Breytenbach is well-loved and respected in the NPA. Her case has become symbolic of all that is wrong in the prosecuting authority.

Politics triumphed over professionalism and it will take a strong, determined person to fix the once-proud institution.

Jiba, who is linked to Zuma through a set of spy tapes used by both to get out of their disciplinary and criminal cases, respectively, is seen as close to the president.

Zuma even expunged the criminal record of her lawyer husband, who was jailed for dipping into trust funds.

With the possibility that corruption charges may still be reinstated against Zuma, he would prefer to have someone in charge of the NPA that he can trust not to charge him.

This should, of course, not be a prerequisite to becoming the national director in charge of public prosecution.

So why is Zuma not appointing a permanent head to the NPA?

The predominant view is that he cannot appoint Jiba because of her background (she was previously suspended from the NPA and reinstated without the conclusion of her disciplinary hearing).

If Zuma wanted to appoint Jiba, he would have done it by now.

Then there are his overtures to Magistrate Stanley Gumede of Pinetown.

Zuma’s legal adviser and lawyer, Michael Hulley, allegedly discussed the job with Gumede, but Zuma got second thoughts when it emerged misconduct charges against the magistrate were currently pending before the Magistrates’ Commission.

Zuma, City Press was told, also considered two other advocates for the position, but was advised against appointing them.

So the president is back to square one.

Zuma shouldn’t struggle to find the perfect NDPP on our legal shores.

South Africa has plenty of brilliant lawyers who fit the bill of what an NDPP should look like.

Legally, the successful candidate is required to possess a legal degree and be a “fit and proper person, with due regard to his or her experience, conscientiousness and integrity, to be entrusted with the responsibilities of the office concerned”.

In its judgment on the Simelane matter, the SCA remarked that the NDPP should have qualities similar to those required of judges.

The head of the NPA should be a suitable person “of high standing and good character”. Add to that a fine manager with a thick skin, a strong chin and broad shoulders, and you have the perfect candidate.

Above are six people we think would suit the bill and run the NPA without fear, favour or prejudice.

THULI MADONSELA

Although her term only ends in 2016, the Public Protector should be at the top of Zuma’s mind to appoint as the person at the helm of the prosecuting body.

During her four years in office, Madonsela has turned around the output and image of the Public Protector.

She has shown absolute fearlessness and dedication in pursuing politically sensitive cases.

The soft-spoken but tough and?uncompromising Madonsela has also shown no hesitancy in investigating complaints by “normal” citizens about not receiving pensions or grants.

Madonsela understands the state machinery and will be fierce in prosecuting criminals, while also balancing the books.

VINCENT MALEKA

Advocate Maleka is one of the country’s brightest legal minds and recently co-founded the Thulamela Chambers in Sandton.

Last month, Maleka acted for the NPA and Justice Minister Jeff Radebe in the Constitutional Court hearing regarding the criminalisation of consensual sex between children.

He has acted in several high-profile matters, including the Bheki Cele inquiry, the Richard Mdluli interdict application and for former SABC CEO Dali Mpofu, and will bring gravitas to the NPA.

Maleka is regarded by his peers as a brilliant lawyer and served on two Nelson Mandela-appointed commissions of inquiry.

NORMAN ARENDSE

Aseasoned and respected lawyer, Arendse will be a solid and welcome appointment to the prosecuting authority.

Arendse started his legal career under former justice minister Dullah Omar at his legal practice in Cape Town and joined the Legal Resources Centre in 1985.

He joined the Cape Bar in 1989 and has been either the chair or a member of several government commissions of inquiry over the years, including the Truth and Reconciliation Commission as the country transitioned to democracy.

A former chairperson of the General Council of the Bar, Arendse is an independent director of Cricket SA, the country’s cricket governing body.

WIM TRENGOVE

If not having acted against President Zuma is a condition for appointment as national director of public prosecutions, Trengove is definitely out of the running.

But if the president is looking for someone with years of relevant experience in criminal law and an intimate knowledge of how the NPA operates, Trengove is the man that fits the position.

Having recently acted for Glynnis Breytenbach in her disciplinary hearing, and for former NPA head Vusi Pikoli during his protracted inquiry, Trengove knows where the NPA is weak and is the ultimate professional to restore confidence in the institution.

But the numerous times he acted for the NPA in Zuma’s corruption trial and his public condemnation of the NPA’s decision to drop charges against Zuma would probably disqualify him for the job.

NERINE KAHN

As director of the Commission for Conciliation, Mediation and Arbitration (CCMA) for the past seven years, Kahn has excelled in running a tight, effective ship.

The CCMA is the biggest dispute-resolution body in the world and receives 150?000 cases annually.

Labour disputes are messy and hostile, but under her, the CCMA has gained immense credibility and stature.

If Zuma is not looking for someone with years of prosecutorial experience, but rather for a lawyer-manager with proven abilities to effectively manage a complex operation, Kahn is the perfect choice.

NICOLE FRITZ

Fritz is the director of the Southern African Litigation Centre and is always ready for a worthy fight.

In 2008, she was at the forefront of the centre’s successful efforts to prevent an arms-laden Chinese ship from docking on South African shores.

The ship was stocked with weapons destined to be delivered to Zimbabwe for use by the Robert Mugabe regime.

She is a legal eagle with numerous awards and scholarships to her name.

An expert in human rights, constitutional law and international criminal justice, Fritz will bring interesting new perspectives to an organisation in need of change.

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