The good, the bad and the ugly of the NDPP shortlist

2018-11-11 07:02
Adv. Glynnis Breytenbach. (File, Netwerk24)

Adv. Glynnis Breytenbach. (File, Netwerk24)

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A panel assisting President Cyril Ramaphosa with appointing a new National Director of Public Prosecutions (NDPP) has published a shortlist of candidates for the job. They’ll be vetted and interviewed and three names will be given to the president who will then decide on who will lead the National Prosecuting Authority (NPA). 

Mandy Wiener takes a look at the good, the bad and the ugly of the shortlist.

Adv Shamila Batohi

Shamila Batohi has been a senior legal advisor to the prosecutor at the International Criminal Court since 2009. Prior to that, she was Director of Public Prosecutions (DPP) in KwaZulu-Natal. She achieved notoriety when she famously led the prosecution of disgraced Proteas cricket captain Hansie Cronje at the King Commission. 

In 1995, Batohi was part of a multi-disciplinary team mandated by then-president Nelson Mandela to investigate hit squad activities in the police during the apartheid years. 

Batohi has an illustrious pedigree, barring a minor blight. There was a minor controversy around her when a R1250 speeding fine was withdrawn against her when she was the KZN DPP, although this was attributed to an administrative error. 

She has sufficient knowledge of the inner workings of the NPA but her stint abroad means she would be coming into the job untainted by the last decade or so of internal politics that has ripped the organisation apart. 

Adv Rodney De Kock

Advocates who have worked with Western Cape DPP Rodney de Kock describe him as "fair-minded" and "independent". While he’s lauded as a very capable manager, he is not known for his litigation skills and is said to rely heavily on Zuma prosecutor Adv Billy Downer for guidance in complex legal matters. Having said that, he is very experienced in the role of DPP as he’s been in his office for nearly fifteen years. 

It was De Kock who negotiated the plea bargains with the killers in the high profile Dewani case and he also drove the extradition of the Honeymoon murder accused. 

De Kock is not seen as a firebrand or particularly dynamic but he is well regarded by his underlings. Crucially, he is viewed as "incorruptible" and it is thought that he is a real contender for the top job. 

Adv Andrea Johnson

Andrea Johnson is a petite, fiery prosecutor, one who is regarded by her colleagues as highly principled. She says it like it is, but will always ensure her actions are proper and that she is "doing the right thing". Johnson, who was schooled in the small KwaZulu-Natal town of Scottburgh, was fast-tracked through the echelons of the civil service. 

Her first job was prosecuting in Alberton before she did a short stint in the district courts where she was the first junior advocate to secure a life sentence at the time. She became a senior state advocate in the late 1990s, and in 1999 was amongst the first batch of prosecutors assigned to the Scorpions special unit. 

Johnson has worked closely with former prosecutor Gerrie Nel on several high profile cases and was mentored by him. She was part of the team who successfully convicted former national police commissioner Jackie Selebi of corruption in 2010. She was also Nel’s junior in the prosecution of Oscar Pistorius. After Nel left to head up AfriForum’s private prosecutions unit, Johnson led the NPA’s team against Pistorius in the Supreme Court of Appeal (SCA). 

Adv Matric Luphondo

Matric Luphondo has been the chief prosecutor in Pretoria for well over a decade. He is held in high esteem by his colleagues in the capital city and has avoided controversy while in the job. He is considered a solid candidate for the job of NDPP. 

If you’re looking for a defining moment in Luphondo’s career, cast your mind back to 2008 when Gerrie Nel was arrested on trumped up charges at his house and hauled before court. It was the height of the vicious battle between the SAPS and the Scorpions and Nel was leading the investigation into Selebi. 

It was early in January and most court officials were still on leave. It had been a confusing day of scuttling between courts and finally, after 16:00, when business was closed for the day, Nel was about to appear in the Magistrate’s Court. Only, there was no prosecutor. Luphondo arrived to the rescue in shorts and flip flops and took on a case he knew nothing about. He also had the foresight under pressure to see that it was a nonsense stitch-up and he declined to prosecute Nel, releasing him from custody. His colleagues point to that decision as an indication of his integrity. 

Adv Matodzi Makhari

Very little is known about Matodzi Makhari, except that she is an attorney. She’s also not to be confused with the more high profile senior counsel William Mokhari. (If you know more about her, let us know!) 

Adv Naomi Manaka

Naomi Manaka is an advocate at Maisels chambers in Sandton, where she has worked alongside some of the best criminal silks in the country. Manaka did her pupillage with Adv Gcina Malindi SC. Her colleagues describe her as very fair and capable. "She could be a character out of Suits or The Good Wife," one quipped. 

Manaka spent many years as a regional court magistrate and knows the workings of the justice system inside out, having gained first-hand experience. She was the presiding magistrate in the Benedict Vilakazi rape trial. She also did a stint as an acting judge in Johannesburg. Manaka definitely mixes it up in the big leagues, having taken briefs from various government departments, the ANC and former Gauteng Hawks boss Shadrack Sibiya. 

Adv Siyabulela Mapoma

Siyabulela Mapoma, also known as 'Saaks' has experience across the legal board, having done stints as a prosecutor, a magistrate, at the Bar and in the corporate sector. 

Mapoma is currently an advocate at the Bhisho Bar, practicing in East London and Mthatha. He was also a member for a time at the Maisels group in Johannesburg. He was admitted to the Bar in 2012, after leaving the NPA where worked under Glynnis Breytenbach. 
Mapoma has an LLB from the University of Transkei and an LLM from UNISA. He was a public prosecutor in Mthatha, Butterworth and Elliotdale before becoming a magistrate at the Elliotdale Magistrate’s Court. 

He then went on to become a senior state advocate at the Specialised Commercial Crimes Court in Pretoria. He was a deputy director of public prosecutions at the Scorpions and the regional head of the Scorpions in the Eastern Cape. 

After leaving the NPA, Mapoma got a job as the general manager for legal services at Transnet. 

Mapoma is a dark horse but has the credentials for the job of NDPP. 

Adv Simphiwe Mlotshwa

While temporarily filling the role of acting DPP for KwaZulu-Natal after Shamila Batohi left for the ICC, Simphiwe Mlotshwa stood firm. He insisted on persisting with the prosecution of two ANC politicians implicated in the infamous ‘Amigos’ trial. He reportedly had a fall-out with his superiors at the NPA over his decision to proceed with the prosecution of MEC Mike Mabuyakhulu and legislature speaker Peggy Nkonyeni on corruption charges. 

As a result, Mlotshwa was removed from his job as DPP for refusing to bow to pressure. According to Johan Booysen, who was head of the Hawks in KZN at the time, Mlotshwa was also put under immense pressure by acting NDPP Nomgcobo Jiba to prosecute him. Again Mlotshwa dug in his heals and refused and made an affidavit to this effect. Mlotshwa was subsequently replaced by the highly controversial Moipone Noko.

Mlotshwa went into private practice and is currently at the KZN Bar with chambers in Pietermaritzburg. 

Adv Moipone Noko

Since being appointed as DPP in KZN, Moipone Noko has courted controversy. She was viewed as an ally of former president Jacob Zuma and Jiba, now suspended. She has been on the sharp end of criticism from Booysen, who argues that she has "made a mockery of the principle of prosecution without fear or favour since she was appointed by Nomgcobo Jiba". 

Noko instituted charges against Booysen related to the so-called Cato Manor death squad. She also withdrew charges against businessman Thoshan Panday (a business partner of Zuma’s son, Edward) and Colonel Navin Madhoe, who Booysen says attempted to bribe him with R2m to scupper a corruption investigation. Booysen laid charges of defeating the ends of justice against Noko in 2016 after she had given misleading evidence in that matter.

In 2013 Noko was also behind the withdrawal of charges of intimidation against one of the president’s wives, Thobeka Madiba-Zuma. The charge had been lodged by a Madiba-Zuma’s apparent 23-year-old domestic worker.

Earlier this year, retired KZN judge President Chiman Patel was awarded damages of R900 000 – believed to be one of the biggest ever awards in South Africa – in his claim against Noko for malicious prosecution and reputational damage.

He sued Noko and the NDPP after being charged with crimen injuria relating to an incident in his chambers with a stationery clerk in 2013. He was summoned to appear in court a year later. Two months later, when the trial was due to start, the charge was withdrawn without explanation.

Gauteng Judge Aubrey Ledwaba was critical of Noko in his ruling. 

"She [Noko] was not a good witness and did not execute the duties reasonably expected from a Director of Public Prosecutions. She gave long-winded and argumentative answers when she testified," the judge said. He found that the Noko, "who was intent on seeing the matter being heard in a criminal court", the national director, and the prosecutor handling the case had acted with an intention to injure Patel.

Noko is a surprise inclusion in the shortlist as her appointment as NDPP would be seen as a continuation of the Jiba era and would draw harsh criticism from civil society and opposition parties. 

Adv Silas Ramaite

Ever the bridesmaid, never the bride, Silas Ramaite is currently the acting NDPP and has been asked to do the job as a stand-in on many occasions. 

Usually his position is deputy national director responsible for administration and the office for witness protection. He has served as deputy director for 15 years.

A career prosecutor, Ramaite holds several degrees including an LLD specialising in Constitutional Law from UNISA. He was granted silk status in 2001. He has also worked as an interpreter, clerk of the court, public prosecutor and magistrate. In 1997, he was the chief evidence leader in the Goldstone Commission appointed to look into allegations arising from the TRC. 

In 2011, Ramaite was in trouble with the law after he allegedly crashed his luxury Jaguar into a Nissan bakkie in Limpopo while driving drunk. The Louis Trichardt Magistrate’s Court released him on R1000 bail, but charges of reckless and negligent driving and driving under the influence were later withdrawn, pending blood test results.

More recently, he’s been at the centre of a sex tape controversy in the NPA. City Press reported that there is CCTV footage showing Ramaite in a compromising position with a female guard in his office. Reports suggest the video may have been used to blackmail him and the story stinks of a dirty tricks campaign as part of an attempt to smear him.

Ramaite is seen as a fine stand-in but not necessarily suitable for the main job. He’s also an unlikely candidate for the position, primarily because of his age. He was on the verge of retirement this year and according to the NPA Act, the NDPP is a "non-renewable term of 10 years, but must vacate his or her office on attaining the age of 65 years". However, the law does allow the president to retain an NDPP beyond 65 years if in the public interest but for no longer than two further years. 

If Ramaphosa is playing for time, he could appoint Ramaite as a stop gap for the next year or two while he waits to see what happens with the elections next year and consolidates his power within the ANC. Then he can appoint the candidate he would really like in the position.

Adv Andrew Chauke 

Andrew Chauke is the DPP for South Gauteng, which makes him Joburg’s chief prosecutor.  Some in legal circles have raised concerns about Chauke’s potential appointment. In doing so, they have raised two potential issues. 

In 2012, Chauke made a decision to provisionally withdraw murder and related charges against then head of Crime Intelligence Richard Mdluli, in relation to a 1999 murder of Oupa Ramogibe. Civil organisation Freedom Under Law took the matter to court and ultimately the SCA overturned a decision by the High Court that the murder charges should be reinstated against Mdluli. Instead, the SCA essentially gave Chauke two months to decide which charges to reinstate. He decided Mdluli would face kidnapping, intimidation and assault charges instead of murder. The Mdluli case was extremely divisive within the NPA, causing a rift between two factions within the organisation. 

Chauke also hit controversy when convicted drug trafficker Glenn Agliotti alleged in a sworn affidavit that he had been paid money by the Kebble family. It was claimed that Chauke had been bribed with cash and a set of golf clubs to issue an arrest warrant against a business rival of the Kebbles. He was the head of the Specialised Commercial Crimes Unit. However, the allegations were never tested in court and some have suggested that these allegations are being reprised now in order to ensure Chauke does not get the job of NDPP. 

Last year in a response to a question from the DA in Parliament, Justice Minister Michael Masutha provided some clarity on this. He was asked by DA MP Werner Horn if Chauke had declared the set of golf clubs he had received from Kebble.

In the reply, Masutha said: “I’ve been informed that Chauke denied allegations that he had received any presents, including the golf clubs and bags, from Mr Brett Kebble and in fact, he said that he had never met Mr Kebble.”

Chauke was also recently named in the Bosasa scandal when the company’s CEO, Gavin Watson, was secretly recorded, bragging how he planned to lobby Zuma to appoint someone who would "protect" his allies at the NPA.

A secret recording of a meeting between Watson, former Bosasa chief operations officer Angelo Agrizzi and former prisons boss Linda Mti on May 8, 2015, details Watsons plans to discuss with Zuma the appointment of an NDPP.

"Ntlemeza is the right guy at that place, doing what he can. Now we need to get the right person at NPA. Either we get Chauke in, or Jiba or the woman down in Natal. One of them got to… look at what’s happened to Jiba. Jiba is buggered up in the press, he [Zuma] told me that," said Watson.

Chauke has denied the "patently false and defamatory allegations" that he said appeared to paint him as being "captured" by Bosasa. 

He is seen as one of the frontrunners for the position. 

Adv Glynnis Breytenbach

Breytenbach was a career prosecutor who was a member of the Specialised Commercial Crimes Unit and dealt with high profile cases. She was suspended from the NPA ostensibly for her handling of a complex mining rights case involving Kumba Iron Ore and Imperial Crown Trading. 

However, she has always insisted that she was pushed out because of her insistence to prosecute Mdluli for corruption and fraud. She claimed that Jiba and senior prosecutor Lawrence Mrwebi were behind her suspension. 

Breytenbach was cleared of all charges against her, but she left the NPA and joined the DA, subsequently becoming an MP and the party's shadow minister of justice. Her appointment as NDPP may be seen as problematic because of the contentious nature of her suspension, however she is extremely experienced. 

It could be argued that Breytenbach is politically tainted because she has joined the DA. Almost all the NDPPs in the past have been open card-carrying members of the ANC. Bulelani Ngcuka was even the leader of the party in the National Council of Provinces. There is also the argument that Ramaphosa could never appoint someone who is a member of an opposition party. There is something to be said for the credibility of an institution being enhanced by somebody who identifies with the opposition and Ramaphosa would be sending a strong message about rehabiliting the credibility of the NPA if he were to go against cadre deployment. Some legal minds say that according to the law, the president needs to decide on a candidate in consultation with Cabinet and the chances of an ANC Cabinet approving Breytenbach are slim. 

Conclusion

The NPA is in dire need of strong leadership. Above all, prosecutors need a capable manager who has the wisdom to choose good lawyers to support them. The preference of many prosecutors I’ve spoken to is to have someone from within the organisation lead them, rather than an outsider being parachuted in. But the history of the NPA over the past decade makes it difficult to find someone who isn’t seen as being from one camp or another. The NPA needs a complete overhaul and is desperate for a director who will instil confidence in the organisation. 

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