Can the new NPA leader restore confidence in prosecutions?

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JEREMY MAGGS: President Ramaphosa has moved to steady the leadership of South Africa’s justice system by appointing Advocate Andy Mothibi, currently head of the Special Investigating Unit (SIU), as the country’s new National Director of Public Prosecutions (NDPP). It’s a big job.

The decision followed a high-profile advisory panel process in which none of the interviewed candidates were deemed suitable. That, I think, underscores the challenges in filling this critical constitutional office.

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With me now is Lawson Naidoo, executive secretary of the Council for the Advancement of the South African Constitution. I want to discuss what this appointment means for prosecutorial independence and constitutional democracy in 2026.

Lawson, a very warm welcome to you. First of all, what do we know about Advocate Mothibi and is this a good appointment in your opinion?

LAWSON NAIDOO: Thank you, Jeremy. Indeed, I think it’s a very good appointment. I think Andy Mothibi brings a wealth of experience from his tenure, not just at the SIU, but he’s served in both the public and private sectors, having started his career as a prosecutor, served time as a magistrate, so he understands the criminal justice system as a whole.

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In his role as at the SIU, he’s had to work very closely with other law enforcement agencies such as the NPA (National Prosecuting Authority), the Hawks, the Financial Intelligence Centre, and so on.

He has a good understanding, and he brings the kind of leadership skill set that I think is required at a critical but also complex organisation like the NPA.

JEREMY MAGGS: Let’s talk about those leadership skills in just a moment and also what his priorities are. But interesting to note that the advisory panel, as I mentioned, found none of the interviewed candidates suitable. Surely, Lawson, that raises concern about the selection process itself.

LAWSON NAIDOO: Well, I think there are several concerns, one of which is that the process was rushed.

The president only appointed that panel in October last year, when he knew on the day that he appointed Shamila Batohi seven years ago that she would have to retire this month.

Read: Holomisa calls for Shamila Batohi’s suspension [March 2023]

It was left late. The panel was rushed. There was a limited period for nominations. There was a limited period for public comments on those nominations, even when the nomination period had been extended.

Whilst one welcomes the open and competitive nature of the process, it has not been fully transparent. We only know the names of the six candidates who were shortlisted for interview.

We do not know the other 26 who applied and why they were deemed not to be fit and proper for consideration.

We have also not seen the report of the panel that deemed none of them suitable, but I think it was quite evident to those of us who watched those interviews that they all demonstrated shortcomings of one sort or another, which had rendered them not suitable to hold such a critical and important office.

So I commend the panel for having taken the decision that they did not to make a recommendation.

But I think the president also erred in that he could have referred the matter back to the panel and say, okay, I see your report, but here’s another candidate who I think you should consider, here’s Advocate Andy Mothibi, and go through the same process of a public interview, with the kind of scrutiny that the other candidates went through. I think that would have been a much better process to have followed.

JEREMY MAGGS: Lawson Naidoo, you talk about the challenges of leadership within a complex organisation. What does that mean?

LAWSON NAIDOO: Well, the NPA is not an easy organisation to run. It has devolved authority. We’ve got the directors of public prosecutions in each of the nine provinces, in whom lies the responsibility to make prosecutorial decisions.

So you’ve got the nine provinces, you’ve got a team of deputy national directors responsible for asset forfeiture, national prosecutions, corporate affairs and so on.

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It’s a complex organisation with over 3500 prosecutors spread across the country. It is an incredibly complex organisation, and it needs somebody who has the kind of management experience at that high level, which I think Andy Mothibi brings, and I don’t think that any of the candidates who were interviewed adequately possessed.

JEREMY MAGGS: What is his immediate priority?

LAWSON NAIDOO: Well, his immediate priority, I think, and it’s good that this appointment has come now, even though it’s probably later than it should have been. But it gives at least a short while for some kind of formal handover to take place between Shamila Batohi and Andy Mothibi.

They’ve worked together before in the anti-corruption sphere of organs of state. So they know each other and hopefully that handover will help Andy Mothibi to set his priorities for the period ahead.

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What are the immediate challenges that the NPA faces?

What needs to be done in order to properly secure the legislative amendments that would give proper autonomy over its operational and financial aspects of its work to the NPA and take it away from the Department of Justice, because that will play a critical role in bringing in the kind of skills and capacity that is required in order to prosecute, in particular, complex, commercial and corruption cases.

JEREMY MAGGS: In that respect, are you confident that the Constitution provides adequate safeguards to ensure that the NDPP can act without fear or favour?

LAWSON NAIDOO: Well, I think that’s been evident during the tenure of Shamila Batohi. Whatever her other weaknesses have been, I don’t think there’s been any evidence to suggest that there’s been any attempt at improper influence over prosecutorial decisions, maybe at lower levels, as we’re hearing some evidence, evidence which I must stress has yet to be tested at the Madlanga Commission of complicity of prosecutors in some cases.

Listen: High-stakes R147.9m Madlanga corruption commission kicks off

But where those exist, they need to be rooted out. That’s going to be another issue that Andy Mothibi is going to have to confront. Just a couple of days ago, the Minister of Justice (Mmamoloko Kubayi) called for lifestyle audits for prosecutors.

That’s something that I think is necessary in order to deepen public confidence in the NPA as a whole. But that’s going to come at a significant cost, and government is going to have to make those resources available for those lifestyle audits to be conducted.

JEREMY MAGGS: That fundamentally is the biggest problem. You alluded to the issue of funding. The money has got to be found in order for this office to run effectively.

LAWSON NAIDOO: Indeed, we get commitments all the time from the president and the Minister of Justice about the commitment to effectively tackling crime and corruption, but that requires dedicated resources.

That’s where serious discussions need to be had in terms of the kind of resourcing that the NPA is going to require, as well as the resourcing that other institutions within the law enforcement sector require.

Because we can’t simply look at the NPA as a standalone institution. They rely to a large extent on the work done by SAPS (South African Police Service), by crime intelligence, by the Hawks and others, before cases can be brought before court.

Read: SAPS is drowning in unsolved dockets

JEREMY MAGGS: Just the final one, and quickly, in the short to medium term, are there benchmarks that we should use to judge whether this appointment either strengthens or weakens the rule of law in South Africa?

LAWSON NAIDOO: Well, it’s difficult to list those easily. But I think, a big part of Mothibi’s job is, one, to restore, to continue the process of building staff morale within the NPA.

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There are many thousands of prosecutors who diligently go about their work every day. We’ve seen and heard about the conditions under which they operate. We’ve seen targeted assassinations and assassination attempts against prosecutors in some cases.

So there are many, many challenges that Mothibi is going to face.

But hopefully once he hits the ground, he’ll be able to take the nation into his confidence and set out what his immediate priorities are, and then we’ll be able to measure him on that.

JEREMY MAGGS: Lawson Naidoo, executive secretary of the Council for the Advancement of the South African Constitution, thank you very much indeed for that analysis.

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