Business calls for urgent NPA reform to enable corruption prosecutions

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JEREMY MAGGS: South Africa’s prosecuting landscape shifting in a big way this week, President Ramaphosa naming Advocate Andy Mothibi as the new National Director of Public Prosecutions (NDPP), and that places him at the helm of an NPA (National Prosecuting Authority) that is under intense pressure to deliver real accountability.

Business Leadership South Africa (BLSA) has welcomed the appointment, saying his performance at the SIU (Special Investigating Unit) shows that he can drive reform and also recover stolen public funds.

Listen/read: Can the new NPA leader restore confidence in prosecutions?

Well, let’s bring you more on this story now. The chief executive officer of Business Leadership South Africa, Busisiwe Mavuso, a very warm welcome to you. Why are you confident then that Andy Mothibi can fix an NPA that, as we know, has struggled for years to secure successful prosecutions?

BUSISIWE MAVUSO: Jeremy, thank you and thanks for the invitation. I really think that his experience and his track record speak for themselves. I really think that looking at what he has done and what he has achieved within the SIU, it makes him the appropriate and relevant appointment for this crucial role.

He has done an excellent job in as far as the SIU is concerned. He has recovered millions of rands that were lost to corruption.

He has put in place the necessary reforms to enhance institutional performance, and he will no doubt, be the right person to take the NPA to the next level.

JEREMY MAGGS: The SIU track record is strong. That is a given. But we all know the NPA is a very different environment. The challenge, of course, is to make sure that those skills transfer.

BUSISIWE MAVUSO: Absolutely. But I think if you look at what needs to be done as well, we can’t put Andy in the same difficult position that we actually put Shamila Batohi in. There needs to be certain reforms that are going to have to be implemented within the NPA to ensure that it can actually operate in a different manner.

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Look at how Sars (South African Revenue Service) operates, for instance, in terms of the independence that Sars has. Sars, for instance, has been able to recover more fully, in part because of the structural advantages that the NPA lacks.

The Sars Commissioner (Edward Kieswetter) has genuine authority over the organisation. He is the accounting authority, effectively the CEO, with the power to hire and fire senior staff. Shamila doesn’t have that latitude.

You would remember that she actually had to beg the President for more than two years to remove and reassign Andrew Chauke, after she had raised concerns that Andrew Chauke is not actually the right person to hold office.

Therefore, it makes it difficult for someone to be put in that position with their hands tied behind their back and expected to perform miracles.

So they need to reform the architecture of the institution so that it is truly independent. As it stands, the NPA operates as a programme within the Department of Justice, and it has the Director-General (DG) of the Department of Justice (Advocate Doctor Mashabane) as its official accounting officer.

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So we’re going to have to look at those things. Otherwise, we are going to be putting Andy in exactly the same difficult position that Shamila was actually put in.

I have no doubt that he’s got the skills, he’s got the expertise, he knows what he’s doing, but the structure and the architecture of the institution will actually undermine what he can possibly offer to the NPA.

JEREMY MAGGS: You’ve put your finger on the single biggest problem in terms of that reform, and there’s no guarantee that’s going to happen. We know that political interference has undermined the NDPP for over a decade now. How difficult do you think it’s going to be for him to protect the institution from the risk that you’ve just raised?

BUSISIWE MAVUSO: It’s actually going to be difficult, especially if he’s not going to have the minister (Mmamoloko Kubayi) and the DG of the Department of Justice who are actually going to be supporting him.

Remember, even if he wanted to bring the right people on board to try and ensure that he can actually progress, and better position the NPA, he doesn’t sit with that prerogative.

The prerogative of senior appointments sits with the Minister of Justice and the president, a power which in the history of our democracy has actually been invoked for good and ill, so it really makes it therefore difficult, from an independence perspective, to say how does he actually go ahead doing what he needs to do.

I really think that we have done a lot of work as a country from a reform perspective. But we all acknowledge that the criminal justice system is the one area that is lagging behind. We just haven’t done enough.

But also, if we are serious about reforming this institution, if we are serious about reforming the criminal justice system in its entirety, what has come out of the Madlanga Commission, Jeremy, should actually serve as an impetus for us to start taking seriously some of those things.

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We are going to soon be sitting with that report from the Madlanga Commission. That report can’t sit idle the way the State Capture Report sat.

If we want to enable the NPA, the SIU, the police and everyone in the criminal justice system to actually do something about some of the things that have come out from the Madlanga Commission, we therefore are going to have to look at what do we need to do and what powers do we need to give some of these institutions for them to be able to do something about the report.

JEREMY MAGGS: To be fair, he hasn’t started the job yet. He hasn’t even found his parking bay. But business obviously wants swift, credible action on corruption. Do you have a sense of what kind of timeline he should be held to for delivering visible progress?

BUSISIWE MAVUSO: The timeline will be aligned to how quickly we can actually give him the fair and necessary powers to do his job, because we can say we need him to do this within six months.

If he’s not going to be given the independence, if he’s not going to be allowed to bring in the right people to actually drive the progress of the NPA forward, then we are actually wasting our time.

The timeline that we should be putting as a country in place is not of what Andy should do and when, it is how quickly the reforms that are required to the NPA should actually be done.

Once we’ve put in those reforms, then the timeline can actually start ticking.

As things stand, I really think that is going to be difficult. Be that as it may, however, I have no doubt, that the same way Shamila did her absolute best to actually produce the results that she produced within this tough environment that she was actually thrust in, Andy will definitely do the same.

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But I think it would be naive to think that we would see remarkable progress and would see a significant shift without actually giving Andy true independence the way Sars has, the way the South African Reserve Bank (Sarb) has. So we’re really going to have to look at those tweaks to this institution to enable Andy to do his job.

JEREMY MAGGS: Thank you very much indeed. The chief executive officer of Business Leadership South Africa, Busisiwe Mavuso,  I always appreciate your time. Thank you.

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