Minister Kubayi calls for patience as Ramaphosa prepares for NDPP appointment

Justice and Constitutional Development Minister Mmamoloko Kubayi has asked that President Cyril Ramaphosa be given time to determine the process to follow in appointing the next National Director of Public Prosecutions (NDPP).

Kubayi also said NDPP Shamila Batohi will vacate office when she completes her seven-year term in early 2026 when she reached the retirement age.

She was responding to parliamentary questions from DA MP Damien Klopper and EFF MP Carl Niehaus.

In her written response, Kubayi said the National Prosecuting Authority Act expressly indicated that an NDPP must retire at the age of 65.

“The provision is peremptory. Thus, the NDPP's tenure cannot be extended for a further period after she turns 65 in order for her to complete a full 10 years.

“This means that on 31 January 2026, when the NDPP has turned 65, she will be vacating office,” she said.

Kubayi also said there have been no discussions between her and Batohi on possibly extension of her term because the NPA Act was peremptory that the term cannot be extended after the age of 65 years.

Batohi was appointed to her position in February 2019 and is now due to complete her term next January.

Ramaphosa had decided on an open and transparent process, which involved the nominations and public interviews of the candidates by a panel.

Kubayi said Ramaphosa was empowered by the Constitution and the National Prosecuting Authority Act to appoint the NDPP.

She also said the process in which the NDPP would be appointed was solely the prerogative of Ramaphosa, who will at the appropriate time make a determination on such a process.

“The President should therefore be afforded space and time to determine the appropriate process to be followed when carrying out his constitutional responsibilities of appointing the NDPP.”

Asked if she has conducted formal performance evaluation on Batohi in light of mounting public and parliamentary concern over the NPA’s failure to secure successful prosecutions in high-profile corruption and state capture cases, Kubayi said she can only monitor the NPA's performance and advise Ramaphosa accordingly.

She also said it was not constitutionally permissible for her to conduct a formal performance evaluation of Batohi as the suggestion was that she must account to her on her work.

“The NPA is constitutionally not part of the Executive and that the NDPP is not accountable to the Minister but to parliament. The Minister also cannot mero motu initiate a Section12(6) inquiry as to the NDPP's fitness to hold office. That is a prerogative solely in the preserve of the President as the appointing authority.”

However, Kubayi said if she was of view that an NDPP was underperforming, she may advise and make a recommendation to the President on whether an inquiry ought to be instituted.

“The NDPP is a Presidential appointee, and it is the President, in terms of Section 17 of the NPA Act, who must determine the remuneration and other terms and conditions of service of an NDPP, not the Minister.”

The minister further said the time she has been a minister in the Justice and Constitutional Development since December 2024 does not give sufficient time to do a comparison of Batohi with her predecessors.

However, Kubayi said the only way to assess her performance was to look at the overall annual performance of the NPA over the years of her tenure.

“The NPA has moved from an annual performance of 50% in 2020/21 to an organisation that performed at 73% in 2023/24,” she said.

“The tenure of the current NDPP is characterised by a theme of rebuilding an institution that was hollowed out by years of state capture, and left the NPA decimated in order to ensure that the rule of law was destroyed and undermined; and impunity was the order of the day.”

mayibongwe.maqhina@inl.co.za