Civil society groups urge Ramaphosa to open NDPP selection process to public

The Civil Society Working Group on State Capture (CSWG) has called on President Cyril Ramaphosa to add more transparency in the process of appointing the replacement of outgoing National Director of Public Prosecution (NDPP) Shamila Batohi by allowing public participation.

Batohi took over as the NDPP in February 2019 after being interviewed by a panel of seven senior legal practitioners to replace Adv Shaun Abrahams.

Abrahams left the position in August 2018 before his term ended, after the Constitutional Court found that former president Jacob Zuma had abused his powers when appointing him.

Batohi has been criticised for refusing to prosecute Ramaphosa for the Phala Phala foreign currency scandal.

A hunt for the replacement of Batohi, whose term of office expires in January next year, is already underway, with the process handled by a team, which Ramaphosa announced on October 7. 

The team, chaired by Justice and Constitutional Development Minister Mmamoloko Kubayi, comprises South African Human Rights Commission chairperson, Rev Chris Nissen, Commission for Gender Equality chairperson Adv Nthabiseng Sepanya-Mogale,  Auditor-General South Africa Tsakani Maluleke, Public Service Commission chairperson Professor Somadoda Fikeni and Black Lawyers Association and National Association of Democratic Lawyers representatives.

The CSWG, a coalition of more than 20 civil society organisations lobbying against corruption, welcomed the panel but wants the voice of ordinary people to be represented. 

In a letter written to Ramaphosa on Thursday, the CSWG said the appointment of the team did not fully address what is contained in the Zondo Commission of Inquiry into State Capture’s recommendations that he should re-examine the process of the NDPP’s appointment.

It says the team did not fully give effect to the principle of transparency. 

“In this regard, we call for the amendment to section 10 of the NPA Act to codify in legislation the process for selecting the NDPP, which includes, among other elements, a public nomination process and public interviews. 

“Further, we seek your office’s confirmation that the interviews will be conducted publicly in the interests of transparency,” read the letter.

CSWG said the public participation in the process would introduce appropriate checks and balances without taking away the president’s prerogative constitutional right to appoint the NDPP. 

CSWG also called for transparency in the appointment of the Deputy National Directors of Public Prosecutions (DNDPPs). 

“The CSWG strongly advocates for the DNDPP appointment to be a transparent process similar to the selection of the NDPP,” it said.

It also wanted to know who does the vetting, and what the vetting process takes into account.

 “The NPA is a vital institution that plays a central role in protecting public safety and upholding the rule of law. 

“Any process undertaken to appoint the leadership of the NPA must clarify the above points and should apply equally to any process declared for the appointment of the NDPP and DNDPPs. 

“The CSWG requests that your office give urgent attention to this matter, which is in the public interest. We look forward to hearing from you by December 2, 2025,” read the letter. 

Ramaphosa’s spokesperson, Vincent Magwenya, had not responded to questions about the CSWG’s call. 

Legal expert Adv Sipho Mantula raised concerns about the absence of parliament representatives in the panel. 

“One would have thought that the parliament should also have been in the panel because the parliament represents the people,” said Mantula. 

However, he said that since the panel included Chapter 9 institutions, it was still fit to safeguard democracy, especially in the face of events that led to the formation of the Madlanga and  Khampepe Commission, which are both investigating the criminal justice system. 

“It is probably important that the president does not want to find himself unilaterally exercising his constitutional and presidential powers of appointing the NDPP. 

“This would avoid what people would say is a hand-picked and biased NDPP,” said Mantula.

He said that the judiciary would have been seen as the referee and the player had it been represented in the panel. 

“People are losing faith in the justice system, and to restore that faith is to have credible and not questionable characters.

“This is to avoid the president using excessive powers to appoint the person of his choice, but he should take cognisance of the recommendations of the panel and the recommendations of ordinary South Africans, hence I say if you involve the parliament, you involve the people of the country,” said Mantula.

Another legal expert, Mpumelelo Zikalala, said the panel would be assisting Ramaphosa, who would not have time to interview the candidates. 

“After that (recommendation), he would make the decision, having full confidence that these people (candidates forwarded to him) had gone through an open process and chose one of them.

“The president does not have to stick to a candidate recommended by the panel, but he can still choose a person he prefers among candidates brought before him,” said Zikalala.

He said even the members of the public are welcome to raise their concerns about the candidates. 

The shortlisting of Advocate Menzi Simelane, whose appointment to the same position was invalidated by the Constitutional Court in 2012, raised concern.

He said Simelane might be returned to the position depending on how he impresses the panel.  

“While his previous appointment was not transparent, we have to look at his performance.

“It would depend on how he answers questions on the prosecution of politically related cases that were found to be wrongly handled. 

“It would also depend on what new ideas he is bringing to improve the NPA,” said Zikalala.

In a statement, the DA said on Tuesday that the country cannot afford to have a controversial figure leading the NPA.

The NPA needs a leader with integrity, honesty and the ability to stand up for that which is just. Simelane possesses none of these qualities.

“This appointment process presents the opportunity to learn from the mistakes of the past,” DA MP Adv. Glynnis Breytenbach. 

bongani.hans@inl.co.za