Removal of the National Director of Public Prosecution : a critique of emerging constitutional jurisprudence

• DOI: 10.25159/2522-6800/7031
• Date: 01 July 2020
• Published date: 01 July 2020
• Author: Mtendeweka Mhango
• Pages: 1-31

Article

Southern African Public Law

https://doi.org/10.25159/2522-6800/7031

https://upjournals.co.za/index.php/SAPL

ISSN 2522-6800 (Online), 2219-6412 (Print)

Volume 35 | Number 2 | 2020 | #7031 | 31 pages

© Unisa Press 2021

Removal of the National Director of Public

Prosecution: A Critique of Emerging Constitutional

Jurisprudence

Mtendeweka Mhango

https://orcid.org/0000-0001-7976-4473

National University of Lesotho

mo.mhango@nul.ls

Abstract

In this article, I critically examine the constitutional provisions governing the

removal of the National Director of Public Prosecutions. This examination is

undertaken in the context of recent decisions by the High Court in Corruption

Watch (RF) NPC and Another v President of the Republic of South Africa and

Others; Council for the Advancement of the South African Constitution v

President of the Republic of South Africa and Others [2018] 1 All SA 471 (GP);

2018 (1) SACR 317 (GP) and the Constitutional Court in Corruption Watch

NPC and Others v President of the Republic of South Africa and Others [2018]

ZACC 23, which found certain provisions of the National Prosecuting Authority

Act 32 of 1998, which governs the removal of the National Director,

unconstitutional. The article is critical of these two court decisions for their

failure to properly justify the order to invalidate the provisions of the National

Prosecuting Authority Act and to provide a proper account of the different

separation of powers imperatives involved in the cases. The article is also

critical of the Constitutional Court’s approach to the abstract review of the

sections in the National Prosecuting Authority Act, and of its suspension of the

order of invalidity in a manner which took no due regard to established

jurisprudence. Lastly, the article is critical of the Constitutional Court’s

omission to address the High Court order that the Deputy President should

appoint the National Director, which runs counter to the text of the Constitution.

Keywords: accountable; independent institutions; National Director of Public

Prosecutions; National Prosecuting Authority; removal; separation of

powers—internal and external

Mhango

2

Introduction

The National Prosecuting Authority (NPA) was established as a single national

prosecuting authority in terms of section 179(1) of the Constitution of the Republic

South Africa, 1996 (hereinafter the Constitution). This section provides that ‘[t]here is

a single national prosecuting authority in the Republic … consisting of … a National

Director of Public Prosecutions, who is the head of the prosecuting authority, and is

appointed by the President, as head of the national executive.’ The Constitution goes

on, in section 179(2), to confer on the NPA ‘the power to institute criminal proceedings

on behalf of the state, and to carry out any necessary functions incidental to instituting

criminal proceedings.’ As a representative of the state in bringing criminal proceedings

against perpetrators, the NPA has a special role to play in the criminal justice system

because of its responsibility to enforce criminal laws in South Africa by instituting

criminal proceedings on behalf of the state. However, in recent years, the NPA has come

under scrutiny, especially due to current powers of appointment and removal as well as

the inability of successive individuals occupying the post of National Director of Public

Prosecutions (hereinafter the National Director) to complete their statutory term of

office.

One of the thorny contemporary issues affecting South Africa’s criminal justice system

is the need to find constitutionally compliant conduct or mechanisms to remove the

National Director in a manner that upholds constitutional values. There is no doubt that

the current framework governing the removal of the National Director is problematic,

especially in terms of how it has been administered by the executive. However, as this

article will show, recent case law that has tried to address some of these problems has

created more uncertainty. It is no secret that, since the NPA was established in 1998, its

national directors have been removed or resigned from office prematurely.

1

This has led

1

See ‘Report of the Enquiry into the Fitness of Advocate VP Pikoli to Hold the Office of the National

Director of Public Prosecutions’ (2008); Pikoli v President and Others [2009] ZAGPPHC 99; 2010

(1) SA 400, which interdicted President Montlanthe from making a permanent appointment in the post

of National Director before the legal proceedings regarding the legality of the removal of Pikoli were

decided; Democratic Alliance and Others v Acting National Director of Public Prosecutions and

Others 2012 (6) BCLR 613 (SCA), in which the court held that a decision by the NPA to discontinue

prosecution is subject to constitutional review and that the Democratic Alliance, a registered political

party, has locus standi to bring an application to review the record of the NPA’s decision; Democratic

Alliance v President of the Republic of South Africa and Others [2010] ZAGPPHC 194, in which the

court held that, while the appointment of Simelane as National Director raised some concerns, it could

not be said that the conduct of the President fell afoul of the Constitution; Democratic Alliance v

President of South Africa and Others 2012 (12) BCLR 1297 (CC); Democratic Alliance v President

of the Republic of South Africa and Others 2012 (1) SA 417 (SCA), which reversed the High Court

decision and held that the appointment of Simelane was irrational and invalid; Democratic Alliance v

President of South Africa and Others 2012 (12) BCLR 1297 (CC); 2013 (1) SA 248 (CC), in which

the Court upheld the SCA decision to invalidate Simelane’s appointment; Jiba & Another v The

General Council of the Bar of South Africa and Mrwebi v The General Council of the Bar of South

Africa [2018] ZASCA 103, which overturned a High Court decision which struck Ms Jiba from the

roll of practice advocates; Freedom Under Law (RF) NPC v National Director of Public Prosecutions