Accountability Now Director Advocate Paul Hoffman SC said that the concentration of power in the hands of the President, as outlined in the National Prosecuting Authority (NPA) Act, undermines the independence of the National Director of Public Prosecutions (NDPP).
He was responding to questions from MK Party Member of Parliament (MP) Sibonelo Nomvalo before the ad hoc committee on Tuesday.
Nomvalo had raised concerns regarding the suspension process of the NDPP, as stipulated in Section 12 of the NPA Act, which mandates that the President initiate the suspension process and make a recommendation to Parliament.
According to Nomvalo, this provision leaves little room for Parliament to act when issues arise within the NDPP’s office, and he questioned whether such a framework eroded the independence of the NDPP.
Hoffman agreed with Nomvalo’s assessment, saying, “It is correct to say that the independence of the National Prosecuting Authority, if it ever existed, is undermined by giving the President so much power in relation to the suspension and indeed to the appointment of the leader of the National Prosecuting Authority.”
He further pointed to the over-concentration of power in the hands of the President, a point also made by Deputy Chief Justice Dikgang Moseneke, who has previously expressed concerns over how South Africa’s Constitution concentrates too much power in the executive.
Hoffman stressed that, historically, the framers of the Constitution may have assumed that future Presidents would be akin to Nelson Mandela in their moral integrity, but the reality has been that successors have not lived up to that expectation.
This, he suggested, has led to a situation where too much power is vested in the executive, diminishing the independence of critical institutions like the NPA.
When Nomvalo raised concerns about the influence of politics on the functioning of institutions like the NPA, Hoffman emphasised the importance of ensuring that existing institutions are not weakened or subjected to undue political influence.
He agreed with Nomvalo’s view that the NPA’s challenges stem from political interference and a lack of competence, rather than deficiencies in the legislative framework itself.
However, Hoffman cautioned against suggesting that transferring the NPA to the Chapter 9 institutions would necessarily solve the problem.
“There is no guarantee that putting a body under Chapter 9 will protect it from political influence,” he said.
He noted that even within Chapter 9 institutions, such as the Public Protector and the Human Rights Commission, political pressures have sometimes undermined their work.
He highlighted the need to focus on addressing the root causes of institutional dysfunction, such as capacity issues, rather than simply restructuring bodies for the sake of appearances.
In response to Nomvalo’s suggestion of a new unit under Chapter 9 institutions to address corruption, Hoffman pointed to a 2011 ruling by the Constitutional Court, which found that anti-corruption work should not remain under the executive’s control.
“The law is that anti-corruption work ought to be taken away from the various institutions that deal with it, including the NPA, the Hawks, and the IPID,” Hoffman said.
He proposed the creation of a new, independent body dedicated solely to fighting serious corruption, insulated from political interference.
Hoffman argued that such a body should be small, well-resourced, and have secure tenure for its officers.
He also noted that this new unit could be populated by individuals from existing anti-corruption bodies, such as the Special Investigating Unit (SIU).
Politics
