NPA is described as “a key partner in the criminal justice system”. For the NPA to be able to execute its constitutional mandate properly, there must be a strong working relationship between it and the Ministry of Justice. If the relationship is weakened or interrupted, the consequences for the country will be dire. – Picture: NPA

By Bheki Mngomezulu

THE National Prosecuting Authority (NPA) was established by the National Prosecuting Authority Act, 1998 (Act No. 32 of 1998). Constitutionally, the NPA is the sole prosecuting authority in the country.

Generally, the NPA is described as “a key partner in the criminal justice system”. Its main responsibility is to ensure that those who commit crime in the country are charged and held responsible for their actions through legal channels. The NPA’s core mandate is to prosecute.

Constitutionally, the NPA derives its mandate from Section 179 of the country’s Constitution. Specifically, Section 179(2) states clearly that the NPA’s function is to institute criminal proceedings on behalf of the state. Other responsibilities are outlined in detail in Section 179(5) of the Constitution.

Under this section, the National Director of Public Prosecutions (NDPP) and the four Directors of Public Prosecutions who lead NPA offices within the various seats of the High Court across the country, are mandated to ensure that there is compliance with the constitutionally mandated obligation.

Their failure to do so amounts to dereliction of duty on their part. Such failure would render the NPA dysfunctional and being unable to deliver on its Constitutional obligation and mandate. In the process, many cases would remain unresolved – thus inevitably leading to lawlessness in the country.

For the NPA to be able to execute its constitutional mandate properly, there must be a strong working relationship between it and the Ministry of Justice. If the relationship is weakened or interrupted by whatever factors, many cases would remain unresolved. Whenever this happens, the country’s safety and security would be seriously compromised. By extension, democratic consolidation would be in jeopardy.

South Africa faces too many challenges that affect communities in different magnitude. One of them is crime which is uncontrollable. Places like Gqeberha in the Eastern Cape and eThekwini in KwaZulu-Natal have emerged as the most notorious places when it comes to crime. This is confirmed by statistical reports presented by the minister of police. Extortion or “protection fee” is ravaging the entire country and increases at an alarming rate.

To address the scourge, the NPA and the Ministry of Justice must work together. If this does not happen, the issues will continue unabated and continue to spread even to places that are not affected by the activities.

Corruption has created fertile ground for the criminal activities to flourish. The fact that some in the justice system are implicated in corrupt activities paints a pessimistic picture about the future of the country. In times like these, the country needs a strong, honest, capable and dedicated justice system.

Reports of the involvement of the police, prosecutors and judges in criminal activities where they collude with criminals do not instil hope for a better future for this country. There are many such cases where the individuals are apprehended. In a recent incident, a 38-year-old police officer in KwaMashu in Durban was on the side of the suspects who were involved in a shoot-out with the police. This does not augur well for the future of the country.

Ideally, politicians should stay clear of the justice system and allow it to operate independently, as per the Constitution. Unfortunately, this is not the case. There are many instances where politicians meddle in the affairs of the justice system. They force officials to bend the law if that suits their needs.

Such involvement takes different forms. First, in the absence of meritocracy when appointing office-bearers, the president and anyone who has the power to appoint personnel in the justice system deploy people they can count on when the situation demands. The political appointees are answerable to their “bosses”, not the country. Whenever this happens, justice is denied to those who deserve it.

If a case concerns those who appointed senior office bearers, then the senior office barear look the other way or simply put the case under the carpet – openly and clandestinely. This was the case with the Phala Phala matter where various state institutions concluded that there was no wrongdoing by President Cyril Ramaphosa although large sums of money were kept in the house, not in the bank as should be the case under the laws of the country. This stunned many people.

Second, money has weakened our justice system. Suspects are let off the hook without any clear explanation. This was the case, for example, with Prophet Shepherd Bushiri who skipped the country and returned to Malawi under dubious circumstances. The incident happened while Bushiri was facing criminal charges in South Africa.

Even after being convicted of crime, some criminals find their way out of jail, with no clear explanation. There have been many such cases as evidenced in the cases of Ananias Mathe who “allegedly” smeared his body with Vaseline and escaped from Kgosi Mampuru Correctional Centre and Thabo Bester who miraculously escaped from prison, subsequently skipped the country and found his way to Tanzania.

As more of the cases are reported, South Africans lose confidence in the NPA and question its investigative skills. By extension, the entire justice system loses credibility in the eyes of the public.

In his capacity as the sitting president, Ramaphosa is expected to intervene and redeem the image of the NPA and the Ministry of Justice. The Constitution gives him the powers to do so.

However, there are a few issues to consider in this regard.

First, the president has been accused of over-consulting. Recently, the newly appointed minister of Justice and Constitutional Development, Thembi Simelane, was implicated in wrongdoing. Some political parties called for her immediate resignation. The president is considering this matter so that he is not accused of acting prematurely. Meanwhile, the image of her office is dented.

Second, the fact that Ramaphosa is leading a multiparty coalition means that he must tread carefully. As he sustains this coalition, he cannot act swiftly.

* Prof Bheki Mngomezulu, director of the Centre for the Advancement of Non-Racialism and Democracy (CANRAD), at the Nelson Mandela University.

** The views expressed in this article do not necessarily reflect the views of The African