In a recent television interview retired judge Dennis Davis asked the national director of public prosecutions (NDPP), Shamila Batohi, for her views on a proposed inquiry into the National Prosecuting Authority (NPA), similar to the 2018 Nugent Commission that investigated the SA Revenue Service (Sars). “It would be very helpful to have a judge look into the structure, the operations, the systemic limitations and obstacles of the NPA,” she replied.
Retired judge Robert Nugent himself has called for such an inquiry. Speaking recently, he suggested a “short and sharp” investigation that could uncover what “has been going on so that some recommendations can be made as to how one proceeds from here onwards”.
When I argued the case for an inquiry during a recent public panel with former Mpumalanga premier and ANC national executive committee member Mathews Phosa he responded unequivocally: “I support her concern. There are 91 ANC people named in the Zondo commission into state capture who have not been touched.”
These are significant developments. Support for an independent review of the NPA now comes from across the political spectrum, from within the judiciary, from legal professionals and, crucially, from Batohi herself. The Centre for Development & Enterprise (CDE) first made this call nearly a year ago. Since then our case has only grown stronger.
In September 2023 the CDE published the first of two reports calling for urgent attention to the NPA’s failure to successfully prosecute major cases of state capture. We proposed that President Cyril Ramaphosa appoint a senior, respected retired judge to conduct a focused inquiry into the institution’s leadership, structure, independence and effectiveness.
In our follow-up report last month we repeated this call. We also pointed to the rapidly approaching end of Batohi’s term in January 2026 — when she reaches retirement age — and outlined the process we believe must be adopted to ensure a credible, independent and capable successor is appointed.
The NPA is not delivering. It has failed to prosecute the individuals implicated in the state capture scandals revealed in forensic audits of the Passenger Rail Agency of SA, Eskom and Transnet, in the Zondo commission reports and through journalistic investigation. This failure has emboldened criminals, undermined the rule of law and conveyed a damaging message: that the politically connected enjoy impunity, and that justice in SA is selective.
The NPA has also not received sufficient support from the government. Political inaction and foot-dragging have also contributed. In August 2023 Batohi formally requested that the president suspend a senior official in the prosecuting authority, as provided for in law. Nearly two years later, the president has yet to act. Why?
Parliament should ask Ramaphosa to explain this delay. The refusal to act on such a serious request raises urgent and troubling questions about political will and executive accountability.
Similarly, it is deeply concerning that the NPA still does not have full, unfettered access to the archives of the Zondo commission. These records are essential for prosecutorial follow-up. Lately there have been reports of improved access, but it remains subject to bureaucratic delays and recent disclosures suggest the archives are not being properly maintained. Why is this so, if the president and his government of national unity are serious about confronting corruption? The justice minister should also be called to account.
These failures underscore the need for an urgent inquiry into the structure, independence and performance of the prosecuting authority. SA needs to understand what is happening inside the NPA, what is not working, and what must be done to support the authority in discharging its constitutional mandate. The inquiry we propose would be independent, short and focused — with a strong mandate, full access to information and a clear deadline.
As was the case with the Nugent commission’s inquiry into the SA Revenue Service, the result could be a “road map” for renewal. The next NDPP, to be appointed in early 2026, would take office with a clear view of what must change and the actions required to make that happen.
But we must also learn from past mistakes. Since its establishment in 1998 the NPA has had nine national directors — three of them acting — and not one has served a full 10-year term. Several appointments were so poorly handled they were overturned in court. This record reflects deep instability, flawed processes and, in some instances, presidential misconduct.
We cannot afford another failure. The appointment process must be open, principled and designed to attract candidates of the highest calibre. The CDE has proposed a two-stage process to help achieve this.
First, the president should identify candidates based on publicly stated criteria. These should include appropriate legal qualifications, extensive managerial experience, proven prosecutorial expertise and an unambiguous commitment to the independence of the NPA and its constitutional obligations. Importantly, candidates must not be beholden to any political, ideological or factional constituency — or they must be willing to sever those ties upon appointment.
SA cannot afford another lost decade in the fight against corruption. The NPA’s weaknesses — compounded by executive inaction — are contributing to the erosion of democratic legitimacy.
Second, an independent selection panel of six to eight highly regarded individuals should conduct interviews and make a recommendation to the president. The panel should include a retired judge, a senior advocate or attorney, a former NDPP or experienced prosecutor, a respected civil society leader, a retired senior public servant, and a business leader with considerable turnaround managerial experience. These individuals must be chosen to inspire widespread public trust in the process. And the diverse composition of the panel would ensure that legal, managerial, ethical and governance expertise are all represented in the evaluation process.
The composition of the panel, the criteria it applies, the names of candidates interviewed, and the panel’s final reasoning, should all be publicly disclosed. However, the interviews and deliberations must take place in private. Public interviews may sound like transparency in action, but they are frequently counterproductive: they deter strong candidates, reward showmanship over substance, and politicise what should be a sober, deliberative process. The Judicial Service Commission provides a cautionary example of what can go wrong.
Once the panel has concluded its work it should submit a reasoned recommendation or shortlist to the president. While the final appointment remains the president’s prerogative, he must be required to publish both the panel’s advice and the rationale for his decision, especially if he chooses a different candidate.
Handled in this way the appointment process could become a model for how important public roles are filled in SA. It would strengthen confidence in the rule of law and reduce political manipulation.
SA cannot afford another lost decade in the fight against corruption. The NPA’s weaknesses — compounded by executive inaction — are contributing to the erosion of democratic legitimacy. The country needs a short, sharp inquiry to get to the bottom of the NPA’s failures and to chart a credible course forward.
At the same time, the process of selecting the next NDPP must commence urgently, build on the 2018 process that resulted in the appointment of Batohi, and improve it. The head of the NPA is an absolutely vital role in the fight against corruption and crime. The appointment process we have recommended gives SA the best chance of finding the right person to lead and fix the NPA in 2026.
South Africans deserve — and the country needs — a justice system that works. It’s time to rebuild the foundations.
• Bernstein is head of the Centre for Development & Enterprise. This article is based on the centre's latest report, “Appointing the next head of the NPA: Mission critical for the rule of law”.
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