The appointment of the next national director of public prosecutions (NDPP) matters to business because the rule of law is essential to a functioning democracy and critical to the business environment.
Busi Mavuso, CEO of Business Leadership SA, an umbrella body representing almost all of SA’s biggest listed companies, made these remarks in her weekly newsletter on Monday.
President Cyril Ramaphosa has appointed a committee to select the next NDPP boss, with six candidates shortlisted already. The six-member selection panel is chaired by justice and constitutional development minister Mmamoloko Kubayi, with members including auditor-general Tsakani Maluleke and SA Human Rights Commission chair Andrew Nissen, “forming an experienced and credible group to guide the selection”.
“They must make a wise decision, choosing someone with deep integrity and the skills to lead a complex organisation dealing with everything from organised crime to grand corruption. The next NDPP will need proven prosecutorial experience, the ability to rebuild institutional capacity and the courage to pursue justice without fear or favour,” Mavuso said.
The incumbent, Shamila Batohi, whose tenure has been described as underwhelming by opposition parties and critics, is set to reach retirement age in 2026.
“An unreliable criminal justice system imposes huge costs on business, not only through increased crime, but through the broader loss of trust across the economy. When counterparts can’t be relied on to stick to agreements, when the probity of those in business can’t be trusted, transaction costs multiply invisibly across every deal. This keeps a handbrake on our growth,” Mavuso stated.
“We saw the direct costs when South Africa landed on the FATF [Financial Action Task Force] greylist, now thankfully behind us. But the indirect costs — the increased vigilance, the risk premiums, the deals that don’t happen — are harder to measure but no less real.”
Mavuso said the damage state capture inflicted on the National Prosecuting Authority (NPA) was still visible in failed prosecutions. “The R2.2bn corruption case against former Eskom boss Matshela Koko and others was struck off the roll in November 2023 due to unreasonable delays,” she said.
“The case against Moroadi Cholota, co-accused with former Free State premier Ace Magashule, collapsed when a judge found the state had presented false information to US authorities to secure her extradition. Despite detailed forensic reports on corruption at Prasa, Transnet and Eskom, and the comprehensive Zondo commission findings, successful prosecutions remain frustratingly rare.”
In November 2023, Andrea Johnson, the head of the Investigating Directorate (ID) of the NPA blamed a shortage of specialised forensic accountants, auditors and financial investigators in its ranks for court defeats in state-capture cases.
She told the standing committee on public accounts that the directorate faced “institutional impediments” relating to its non-permanence. It depends on secondment of personnel from other law-enforcement agencies for its criminal investigations, she said.
The ID was also unable to recruit and retain critically skilled and experienced personnel at sustainable remunerative rates. The sought-after critical skills were more competitive in the private sector, which was able to recruit them, she said.
On Monday, Mavuso said Batohi had worked hard to re-establish the integrity of the organisation, stabilising senior leadership and beginning to rebuild capacity, “but structural constraints limit what any NDPP can achieve under the current framework”.
“This is where the NPA differs fundamentally from other institutions that were compromised by state capture. The SA Revenue Service (Sars) has been able to recover more fully, in part because of structural advantages the NPA lacks.”
“The Sars commissioner has genuine authority over the organisation: he is the accounting authority, effectively the CEO, with the power to hire and fire senior staff. The appointment process for the Sars commissioner was revised after the Nugent Commission to strengthen independence, though the President retains final decision authority,” the BLSA CEO noted.
“In contrast, the NDPP does not have this independence or authority. The director-general of the department of justice is the accounting authority for the NPA, not the NDPP. The prerogative over senior appointments sits with the minister of justice and the president, a power which, in the history of our democracy, has been invoked for good and ill. The NDPP is appointed for a non-renewable 10-year term, longer than the Sars commissioner’s renewable five-year term. Yet tellingly, no NDPP has ever completed a full term.”
Mavuso hailed the NPA appointment process and the Madlanga commission as signs of a system aiming to improve. However, there was much more that must be done, including in crime intelligence and investigative capacity. “All of us in business would like to see an accelerated effort to empower high-quality leadership across the criminal justice system,” she said.
“This is not about politics; it is, in fact, the opposite, ensuring that politics stays out of it, leaving independent and highly competent institutions to do their jobs. That is the future that all South Africans deserve and that our economy requires to thrive.”
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