The justice department has done something that looks, at first glance, like progress.
Last week, it published the CVs of candidates for the national director of public prosecutions (NDPP) post and invited comment. The optics are clean, the press release smells faintly of reform, and everyone can now admire a parade of qualifications from the comfort of their news feeds.
That said, the substance matters more than the optics. Transparency that is not paired with accountability is corrosive theatre.
At the risk of stating the obvious, the NDPP is the institutional fulcrum that must resist political pressure and ensure that the law applies equally to the powerful and the powerless. When the appointment process treats past findings of misconduct as background noise, the office itself becomes vulnerable.
Publishing CVs whole but leaving unresolved red flags unaddressed sends a clear signal that institutional memory is optional and reputational cost is negotiable. That is the real threat to prosecutorial independence and less amusing than the spin doctors would have you believe.
Last week, the justice department published the full CVs of six shortlisted NDPP candidates. The shortlist was drawn from 32 applications, following a call for nominations through the Legal Practice Council and other legal bodies.
Publishing CVs whole but leaving unresolved red flags unaddressed sends a clear signal that institutional memory is optional and reputational cost is negotiable.
The advisory panel, chaired by justice minister Mmamoloko Kubayi and including representatives from the Human Rights Commission, the auditor-general, the Public Service Commission and leading legal associations, is tasked with conducting interviews and recommending a candidate to President Cyril Ramaphosa.
The process, billed as a means to support transparency and public participation, is modelled on the 2018 appointment of outgoing NDPP Shamila Batohi.
The inclusion of Menzi Simelane, whose appointment as NDPP between 2009 and 2012 was invalidated by the Constitutional Court for lack of integrity and rationality in the appointment processes, has raised more than a few eyebrows.
Since its inception in the late 1990s, the office of the NDPP has been marked by instability, controversy and political interference. Few NDPPs have completed their full terms, making the position one of the most useful in government.
The most recent notorious episode in NDPP history remains the appointment and subsequent removal of Simelane. Appointed by former president Jacob Zuma in 2009, Simelane’s tenure was immediately challenged by the DA, resulting in a 2012 Constitutional Court ruling that declared his appointment invalid. The court found that Zuma’s decision was not rationally related to the purpose of the appointment of a “fit and proper person”, and Simelane’s conduct, marred by dishonesty and lack of integrity, made him unsuitable for the role.
Transparency without follow-through risks becoming an empty gesture, a way to legitimise decisions already made by political elites.
In its public submission Freedom Under Law did not mince words: “Simelane was found to have misconceived his role as director-general, impacting on the relationship between the minister of justice and the NDPP.
“His testimony to a highly consequential inquiry was found to have been contradictory, and he was found to have made baseless allegations. He was found to have deliberately withheld relevant material, to have failed to heed legal advice, and to have drafted a letter which was found to be tantamount to executive interference with prosecutorial independence. He was found to have given inaccurate evidence not based in the law. His conduct was aimed at misleading the commission, and false accusations of dishonesty were made.”
If publishing CVs is to be taken seriously, the advisory panel should publish the criteria it used to assess candidates, explaining how past findings were weighed and how public input influenced its recommendation. Transparency without follow-through risks becoming an empty gesture, a way to legitimise decisions already made by political elites.
The 2021 chief justice nomination process offers a cautionary tale. Despite an unprecedented call for public nominations and the establishment of an advisory committee, the president disregarded the Judicial Service Commission’s recommendation, appointing his preferred candidate, Raymond Zondo, instead.
South Africa needs institutions that can withstand pressure and enforce standards. If the justice department wants to rebuild trust, it must ensure that transparency is meaningful. Otherwise, the parade of CVs will be remembered as another performance that masked the rot beneath.
