The DA will this week ask the Justice Portfolio Committee to set time aside to discuss changes we have previously proposed to the Constitution’s Presidential appointment mechanism for the National Director of Public Prosecutions, as well as amendments to the NPA Act. The Constitutional Court’s confirmation of the Supreme Court of Appeal’s order of invalidity of the appointment of Adv. Menzi Simelane lends impetus if not outright urgency to our proposal.

It was the “means employed” by the President to make the appointment that the Constitutional Court found irrational. A new process is necessary to prevent a President again taking the view that the choice of a National Director of Public Prosecutions is his subjective choice. (“I am the person, as the President of the Republic”, President Zuma told the Supreme Court of Appeal in ringing, almost royal terms, “to be satisfied that the person is fit and proper”. )

By contrast, then-President Kgalema Mothlanthe – no doubt having a shrewd idea of what would follow his caretaker Presidency and the sacking of NDPP Vusi Pikoli) expressed the view in 2008 that a body like the Judicial Service Commission should conduct a transparent process and recommend the NDPP to the President for appointment.

Like then-President Mothlanthe, the DA believes that a transparent process conducted by a body beyond the Presidency is called for. We believe that a multi-party committee of Parliament should select the NDPP in the same way that Chapter Nine bodies are selected, with the President performing only the formal act of appointment. It was the proposal also of former Justice Minister Enver Surty (who served under then-President Mothlanthe) that Parliament should look at its role; while all the MPs who served on the multi-party ad hoc committee that confirmed the dismissal of Vusi Pikoli (by majority) took the view that it is an anomaly that Parliament plays no role in appointing the NDPP, but has the final say in his or her removal.

The DA has been arguing for such change in the National Assembly since 2010 and in the Justice Committee on an on-going basis. The guidance given by both the SCA and the ConCourt to the effect that fitness and propriety must be measured against jurisdictional facts capable of objective ascertainment indicate that section 9 of the NPA Act should be expanded beyond the bald statement of appropriate qualification and fitness and propriety. Amendments to both the Constitution and the Act should ideally emanate from that committee, under Rule 260 in the case of Constitutional amendment and by leave of the National Assembly to expand the scope of NPA Act amendments currently being drafted by the Justice Department.

We hope that President Zuma will not proceed overhastily and contemplate the permanent appointment of the Acting NDPP, Adv. Nomgcobo Jiba. Earlier this year she reversed the restructuring that had been the subject of a running battle between the DA and Adv. Simelane, and she unequivocally reinstated the heads of the specialist units, including the Asset Forfeiture Unit and the Specialised Commercial Crimes Unit (SCCU). By then the SCCU had lost Adv. Chris Jordaan, and its success rate. But there are unresolved questions about her own history at the NPA and about prosecutorial decisions which would invite challenge all over again.

We do not believe that there is any realistic danger of a new appointment of Adv. Simelane, as some legal journalists have speculatively suggested. The simple fact is that the Constitutional Court found it unnecessary to reach the question of his actual fitness and propriety (or any ulterior Presidential purpose) once it had decided that the means of arriving at the appointment was not rationally connected to the purpose of the power to appoint. The objective facts which caused us to react with shock to his initial appointment and to challenge that appointment are still common cause. They include that fact that he drafted an unlawful and unconstitutional letter for then-Minister of Justice Brigitte Mabandla instructing Adv. Pikoli not to proceed with the arrest and prosecution of Jackie Selebi until she was satisfied that the public interest was served. That is outright executive interference with prosecutorial independence, and the Constitutional Court has now said that it is probable that he did understand what he had drafted; and that his attempt to explain his failure to disclose his own letter to the Ginwala Inquiry reflects on his credibility and conscientiousness.

After so many missteps, it is important that the next step taken is the right one.