The content on this page is not written by Polity.org.za, but is supplied by third parties. This content does not constitute news reporting by Polity.org.za.

The further politicisation of the National Prosecuting Authority (NPA) has been averted by the decision announced today to provisionally withdraw murder charges against the Marikana miners. A political free-for-all has broken out which, unlike commentary by academics and legal commentators, cannot serve the interests of justice or the independence of a prosecuting authority already perceived to be unduly influenced by the ruling party.

Adv. Johan Smit, the Director of Public Prosecutions in the North West, is neither a deployed cadre nor an old-order “grey shoes” as suggested by one Sunday newspaper. Neither is the common purpose doctrine an apartheid law. Whatever the wisdom of bringing the charge, now provisionally withdrawn, the slanging match should cease.

The Justice Minister, Jeff Radebe, stayed within the bounds of his section 33 powers under the National Prosecuting Act in asking for a report.

MPs have the power under section 35 of that Act to hold the NPA to account, also on decisions regarding the institution of prosecutions. We have used this section to question Acting NDPP Jiba on the dropping of two cases against Lieutenant-General Richard Mdluli, and will do so again on this matter should greater clarity not emerge.

The NDPP herself has circumscribed powers in reviewing a decision of a provincial Director of Prosecutions, and we will enquire for the record how those powers were exercised.

It is the long-standing position of the DA that the NPA should be given greater independence than either the Constitution or the NPA Act currently gives it. That independence must start with a change to the appointment provision, now in the hands of the President of the Republic. The NDPP should be selected by the National Assembly after an open process conducted by a multi-party committee.

Furthermore, the “final responsibility” which the Constitution gives to the Justice Minister and to which the NPA Act gives effect by allowing him to ask for reports and reasons, has to be reconsidered.

There is no uniform degree of independence to be found in democracies, and at the time of the writing of the Constitution there were few guidelines to be found – and no international Conventions.

However, it has become abundantly clear over the nearly two decades of constitutional democracy in South Africa that the institutional – and not just prosecutorial – independence of the NPA must be strengthened. It is against that background that the Marikana murder charges should be considered and discussed. And it should not be forgotten that the presiding officer would have thrown out unsubstantiated murder charges, and will do so if they are reinstated in whatever form.