Calls have been made for the appointment of the National Director of Public Prosecutions (NDPP) to be undertaken by Parliament rather than being driven by the executive.

This comes amid the conclusion of the interviews of six candidates nominated to succeed incumbent Shamila Batohi when her term comes to an end next month.

The panel will submit its report to President Cyril Ramaphosa for his consideration.

However, there has been a concern around the constitution of the advisory panel interviewing the candidates, and chaired by Justice and Constitutional Development Minister Mmamoloko Kubayi.

Political analyst Professor Sipho Seepe said on Saturday that the only time the process will be fair is if it is led by Parliament.

“At the moment, those people chosen by the president are the president’s people,” he said in reference to the panel consisting of Chapter 9 institutions and representatives from lawyers’ associations.

Seepe also said that if it were really a fair recruitment of the NDPP, it could not be a system led by one man being the president.

“If we have to appoint people who are going to occupy such critical spaces, you should let that be led by Parliament. But when it’s led by the executive, you should know that it will smack and smell of the presidential people,” he said.

“There’s a pretence of openness, but openness would have been if Parliament were to run it. At the moment, there’s a presidential run process by people who are political appointees,” added Seepe.

His sentiments were echoed by Adv Emmanuel Netshipise, who said a parliamentary-led approach might have a stronger role in confirming the NDPP.

“That might assist because we cannot rule out the possibility that there might be an element of interference,” Netshipise said in an interview with the SABC.

“Although the processes are still under way, it gives an impression to the public that indeed it is susceptible to interference,” he added.

The advisory panel concluded interviews of six candidates on Thursday.

These were advocates Nicolette Bell, Adrian Mopp, Andrea Johnson, Xolisile Khanyile, Hermione Cronje, and Menzi Simelane.

The panel received a total of 32 applications or nominations and interviewed six candidates meeting the minimum requirements.

The selection of the six was not without controversy, with Simelane attracting some publicity arising from findings made against him by the Ginwala Commission of Inquiry and a court judgment that set aside his appointment as the NDPP.

In its objections, the Freedom Under Law (FUL) stated that these findings have never been reviewed or challenged.

“In addition, a disciplinary committee of the Johannesburg Society of Advocates has made several adverse findings against Simelane, stemming from his conduct at the Ginwala Inquiry, and found that he had committed professional misconduct,” said FUL, adding that an application to strike Simelane off the roll of advocates was currently before the courts.

It warned that any attempt to appoint him would be unjustifiable, irrational, and vulnerable to legal challenge.

On December 7, the DA’s lawyers, Minde Schapiro & Smith Incorporated, wrote to the panel demanding an explanation on the “shortlisting” of Simelane.

In a subsequent correspondence on December 9 to Ramaphosa, the DA stated that it had grave concerns about the legality and integrity of the interview process for the NDPP.

“This shortlisting alone renders the entire process irrational and unlawful, and unconstitutional,” said the letter, adding that Simelane’s suitability was a serious concern.

The law firm has demanded that Ramaphosa decline and reject any recommendation made by the advisory panel.

It threatened that “our client will consider approaching the High Court on an urgent basis to interdict the appointment of any candidate recommended through this defective and unconstitutional process”.

Kubayi said the advisory panel received the DA letter on the first day of the interviews.

“We do believe that this is self-inflicted urgency, but also there is no merit on it because we have not shortlisted,” she said.

“I must indicate amongst the comments we received out of the 281, the Democratic Alliance did not submit any public comments.”

Kubayi said they have instructed their legal team to respond to the letter, and should the urgent application be brought forth, to respond to it.

“We do feel that there is no need to halt the process,” she said.

Seepe said the DA’s action came as no surprise.

“The position of the DA is that the DA will never be satisfied with anything that is initiated by the executive. They would also make sure that any black person who gets selected or any candidate is the candidate that the DA wants, and so effectively, the DA wants to run government without being in government,” he said.

Netshipise said all the candidates meet certain criteria stipulated by the National Prosecution Act, such as being South African, having a legal qualification which entitles them to practice in any court in the country, 10 years or more managerial or executive experience, and being proper and fit persons.

“There’s been a lot of challenges in respect of what was put to the candidates by the seven panel of interviewers to try to establish whether, indeed, they are proper and fit, and of course, at the end of the day, there were some of the elements which might work against other candidates, and some stood firm.”

mayibongwe.maqhina@inl.co.za

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