Dispassionate appointment of the NDPP

April 1st, 2018

Corruption Watch (RF) NPC and Another v President of the Republic of South Africa and Others 2018 (1) SACR 317 (GP)

By Siyabonga Mathe

In terms of s 179(1)(a) of the Constitution, ‘a National Director of Public Prosecutions [NDPP], who is the head of the prosecuting authority’ is appointed by the president. The High Court in Corruption Watch (RF) NPC and Another v President of the Republic of South Africa and Others 2018 (1) SACR 317 (GP), reminded the president that these powers are subject to constitutional constraints and the rule of law, and that the president’s powers are to be distinguished from those of an old time royal prerogative. The court, importantly, pointed out that where the president is conflicted it is constitutionally permissible to assign the power to appoint a NDPP to the deputy president.

This case concerned two analogous applications: One by Corruption Watch and Freedom Under Law and one by Council for the Advancement of the South African Constitution (CASAC).

In the first application, Corruption Watch and Freedom Under Law sought an order setting aside the settlement agreement reached on 14 May 2015, between former President Jacob Zuma, the Minister of Justice and Correctional Services, Michael Masutha, and the predecessor to the current NDPP, Mxolisi Nxasana. In terms of the settlement, Mr Nxasana was paid more than R 17 million for vacating his office.

Corruption Watch and Freedom Under Law further asked the court for an order reinstating Mr Nxasana as the NDPP, alternatively, that the office was vacant and direct the deputy president within 60 days to appoint a permanent NDPP on the basis that the president himself was ‘unable’ in terms of s 90(1) of the Constitution to act due to his conflict of interests.

In the second application, CASAC sought a declaration of unconstitutionality in respect of subs 12(4) and (6) of the National Prosecuting Authority Act 32 of 1998 (the NPA Act).

The court found that the vacation of the office by Mr Nxasana and the subsequent payment of the settlement amount was invalid and contrary to the law. Section 12(8)(a)(ii) of the NPA Act states that ‘The President may allow the [NDPP] at his or her request, to vacate his or her office … for any reason which the President deems sufficient’. In the absence of such request, therefore, the president had no legal basis to allow the NDPP to vacate his office. The notion of a request, if it is to comply with the NPA Act, must be interpreted as referring to an incentive that emanates wholly and honestly from the office bearer and not simply to an attitude of the NDPP incentivised by promise of reward. In the present case, the court found that the evidence suggested that there had not been a voluntary and bona fide request from Mr Nxasana. In fact, the president utilised the public purse to persuade Mr Nxasana to leave office. The upshot of this finding was that, the subsequent appointment of advocate Shaun Abrahams, the current NDPP, was declared invalid and set aside.

In light of the host of potential criminal charges, the court found that the president was disqualified from appointing a new NDPP. In terms of s 96(2)(b) of the Constitution, members of the cabinet may not ‘act in any way that is inconsistent with their office, or expose themselves to any situation involving the risk of a conflict between their official responsibilities and private interests’. This provision made it clear that a conflicted cabinet member cannot act. In the court’s view, President Zuma would be clearly conflicted in appointing a NDPP given his long-standing criminal charges that have not gone away and the finding by the SCA in Zuma v Democratic Alliance and Others 2018 (1) SA 200 (SCA), that the decision to withdraw them was irrational. In addition, the president told the SCA that he ‘had every intention in the future to continue to use such processes as are available to him to resist prosecution’. This, according to the court would place the incumbent NDPP firmly on the spot.

Having found that President Zuma was conflicted and, was therefore, unable to appoint a NDPP, the court directed that the deputy president, within 60 days, had to appoint a new NDPP. In terms of s 90(1)(a) ‘When the President is absent from the Republic or otherwise unable to fulfil the duties of President’, the deputy president acts as president.


This judgment is important as it highlights the long-established principle that where there is a conflict of interest, either actual or perceived, the decision-maker must recuse themselves. I submit, however, that the judgment and the legal principles set out therein must not be taken too far. Section 96 of the Constitution, on which the court relied, envisages circumstances in which the president exercises authority as head of the national executive (see s 85 of the Constitution for president’s powers as head of the national executive). However, in relation to president’s powers as head of state (see s 84 of the Constitution for president’s powers as head of state), the court may not utilise the provisions of s 96 to prevent the president from acting merely because there is a conflict of interest. This is mainly because, when the president exercises authority as head of state, he is not acting as a member of cabinet as provided for in s 96. However, in light of the recent trend by courts to develop the principle of legality beyond what it ought to be, anything is possible.

Siyabonga Mathe LLB (cum laude) (UKZN) is a candidate attorney at Norton Rose Fulbright in Durban.

This article was first published in De Rebus in 2018 (April) DR 39.