“Fit and proper” or a “diciplined cadre”?

I see the newspapers report that Muzi Wilfred Mkhize, the advocate tipped to be South Africa’s new prosecutions boss – and who could ultimately decide the fate of presidential aspirant Jacob Zuma – was an active member of the ANC leader’s legal team when he was first charged with corruption. Moreover, in 2005 he had previously pleaded guilty to professional misconduct and had paid a R10 000 fine to the KwaZulu-Natal Society of Advocates because of his unethical behaviour during a disciplinary hearing he chaired. This amount was the maximum fine under the society’s rules.

I am sure these reports are just malicious speculations by dark forces in the unpatriotic media hell bent on discrediting Jacob Zuma and the ANC. Surely, the ANC would not appoint Adv Mkhize to such an important position at the pinnacle of the indpendent Prosecuting Authority? So, I will have to assume that these reports are not true. Viscious lies, they are (as Yoda would have said).

The Durban newspapers report that Mkhize’s ethical misconduct related to his chairing of an internal disciplinary inquiry at the Ubuhlebezwe (Ixopo) municipality, in which he found the chief financial officer guilty of misconduct and recommended his immediate dismissal.

It later emerged that prior to the hearing, he had provided the municipality with written legal opinion on the issue, recommending what charges should be laid and stating that “on those charges he will be found guilty and be dismissed”. Mkhize’s ruling was overturned on review before the Natal Provincial Division, and he was admonished and fined by the KwaZulu-Natal Society of Advocates.

Under our Constitution the President has the authority to appoint the National Director of Public Prosecutions (NDPP). This means the President can appoint someone he believes will share the government’s views on the fight against crime and on the prosecutions policies that must be agreed upon between the NDPP and the Minister of Justice.

At the same time the President cannot appoint a party hack who will obey orders from the executive or the legislature to prosecute or not to prosecute any individuals, because the Constitution requires the DNPP to act without fear, favour or prejudice.

The Constitutional Court in the First Certification Case made clear that these provisions mean that the NPA is an independent body and that its independence is implictly protected in the Constitution. (Sadly, this is a judgment that some of the ANC members of Parliament is not familiar with, so some of them have said there is confusion about the independence of the NPA – despite this clear statement from the highest court in our land.)

The National Prosecuting Authority Act must give effect to this constitutional independence and does so in many ways. One is by prescribing the qualifications that any person appointed by the President as NDPP must posess. Section 9 of the Act states:

9(1) Any person to be appointed as National Director, Deputy National Director must:
(a) possess legal qualifications that would entitle him or her to practise in all courts in the Republic; and
(b) be a fit and proper person, with due regard to his or her experience, conscientiousness and integrity, to be entrusted with the responsibilities of the office concerned.

These provisions have to be interpreted with reference to the constitutional guarantee of the independence of the NPA – as confirmed by the Constitutional Court. The requirements set out in article 9 of the NPA Act must therefore be interpreted – if they are reasonably capable of such a meaning – of complying with the requirements for an independent NPA. If they cannot be so interpreted, they are unconstitutional.

The Constitutional Court has said that in evaluating whether a judicial officer will exercise his or her powers impartially one will have to ask whether a reasonable, well-informed, person, armed with all the relevant facts, would have a reasonable apprehension that the relevant  officer would potentially be biased in his or her decision making. Context is all important. Although different judicial officers will be evaluated differently – depending on what body they serve on and the powers they have – this test will apply to all of them with due regard to the different roles played by such officers.

I would argue the same kind of test will thus also apply to the head of the NPA – taking due regard that the NDPP must implement the prosecuting policy of the government and can therefore be someone that is broadly trusted by the President of the day to implement that policy.

But where informed and reasonable persons will have a reasonable apprehension that the person appointed as NDPP was appointed with an ulterior purpose, namely appointed not merely to implement the broad prosecution policies of the government, but to make decisions of a specific kind in a specific case that would benefit specific politicians – the leader of the same party that the President hails from say – the letter and spirit of the NPA Act and the Constitution would have been breached. The decision of the President to appoint such a person will then become reviewable because then the President would have acted ultra vires.

The Constitution and the NPA Act does not empower the President to undermine the independence of the NPA by appointing a person for an ulterior motive. Where reasonable, well-informed individuals will have a real apprehension that the DNPP was appointed for an unlterior purpose and that he or she would not act in an independent manner, the appointee will not be a fit and proper person as required by the NPA Act.

In the case of Mr Mkhize, the mere fact that he appeared for Mr. Zuma in one of his many cases will probably not trigger this apprehension of bias. Lawyers appear for many different accused all the time – it does not mean they are friends with or support the accused. In any case, as a good, ethically sound, lawyer Adv Mkhize will surely recuse himself when decisions regarding his previous clients are made by the NPA.

But one must look at all the facts to form an opinion whether a reasonable apprehension of bias can be found. Adv Mkhize has pleaded guilty to serious misconduct. He therefore has admitted that at least on one occassion he lacked the integrity and conscientiousness required for the job of NDPP.

Taken together, these two factors will make it very difficult for the President to show that he had not acted with an ulterior motive in appointing Adv Mkhize. This decision would then become challengable in court. Any reasonable person, faced with all these facts, would have a reasonable apprehension that Adv Mkhize may not always act without fear, favour or prejudice, but may well act to protect Mr Zuma from prosecution.

That is why I am sure these news reports are just scurrilous rumours spread by dark forces (Lord Sauron perhaps?) who want to discredit the ANC, President Kgalema Motlanthe, Jacob Zuma and Adv Mkhize.

Besides, Cosatu and the SACP has long argued that the NDPP should be an independent person, free from political interference by the executive, so their leaders will obviously strongly argue against the appointment of someone like Adv Mkhize. This is not because he is a bad person or because he will be biased – merely because many reasonable and informed people will have a very strong (and quite reasonable) fear that he will be biased. If there is indeed talk amongst the President’s advisors of appointing Adv Mkhize, I am sure those principled defenders of the NPA’s independence like Cosatu and the SACP will make a lot of noise to dissuade the President from appointing such a person.

No, I am sure President Motlanthe will appoint an independent-minded professional lawyer who will act in the best interest of the NPA at all times. Surely that is what the Constitution requires him to do. That is what Mr Zuma and his defenders have demanded all along and as principled people they will not change their minds merely to score a short term political advantage. Besides the President would never act in a way contrary to the letter and spirit of the Constitution, now would he.

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