The new national director of public prosecutions, Menzi Simelane, whose appointment prompted an outcry from opposition parties, insists that he will be an independent prosecutions boss.

But he said in an exclusive interview with Business Day on Tuesday that the National Prosecution Authority (NPA) did not have to be independent of the Department of Justice for its prosecutors to make independent decisions. Prosecutorial independence was a matter of individual integrity, and debates about institutional independence such as whether the NPA was part of the justice department� were missing the point, and conflating prosecuting responsibilities with administrative responsibilities.

Independence doesn't talk to the institution, independence talks to the individual at the time of making that decision and the ability to make that decision, Simelane said

While legislative enablers such as a sufficient budget, security of tenure and a pegged salary were important, they did not determine independence, he said.

No matter how many laws there were to protect institutional independence, if people wanted to try to improperly influence a prosecutor, they would. And if a prosecutor wanted to be influenced, he would, Simelane said.

Conversely, a person who had integrity could still act independently without the enablers.

Simelane was criticised by the former speaker of Parliament, Frene Ginwala, in her report on the fitness for office of Simelane's predecessor, Vusi Pikoli. Ginwala said Simelane , when he was justice department director-general, had continued to assert powers he did not have, despite legal advice to the contrary.

These largely concerned powers Simelane had exerted as the accounting officer for the justice department and, therefore, the NPA.

Simelane said there was no country where the equivalent of the NPA was not part of the executive. He said the debate had been politicised and that his concern was with the law.

The legal position was prosecutors are public servants ... they fall under the Department of Justice.

But in order to advance the values in the constitution and to move away from the control of prosecutors by anybody, you then create a mechanism in legislation to indicate that a prosecutor who makes a prosecutorial decision should be left to make that decision without interference.

Simelane affirmed his own independence, saying of course he was independent and would make independent prosecutorial decisions.

While many people were so prejudiced that they did not trust him, he knew that he would take decisions independently, he said.

But this did not mean he would refuse to listen to arguments or the opinions of the executive. Every prosecutor, from the Randburg Magistrate's Court to Soshanguve, gets engaged, hears representations and comes under pressure. These can affect his viewpoint.

But at the time of making the decision, what matters is that I was fair and observed the law, he said.

The minister had no power to stop a prosecution . But everyone, including the minister, has the right to argue for a particular position (on) a prosecution . Everybody can.

With acknowledgements to Franny Rabkin and Business Day.