Nomgcobo Jiba, acting national director of public prosecutions
Picture: Sowetan

Concern has been expressed in several quarters ­ particularly in opposition parties and the legal fraternity ­ about the effect of President Jacob Zuma’s presidency on the National Prosecuting Authority (NPA).

Mr Zuma’s path to power included what many viewed as manipulation of the NPA to ensure it dropped corruption charges against him. But an examination of the history of the NPA shows its independence may have been doomed from its formation.

The NPA was formed in 1998, after express provision was made for it in the constitution.

The constitution clearly provides for independent prosecutorial decision making and says the head of the authority, the national director of public prosecutions (NDPP), is appointed by the president, with just two conditions: that he be qualified to "appear in all courts in SA" and he be a "fit and proper person".

It was this second criterion that saw the Democratic Alliance win a court battle with the Presidency over Mr Zuma’s appointment of the most recent NPA head, Menzi Simelane.

The Constitutional Court found that Mr Zuma had acted irrationally in appointing Mr Simelane, because he had ignored serious question marks over Mr Simelane’s honesty and integrity.

Former president Thabo Mbeki appointed the first NDPP, advocate Bulelani Ngcuka, and it fell to Mr Ngcuka ­ just a few years after the NPA was created and was still finding its feet ­ to make decisions about prosecuting then deputy president Jacob Zuma.

But, as the infamous "Zuma spy tapes" purport to reveal, Mr Ngcuka did not always seem make these decisions without "fear or favour". Discussions on those decisions go back to December 2007 and suggest a political motive in the timing of the decision to charge Mr Zuma with corruption. However, by then the damage had long been done to the NPA, and largely by Mr Ngcuka himself.

It was he who, in August 2003, said the NPA (ie himself) had decided not to prosecute Mr Zuma despite "there being prima facie evidence against him".

This was followed by a meeting of newspaper editors (famously dubbed the "blacks only editors meeting") where he claimed Mr Zuma was "not fit to govern".

It would appear that much of this behaviour may have been at the behest of Mr Mbeki, the man who had appointed him.

Eventually, Mr Zuma’s allies responded with a claim that Mr Ngcuka had been an apartheid spy.

Despite being cleared by the Hefer commission, Mr Ngcuka resigned and was replaced by advocate Vusi Pikoli.

Mr Pikoli was a different kettle of fish. While going ahead with the Zuma prosecution, he also decided to charge then national police commissioner Jackie Selebi, who was implicated in drug-running (and was subsequently found guilty).

Mr Mbeki tried to stop him and, when he failed, used his legal powers to suspend Mr Pikoli and set up an inquiry, headed by former speaker of Parliament Frene Ginwala, into his fitness for office.

However, the Ginwala inquiry found that Mr Pikoli was a "fit and proper" person to hold office, but appeared to make enough findings against him to allow the president to make the final decision. By then, Mr Mbeki had departed from office and it was left to then president Kgalema Motlanthe to make the decision. He decided, despite Dr Ginwala’s main finding, to fire Mr Pikoli.

This meant that when the time came for the NPA to make a decision on Mr Zuma’s charges, it was being led in an acting capacity by Mokotedi Mpshe.

Recent reports have shown that both he and Mr Ngcuka ignored the opinions of the prosecution team when making their decisions not to prosecute Mr Zuma, and that the team believed they had a case winnable in court.

The NPA itself is now once again being led by an acting head, advocate Nomgcobo Jiba. There is intense speculation as to whether she will be permanently appointed, after Mr Zuma used his presidential powers to legally expunge her husband’s criminal record.

If she is, it will feed into perceptions that she will not be fully independent, and that the NPA’s problems in this area will continue.

• Grootes is an Eyewitness News Reporter

With acknowledgement to Stephen Grootes and Business Day. 

Other than Pikoli, the rest are pure stooges.

Finish 'n klaar.