Advocate Glynnis Breytenbach withdraws from consideration for NDPP

14 November 2018

After consulting widely with colleagues in the DA and the legal fraternity, and after thinking deeply over the last few days, Advocate Glynnis Breytenbach has decided to withdraw her name from the shortlist for next week’s interview for the position of National Director of Public Prosecutions (NDPP).

Adv Breytenbach would have made an excellent NDPP. She is fearless, brave, utterly independent, and has for most of her life been a professional prosecutor.

Over the last fifteen years, the National Prosecuting Authority (NPA) has had its credibility severely undermined by a succession of appointments in the position of NDPP who have failed to uphold the strict standards of independence and integrity that the office demands. Successive National Directors have used the position to influence politics, pursue factional battles, suppress certain prosecutions and unduly pursue others. In so doing, they have defeated the ends of justice and have undermined that sacred cornerstone of constitutional democracy, equality before the law.

The actions of these Directors have over time cemented in the public mind the perception that the justice system can be easily abused by the politically powerful and connected, and that the NPA answers to political masters, rather than making the corrupt answer to the law. Indeed, it was exactly this kind of abuse that led to Adv Breytenbach leaving the NPA and joining the Democratic Alliance.

The most obvious and egregious example of this abuse is the handling of the prosecution of Jacob Zuma, who has managed to evade trial for corruption for so long despite overwhelmingly strong evidence against him. We continue to this day in our fight to have him held accountable, and we will not give up in this fight until he faces trial.

Other examples include the persecution of Pravin Gordhan, Oupa Magashule and Ivan Pillay in the matter of Gordhan’s early retirement, a prosecution that was instituted solely for the purpose of discrediting, and possibly intimidating, Gordhan at a time that he was standing up against state capture. Similarly, names such as that of Johan Booysen, Robert McBride, Shadrack Sibiya, Anwa Dramat and others can be added to the list.

The politicisation of the NDPP and the NPA is not just an aberration of the Zuma presidency either. It started under the Mbeki Presidency, and is simply the natural consequence of the ANC’s policy of cadre deployment, which has as its explicit goal the capture of the state’s levers of power in order to concentrate power in the party.

This policy of cadre deployment has demoralised professional civil servants who are judged not on the quality of their work, but on their connections and loyalty to the party. It has severely undermined the professionalism of the civil service and has allowed the vast network of corrupt cadres to entrench themselves in every department and state owned entity. We have seen the pernicious effect of this cadre deployment at SARS, at Eskom, at SAA, at Denel, in the SAPS, and indeed at the NPA.

If public faith in the NPA it is to be rebuilt at all, the President must appoint someone who is seen to be totally above party politics. It is not enough to know that the person will act independently. They must also be seen to be independent. And it is this factor which has led to the decision that Adv. Breytenbach has made.

This is an opportunity for the President to demonstrate to the country that the criminal justice system will no longer be abused for political ends, and that every person is equal before the law, no matter their position or their power. This is an opportunity to reassert South Africa’s leadership role on the continent, where the abuse of legal process to protect the powerful is all too common.

The President should use this opportunity to admit that the ANC’s policy of cadre deployment has been disastrous for South Africa, and has led directly to state capture, and that cadre deployment should be stopped.

He must appoint a candidate who is fiercely independent, loyal only to the law and the Constitution, and with a proven track record of acting accordingly.

Over the years, the DA has been a consistent fighter to ensure the NDPP appointed is a fit and proper person, and that they act within the law.

We fought the appointment of Advocate Menzi Simelane to the position of NDPP in 2011 and won. This was a precedent-setting case, in which it was determined that the President, when appointing an NDPP, must choose a person who is fit and proper person, with due regard to his/her experience, conscientiousness and integrity. This case further determined that these qualities are jurisdictional facts that must be objectively assessed, therefore making it open to judicial review.

We have also proposed in the past that the appointment procedures for the NDPP be reformed to limit the power of the President to appoint whomever he or she likes, and to involve Parliament more directly in the process. Specifically, we have proposed a constitutional amendment that will check the President’s power to appoint an NDPP of his choice by requiring that he decides on an appointment only upon the recommendation of Parliament.

This model will be similar to that used for the appointment of heads of Chapter 9 institutions and encourages selection on objective grounds during a transparent multi-party process. The Private Member’s Bill to effect this amendment, proposed by the late DA MP Dene Smuts in 2013, was voted down by the ANC in a Motion of Desirability. The DA has stated before that we intend to re-introduce a Private Member’s Bill on this issue.

We are pleased that the process currently underway to appoint a new NDPP is a step in the right direction, and we support the interview process being public and open to the media.

Issued by Mmusi Maimane, Leader of the Democratic Alliance, 14 November 2018