Effective with proven leadership capabilities. That best describes newly appointed national director of public prosecutions (NDPP) advocate Jan Lekgoa Andy Mothibi, who has headed the Special Investigating Unit (SIU) since 2016. His appointment on Tuesday by President Cyril Ramaphosa — widely welcomed by legal experts — is likely to instil hope for a stronger, more robust National Prosecuting Authority (NPA), which has lost public confidence over the years due to its failure to successfully prosecute high-profile corruption cases, often due to delays, lack of preparation and procedural flaws.
Under Mothibi’s watch the SIU has become the frontrunner in the fight against corruption, filling the gap left by the NPA in this regard. Its forensic investigators acting under presidential proclamations have investigated corruption in all its forms in the various spheres of government. The SIU has successfully prosecuted cases in the Special Tribunal and has been responsible for the recovery of the proceeds of corruption amounting to billions of rand.
Mothibi ran a clean ship with not a whiff of scandal tainting the SIU but faces a major challenge in taking on the leadership of the NPA. The SIU has just more than 700 members of staff, whereas the NPA’s establishment numbers more than 5,000. As DA justice spokesperson Glynnis Breytenbach points out, the insulated SIU is a very different animal from the NPA, which is a huge organisation, the effectiveness of which largely depends on the often substandard work of outside players such as the police, the courts and the Hawks, over which it has no control.
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The SIU has been blessed with well-qualified, experienced staff on which Mothibi could rely and which the NPA lacks, and it also works on very defined, assigned cases of corruption. Questions have been raised about a possibly flawed process behind Mothibi’s appointment. The advisory panel appointed by Ramaphosa and led by justice and constitutional development minister Mmamoloko Kubayi failed to present him with three candidates, deciding that none of the names on the shortlist were suitable.
Ramaphosa thus made the appointment of Mothibi himself. He is entitled to under the constitution, though appointing panels to assist in making key appointments such as the NDPP and the South African Revenue Service (Sars) commissioner has become the norm. Mothibi faces a formidable challenge in restoring public confidence in the NPA, confidence that was shattered by the former NDPP Shaun Abrahams, who was appointed by former president Jacob Zuma.
Abrahams was extremely tardy in acting against the Gupta brothers, the architects of state capture, which flourished unrestrained under his reign and which only ended when the Constitutional Court ordered him out on the grounds that he was irregularly appointed by Zuma. This rot persists, and fixing it will not be easy. Abrahams’s successor, Shamila Batohi, has always claimed she has had to fight a rearguard battle against elements in the NPA intent on undermining it and to deal with the institutional decay that occurred during the state capture years.
Mothibi will have to be ruthless in cleaning up the organisation and determined in building up its capacity. To her credit, Batohi successfully pushed for the establishment of the Investigating Directorate Against Corruption in the NPA to handle high-profile corruption and misconduct cases. In addition to his leadership abilities, Mothibi has personal prosecutorial experience, having served as a public prosecutor in the Soweto magistrate’s and regional courts and the Johannesburg magistrate’s court.
He has also managed legal, compliance and risk management operations in the private and public sectors, including at Sars. The appointment of Mothibi as NDPP deprives the SIU of his leadership, but this will be filled by Ramaphosa’s appointment of SIU COO Leonard Lekgetho as acting head. This appointment also holds promise, as Lekgetho has more than 22 years’ experience in forensic investigations, including at the Scorpions, which Zuma dissolved because it was proving too effective in combatting corruption.
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