Advocate Andy Mothibi’ is expecting to face a tough first day at office with numerous high-profile cases he is inheriting and possibly being slapped with a court application challenging his appointment. As Advocate Andy Mothibi officially assumes his role as the newly appointed National Director of Public Prosecutions (NDPP) on Monday, he faces a formidable challenge. He faces significant challenges, including a number of ongoing cases linked to the Zondo, Mpati, and Nugent Commissions.
According to Advocate Paul Hoffman SC, Director of Accountability Now, Mothibi will now alsofacepossible prosecutions stemming from the Madlanga Commission. But, Hoffman said, it is not legal for the National Prosecuting Authority to take these cases because it is not “a body outside executive control” that the law requires. “Mothibi would be well advised to decline to prosecute corruption cases because they fall outside of the remit of the NPA and all other criminal justice bodies currently in existence”.
Hoffman is of the opinion that this will prompt long overdue and necessary reform that does comply with the binding Constitutional Court judgment in the Glenister case and the “STIRS” requirements. This acronym stands for Specialised, trained, independent, resourced in guaranteed fashion, and secure in tenure of office. Hoffman said we currently do not have an operational and structural framework that effectively deals with the fraudsters and the corrupt in our midst.
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He pointed out that international law, domesticated by South Africa, obliges the country to set up and maintain anti-corruption machinery of state that is independent in its operations and structure. He pointed out that the Constitutional Court in the Glenister case found that “our law demands a body outside the executive control to deal effectively with corruption.” Hoffman said no actual body answering to the STIRS criteria exists in South Africa, thus the need for the Madlanga Commission and others before it. He pointed to the fact that the Constitutional Court ordered Parliament to create such a body by September 2011.
“Parliament has not done so in any way, shape, or form. Instead, we have Hawks investigating, the SIU raking back loot, and the AFU seizing, freezing, and securing forfeiture of stolen assets, and the NPA prosecuting serious corruption”.
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