Paul Hoffman: What we know about Andy Mothibi, the new NDPP boss

Key topics:

• NPA remains under executive control, hindering anti-corruption efforts.

• Mothibi appointed to guide NPA amid transition to new oversight bodies.

• Push for Glenister-compliant, independent anti-corruption body

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By Paul Hoffman*

The age of Andy Mothibi, newly appointed National Director of Public Prosecutions (NDPP), is difficult to determine via the internet. It is known that he graduated from NWU in 1987 with a B. Proc. degree.

Assuming he commenced his tertiary academic career immediately after leaving school, it seems likely that he is over sixty years old now. If he took time to get to university, as may be likely, he is well over sixty. He chose not to apply for the vacancy he now fills as from the end of January 2026.

The NDPP in SA is obliged by law to retire at the age of 65 years.

The informal process put in place by the president to assist him in identifying a new NDPP, a functionary appointed at his sole discretion, failed to attract any applicant who managed to favourably impress the panel of persons appointed to preside over the process of recommending a shortlist of suitable applicants. Indeed, none of the 32 applicants, including a preliminary shortlist of six “finalists”, measured up to the (unidentified) standard set by the panel. It must now be presumed that no fit and proper person was seen by the panel. The panel itself was criticised in advance for its lack of expertise in identifying the qualities needed by the most favoured candidate. Perhaps it set the bar too high, or was otherwise inappropriately motivated in judging the qualities of the candidates who were willing to accept the poisoned chalice from Shamila Batohi, the outgoing NDPP, despite the dysfunction in, under-funding of, and under-resourced nature of the National Prosecuting Authority (NPA) in 2026, especially as regards dealing with corruption.

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It is unarguable that the NPA was captured during the Zuma era and repurposed to accommodate the kleptocracy of that period and beyond it. Very few “big fish” have been netted by the NPA in the years after the demise of the Scorpions unit it housed until 2009. Zuma swims on in the sea of Stalingrad tactics he has populated with some imaginative lawyering, novel point-taking and his resort to endless appeal processes.

The fact that Batohi, seven years in office, was not able to identify and groom a suitable successor speaks volumes. Her favourite, Andrea Johnson, cooked her own goose by advising underlings to “fake it till you make it” by dressing smartly and taking dummy files into court to give the false impression of relentless and vigorous preparations for trial. That tactic has netted zero “big fish”, as might be expected.

The work of the NDPP, as set out in the Constitution, is neither complicated nor particularly onerous in a well-functioning NPA. According to Section 179(5) of the Constitution:

5.  The National Director of Public Prosecutions ­

a. must determine, with the concurrence of the Cabinet member responsible for the administration of justice, and after consulting the Directors of Public Prosecutions, prosecution policy, which must be observed in the prosecution process;

b. must issue policy directives which must be observed in the prosecution process;

c. may intervene in the prosecution process when policy directives are not complied with; and

d. may review a decision to prosecute or not to prosecute, after consulting the relevant Director of Public Prosecutions and after taking representations within a period specified by the National Director of Public Prosecutions, from the following:

i. The accused person.

ii. The complainant.

iii. Any other person or party whom the National Director considers to be relevant.” 

The actual work of prosecuting criminals is done at provincial level by the staff of the Directors of Public Prosecutions in all provinces.

It is quite clear from the wording of section 179 that the NPA is not a body that can properly be called “outside executive control”.  On the contrary, the cabinet member responsible for the administration of justice must exercise final responsibility over the prosecuting authority. The NPA is run as a programme within the Department of Justice, and its accounting officer is the director general in that department.  Section 179(4) expresses a wish for the future:

“National legislation must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice”.

No such legislation has ever seen the light of day. The phrase “without fear, favour or prejudice” is taken to refer not to independence but to operational impartiality.  In the context in which the phrase is used in section 179, it cannot refer to independence, given the roles of the minister and director general of justice.

In the Glenister litigation the Constitutional Court had occasion to consider the capacity of the state to deal effectively with corruption. It ruled that a body outside executive control is required for this purpose. No such body has been formed since the court so ruled, in terms that bind government.

Recognition of this failure has prompted the National Anti-Corruption Advisory Council (chaired by the Acting Minister of Police) to recommend that a new Chapter Nine body, the Office of Public Integrity (OPI) be established to investigate (but not prosecute) serious and systemic corruption in SA. NACAC apparently envisages that the SIU, which is not part of the criminal justice system, could be disbanded and its assets, including qualifying staff, could be folded into the OPI in order to comply with the court ruling.

It may be that the appointment of Mothibi is aimed at smoothing this transition in which the SIU would disappear. It is not clear at this stage who, or what entity, will be given the task of raking back the loot of state capture for government departments and SOEs in civil proceedings: all work currently handled by the SIU. That task may be assigned to the NPA or to the OPI. Making the old head of the SIU the new head of the NPA could well facilitate the changes that NACAC envisages, and which are currently under consideration by cabinet.

A difficulty with NACAC’s suggested transition is that it is envisaged that the OPI will be empowered to accept instructions from the president which will be indistinguishable from the proclamations currently used to put the SIU in harness on any particular case that catches the attention of the president. The stumbling block here is that the OPI could hardly be called a Chapter Nine Institution if it is beholden to the president in this way. All the Chapter Nine Institutions have their reporting lines directly to parliament, and all are free of executive control, influence or interference. Furthermore, if the prosecutions in corruption dockets prepared by the OPI are handled by the NPA, this will fly in the face of the ruling that “a body outside executive control” is what the law requires to enable the state to deal effectively with corruption.

To further complicate the minefield into which Mothibi is treading, there are currently two bills pending in parliament which envisage the establishment and enabling of a new Chapter Nine Anti-Corruption Commission which will, if passed, comply with the Glenister rulings of the Constitutional Court.

Andy Mothibi is a respecter of the rule of law. He understands the binding nature of court rulings after all appeals have been exhausted. The Glenister cases all ended on final appeal in the Constitutional Court. The OPI / Ch9 ACC minefield will test Mothibi’s fealty to the rule of law. He is the right man for the job, as it is not likely that he will allow backsliding on the need for whatever new structures are put in place to be “Glenister-compliant”. That the OPI is not Glenister-compliant in the form envisaged by NACAC is clear. That the NPA is not “outside executive control” is equally clear.

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It is hoped that Mothibi will lead the NPA to a place where it abandons all involvement in serious corruption cases, in favour of a body outside executive control that is yet to see the light of day in SA. He also favours the establishment of an International Anti-Corruption Court, and has done sterling work of a civil-law kind during his ten years with the SIU. The onus of proof in civil cases is not as rigorous as the “beyond a reasonable doubt” requirement of the criminal law, which is partly why the SIU has fared so much better than the NPA in countering the corrupt in SA.

Andy Mothibi chose not to apply for the post of NDPP. He has however accepted it, at the request of the president, because he is a faithful servant of the people of SA. In that capacity he deserves the good wishes of all constitutionalists, as he embarks on the crowning achievement of his long and distinguished career in law at a time when tricky amendments to the existing order are overdue, but are under way in various forms mentioned above. He will be remembered for whatever he does between now and his sixty-fifth birthday, whenever that may be.

*Paul Hoffman SC, a native of Johannesburg and a Wits graduate, practised law at the side bar from 1975 to 1980 and at the Cape Bar from 1980 to 2006.

This article was first published by Daily Friend and is republished with permission