John Matisson on new NDPP Andy Mothibi’s key test

Key topics:Andy Mothibi seen as a strong, experienced choice for NPA head.Batohi hindered by State Capture and blocked pro bono support.Key test: NPA independence vs executive interference in corruption cases..Sign up for your early morning brew of the BizNews Insider to keep you up to speed with the content that matters. The newsletter will land in your inbox at 5:30am weekdays. Register here.Support South Africa’s bastion of independent journalism, offering balanced insights on investments, business, and the political economy, by joining BizNews Premium. Register here.If you prefer WhatsApp for updates, sign up to the BizNews channel here..By John Matisonn.I have sat in close to a dozen SABC board meetings with Andy Mothibi, who starts on February 1 as the next NPA head to succeed Shamila Batohi, and I think his a sound choice from the thin gruel of our criminal justice leadership.From the start I thought little of Batohi’s chances of doing the job after hearing her first public speeches at the University of Cape Town and then the Daily Maverick’s The Gathering.Her approach filled me with foreboding, and her achievements confirmed those instincts. Jurists who would not talk publicly took the same view in private.Her debut introductions to the South African public were dominated by two themes: First, she talked at too much length about her dilemma about this as a career move. That’s not our problem, Advocate Shamila. You took on a position whose success determines the safety and prosperity of millions of South Africans. Corruption crisis costs jobs and lives. Second and more fundamental to the job itself, was her approach to fixing the institution. She told us the old methods of getting prosecutions was not working. So she would set up two new hubs – and “innovation hub” and a “training hub.”That sounded crazy to me, because the cause of failure was State Capture, not wrong prosecution methods. I’m not a lawyer, but this view was fortified by jurists I spoke to who agreed.The effect of State capture in the NPA was to appoint to senior positions lawyers who were corrupt, incompetent and often both. The solutions is to bring in the very best South African lawyers with the best experience in relevant specialities from the bar and sidebar, and give them promising young lawyers as juniors so they can train on the job. Lawyers with academic degrees know nothing about conducting a case until they have been mentored on the job, as either articled clerks or pupil advocates. There is no short cut.As the offers of pro bono support came in, the NPA accepted a few. But the department of justice blocked many, according to Lawson Naidoo, executive secretary of Casac, the council for advancement of the South African constitution. That made it impossible for Batohi to do her job.If you accept the citizen’s duty to play your part in a high-level, high prestige job after the sacrifices of generations, don’t whine. Put everything you have into succeeding, and the most important test of success is putting the highest level of person who acted criminally behind bars.That’s not for a political reason – it’s because that will scare the most crooks to fear they could be next. What deters would-be criminals is not the seriousness of the punishment. Even the death penalty as opposed to life in prison has been shown not to deter crime. What scares the criminal is the chance of getting caught, convicted and given a life-limiting sentence.So if a cabinet minister goes to jail for something, he/she is more likely to think twice about committing the same crime. Of course there must be more than one conviction. But dogged pursuit along those lines is what matters.So will Mothibi be noticeably better?Here I see great positives in his experience, but the key question is whether he will stand up for the NPA against being undermined by the executive?This is the biggest impediment to winning the corruption battle. Government has always chosen people from inside the system to key jobs that require some independence. Some failed the competency test, but even if they passed that, they were unwilling to do more than ask and occasionally mildly defend themselves if they didn’t get the tools they needed to be effective. The cadre deployment system remains alive and well.So it will be for Mothibi.Batohi was held back two years when she wanted the Gauteng prosecutor head removed. It was the president’s decision to make. Arguably, she should have asked earlier if she couldn’t work with him.But waiting two years for the president to acquiesce is unacceptable. An independent leader has the obligation to go first through channels, but if a delay becomes inordinate at the expense of her effectiveness, she has the obligation to confront the problem, no matter how high that goes.Of course she could be fired or iced out for publicly challenging the president of the justice department. So which is more important, the risk of going out on a principle or staying on unable to achieve your mission?She’s a lawyer with a great CV. She’ll land on her feet. It’s not our problem, and she’d have done wonders for South Africans hope quotient.So what will Mothibi do if – and when – he’s confronted with the same choices?A final word of encouragement: with the public pressure that would surely follow, there’s always a chance the president or Justice Minister might do the right thing.

John Matisson on new NDPP Andy Mothibi’s key test

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