At the end of February 2026, former National Prosecuting Authority (NPA) official Dr Silas Ramaite testified before the Judicial Commission of Inquiry into allegations regarding efforts or attempts having been made to stop investigations or prosecutions of Truth and Reconciliation Commission cases (Khampepe Commission). His testimony revealed, amongst others, that he received an instruction from the then Minister of Justice, Minister Brigette Mabandla, to await a mandate (from an outside mechanism) the Amnesty Task Team about the prosecution of TRC cases. Asked whether he should have defied the Minister, Dr Ramaite replied that, in hindsight, he should have acted differently.
Our Constitution gives the prosecuting authority the power to institute criminal proceedings on behalf of the state. Section 179(6) of the Constitution does stipulate that the Minister of Justice must exercise final responsibility over the prosecuting authority. But, this provision must not be read in isolation. It should be read with section 179(4) of the Constitution which provides that national legislation must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice.
In this instance, the relevant national legislation is the NPA Act of 1998. In section 33 of the Act, the legislature attempted to unpack the meaning and scope of the “Minister’s final responsibility over the prosecuting authority”. A reading of this section in the context of the findings and recommendations of the Zondo Commission and the testimony being led at the Khampepe Commission, makes it clear that there is an urgent need to amend the NPA Act. Section 33 must clearly spell out that final responsibility does not mean the Minister may issue an instruction that would impede on the independence of the NPA.
The NPA Act must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice and it could be argued that the current lacuna in section 33 undermines this constitutional guarantee, as is emphasised by the evidence being led at the Khampepe Commission.
The sad reality is that it cannot be said that the Government is unaware of the need to amend the NPA Act in this context. In October 2022, the President tabled his response to the recommendations of the Zondo Commission and undertook to undertake work to “clarify the Minister’s “final responsibility” over the NPA as set out in section 33 of the NPA Act and settling aspects related to the NPAs financial and administrative independence”. Jump forward to July 2025 and the progress report on the implementation of these undertakings and all it reports is that 3 years later the Presidency and the Department of Justice are still in a process of consultation in this regard.
One would not want to speculate on the reasons for the reluctance in giving effect to an undertaking given by the President, save to say that it appears to be difficult to let go of unfettered powers.
The Medium-Term Development Plan 2024-2029 also shows that the GNU is not oblivious to the need to amend the NPA Act. It states in relevant part: “Another risk pertains to the improvement of prosecution efforts, particularly the potential for political interference that could undermine the independence of the NPA. To address this risk, strong legislative safeguards must be implemented to protect the NPA’s independence”.
Everyday South Africans watching the drama unfold at the Khampepe Commission, the Madlanga Commission or Parliament’s Ad Hoc Committee (investigating allegations made by LT Gen Mkhwanazi) public confidence in our criminal justice system shrinks. There is no need to wait for these bodies to finalise their lengthy reports with detailed recommendations to start acting to take practical steps to restore public confidence in the rule of law. One such step is to stop the delay in introducing amendments to the NPA Act to give effect to the undertakings already on the table by the President and the GNU, to protect the independence of the NPA.
Dr Lirette Louw Bezuidenhout
This article was originally published on News24.
