The new NPA head is an inspiring appointment with a solid background at the SIU and private sector,writes Adriaan Basson.
The worst thing to say about Advocate Andy Mothibi, the new National Director of Public Prosecutions (NDPP), is that Jacob Zuma once appointed him.
In May 2016, Zuma was still head of state. State capture was at its zenith, and Zuma needed to show tangible progress in the fight against crime. Enter Mothibi as head of the Special Investigating Unit (SIU), the government’s own audit firm with civil powers to recover money and assets lost to corruption.
The SIU doesn’t prosecute criminally, which may explain why Zuma didn’t view Mothibi as a threat.
It would be unfair to tarnish Mothibi with the Zuma brush alone. Even a broken clock is right twice a day. His appointment to the SIU followed the short-lived careers of Willem Heath and Vas Soni as heads of this institution.
READ | Ramaphosa appoints Andy Mothibi as new National Director of Public Prosecutions
Until then, Mothibi was a relatively unknown entity in law enforcement circles. Zuma appointed him from Medscheme, where he was overseeing legal services and risk.
He has an impressive CV: before Medscheme, Mothibi had a solid stint in the private sector, working as head of risk for both Standard Bank and Nedbank. He was also part of the team that established the South African Revenue Service (SARS) under the late Pravin Gordhan.
I wouldn’t be surprised if Gordhan had been the one who recommended Mothibi to Zuma.
“He will throw the book at anyone who doesn’t comply,” says a former colleague. Others who worked with Mothibi through the years call him “independent”, “professional”, and “a man with gravitas”.
Turning asset seizures into prison sentences
The fact that he has survived at the SIU for almost 10 years speaks volumes. He built on the legacy founded by Willie Hofmeyr, who was the first head of the unit. Today, the SIU is at the forefront of fighting corruption at the National Lotteries Commission, Gauteng Health, Public Works, and the National Health Department, where it was leading the Covid-19 PPE corruption cases.
Mothibi’s appointment comes as a pleasant surprise after uninspiring interviews with several career prosecutors for the top job. None of them stood out as the person who could take over the baton from Shamila Batohi when she retires this month.
It is to the credit of the appointing panel and President Cyril Ramaphosa that they didn’t recommend and appoint the best of a lukewarm crop.
Would it have been better for Mothibi to have undergone the same interviewing process and scrutiny? Absolutely.
However, he is not an unknown entity and has an impressive track record as the leader of the SIU.
Ramaphosa had been under pressure to fill the seat when it became vacant in three weeks, and Mothibi was an obvious successor.
READ | SIU head Mothibi appointed as NDPP – after panel rejects all 6 candidates
The biggest challenge Mothibi will face is that he now firmly enters the criminal sphere of the law. There is a much lower bar to reclaim wasted money in a civil court, where you only have to prove your case on a balance of probabilities.
In criminal cases, the State must prove its case beyond a reasonable doubt. Mothibi started his career as a prosecutor and magistrate, and he will know this is a different ball game.
At the SIU, he had a dedicated court and judges assigned solely to the SIU’s work. No more such luck; the NPA competes for time on the court roll in all the country’s lower and higher courts.
Another significant difference between the two is that the SIU couldn’t imprison anyone, whereas the NPA’s primary function is to remove criminals from our streets and into correctional facilities. Taking someone’s Lamborghini is one thing. Sending him to Leeuwkop Prison for 20 years is next level.
Early priorities
Mothibi inherits an NPA that Batohi and her lieutenants started to fix in 2019, but it is far from where it should be. The public no longer wants excuses about a lack of skills or resources. We want results.
Mothibi needs to be fierce in his support of the independence of the NPA, in particular the Investigating Directorate Against Corruption (IDAC), led by Advocate Andrea Johnson. He needs to advocate for adequate resources and support his deputies and directors of public prosecutions in the provinces in focusing on cases that will have the most significant impact.
READ | Unfinished business: NPA’s independence, prosecutorial capacity remain a challenge
Mothibi will need the best people around him to succeed. Stabilising the Johannesburg division, while the controversial Andrew Chauke faces a hearing into his fitness, will be key to his success.
Another position that needs filling is that of the head of the critical Asset Forfeiture Unit in the NPA. Mothibi should seriously consider motivating to Ramaphosa for the appointment of Hermione Cronje, one of the frontrunners for NDPP, who was closely involved in the establishment of the AFU under the then NDPP, Bulelani Ngcuka.
She may not have been the ideal candidate to lead the NPA, but in her interview, Cronje demonstrated a solid understanding of what was wrong with the institution and how it could be fixed.
- Adriaan Basson is editor-in-chief of News24.
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