SINAWO THAMBO: Appointments of Pretorius and Chaskalson in the NPA were an avoidable controversy

The laws of natural justice are not a complex legal philosophy. The simplest definition is that one should not be a judge in his own cause.

The law is more complex than what is legally permissible but often demands of us to protect it at the level of perception, to preserve public faith in its neutrality and to avoid tainting the legal process. Let’s face it, all institutions in any sphere of society ultimately rely on public faith, because it is that unwritten code, that silent oath that fairness is done and must be seen to be done, that stands between us and a descent into lawlessness and anarchy.

There has been much public debate around the recent appointment of Advocate Paul Pretorius and Advocate Matthew Chaskalson as consultants to the National Prosecuting Authority (NPA) in August this year. Their accolades and personal achievements over the years in the legal profession are admirable on their own, and their skills, thankfully, are not what is in question. Both have storied careers that I am certain will grace law faculties as case law for decades to come.

The point of contention is not their ability or personal credibility, it is the conflict that arises out of their appointment and its purpose.

For context, both Pretorius and Chaskalson served in different capacities as part of the legal contingent of the heralded Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector, including Organs of State. For obvious reasons, mainly to preserve font, let's rather refer to it by its popular name, the Zondo Commission.

Pretorius served as the head of the legal team of the Zondo Commission. He famously led the giggling affair that is today referred to as a leading of evidence, of the man who appoints the National Director of Public Prosecutions (NDPP) himself, President Cyril Ramaphosa.

Chaskalson on the other hand had less of a leading role, but not by any sense diminutive, because he led evidence as it related to illicit flows of money, particularly with regards to Transnet. Now again, this is by no means an attempt to nullify their efforts at the Commission, or in their careers, but their appointment on a consultative basis by the NPA to help in the prosecutorial process of the very same evidence they led and developed, does not inspire the sense of neutrality within our law enforcement agencies.

If anything, it borders on collusion and a clear conflict of interest. Those who are sports-inclined have referred to Pretorius and Chaskalson’s appointment by the NPA to prosecute the evidence they led and developed in the Zondo Commission, as them playing the role of a player and a referee at the same time.

Perhaps this sports analogy is more convincing to those who have a distaste towards unfairness and cheating, I don’t know, but it serves its desired effect.

Recently, on the 23rd of September 2024 to be exact, the NPA had its own say, in an interview on Newzroom Afrika by its spokesperson, Advocate Mthunzi Mhaga, who tried (unsuccessfully) to calm the waters. Mhaga, makes a wrong presumption, that the outcry to the appointment of Pretorius and Chaskalson is based on a fear that the law is broken, which could not be further from the truth.

He quotes Section 38 of the National Prosecuting Authority Act, which empowers the NPA to appoint consultants for specific cases and provides precedent to this. Again, Advocate Mhaga truly misses the point. The point is not that it is illegal, but that it is unethical, and casts doubt on the neutrality of the entire process.

Mhaga, unfortunately, in this interview opens a can of worms that leads to more questions.

In this interview he is asked whether Pretorius and Chaskalson will have access to classified information as they execute their consultative duties, and as a result, have they received the necessary security clearance. This question of course comes on the backdrop of much speculation around the claims that the NPA has sought unspecified access to all data, information and evidence related to the Zondo Commission, to the reported resistance of the Department of Justice.

An immediate response by Advocate Mhaga is that no, Pretorius and Chaskalson will not require security clearances as their consultancy work does not necessitate that they gain access to classified information. He, unfortunately, then proceeds to state categorically that they will aid the prosecution of matters related to the Zondo Commission as they possess the prerequisite expertise to do so. Now this begs the question: how effective will their consultative services be if they do not have access to evidence that will secure prosecutions?

It is concerning, that the narrative from the NPA is not only inconsistent, deflective and puzzling, but leaves much to be desired in terms of what is plausible. The NPA finds itself entangled (no pun intended) in a media roadshow because it invited this scrutiny when it made these objectively suspicious appointments.

Law enforcement agencies in South Africa are already under immense pressure, as corruption continues unabated, prosecutions are practically non-existent and the term of Advocate Shamila Batohi as the National Director of Public Prosecutions (NDPP) ends on a whimper.

The NPA could have spared us this controversy, which will only empower the corrupt in questioning the legitimacy of the investigative and prosecutorial process.

Since the NPA is digging in its heels, perhaps for the public perception that there is progress in the fight of prosecuting those implicated in the Zondo Commission, let’s hope that Advocate Pretorius and Advocate Chaskalson can find it in their legal hearts to spare us the scrutiny, and allow justice to be seen to be neutrally done.