NPA boss must vacate office – ConCourt hears
1 March 2018
Johannesburg – Allowing National Director of Public Prosecutions boss, Shaun Abrahams, to remain in office would make a mockery of the Constitution, the Constitutional Court heard on Wednesday.
According to a statement, the court heard an application to confirm two declaratory orders of Constitutional invalidity, made by the North Gauteng High Court in Pretoria on December 8.
The High Court declared unconstitutional former president Jacob Zuma's conduct in terminating Mxolisi Nxasana's appointment as the National Director of Public Prosecutions.
Nxasana accepted a golden handshake of R17.3m from Zuma after a breakdown in their relationship.
Arguing the matter, advocate for Freedom Under Law, Wim Trengove SC, said the settlement was unlawful because Nxasana was paid R17.3m instead of the standard permissible pension.
"The settlement agreement was unlawful and unconstitutional… The president tried to bully him and then seduced him with a payment. In the end he was seduced by a large amount of money.
"What is unlawful is to use public money to seduce him; that is what the president did."
He also said that submitted that Nxasana's successor, Abrahams should vacate his office, saying that his appointment was unlawful and unconstitutional because there was no legal vacancy.
Justice Mbuyiseli Madlanga asked how it was possible that there was no position when Nxasana had already left office.
"The unlawful act lies in the replacement of the NDPP. What is clear is that he abused his power to rid himself of one NDPP for another," said Trengove.
Any outcome that leaves Abrahams in office would make a mockery of the Constitution, he said.
"Former president Zuma got rid of Nxasana because he himself was exposed to prosecution."
'Abuse of power'
Trengove said he was not accusing Abrahams of being complicit in Zuma's plan.
"But I submit that he was used by the president to fulfil his benefit."
Abrahams benefited from Zuma's abuse of power, he said.
"His appointment was the very product of the president's abuse of power. We submit that Mr Abrahams must go."
Corruption Watch's advocate Matthew Chaskalson said the president cannot remove the NDPP by any other means, except misconduct.
"Mr Nxasana was constructively removed from office."
Casac's counsel Geoff Budlender SC said it was clear that during the time, Nxasana was under pressure because he was acting independent from the executive.
While he was not casting any judgment on Nxasana, Budlender said Nxasana, by accepting Zuma's settlement, participated in the illegal payment.
"The just and equitable remedy would be that, if the determination of Nxasana was invalid, the court should leave the decision up to the president to make a decision on who becomes the new NDPP."
Budlender also said Abrahams should vacate his office.
In the interim, President Cyril Ramaphosa must appoint an acting NDPP.
'Simply not a bribe'
"It is not appropriate for Mr Abrahams to stay in office because of the prosecution of the former president is a huge matter and the public needs to have confidence in the NDPP.
"If he does not prosecute, there will be a perception that he is doing Zuma a favour and if he does, people will ask why he is only acting now."
Budlender said there was evidence that there were factional wars within the NPA.
Advocate Michelle le Roux said Nxasana was subjected to a smear campaign where the police and the NPA in Durban tried to collect dirt by visiting people he knew.
"On the allegations that he is a man who held out a price or a man that took a bribe, that is an error. It is not appropriate to call him a man that took a bribe."
Le Roux explained that Nxasana was appointed on October 1, 2013.
A year later, Nxasana wrote a letter informing Zuma that his subordinates must be disciplined because they were trying to undermine him.
After following all the processes of reporting his frustration, he turned to Zuma and Zuma asked him to resign.
"This is simply not a bribe," she said about the settlement.
Justice Cachalia asked Le Roux why Nxasana did not reject the settlement and seek protection from the court instead.
"He did take the president to court to say he must stop threatening him."
Justice Cachalia said about Nxasana's walking away that he essentially "abandoned the NPA and left it to the wolves".
Le Roux said Nxasana tried to stick it out but "there comes a time where you have to choose your family".
Last month, just hours before his deadline, Zuma submitted representations to the NPA.
The representations relate to a Supreme Court of Appeal (SCA) ruling which dismissed Zuma's and the NPA's application to appeal a North Gauteng High Court ruling that the dropping of the corruption charges against him by then NPA boss Mokotedi Mpshe was "irrational".
Mpshe dropped the charges, based on the so-called "Spy Tapes", which were presented to him by Zuma's legal team.
The tapes were made up of recordings of telephone conversations between then Scorpions boss Leonard McCarthy and former NPA boss Bulelani Ngcuka, which Zuma's legal team claimed showed political interference in the decision to charge him.
