Ramaphosa drops NPA bombshell in Constitutional Court
Cape Town - President Cyril Ramaphosa has withdrawn the president’s appeal against a judgment of the North Gauteng High Court that NPA boss Shaun Abrahams should vacate his position.
This is the clearest indication yet that Ramaphosa plans to fire Abrahams and appoint a new head of the prosecuting authority.
Former president Jacob Zuma previously appealed the ruling by a full Bench of judges of the North Gauteng High Court in Pretoria that found he was conflicted to appoint the National Director of Public Prosecutions. The case is scheduled to be heard in the Constitutional Court on Wednesday. Abrahams is still appealing the matter.In a letter delivered to the registrar of the Constitutional Court on Friday afternoon, the state attorney informed the court of Ramaphosa’s decision.
"With the current regime change and after consultation with the current President of the Republic of South Africa, we are instructed to inform this court, that the first respondent (Ramaphosa) is no longer prosecuting its appeal and therefore will not be present to argue the matter on 28 February 2018.
"To the extent that the former President (Zuma) may want to pursue argument on matters affecting him personally, he may do so through his legal representatives," the letter reads.It is unclear whether the state will continue to fund Zuma’s legal representation if he chooses to make personal representations.
Freedom Under Law, Corruption Watch and the Council for the Advancement of the South African Constitution went to court seeking an order declaring the removal of former National Prosecuting Authority (NPA) head Mxolisi Nxasana Nxasana invalid.Nxasana accepted a golden handshake from Zuma worth R17.3m and left the NPA in 2015.On December 8, 2017, the High Court ruled that Abrahams must vacate his seat.The court further ruled that it would not be just for Nxasana to be reinstated.The ruling stated that Ramaphosa, as deputy president, must appoint a new NDPP.In the order by high court Judge president Dunstan Mlambo at the time, it was found that Nxasana's settlement agreement was invalid because Nxasana did not request to be allowed to vacate the office of the NDPP as required by the NPA Act.
Rather, "he was persuaded to vacate the office by the unlawful payment of an amount of money substantially greater than that permitted by law".
The court did also not believe it was just and equitable for Abrahams to remain "untouched" in the office, as this would have led to what Zuma "wished to attain all along" through unlawful means.
Vacating his seat would be a result that "underscores the imperative of non-interference in the independence of the NPA and its National Director".
The court also found that Abrahams had associated himself on all material issues with the position of Zuma, which was "inconsistent with the imperative of prosecutorial independence".
On Friday, it emerged in court papers that the NPA was arguing that Abrahams was validly appointed.
Update:
Shaun Abrahams was validly appointed, NPA argues in court papers
Johannesburg – Former National Prosecuting Authority (NPA) head Mxolisi Nxasana was prepared to leave his position if compensated fully, therefore NPA boss Shaun Abrahams was validly appointed into the vacancy, the NPA argues in court papers.
On Wednesday, the Constitutional Court will hear the appeal in the case involving Nxasana and the future of his successor, Abrahams.
In its heads of arguments, the NPA states that Nxasana's resignation was a "unilateral act which, as a matter of fact, created a vacancy – irrespective of what motivated either the president or Mr Nxasana".
The NPA further argues that Abrahams was validly appointed into a vacancy created at the end of Dr Silas Ramaite's stint as acting National Director of Public Prosecutions (NDPP).
It also argued that the development of Jacob Zuma resigning from his position as president on February 14 and Ramaphosa being sworn in as president, renders part of the order moot.
On Friday, it emerged that President Cyril Ramaphosa had withdrawn the president's appeal against the judgment of the North Gauteng High Court that Abrahams should vacate his position.
While Zuma was still president, he had filed papers stating the grounds for the appeal, including that the court erred in holding that he was found to be "conflicted", was unable to exercise his powers as president in terms of appointing an NDPP, but that he was able to perform his other functions as president.
This was a position not authorised by the Constitution. The NPA filed an appeal against the ruling that the appointment of Abrahams was invalid.
"It is respectfully submitted that the court a quo erred in reviewing, declaring invalid and setting aside the appointment of Advocate Shaun Abrahams... as NDPP on the grounds that there was no vacancy in that office into which Abrahams could be appointed," the application argues.
The NPA, however, still wants the settlement agreement between Zuma and Nxasana set aside, and the R17.3m he received paid back.
Freedom Under Law, Corruption Watch and the Council for the Advancement of the South African Constitution went to court seeking an order declaring Nxasana's removal invalid.
Abrahams' removal 'unjust'
Nxasana accepted a golden handshake from Zuma worth R17.3m and left the NPA in 2015.
On December 8, 2017, the High Court ruled that NPA head Abrahams must vacate his seat.
The court further ruled that it would not be just for Nxasana to be reinstated.
The ruling stated that Ramaphosa, as deputy president, must appoint a new NDPP.
But in its heads of argument – the NPA argues that the departure of Nxasana created a vacancy into which Ramaite, and therefore Abrahams, were validly appointed.
"It cannot be said that the departure of Mr Nxasana and the appointment of Adv Abrahams created no vacancy, even if it be so that the departure was motivated by ulterior motives on the part of the president. There is no evidence that Adv Abrahams was party to any such scheme.
"It is not just and equitable for Adv Abrahams to be removed from his position."
Abrahams has been in office as NDPP for nearly three years.
The court papers further state that it was unfair to remove Abrahams in circumstances where the applicants at no stage alleged that he was not fit and proper.
"The recent ascendancy of Mr Ramaphosa to the Presidency removes whatever justification there may have been for the removal of Adv Abrahams from office.
"Mr Nxasana was prepared to leave if compensated fully for his remaining years of service (plus minus eight and a half years)."
