Zuma corruption charges - CASAC ties NPA’s hands
The National Director of Public Prosecutions (NDPP), Adv Shaun Abrahams has been put on notice not to withdraw the fraud, corruption and racketeering charges against President Jacob Zuma pending the outcome of a Constitutional Court ruling. In a letter to the State Attorney (representing Adv Abrahams), lawyers for CASAC, the Legal Resources Centre has drawn Adv Abrahams’ attention to the directions issues by the Constitutional Court on Friday 15 December 2017.
Those directions followed CASAC’s application for an order confirming the decision of the full bench of the North Gauteng High Court delivered on 7 December (CASAC v the President of RSA & Others). CASAC’s application was made In terms of s.172 (2) of the Constitution which states that an order of constitutional invalidity is of no force until it has been confirmed by the Constitutional Court.
The Constitutional Court directions acknowledge the fact that Adv Abrahams is unable to take a decision relating to the charges against President Zuma because his very appointment is in dispute. In setting aside the unlawful settlement agreement with Mr Mxolisi Nxasana, the High Court also set aside the appointment of Adv Abrahams, pending the appointment of a permanent NDPP. The directions also state that any party wishing to oppose CASAC’s application must do so by 19 January 2018.
Adv Abrahams has been requested to provide CASAC with an assurance by 5 January 2018 that he will not withdraw the charges against President Zuma and that if he intends to do so, he gives CASAC two weeks’ notice of such intention. Should he not provide such an undertaking CASAC may apply for an interdict to this effect, and may also seek a personal costs order against Adv Abrahams.
Text of letter:
Your Ref: 5076/2015/Z14/PM
Our Ref: 1111315L/C du Toit 20 December 2017
Mr M O Letsoko
The State Attorney
Pretoria
Dear Mr Letsoko
RE: CASAC // PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA AND OTHERS YOUR CLIENTS: SHAUN ABRAHAMS AND THE NATIONAL PROSECUTING AUTHORITY
1. We refer to the application for confirmation filed in the Constitutional Court, case number 333/17, and the directions issued by the Chief Justice on Friday 15 December 2017.
2. In particular, we refer to paragraph 2 of the directions, repeated here for convenience:
Should the applicants apprehend that the fourth or seventh respondents may take a decision before the outcome of their application in this Court, they may, if so advised, seek appropriate relief.
3. The decision referred to in paragraph 2 of the directions plainly means the decision to be taken by Mr Abrahams and the National Prosecuting Authority (NPA) about whether to withdraw the criminal charges against the President.
4. On 9 December 2017 the NPA announced that Mr Abrahams had extended the deadline for representations by the President until 31 January 2017. We assume that Mr Abrahams and the NPA intend to make a decision on the institution of criminal proceedings against the President after this date.
5. In light of the directions of the Chief Justice and the judgment handed down by Mlambo JP on 8 December 2017, it is not permissible for Mr Abrahams to make a decision on the institution of charges against the President pending the outcome of the confirmation application in the Constitutional Court. Mr Abrahams’ appointment has been tainted by the unlawful removal of Mr Nxasana, and the High Court’s criticism of Mr Abrahams’ conduct in the litigation. Any decision Mr Abrahams takes will be subject to review for bias.
6. Accordingly, CASAC requires that Mr Abrahams and the NPA provide the following undertakings:
6.1. Mr Abrahams and the NPA will not make a decision regarding the prosecution of the President until such time as the Constitutional Court hands down its decision in the confirmation application;
6.2. Alternatively, if Mr Abrahams and the NPA do intend to make a decision, they will give our client two weeks advance notice of their intention to do so.
7. We request that your clients provide these undertakings by close of business on Friday 5 January 2018.
8. If they fail to do so, CASAC reserves its right to apply to court for an order interdicting Mr Abrahams and the NPA from taking a decision pending the outcome of the confirmation proceedings in the Constitutional Court. If required to do so, CASAC will seek a personal costs award against Mr Abrahams.
9. We sincerely hope that this will not be necessary, and look forward to hearing from you in this regard.
10. Our client’s rights are reserved.
Yours faithfully
LEGAL RESOURCES CENTRE
CARINA DU TOIT
ENDS
Statement issued by Lawson Naidoo, CASAC, 20 December 2017
