Nxasana willing to resume his duties as NDPP pending court decision

13 April 2017

Former National Director of Public Prosecutions (NDPP), Mxolisi Nxasana, has yesterday filed a revealing and potentially damning affidavit in response to applications lodged by Corruption Watch (CW) and Freedom under Law (FUL), as well as by the Council for the Advancement of the South African Constitution (CASAC). In his notice and affidavit filed in the High Court in Pretoria yesterday, Nxasana confirms that he is not opposing relief sought by CW /FUL and CASAC, and that he will abide with any decision of the High Court, including any decision to repay the settlement amount of R17.3-million in terms of his purported ‘resignation’.

The organisations seek to review and set aside the R17.3-million settlement agreement between Nxasana, the president and the minister of justice, and are of the view that the settlement agreement and the decision to authorise such agreement were unlawful and unconstitutional and should therefore be declared invalid and set aside.

Some of the allegations made in Nxasana’s affidavit:

- A claim that his leadership of the National Prosecuting Authority (NPA) was resisted by National Deputy Director, Advocate Jiba and the Special Director: Commercial Crime Unit, Advocate Mrwebi both of whom undermined his standing with the president. It is alleged that Jiba and Mrwebi sought to influence the president by informing him that Nxasana intended to reinstate criminal charges against the president and also stirred discontent about Nxasana among staff members of the NPA.

- Importantly, it is stated that Nxasana did not make a request to the president to leave office in terms of section 12(8) of the NPA Act and that therefore the president’s version of events is false. Nxasana indicates that that on several occasions, both verbally and in writing, he informed the president and the minister of justice that he did not want to leave the office. This is in direct contrast to the affidavit filed by President Zuma, in which the president confirms that, “Section 12(8) of the NPA Act provides that the NDPP may request to vacate his or her office for any reason which the president deems sufficient. Nxasana made the request to me to vacate his office.”

- In seeking condonation for the late filing of his affidavit, Nxasana confirmed that after he had been served with the application by CW, CASAC and FUL, Michael Hulley, the president’s legal adviser, asked him how he intended to approach the application and proposed that he (Nxasana) should work with the president on the matter and had also offered to pay his legal costs, including the cost of appointing senior counsel. Nxasana has stated that:

“It was evident to me that Mr Hulley wanted me to say on oath that I had made a request to the president to vacate my office in terms of section 12(8) of the NPA Act. I advised Mr Hulley that I was not prepared to make that statement since that was not what had occurred factually. I reminded him that I was an officer of this Court and that I would not mislead the Court.”

Nxasana’s version of events align with what civil society applicants have said in this matter. In particular, the president has not been able to produce any evidence of Mr Nxasana requesting to be relieved of his duties despite alleging that he had done so. The organisations will now await the hearing of this matter in order for these issues and contradictions to be fully ventilated in Court.

To view the affidavit go here.

Issued by Patience Mkosana, Communications Officer, Corruption Watch, 13 April 2017