All’s fair in love and golden handshakes
This brief looks at the 'golden handshake' taken by the former National Prosecuting Authority Head, Mxolisi Nxasana and discusses the pattern of 'golden handshakes'.
Introduction
A recent trend has emerged with the acceptance of payouts to high ranking officials within key institutions charged with upholding South Africa’s Constitution. The exit of the National Prosecuting Agency’s (NPA) head, Mxolisi Nxasana, in questionable circumstances, represents the latest such instance.
The payout, an estimated R17.3 million, may have resolved an ongoing dispute between Nxasana and President Zuma but, in so doing, has brought the integrity of South Africa’s Prosecuting Authority into question.
Unfortunately the NPA is not unique but, is instead, the latest instance in a litany of similar instances. Such instances include the taking of the packages:
- Hawks former Head, Anwa Dramat in the amount of R3 million and R 60 000 until he reaches 60 which is a total of 13 million rand [1],
- Eskom former CEO, Tshediso Matona whose settlement amount was not disclosed by Eskom [2]
- SAA former CEO, Monwabisi Kalawi who settled for the amount of R2.7 million [3]
These are just a few of the higher ranking officials who took ‘golden handshakes’ before vacating office. Since entering office, Zuma has had seven different executives — totalling 101 changes (47 ministerial changes and 54 deputy ministerial changes). At the level of government agencies there have been 177 different directors-general who have served in permanent and acting capacities since Zuma’s administration commenced. The average life-span of a director general in office is just 15 months.[4]
The recurring pattern is one where a ‘higher power’ finding displeasure with a high ranking officials either suspends them, on a trumped up charge, or holds an inquiry into the fitness of the persons in question. The process is often drawn out, involving litigation and court rulings. If all else fails — a ‘golden handshake’ is offered to dispose of the undesirable official in any event.
While the end figure elicits the highest outrage, in reality, the process is costly to the tax-payer at every stage. Moreover, as the pattern becomes entrenched, trust in the pillars of the rule of law and constitutional democracy in South Africa is eroded.
Basic Timeline of Nxasana’s short lived position in office
Nxasana was appointed as the National Director of Public Prosecutions on August 20 2013 taking over from his predecessor Nomgcoba Jiba who was declared unfit to hold office.[5]
During October 2013 it was discovered that a security clearance was not conducted on Nxasana. This took place in the same month that Nxasana had vowed to clean up the NPA’s image.[6]
During May 2014, Nxasana was asked to resign following a Report of the State Security Agency, which stated that Nxasana’s security status was declined as he had been tried for murder in 1985. [7]
President Zuma announced the decision to set up an inquiry into Nxasana’s fitness on 5 July 2014. This inquiry was established terms of section 12 (a)(9)(iv) of the National Prosecutions Act of 1988 (NPA Act). [8]
On 30 July 2014, President Zuma announced that he intended to suspend Nxasana in terms of section 12 of the NPA Act, which deals with the term of office of the National Director and Deputy National Directors. Section 12(6) of the NPA Act states that the President may provisionally suspend the National Director of Public Prosecution (NDPP), pending an inquiry into his or her fitness to hold the office of NDPP.[9]
Amidst this tension at the end of July retired Judge Zak Yacoob was appointed to conduct a preliminary investigation into the alleged conduct of employees of the NPA, specifically around their alleged wrong-doing in the leaking of information to the media and other parties.[10] This Inquiry was not formal in nature but was an Inquiry held for the purpose of gathering evidence. The mandate of the Inquiry was wide and included probing allegations of political infighting. [11] Nxasana studied the report by Yacoob in order to turn the NPA around. City Press reported that one of Yacoob’s recommendations was for a full judicial commission of Inquiry to be set up.[12]
During August 2014 Nxasana went to the High Court in Pretoria seeking an order to prevent President Zuma from suspending him before he had an opportunity to make representations to the President. [13]
The terms of reference for the inquiry into Nxasana’s fitness to hold office were established by President Zuma in February 2015. [9] The Helen Suzman Foundation made submissions as to the framework which needs to be adopted when looking into the fitness of Nxasana to hold office. [14]
The Inquiry which was chaired by Advocate Nazeer Cassim (also known as the Cassim Inquiry) was terminated on 11 May 2015 with no reasons provided for the premature termination. [15] At the announcement of the cancellation of the Inquiry, Cassim stated that Nxasana appeared to be “someone who exercises an independent mind...” while also questioning why the President had not investigted Nxasana properly, before appointing him.[16]
Nxasana left the NPA on 31 May 2015 after receiving a payout of about R17.3 million. [17]
The situation as it stands
The situation as it stands is that Nxasana will be receiving an amount of R 17.3 million for walking away and, in his, place Silas Ramaite has been appointed as acting head of the NPA. A press briefing was held on 2 June 2015 by Nxasana’s attorney Busani Mabunda, during which it was asserted that “Nxasana had left the NPA with his integrity intact”.
Nxasana’s attorney further stated that his client had been cleared of the necessary security clearance and that the basis of the inquiry was not related to the security clearance issue. Mabunda went on to state that the true purpose of the Inquiry was to determine the fitness of his client to hold office and that before proceedings got under way the President and his client had struck a deal.
He did not state the amount of the deal in this press statement but did maintain that “it is a settlement which is not less than what he could have gotten had he remained in office for a full term”. [18]
What does this mean for the ordinary citizen?
It means that another high ranking official will get paid from the money we pay in taxes. The trend seems to be that when you want to get rid of someone you don’t like or who may be asking politically difficult questions, suspend them or ask them to leave at the cost of the tax payer. An attitude which seems to exist is that ‘if you can’t beat them, sack them, but then let the citizens of the country pay for them to leave.” This type of behaviour should be stopped before it becomes a virus that infects every institutional pillar of our democracy.
Conclusion
Golden handshakes seem to be a trend in our current society and if we want to make a difference we need to stop such practices in its tracks right away. At this point in time one would possibly have to engage in litigation to stop such a problem from infecting the rest of the constitutional pillars of South Africa.
Arvitha Doodnath is Legal Researcher at the Helen Suzman Foundation, Joshua Hovsha a Policy Researcher at the Foundation.
This article first appeared as an HSF Brief.
Sources
1. M&G
2. Fin24
4. See BDLive article by Gareth van Onselen.
5. IOL
6. Ibid.
7. Ibid.
8. Ibid.
9. IOL
10. SABC
11. (see note 5)
12. (see note 1)
13. (see note 1)
14. M&G
15. Ibid.
16. (see note 10).
17. (see note 10).
18. ENCA
