Justice Mbuyiseli Madlanga today handed down judgment in the Constitutional Court, in the matter of the position of the national director of public prosecutions (NDPP).
Corruption Watch, Freedom Under Law and later, the Council for Advancement of the South African Constitution, had challenged – successfully – the legality of the termination of former NDPP Mxolisi Nxasana’s appointment and afterwards, a golden handshake of R17.3-million, in the High Court. In December 2017 the Pretoria High Court handed down judgment that the settlement agreement that led to Nxasana’s removal was indeed unlawful and that the termination of Nxasana’s appointment was invalid and set aside. Furthermore, it confirmed that the subsequent appointment by former president Jacob Zuma of Adv Shaun Abrahams as head of the National Prosecuting Authority (NPA) was also invalid and therefore set aside.
In February this year, Abrahams and the NPA appealed to the Constitutional Court against the order invalidating Abrahams’ appointment
In the ConCourt today, Madlanga held that the manner in which Nxasana vacated office was not consistent with the Constitution. In that case, Madlanga said, it follows that the subsequent appointment of Shaun Abrahams was also constitutionally invalid.
Zuma’s ‘abuse of power’
Zuma’s actions were calculated to remove Nxasana from office, Madlanga held. He spoke of “buying NDPPs out of office by offering them obscenely huge amounts of money,” and held that it was an inescapable conclusion that Zuma had done just this with Nxasana. This was an abuse of power on Zuma’s part. Abrahams therefore was a beneficiary of this abuse of power.
“Democracy hinges on a well-functioning criminal justice system. If you subvert the NPA, you subvert the rule of law and constitutional democracy itself.”
It would not be just and equitable to keep Abrahams on, because the NPA must be “cleansed”.
Among others, Madlanga ordered that the appeal of Abrahams and the NPA is dismissed with costs. He confirmed the declaration by the High Court that the Nxasana settlement agreement is constitutionally invalid, and also confirmed the High Court’s declaration that the Abrahams appointment is constitutionally invalid.
Nxasana was ordered to repay R10 240 767 to the state.
The ConCourt directed the president to appoint an NDPP within 90 days.
Madlanga also confirmed the declaration of constitutional invalidity of certain sections of the NPA Act. He gave Parliament 18 months to amend the NPA Act.
In terms of remedy, Madlanga held that the automatic effect of his declaration is that Nxasana is entitled to resume office. However, he cautioned that this would prolong the instability in the NPA and also, that Nxasana had accepted the R17-million payout, which casts doubt on his fitness to hold office.
However, Madlanga said, allowing Nxasana to go back to his job would meet the objects of the Constitution and the rule of law. It would also enable “the president to follow the law if he wishes to remove him from office and Parliament would play a vital part in that process”.