The head of the NPA tried unsuccessfully to overturn a high court ruling that ordered him out of office on Monday morning at the Constitutional Court.
Justice Mbuyiseli Madlanga handed down the judgment, finding both the manner in which former NPA head Mxolisi Nxasana vacated office and the subsequent appointment of Shaun Abrahams unconstitutional and invalid.
This is due to the R17.3-million “golden handshake” former president Jacob Zuma gave to then NPA head Mxolisi Nxasana to leave his position.
Former president Zuma has admitted the deal with Nxasana was unlawful.
Nxasana will not be getting his job back, contrary to what many thought would take place.
Instead, Madlanga ruled that President Cyril Ramaphosa should appoint a new National Director of Public Prosecutors, giving him 90 days in which to do so.
Madlanga also ordered Nxasana to pay back a sum of more than R10m due to the illegality of the “golden handshake.”
The judge also confirmed the constitutional invalidity of certain sections of the NPA Act, giving parliament 18 months to amend it.
He said the present case was rooted in the “sorry state” that engulfed the NPA during Jacob Zuma’s presidency.
Nxasana was present as the judgment was handed down. Cope leader Mosiuoa Lekota also took a seat in the court to hear the ruling.
Both Nxasana’s dismissal and Abrahams’ hiring happened on then president Jacob Zuma’s watch, at a time when Nxasana had sent the investigation into Zuma’s Nkandla home to the Hawks for further investigation, following which then Hawks head Lieutenant-General Anwa Dramat was suspended over the alleged illegal rendition of five Zimbabweans.
Nxasana also faced tribulations of his own, with accusations that he had concealed a 1985 murder charge – for which he had been acquitted – when he’d applied for the NPA’s top job.
After Zuma announced he would be forming a commission to investigate Nxasana’s appointment, Nxasana negotiated a R17.3-million settlement for himself and left the way open for Abrahams to be appointed.
In December, Corruption Watch, Freedom Under Law, and the Council for the Advancement of the SA Constitution (Casac) challenged the legality of the termination of Nxasana’s appointment and the settlement in the High Court in Pretoria.
They sought – and received – an order setting aside the settlement agreement, the reinstatement of Nxasana as national director of public prosecutions (NDPP) or, alternatively, a declaration that the office was vacant and an order directing the deputy president – then Cyril Ramaphosa – within 60 days to appoint a new NDPP on the basis that the then president, Zuma, was declared “unable” in terms of section 90(1) of the Constitution to act because of his conflict of interest.
This initiated another court case where Zuma sought to overturn the high court’s finding, which had, in essence, reduced him to a lame-duck president.
Of course, Ramaphosa then won the ANC’s elective conference and, once Zuma was subsequently removed from high office, Ramaphosa filed another affidavit saying the office of the president would abide by the ConCourt decision.
While all of this was going on, Casac applied for an injunction preventing Abrahams from making a decision on the corruption and racketeering charges against Zuma before the ConCourt confirmed whether Abrahams was to stay in his position.
This failed and Abrahams surprised everyone when he pronounced Zuma would face his charges anyway.
Abrahams – and the NPA – sought leave to appeal the high court’s order while Nxasana sought leave to appeal the high court’s refusal of his explanatory affidavit over the R17.3 million.
The Citizen understands the R17.3 million was the payout from the remainder of Nxasana’s contract with the NPA.
Corruption Watch, Freedom Under Law, and Casac are still demanding that the R17.3 million be returned to state coffers and Abrahams be sent packing, with Nxasana put back in the post – or a new boss in the interim.