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By Ilse de Lange


Judge orders NPA head Shaun Abrahams to vacate his position

A full bench of the High Court in Pretoria has set aside the termination of Mxolisi Nxasana as National Director of Public Prosecutions and ordered him to return R17,3 million.

Judges Dunstan Mlambo, Natvarlal Ranchod and Willem van der Linde also ruled that Shaun Abrahams’ appointment as NDPP had been unlawful, but ruled that it would not be just to reinstate Nxasana and declared the position vacant.

In an extraordinary move, the Judges declared that President Jacob Zuma was conflicted because of the numerous criminal charges he faced and may not appoint, suspend or remove the NDPP and that these decisions should be taken by the Deputy president for as long as Zuma remained in office.

The Judges also declared the section of the NPA Act, which allows the President to suspend the NDPP unilaterally, indefinitely and without pay to be unconstitutional and invalid.

They suspended the order for 18 months for Parliament to enact legislation to remedy the defect, but ruled that in the interim, an NDPP may not be suspended pending a decision for their removal for longer than six months and that should receive their full salary in that period.

The ruling follows an application by Corruption Watch, Freedom Under Law and the Council for the Advancement of the South African Constitution.

Reading out their judgment, Judge Mlambo said it was common cause that the amount of over R17,3 million that was paid to Nxasana in terms of a May 2015 agreement he reached with the President and the Justice Minister far exceeded that to which he was entitled to lawfully vacate his office and all parties accepted that the agreement should be declared invalid.

He said if the office of the NDPP was to stand alone, apart from and independently of the Executive, Parliament and the Court’s, in service only of the Constitutional and the rule of law, then its independence must be real, and must be supported by statutory structure that protected the office from outside any pressure of any kind.

The court rejected President Zuma’s argument that Nxasana had requested to resign because of his conflict with the senior management of the NPA and said it was clear that Nxasana was threatened with a disciplinary hearing and then agreed to vacate the office if his demands for an exorbitant amount were met.

The court concluded that Nxasana had not requested to be allowed to vacate his office but rather did so because he was persuaded to do so by an unlawful payment.

The found it was probable that Zuma and Nxasana both knew the payment was unlawful, but ruled that both had been reckless when they agreed to the unlawful settlement.

The court found that it would not be just and equitable, in the context of vindicating the Constitution and the Independence of the Prosecuting Authority, to reinstate Nxasana or to allow Abrahams to remain in office.

Judge Mlambo remarked that if Abrahams – who had fully aligned himself with the stance of President Zuma – remained in office, the President would have achieved exactly what he intended – to get rid of Nxasana – through an unlawful act.

The court concluded that President Zuma would be clearly conflicted if he had to appoint an NDPP, seen in the light of the many criminal charges of racketeering, fraud and money laundering against him, as well as all the litigation he instituted and still planned on instituting to resist prosecution.

This would place the NDPP on the spot, and under those circumstances President Zuma should not be allowed to appoint the NDPP, they said.

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