Court ruling key to crucial elective conference

Just days before the ANC’s elective conference, South Africa's ruling party is threatening to tear itself apart over Friday’s dramatic judgment which found President Jacob Zuma had been ‘reckless’ in unlawfully paying off Advocate Mxolisi Nxasana to vacate the office of National Director of Public Prosecutions (NDPP). The Gauteng High Court (Pretoria) also ordered the dismissal of current National Prosecuting Authority boss Shaun Abrahams who has played a critical role in preventing Zuma from standing trial. Legalbrief reports that the stakes are sky-high as Zuma’s former wife Nkosazana Dlamini-Zuma this weekend squares off against Deputy President Cyril Ramaphosa for leadership of the fractured party (and country). In a significant twist, a full Bench – comprising Gauteng Judge President Dunstan Mlambo, Judge Natvarlal Ranchod and Judge Willem van der Linde – found Abrahams must be replaced within 60 days by a new NDPP to be appointed by Ramaphosa. City Press reports that the judgment was a result of an application lodged by Freedom Under Law, Corruption Watch and the Council for the Advancement of the SA Constitution. They sought an order declaring the removal, via a R17.3m golden handshake from Zuma, of former NPA boss Mxolisi Nxasana invalid.

Full City Press report

Judgment

Mlambo found Zuma was ‘conflicted’ and could therefore not appoint a NDPP who would be beholden to him, notes a Daily Maverick report. ‘In our view President Zuma would be clearly conflicted in having to appoint a NDPP... particularly (because of) the ever-present spectre of the many criminal charges against him that have not gone away,’ Mlambo said. ‘There is no longer any obstacle in the way of the criminal charges proceeding after the SCA (Supreme Court of Appeal) held that Abrahams must consider anew the 783 counts of corruption and money laundering (against Zuma). The President told the SCA that he “…had every intention in the future to continue to use such processes as are available to him to resist prosecution”, in other words not to stand trial at all, and this would place the incumbent NDPP firmly on the spot. It seems incongruous that under those circumstances President Zuma should then be seen to be appointing the NDPP, since his conflict both actual and perceived is self-evident.’

Full Daily Maverick report

While Zuma and the NPA immediately filed notices to appeal the judgment, there are already moves afoot to short-circuit the appeals. One of the applicants – the Council for the Advancement of the SA Constitution (Casac) – is preparing to prevent the case being dragged out with an appeal to the SCA and on to the Constitutional Court. According to a City Press report, Casac executive secretary Lawson Naidoo said the council would make an application to the Constitutional Court for confirmation of the High Court’s order. ‘In terms of the rules of court, we have 15 days to lodge that application. Our understanding of the law is that any appeal will have to serve as a cross-appeal in the Constitutional Court,’ he said.

Full City Press report

Legal experts saw the judgment as a breakthrough for the independence of the NPA. FUL, one of the applicants, said the judgment ‘signals the critical importance of the independence of the NPA to the health of our constitutional democracy. Persons at its head must be of unimpeachable integrity and there can be no suggestion that political interference enters into their removal or appointment.’ According to a News24 report, former Constitutional Court Judge Johann Kriegler added: ‘It is being shown that the courts speak truth to power. The general public can look at this as a victory for all South Africans.’

Full Fin24 report

However, the MK Military Veterans Association described the ruling as ‘serious judicial over-reach’, which came ‘perilously close to a judicial coup’ against Zuma. It claims the order that Ramaphosa should appoint a new NDPP was done with the intention of influencing the outcome of the upcoming presidential elections. ‘This was done despite the fact that there is no provision in the Constitution for the Deputy President to be simply appointed to take over this important duty of the President,' it is quoted as saying in a News24 report. And, in a second News24 report, ANCWL president and staunch Zuma defender, Bathabile Dlamini, accused the judiciary of carrying itself as though it was being lobbied by certain individuals. She accused the judiciary of behaving in such a way that it seemed as though government was being led by that arm of the state. ‘The South African government has three legs ... so we are asking, can the judges please be neutral if they want us to respect them. Let us not be cheap in such a way that it shows that we are lobbying the judiciary. The way our judiciary carries itself, it shows that it is being lobbied.'

First report on the News24 site

Second report on the News24 site