Nxasana golden handshake unlawful, Zuma concedes

President Jacob Zuma made yet another major concession in the Gauteng High Court (Pretoria) yesterday, admitting via his lawyer Ishmael Semenya SC that the R17m golden handshake offered to former NPA boss Mxolisi Nxasana was unlawful and that Nxasana should pay back the money. A Business Day report recalls Zuma has made similar about-turns recently. He conceded in the SCA, after a protracted legal battle, that the decision to drop corruption charges against him in 2009 had been irrational, and, before that, he told the Constitutional Court that he would pay back the money for the Nkandla ‘security upgrades’ – also after a protracted legal battle to avoid doing so. Business Day makes the point that Zuma’s latest climb-down has created another legal headache. If Nxasana’s resignation was unlawful, what should happen to the current leadership of the NPA? The court has given the applicants, the respondents and the amici curiae until tomorrow to file draft orders as to how to proceed. The applicants have demanded the re-instatement of Nxasana as head of the NPA. They have also demanded that Zuma not be involved in the appointment as he was conflicted. This should be done by the Deputy President. Judge President Dunstan Mlambo reserved judgment on what he described as a 'weighty' matter, but added the court would try to expedite the decision.

Full City Press report

Semenya argued that Nxasana left ‘willingly’ and ‘voluntarily'. ‘The conduct of Nxasana is that he made a request and he intended to leave and he did in fact leave the office,’ Semenya said. ‘His conduct was one that shows he was willing to take R17m. We have a long history of Nxasana's authority being challenged and he found it intolerable,’ Semenya said, according to a News24 report. He said Nxasana's request to leave office was made verbally and was never in writing. Semenya told the court that the President was not opposed to the relief sought – that Nxasana's settlement agreement be set aside and that he repays the golden handshake amount. ‘We accept that prosecutorial independence is key,’ he said.

Full Fin24 report

The applicants have all argued that Shaun Abrahams should vacate his position, leaving the door open for Nxasana to return. As an alternative, Geoff Budlender for the Council for the Advancement of the SA Constitution (Casac), which appeared as an amicus curiae, said if that relief was not to be granted, Abrahams should be acting director for 60 days until the Deputy President appointed a new head. He argued that while the court cannot decide who is the best person to lead the NPA, it simply cannot leave Abrahams as the boss if it decided that Nxasana’s golden handshake should be set aside. ‘The court cannot conduct a beauty pageant as to who is the best NDPP – Abrahams or Nxasana, as this issue is not before court. But the court can reinstate Nxasana if it ruled that he was unlawfully removed,’ Budlender is quoted as saying in a report on the IoL site. This will be tough on Abrahams, Budlender admitted, but he explained it will be like a tender that is set aside. If the tender was found to be unlawful, it followed that there was no right to continue with it, he said. Mlambo questioned how the court could order the Deputy President to step into the shoes of the President. Budlender said given the extraordinary circumstances where Zuma could face prosecution, it would be in breach of the Constitution (if Zuma made the choice) as he appointed the new NPA boss himself.

Full IoL report

Putting the Deputy President in charge of the appointment would be intolerable, Semenya countered. It would mean SA has ‘two Presidents ... at the same time’. Likewise, Semenya argued, Abrahams can simply not be removed by court order under a Constitution that seeks to protect the NDPP from political interference. Not to mention the fact that if Abrahams is removed he, too, would have to receive a golden handshake ‘and now we are back at square one’. A Mail & Guardian report notes Zuma did not explain how his administration came to pay Nxasana R17m. Those opposed to Nxasana’s return were not pulling their punches, it adds. Nxasana knew the law that governs the appointment and departure of an NDPP, said Advocate Hilton Epstein, for Abrahams, and should have known R17m was over the top. ‘He would know what he is entitled to. Yet he has taken the money. For two years he has kept the money.’ Only now that Nxasana faces the overturning of that golden handshake, and prospect of having to repay it by court order, has he stepped forward to say he wants his job back, Epstein contended. ‘He took his reward, never to return, until now.’

Full Mail & Guardian report