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Zuma ‘irredeemably conflicted’ on NPA appointments

Publish date: 21 November 2017
Issue Number: 4353
Diary: Legalbrief Today
Category: General

The spy tapes saga showed that President Jacob Zuma and the NPA had worked in cahoots over the past eight years to keep him from being charged, and so he could not make decisions about the appointment, removal or suspension of the authority’s head, Freedom Under Law argued in the Gauteng High Court (Pretoria) yesterday. It asked the court to order that the Deputy President does so instead, says a Business Day report. Freedom Under Law and Corruption Watch with the Council for the Advancement of the SA Constitution brought an application to review the settlement agreement that led to former National Director of Public Prosecutions Mxolisi Nxasana leaving office with a R17m golden handshake. The organisations argued that if the court reviewed and set aside the settlement, Nxasana should be reinstated in his position as prosecutions chief, and that current head Shaun Abrahams should vacate the position, as it was never vacant in the first place. Nxasana and the President, however, differed on a crucial aspect of the settlement, which is whether Nxasana asked to resign or not. Nxasana said he had not made a request, while the President argued that he had. Wim Trengove SC, for Freedom Under Law, said Zuma was ‘irredeemably conflicted’. He cited the appointment of former prosecutions chief Menzi Simelane, which the Constitutional Court found to be irrational. ‘That was already a manifestation of his (Zuma’s) impaired judgment,’ Trengove said. Nxasana was appointed in place of Simelane after the post had been vacant for close to a year. Trengove said the Constitution specified that Cabinet members may not act in a way that was inconsistent with their office or expose themselves to conflicts of interest. ‘That disqualifies the President from appointing the (prosecutions chief) while he stands to be prosecuted on very serious charges.’

Full City Press report

The court indicated some concern about re-instating Nxasana as he had already shown that he would only leave if a price was paid. That may have to form part of a decision on whether or not to re-instate him, the court heard, according to a Mail & Guardian report. ‘This is a President who had first tried to bully Mr Nxasana out of office with threats of an inquiry (into his fitness to hold office), and having not succeeded is now trying to seduce him, to bribe him with public money (the R17m),’ Trengove told the court. The nature of Nxasana’s departure raises questions, said Gauteng Judge President Dunstan Mlambo, and may require consideration when it comes to the civil society organisations’ argument that Nxasana should be returned. ‘Mr Abrahams was considered and appointed on a supposedly vacant position,’ Mlambo put to Trengove. ‘Mr Nxasana named his price, he said ‘I don’t want to go, I’ll only go if you pay me.’ And he got his price. On a purely fairness basis how can we oust Mr Abrahams?’ Trengove told the court it was not in a position to determine Nxasana’s fitness to hold office, but must only undo his unconstitutional removal, for which the only remedy is re-instatement. Only then can his fitness be considered, by ‘constitutional methods’ such as an inquiry into his fitness for the position. Such an inquiry was interrupted by Nxasana’s 2015 departure. The court earlier refused Nxasana condonation for the late filing of an affidavit, in which he claimed Zuma had lied in saying he had asked to leave office. That left the court with only Zuma’s version of meetings central to whether Nxasana jumped or was pushed, notes the report.

Full Mail & Guardian report

Trengove also touched on the Spy Tapes judgment handed down by the SCA, noting both counsel for Zuma and the NPA had conceded that the decision to not prosecute him on corruption charges was flawed. Matthew Chaskalson, who represents Corruption Watch, added that Zuma created an ‘appearance of interference in the independence of the NPA’ when he paid Nxasana. But, notes a News24 report, Mlambo interjected and asked Chaskalson if he was suggesting that Abrahams was a victim of ‘unlawful decisions’. Mlambo said Abrahams was an NDPP who had done nothing wrong. Chaskalson told the court that, once the removal of Nxasana is ruled unconstitutional, the appointment of Abrahams must be annulled. ‘You can't be appointed to a position that is occupied,’ he said. ‘What do you want us to do with Mr Abrahams? Do you want us to say his appointment was null and void,’ asked Mlambo. ‘Indeed,’ Chaskalson replied. He added that, ‘if there were doubts about Nxasana’s fitness to hold office, the doubts should be canvassed in an inquiry’. Casac is arguing the case through the lens of the NPA Act, according to a Beeld report. It points out that the Act requires a six-month notice period if it had been Nxasana’s intention to resign. Upon resignation, an NDPP would get a normal pension payout. The golden handshake therefore is not authorised by section 12(8) of the Act, Casac argues.

Full Fin24 report

Full Beeld report

The court earlier ordered a media blackout on a document due to feature in argument. A Mail & Guardian report notes that Mlambo ruled the document ‘is sealed and not to be referred to in the media, publicised or in any way disseminated until after this matter has been done, has been heard’. The order appeared to extend to references to the document in heads of argument before the court, affidavits that would normally be in the public domain, and also arguments heard in open court – even as television cameras rolled. The document was to be part of a submission by the Centre for Defending Democratic Rule (CDDR), a recently formed organisation that is seeking admission to the case. The report says the CDDR has no history and is represented by Western Cape student leader and regular writer for The New Age newspaper Buyile Sangolekhaya Matiwane.

Full Mail & Guardian report

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