Ramaphosa ‘studying’ Abrahams judgment

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JOHANNESBURG, August 13 – President Cyril Ramaphosa is studying Monday’s Constitutional Court judgment that declared the 2015 appointment of National Prosecuting Authority (NPA) head Shaun Abrahams invalid and unconstitutional.

The court ordered Ramaphosa to appoint a new national director of public prosecutions (NDPP) within three months.

“The Presidency is currently studying the judgment, cognisant of the order of the court directing the president to appoint an NDPP within 90 days of this order. In studying this judgment, the Presidency is guided by the undertaking given by President Cyril Ramaphosa in the February 2018 State of the Nation Address that South Africa’s law enforcement institutions would be strengthened and shielded from external interference or manipulation,” spokeswoman Khusela Diko said in a statement.

“President Ramaphosa also undertook that urgent attention would be given to leadership issues at the National Prosecuting Authority to ensure that this critical institution is stabilised and able to perform its mandate unhindered. Steps to be taken arising from the Constitutional Court judgment will be communicated in due course.”

Abrahams and the NPA approached the highest court to appeal a judgment last year, that ruled that the removal from the post of former NDPP Mxolisi Nxasana, who received a R17.3 million golden handshake, was unlawful, and therefore rendering Abrahams’ appointment by former president Jacob Zuma invalid.

The high court case was brought by Freedom Under Law (FUL), Corruption Watch and the Council for the Advancement of the South African Constitution (Casac) who wanted Abrahams’ appointment be set aside.

The organisations also wanted an order reinstating Nxasana or, alternatively, declaring that the position was vacant and a new prosecutions boss must be appointed.

Delivering the judgment, Justice Mbuyiseli Madlanga ordered that Nxasana return the money he was paid by Zuma. He ruled that Nxasana cannot go back to the helm of the NPA, as his return would not help the troubled prosecutions office marred by instability and conflict for many years.

Former National Prosecutions Authority (NPA) boss Mxolisi Nxasana said he was pleased with Monday’s Constitutional Court judgment setting aside incumbent head Shaun Abrahams’ appointment in 2015.

Former NPA boss Mxolisi Nxasana. PHOTO: ANA

Nxasana, who was given a R17 million golden handshake to leave the NPA by former president Jacob Zuma, said he was ready to pay back the money as directed by the Constitutional Court.

“I am happy with the judgment, it comes after the high court rejected my condonation application…I am vindicated today, the court has heard my version and accepted it. I am willing to pay back the money as directed by the Constitutional Court,” he told journalists outside the Constitutional Court.

“It is now more than three years [since leaving the NPA] and I was subjected to the humiliation at the time, I came to accept what happened…as you heard Justice [Mbuyiseli “Russel”] Madlanga said he felt sorry for me regarding the manner in which I was treated.”

The North Gauteng High Court refused Nxasana condonation to file a late affidavit which he said contained his version of the events leading up to him leaving the NPA. The affidavit was filed very late, long after Freedom Under Law (FUL), Corruption Watch and the Council for the Advancement of the South African Constitution (Casac) filed papers seeking Abrahams’ appointment to be set aside.

Justice Mbuyiseli Madlanga granted Nxasana his condonation appeal, but ruled that he cannot return to the NPA.

“Although the explanation for the delay is weak, Mr Nxasana is strong on the merits of what the explanatory affidavit was, in the main, meant to achieve –that is to counter former president Zuma’s version. For me, another factor that should count in Mr Nxasana’s favour is that, although he delayed in filing his own affidavit, he expended time and effort towards the compilation of a proper rule 53 record and was thus of great assistance not only to Corruption Watch and FUL but to the court as well,” Madlanga said.

“Lastly, I am not aware of prejudice that was suffered by any party as a result of the late filing of the explanatory affidavit; and none was suggested. On balance, I am of the view that condonation must be granted and the explanatory affidavit accepted.”

A buoyant Nxasana gave advice to prosecutors from the NPA.

“To officials at the NPA, I say continue doing your work diligently and faithfully. Officials must take a leaf out of this judgment and this whole scenario that too place. They must avoid agendas, camps…people must just work without fear or favour. They should treat everyone equally and never have fear to prosecute anyone…they must never allow interference by anyone at the NPA,” he said.

Casac and Corruption Watch welcomed Madlanga judgment. Casac director Lawson Naidoo said it was now time for President Cyril Ramaphosa to appoint a new NPA head.

“We hope that he will act with speed, the Constitutional Court has given him 90 days to appoint a [National Director of Public Prosecutions] NDPP. We hope that that appointment will be made sooner so that the process of cleaning the NPA can start as soon as possible,” Naidoo said.

The national director of public prosecutions (NDPP) Shaun Abrahams, appointed in 2015, is a beneficiary of former president Jacob Zuma’s abuse of power at the National Prosecuting Authority (NPA), Constitutional Court Justice Mbuyiseli Madlanga said on Monday.

”Former president Zuma appointed Abrahams following his unlawful removal of Nxasana. That removal was an abuse of power… Advocate Abrahams is a beneficiary of that abuse of power, and it matters not that he may not been aware of such abuse of power,” Madlanga said.

The Constitutional Court said on Monday Abrahams’ appointment by former president Zuma as the head of the NPA was unconstitutional.

The court further directed President Cyril Ramaphosa to appoint a new NPA boss within 90 days.

Abrahams and the NPA approached the highest court to appeal a judgment last year that ruled that the removal from the post of Mxolisi Nxasana, who received a R17,3 million golden handshake, was unlawful, and therefore rendering Abrahams’ appointment by Zuma invalid.

Judge Madlanga said a return of Nxasana to the NPA will not help the unstable prosecutions office.

”For years, there has been instability in the NDPP, with the vacation of office by Nxasana and appointment of Abrahams…that instability persists to this day. The sooner it is brought to an end, the better. An order that would be prolonging the instability cannot be justified…Mr Nxasana’s return to office will have that effect as the president might institute an inquiry into his fitness and for agreeing to the R17,3 million settlement to vacate office,” he said.

Nxasana received R10 million of the payout, with the rest of the amount retained by government as income tax.

Regarding the payout, Madlanga said it undermined the independence of the NPA. He added that Zuma was ”hellbent” on getting rid of Nxasana by ”whatever means he could master”.

”It should be borne in mind that this entire saga started because former president Zuma held a view that Nnxasana was no longer fit to hold office. It must have been a matter of relative ease then to pursue the inquiry instead of offering Nxasana what is by all accounts an extremely huge sum of money. Crucially, the high court noted that the parties agreed that R17m far exceeded what Nxasana would have been entitled to had he vacated office in terms of the NPA Act.

”Instead of settling for the huge amount, why didn’t the former president pursue the inquiry? Did he not believe that the evidence that prompted him to come up with the idea of the inquiry was sufficient? If so, why did he not abandon the inquiry and leave Nxaza in office?…after all he was exercising powers as president and was not involved in personal dispute.”

He said such huge payments to an NDPP were seen as ”buying out ”unwanted and troublesome individuals”.

”It cannot be that vacating NDPP office will ever entitle an NDPP to more benefits than those set out in NPA Act, Section 12 A., which is very specific on public service benefits. The problem with benefits that are not cleared by this section is that they leave an impression that the NDPP was bought of office…such compromises the independence of the office.Whatever we make of the section 12 A, the manner of vacating an office should never undermine the constitutional imperative of the independence of the office of the NDPP.”

The high court case was brought by Freedom Under Law (FUL), Corruption Watch and the Council for the Advancement of the South African Constitution (Casac) who wanted Abrahams’ appointment be set aside.

They also wanted an order reinstating Nxasana or, alternatively, declaring that the position was vacant and a new prosecutions boss must be appointed.

Nxasana has since indicated that he would return the money and that he wanted his job back.

Zuma appointed Nxasana to head the troubled NPA in 2013. Following internal conflict, while corruption charges hung over Zuma’s head, a commission of inquiry was instituted in 2014 to investigate Nxasana’s fitness to hold office.

As a result, he was suspended pending the outcome of the inquiry. In August 2014, Nxasana launched an urgent application in the high court seeking to interdict his suspension. However, the court process was never finalised as Nxasana and Zuma began negotiations in an attempt to settle the dispute. Nxasana was given a R17.3 million golden handshake by Zuma in 2015 to vacate his post. He was temporarily replaced by Silas Ramaite, before Abrahams was then appointed permanently. (ANA)