01/06/2014 Durban Thulani Duma informal adviser of National Prosecuting Authority Mxolisi Nxasana. PICTURE: SIBUSISO NDLOVU

Durban -

Embattled national prosecutions boss, Mxolisi Nxasana, who has been asked to resign after being denied top security clearance for allegedly failing to disclose a series of brushes with the law, is refusing to go down without a fight.

The former Durban advocate would rather be fired. He was now preparing for President Jacob Zuma to possibly set up a commission of inquiry to investigate the allegations against him so he could defend himself, his legal adviser said on Sunday.

Nxasana, who was appointed National Director of Public Prosecutions (NDPP) by Zuma in October, has come under pressure following revelations that he allegedly did not disclose that he:

* Was tried, as an 18-year-old, for murder and acquitted.

* Had been arrested for inconsiderate driving and resisting arrest.

* Was fined by the KwaZulu-Natal Law Society; and

* Tried to prevent the National Prosecuting Authority’s Integrity Management Unit from investigating him.

Two weeks ago, then-justice minister Jeff Radebe, in the light of these allegations, asked him to resign.

“But he will not take this lying down because the allegations against him are concocted,” Nxasana’s legal adviser, advocate Thulani Duma, said yesterday.

“The reality is he is not going down without a fight.

“That is exactly what he told the former minister of justice, Jeff Radebe, when he brought up talk of resignation. He said he would rather be fired.

“For the president to fire him, they will have to suspend him first and then get a commission of inquiry running. At the end of the commission of inquiry people will know the truth, not this rubbish in the Sunday papers,” he said.

He was referring to calls for him to be fired.

Duma, who worked in the Assets Forfeiture Unit in Durban before moving to Pretoria to work in the NDPP office, has been accused by Nxasana’s detractors of being appointed as his “informal adviser” as part of a jobs-for-pals deal as the pair had been business partners in a close corporation, U22VA Trading.

A company search confirmed the pair, with Queen Mhlongo, were co-directors of the CC from June 2010 to March last year.

Mhlongo could not be reached for comment on Sunday.

Duma, however, said he had never been in business with Nxasana and had no idea how he or Nxasana’s names appeared on business records, suggesting it was part of a campaign to smear them.

“It is laughable. I have no idea how that happened. I have never signed any documents to form any company.”

But Duma admitted he had moved to Pretoria to work with Nxasana in the NDPP office.

“The appointment has not yet been made. At this stage I am merely seconded there (to the Pretoria head office).

“It is true I have not yet been appointed formally,” he said.

Duma claimed a powerful cabal in the NPA was running a smear campaign against Nxasana, and trying to remove him from his job.

“At the apex of this smear campaign are people who had been passed up for the job and who are angry. There are people who want to have him overthrown as soon as possible. They have spread rumours that he wants to reinstate the charges against the president...

“We know that they have gone to the president and told him this and said he (Nxasana) cannot be trusted. If you trace the history of some of these people (in the NPA) it is all about protecting politicians,” he said.

Duma said a commission of inquiry was the only solution to ridding the NPA of the factions plaguing it.

“(Nxasana) is very upset. He needs a platform where all these things can be ventilated. For him to do that a commission of inquiry, preferably a judicial one, would have to be established where he can ventilate all these things.

“Most people will be embarrassed by what will be said there. All these politicians behind these things who are working with these people will be embarrassed,” he said.

Radebe’s spokesman, Mthunzi Mhaga, said the former justice minister was no longer dealing with the matter and referred all queries to new Justice Minister Michael Masutha.

Masutha’s spokesman, Lawrence Ngoveni, said the minister was still familiarising himself with the facts.

“You will appreciate the fact that he just started work last Monday. He will still like to appraise himself with the facts and then obviously interact with the presidency.

“The presidency is dealing with this issue and will make a pronouncement,” he said.

Presidency spokesman, Mac Maharaj, said Zuma was aware that the minister of justice and the state security ministry were attending to the matter.

“When he is fully appraised of the matter he will look at it and give his decision.

“At the moment it is still in the hands of the minister of justice,” he said.

Maharaj could not give a time frame for when the process would be completed.


Letter ‘refutes allegations’

In his letter to former justice minister Jeff Radebe on May 22, national prosecutions boss, Mxolisi Nxasana, outlined the events of the meeting where he was asked to resign and countered the allegations against him.

The Daily News is in possession of a copy of the letter, written a day after Nxasana met Radebe and Justice and Constitutional Development director-general Nonkululeko Sindane.

According to the letter Radebe had told Nxasana that the State Security Agency had investigated him and decided not to issue him a Top Security Clearance Certificate on the basis that:

* He did not disclose that in 1985 he was charged with murder;

* In August 2013 he had been arrested for inconsiderate driving and resisting arrest;

* In 1998 he was fined by the KwaZulu-Natal Law Society for failing to lodge/prosecute a client’s claim timeously; and

* That he stopped Prince Mokotedi, the executive manager of the Integrity Unit at the NPA, from investigating him and then disbanded the unit.

In response, Nxasana said that while he did not disclose the case of murder to the NPA’s accounting officer, advocate Karen van Rensburg, or the director of domestic intelligence, Simon Ntombela, it was his belief that he did not “have a duty in law” to disclose the case in which he was tried and acquitted by a court of law.

“It is the same with the case of inconsiderate driving and resisting arrest. I was wrongly arrested and the senior public prosecutor and the chief prosecutor declined to even place it on the court roll. On the other hand I opened a case against the police who arrested me with the help of a police officer from IPID (Independent Police Investigative Directorate) Durban when the charge commander was reluctant to help me. As far as I know the case against the police is still active,” he wrote.

Nxasana said he did admit in his vetting documents that he had been fined R2 000 by the KZN law society.

He called the allegations by Mokotedi “devoid of truth”, adding that the NPA executive and IMU staff could attest to it.

“I did point out that I know the people who are behind all this smear campaign who go about bragging and boasting that they will do everything in their power to bring me down. I also pointed out that these people make sure that they drop your name and I am told that they have direct access to you and they communicate with you behind my back,” Nxasana wrote. “I know they have been peddling lies about me which I mentioned to you last night.”

Nxasana told Radebe that he would rather have Zuma establish a commission of inquiry than for him to resign.

“If that is the procedure then it means it would have to be followed as I believe that I am a fit and proper person to hold this position,” he wrote. “I made it very clear, which I reiterate now, that I am not going to resign because of these false allegations against me.”