Durban - With President Cyril Ramaphosa having been given 90 days to appoint the new head of the National Prosecuting Authority (NPA), interested parties and commentators have cautioned him to choose carefully, saying an independent person is needed to restore the stability and credibility of the beleaguered institution.
On Monday, the Constitutional Court, in a ruling that was scathing of former president Jacob Zuma, ordered Ramaphosa to appoint a new National Director of Public Prosecutions (NDPP) after it found that the current head, Shaun Abrahams, and former NDPP Mxolisi Nxasana were both not suitable for the position.
The court found that Zuma had abused power and state resources in his desperate bid to anoint a pliant NDPP in actions that have compromised the integrity of the office and brought instability to the prosecuting body.
The matter related to the controversial 2015 removal by Zuma of former NDPP Mxolisi Nxasana and the subsequent appointment of Shaun Abrahams as the NDPP.
Corruption Watch, Freedom Under Law and the Council for the Advancement of the South African Constitution (Casac) wanted confirmation of declarations of invalidity by the North Gauteng High Court, including the invalidity of the R17.3 million golden handshake through which Nxasana agreed to vacate office.
Justice Mbuyiseli Madlanga, in the majority judgment, said Zuma had acted illegally and compromised the integrity of the prosecuting authority by removing Nxasana and replacing him with Abrahams.
“The removal was an abuse of power. Advocate Abrahams benefited from the abuse of power. It matters not that he may not have been aware of the abuse of power. The rule of law dictates that the office be cleansed of all the ills that have plagued it for the past few years,” Justice Madlanga said.
He said Zuma - who was found by the Concourt to have violated his oath of office in the Nkandla matter - was prepared to consider any amount of money, or employ whatever tactic he could muster, in his determined bid to get rid of Nxasana.
“There was first the notification that Nxasana would be subjected to an inquiry with a view to establishing whether he was still fit and proper to hold office. Concomitantly, there was a threat of suspension pending finalisation of the inquiry, albeit with full pay. This was followed by former president Zuma’s proposal that there be mediation,” Justice Madlanga said.
He said that when all else failed, Zuma instituted the inquiry but still pursued a parallel process in which he offered a payout for Nxasana to walk away - which the prosecutor eventually accepted.
The court ruled that Nxa- sana pay back about R10m of the payout he had received on his removal as it had been unlawful. The court also deemed his reinstatement unsuitable because he had accepted the payment.
Nxasana said that while he was disappointed that he could not retain his job, he felt vindicated as the court had acknowledged the pressure he endured under Zuma.
“I am disappointed but, at the same time, I respect the court judgment and I am willing to pay back the money as directed by the court. Today I am vindicated. The court has heard my version and they accept the treatment that I received. I was subjected to all this humiliation at the time,” Nxasana said.
In a statement, the Presidency said: “In studying this judgment, the Presidency is guided by the undertaking given by President 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.”
The Presidency said urgent attention would be given to leadership issues at the NPA “to ensure that this critical institution is stabilised”.
Abrahams was not in court yesterday.
NPA spokesperson Luvuyo Mfaku said Abrahams was “disappointed but respects the decision of the highest court in the land” and would await direction on the way forward from the Presidency.
Lawson Naidoo, the executive secretary of Casac, said the NPA head needed to be independent as the post came with serious responsibility with regard to prosecutions and prosecution policy.
He noted that, since 1998, no NDPP head ever finished his term, due to instability within the organisation.
Naidoo said the appointment of the new head would restore the dignity of the institution but would not solve all its problems, as the problems were much deeper.
Political analyst Bukani Mngoma said the focus should be on how the NDPP was appointed, rather than being on who would be appointed.
Mngoma believes a more transparent process is needed, similar to that used to appoint the public protector, the auditor-general and judges.
“There needs to be a fundamental change in the manner in which (the NDPP) is appointed. Unfortunately, the legislation allows the president to use his discretion, and politicians do not like to give away power when they have been given such power,” Mngoma said.
Corruption Watch echoed similar sentiments, arguing that there needed to be a review of the process governing key appointments in the NPA, in Chapter 9 institutions and in the boards of state-owned enterprises.
“What these institutions have in common is the requirement for unimpeachable integrity, for the ability to resist the destructive influence of narrow political interests and money,” said David Lewis, the executive director of Corruption Watch.