Justice Mbuyiseni Madlanga handed down the judgment, finding both the manner in which former NPA head Mxolisi Nxasana vacated office and the subsequent appointment of Shaun Abrahams unconstitutional and invalid at the Constitutional court, Johannesburg. Picture: Nhlanhla Phillips/African News Agency/ANA

Johannesburg - The Constitutional Court judgment which ruled the appointment of Shaun Abrahams as the head of NPA was invalid, has been widely welcomed as a first step in rebuilding credibility at the NPA. 

Political parties and legal NGOs say they are pleased with the judgment. 

The apex court ruled on Monday that the manner in which former national director of public prosecutions (NDPP) Mxolisi Nxasana left office was illegal. This judgment subsequently also found the appointment of Abrahams was invalid. 

In a majority judgment delivered by Justice Mbuyiseli Madlanga, the court found that the R17 million golden handshake that Nxasana received as part of his departure, should be paid back. Madlanga said former president Jacob Zuma abused his power in negotiating for Nxasana’s removal. 

The Justice said decisions taken by Abrahams during his tenure were not invalid. But it found that he could not continue serving in the position as he had benefited from Zuma’s abuse of power. Nxasana’s return to office was also not a viable option. 

The court ordered that President Cyril Ramaphosa should appoint a new NDPP within 90 days. 

The ANC said in a statement on Monday that it welcomed the judgment and said it has confidence that Ramaphosa would handle the matter of Abrahams' replacement appropriately. 

“The ANC believes that today’s judgment provides President Cyril Ramaphosa with the necessary space to move with speed and urgency to resolve the leadership question at the NPA. What is critical for the ANC is the restoration of the independence, integrity and credibility of this key law enforcement agency. Anything that compromises the independence of the NPA will undermine its credibility and lead to a serious erosion of the rule of law,” said ANC spokesperson Pule Mabe. 

Legal NGO Corruption Watch, which was one of the applicants in the matter, said the judgement affirms the importance of an independent NPA. 

“The court hit the nail on the head when it observed that ‘with a malleable, corrupt or dysfunctional prosecuting authority, many criminals – especially those holding positions of influence – will rarely, if ever answer for their criminal deeds’.” The organisation looks forward to an NPA led by someone of integrity who will precisely hold to account the many criminals who have held, and in many cases still do hold, positions of power and influence,” said David Lewis, director at Corruption Watch. 

The court also found that section 12 (6) of the NPA Act is unconstitutional. This section allows the president to suspend the NDPP for an indefinite period without pay. Madlanga gave Parliament 18 months to change this section. 

The DA says this request by the court is crucial, but the party also wants the process of appointing an NDPP to be changed and should be subjected to the same scrutiny as the appointment of the Public Protector and the judiciary. 

“The DA has propagated the view for some time that the appointment process regarding the NDPP should follow the concept of public and parliamentary involvement similar to the process of appointment of the Public Protector and the judiciary.  This would be a good time to revisit that option,” said DA MP Glynnis Breytenbach. 

NPA spokesperson Luvuyo Mfaku said Abrahams was disappointed by the ruling. He said the prosecuting authority would await Ramaphosa on what happens now for Abrahams.