Johannesburg - Lobby group, Council for the Advancement of the South African Constitution (Casac) wants President Cyril Ramaphosa to remove beleaguered National Prosecutions Authority (NPA) boss Shaun Abrahams and appoint someone else in the interim ahead of the looming decision on former president Jacob Zuma's prosecution, the Constitutional Court heard on Wednesday.
Geoff Budlender, for Casac, argued that the issue was not only about whether to prosecute but who would be in charge of such as a task.
"There is a problem on what happens in the interim because other senior members of the NPA are similarly in an impossible position. It is common cause that there has been factional wars with political undertones in the NPA," Budlender said.
"We have seen in other cases where prosecutions were fudged in order to reach certain outcomes...it's not just whether to prosecute but how and who would do it. Such a decision should be made by a person in whom the public has confidence. The task of appointing a new [National Director of Public Prosecutions] NDPP lies with the president.''
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Justice Sisi Khampepe asked why the public should not trust Abrahams.
Budlender replied: "He has been sucked in... and is also a possible player in this dispute about whether Mr Zuma should be prosecuted...he resisted prosecution. Secondly, he was appointed as a result of the unlawful scheming and manoeuvre by the former president."
He added that too many people within the NPA carried the "toxic baggage" arising from the tug of war regarding the reinstatement of corruption charges against Zuma.
"We submit that if an acting NDPP is appointed, the decision on Zuma's prosecution should not be made until the president has appointed [a permanent NDPP] so we start off on a fresh foot. It would be extraordinary if Mr Ramaphosa has not given some thought on who he wants to appoint...there would be delay [in serving justice] of course but such a delay is justified."
Casac brought the matter to the highest court in the land and is seeking confirmation order as per the North Gauteng High Court's December 2017 ruling setting aside Abrahams' appointment by Zuma in 2015.
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The organisation does not want Abrahams to oversee the pending decision on whether to prosecute Zuma or not, arguing that he is conflicted.
Budlender further stated that former NPA boss Mxolisi Nxasana -- who has indicated he would return the R17 million golden handshake -- turned Zuma's attempts to remove him into an advantage by claiming the large amount of money in unlawful compensation. There were reasons to be sympathetic to Nxasana, he said.
"These are undeniable and uncomfortable facts. He [Nxasana] was an active party to the unlawful agreements...in fact, the unlawful terms of the agreement was dictated by him, he was the one who stated what the amount should be. He abandoned his constitutional duty as NDPP not because he felt he couldn't to the job but in order to secure the unlawful agreement, and, lastly, he did nothing to reverse all this until litigation was launched."
Nxasana was given a R17.3 million golden handshake by Zuma in 2015 to vacate his post as corruption charges hung over the former president's head. Nxasana was temporarily replaced by Silas Ramaite. Abrahams was then appointed permanently. He has in recent times drawn widespread criticism for dragging his feet reinstating Zuma's corruption charges.
Earlier, Corruption Watch argued that Nxasana's was a constructive dismissal by Zuma.
"Mr Nxasana was prevailed upon to leave office through a settlement agreement and threat of an inquiry. That is not a unilateral removal but a constructive removal from office...section 5 [of the NPA Act] says the NDPP shall not be removed from office except with the provisions of subsections 7 and 8. There was no request to Mr Nxasana to resign, he has repeatedly stated that he did not want to resign, it was the former president who wanted him to resign," said Matthew Chaskalson for Corruption Watch.
FUL, which was admitted as a friend of the court, along with Corruption Watch and the Helen Suzman Foundation, want the Constitutional Court to set aside Abrahams's appointment and have Nxasana to be reinstated.
The NPA and Abrahams are opposing Casac's application, arguing that his appointment was valid, adding that the high court erred in setting aside his appointment.
The case is heard by a full bench of justices with Khampepe leading the sitting.