Zuma offered Nxasana a R17.3million golden handshake in 2015 after a fallout.
The former president had abruptly halted an inquiry into Nxasana’s fitness to hold office before paying him out.
Corruption Watch, Freedom Under Law and the Helen Suzman Foundation (HSF) have told the Constitutional Court that the high court should have reinstated Nxa- sana in December.
“That was the natural consequence of the conclusion that the termination of his appointment was unconstitutional and invalid,” read heads of argument filed on behalf of Corruption Watch and Freedom Under Law by advocates Matthew Chaskalson, Wim Trengove, Patrick Romano and Hephzibah Rajah.
The legal challenge emerged as embattled National Prosecuting Authority boss Shaun Abrahams had given prosecutors until today to make a decision on whether to revive Zuma’s charges.
The full bench of the high court in Pretoria, which declared the appointment of Abrahams invalid, set the decision aside, and gave then deputy president Cyril Ramaphosa 60 days to appoint his replacement.
The high court barred Zuma from appointing Abrahams’ replacement as he was conflicted because the person occupying the position would ultimately decide whether to reinstate the fraud, corruption, tax evasion and money laundering against him.
Corruption Watch and Freedom Under Law want the other high court orders confirmed by the Constitutional Court.
The high court did not reinstate Nxasana but ordered him to return the R17.3m golden handshake.
In his submission to the Concourt, Corruption Watch and Freedom Under Law have told the top court that declining to reinstate Nxasana would be subversive of the constitutional scheme of prosecutorial independence and the purpose of section 12 of the NPA Act, which governs the national director of public prosecutions’ (NDPP) term of office.
Among other provisions, the section states that the NDPP is “entitled to such pension as he or she would have been entitled to under applicable pension law” and “does not permit the president to rid himself of a troublesome NDPP by enticing him out of office”
Corruption Watch and Freedom Under Law accuse Zuma of trying to offer Nxasana increasing amounts of public money to quit. “There is nothing in the conduct of Nxasana that suggests he is not fit and proper to be reinstated as NDPP. He resisted extraordinary pressure brought upon him by the president to vacate his office. He has tendered the return of the settlement payment and consistently requested to be reinstated.”
HSF director Francis Antonie said in its application to be joined as a friend of the court: “The HSF submits that, contrary to the finding of the high court, which allowed (Ramaphosa) to appoint a new NDPP, the reinstatement of Nxasana, without any executive discretion, is the most appropriate constitutional remedy.”