Pretoria - The battle of who should lead the National Prosecuting Authority and the question as to whether President Jacob Zuma was behind former NPA boss Mxolisi Nxasana stepping down and receiving a R17-million golden handshake, form the subject of a three-day long fierce legal battle.
NGO’s Corruption Watch, Freedom Under Law (FUL) and the Council for the Advancement of the South African Constitution (Casac) are challenging Nxasana’s “resignation” or departure from the NPA in the Gauteng High Court, Pretoria.
The Centre for Defending Democratic Rule (CDDR) was given permission by the full bench (three judges led by Judge President Dunstan Mlambo) to enter the fray as as a friend of the court.
CDDR is not supporting Nxasana’s reinstatement, as it argued that he had resigned on his own. It has submitted Nxasana’s security clearance to the court in support of its application, but Judge Mlambo, at the start of the hearing, ordered that it had to remain sealed and it may not be referred to by the media until the finalisation of the case.
Nxasana was meanwhile, dealt a first round blow when the judges on Monday turned down an application on his behalf to submit an affidavit in which he explained his dealings with Zuma around him leaving office. It was found that he had no reason to justify the late filing of the document.
The applicants want the court to set aside the settlement agreement between Nxasana in terms of which he vacated his office in 2015, thus allowing him the return as head of the NPA and to step into the shoes of the present NPA boss, Shaun Abrahams.
They also want the R17-million golden handshake to be set aside and asked that Nxasana be ordered to pay back the money.
The NGO’s further challenged the power of the president, in terms of the NPA Act, to suspend the National Director of Public Prosecutions and deputy national directors unilaterally, indefinitely and without pay.
Zuma did not oppose the relief that Nxasana must repay the R17-million, but he maintained that he cannot return to office as he insisted that he he had asked to step down as NPA boss and not made to resign.
Zuma claimed that Nxasana, during meetings with him, asked to vacate his office, as the NPA was rendered dysfunctional and because he did not see eye to eye with senior leadership within the office.
Zuma said he deemed these reasons as sufficient to allow Nxasana to vacate his office in terms of the NPA Act. It was said that Nxasana insisted on receiving his full benefits for the remainder of his 10 year term and that the parties at the end settled at R17-million.
Nxasana, on the other hand, maintained that there were politically motivated reasons why his fitness to hold office was publically questioned by some senior officials in his office. This included the concern that he would reinstate fraud and racketeering charges charges against Zuma.
He said he believed that controversial advocates Nomgcobo Jiba and Lawrence Mrwebi were behind rumours that he intended to reinstate the criminal charges.
Following this, Zuma informed him that he had decided to institute an inquiry into his (Nxasana’s) fitness to hold office and that he intended to suspend him without pay, pending the outcome of the inquiry.
The commission was established a few months later, but nothing came of it was Zuma, on the eve of it starting, terminated it. No precise reasons were given for this, apart from “that it would not be in the best interest of government or Nxasana to proceed with it.
This was a day after Nxasana had signed the settlement agreement in terms of which he took his golden handshake and vacated his office.
Zuma, however, now conceded that Nxasana was fit to hold office.
Advocate Wim Trengove SC, acting for the applicants, argued that the inquiry was a threat made to Nxasana for him to resign, but the president did not need to go ahead with it once he and Nxasana had reached the settlement agreement.
He said there was an unlawful attempt to remove Nxasana from office and argued that he had to be reinstated as NPA boss.
Trengove also said the president was not fit to appoint the NDPP as he is facing possible criminal prosecution and thus has a material interest in the matter.
The matter continues.