Pretoria - While the court cannot decide who is the best person to lead the National Prosecuting Authority (NPA), it simply cannot leave Shaun Abrahams as the boss if it decided that Mxolisi Nxasana’s golden handshake of R17 million should be set aside.
This was the argument of Advocate Geoff Budlender SC, on behalf of the Council for the Advancement of the South African Constitution (Casac) on Tuesday.
“The court cannot conduct a beauty pageant as to who is the best NDPP - Abrahams or Nxasana, as this issue is not before court. But the court can reinstate Nxasana if it ruled that he was unlawfully removed.”
This will be tough on Abrahams, Budlender admitted, but he explained it will be like a tender which is set aside. If the tender was found to be unlawful, it followed that there was no right to continue with it, he said.
Casac, Corruption Watch and Freedom Under Law (FUL) are asking the Gauteng High Court in Pretoria to set aside the settlement agreement between Nxasana and Zuma, reached in 2015, that saw him receive R17 million to vacate his office.
They want him to be reinstated and to give back the R17 million "golden handshake".
The NGOs 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.
It was argued in this regard that Zuma stood to face serious criminal charges and that there was a conflict between his personal interests and him appointing the prosecuting head.
Judge President Dunstan Mlambo, who is leading the the full bench in the application, questioned whether it would be fair towards Abrahams to replace him with Nxasana.
“Don't we have a responsibility to order a remedy which is fair to Advocate Abrahams,” Judge Mlambo asked.
Judge Willem van der Linde, in referring to Nxasana, said he had difficulty in seeing the (former) head of the prosecuting authority taking a (R17 million) “bribe” and then be reinstated in his old position.
Budlender said the alternative remedy open to the court was to declare the removal of Nxasana invalid and to order his reinstatement. But, he argued, the court should then order that it was up to the Deputy President to appointed the head of the NPA.
Budlender said this could not be done by President Jacob Zuma himself, as it will be in breach of the Constitution given the fact that he may face criminal charges.
“We will ask that the Deputy president then appoint the new NDPP within 60 days as it is such an important position.”
Judge Mlambo questioned how the court could order the Deputy President to step into the shoes of the President. Budlender said given the extraordinary circumstances where Zuma could face prosecution, it would be in breach of the Constitution as he appointed the new NPA boss himself.
Advocate Ishmael Semenya SC, argued on behalf of Zuma that there is no doubt that Nxasana in 2015 willingly resigned from his position. He said the facts proved this and that he was not prompted by a R17 million golden handshake to leave.
Semenya said the settlement amount was only decided on after Nxasana told Zuma that he wanted to resign.
“The compensation would never have happened if it was not for his (Nxasana’s) willingness to leave office.”
Semenya said Nxasana had made up his mind to leave long before he knew what offer was on the table.
The argument of the NGOs is that Nxasana was forced to resign by Zuma, as he had threatened to reinstate criminal charges against him.
Semenya argued that if the court did order Nxasana to return to office, a golden handshake will also have to be extended to him (Abrahams) for the remainder of his contract.
Arguing for the NPA, Advocate Hilton Epstein SCA, also agreed that the R17 million handshake was illegal and that Nxasana had to pay it back.
He however, said Nxasana willingly resigned and he should not be ordered to return.
He questioned why Nxasana had not offered to pay the money back and said he can never be rewarded for “taking a bribe” and then get his job back.
The matter continues.