THE Constitutional Court, the highest court in the land, has ruled that that the agreement between former President Jacob Zuma and Minister of Justice and Correctional Services that terminated Mxolisi Nxasana’s term as National Director of Public Prosecutions (NDPP) and the settlement payment of R17.3m was invalid and so was the appointment of Shaun Abrahams as his successor. Nxasana is ordered to repay forthwith to the state the sum of R10 240 767.47 as the rest was retained by the state for income tax. President Cyril Ramaphosa is directed to appoint an NDPP within 90 days of the date of the order.
The invalidity of Abrahams’s appointment should mean that Nxasana could return to office but it’s that straight forward Justice Mbuyiseli Madlanga said reading from the majority judgement: “The ordinary effect of declaring Mr Nxasana’s vacation of office invalid is that – in accordance with the Steenkamp principle – Mr Nxasana should return to office….
“I have a lot of sympathy for him for the undue, persistent pressure to which he was subjected. That said, based on the objectively available material, quite early on he indicated his preparedness to vacate office if he was paid in full for the remainder of his contract period. He made this demand when he had been in office for just over a year. And yet he wanted a payout for close to nine years, the unexpired period of his term of office……Effectively, although Mr Nxasana strongly protested his fitness for office, he was saying he was willing to be bought out of office if the price was right”.
The judgement among others traces the long convoluted process that ended with Nxasana’s departure and the settlement figure which was left as a blank which Nxasana had to complete. And at all times, both courts (High Court and ConCourt) conclude Nxasana had not wanted to leave office. “Former President Zuma was bent on getting rid of Mr Nxasana by whatever means he could muster. His was an approach that kept on mutating: it was first a stick; then a carrot; a stick once more; and eventually a carrot. There was first the notification that Mr Nxasana would be subjected to an inquiry with a view to establishing whether he was still a fit and proper person to hold office. Concomitantly, there was a threat of suspension pending finalisation of the inquiry, albeit with full pay. This was followed by former President Zuma’s proposal that there be mediation. When there was no progress on this, the inquiry was instituted. Whilst the inquiry was in its preliminary stages, the former President pursued a parallel process in which Mr Nxasana was first offered – in a draft settlement agreement – R10 million. As indicated earlier, he did not accept it. What plainly evinces how desperate former President Zuma was to get rid of Mr Nxasana is that this was followed by a draft settlement in which the amount was left blank. Mr Nxasana was being told to pick whatever figure.
Indeed, Mr Hulley said that he would “await the final amount” from Mr Nxasana. (Emphasis added.)
 I am not suggesting that the former President would have accepted any amount Mr Nxasana inserted. All I am saying is that the very idea that former President Zuma was willing, at least, to consider whatever amount Mr Nxasana inserted speaks volumes. To be more direct, it lends credence to the view that he wanted to get rid of Mr Nxasana at all costs. If that were not the case, why else would he have given Mr Nxasana an opportunity to insert an amount of his liking? After all, this all started because former President Zuma overtly made all and sundry believe that he had a basis for holding a view that Mr Nxasana was no longer fit for office. It must have been a matter of relative ease, therefore, to pursue the inquiry instead of offering Mr Nxasana what – by all accounts – was an extremely huge sum of money. In its judgment the High Court notes that before it the parties were agreed that the amount of R17.3 million “far exceeded what Mr Nxasana’s financial entitlement would have been had his office been lawfully vacated in terms of section 12(8)(a)(ii) of the NPA Act”.25
Below is the post by Constitutional Court Blog and the judgement
Corruption Watch NPC v President of the Republic of South Africa
The judgment, delivered on 13 August 2018, is available for download here: Judgment – CCT 333-17 Corruption Watch NPC v President of the Republic o….
Former President Zuma, NDPP Shaun Abrahams and the National Prosecuting Authority sought leave to appeal against the High Court’s order declaring the agreement between Minister of Justice and Correctional Services and Mr Nxasana and the payment of a settlement amount of R17.3 million which resulted in the termination of Mr Nxasana’s term of office as NDPP invalid, as well as declaring the appointment of Mr Abrahams invalid.
The former President appealed against the High Court’s order directing the Deputy President to appoint a new NDPP while Mr Abrahams and the NPA appeal against the setting aside of Mr Abrahams’ appointment. In a separate application which was heard together with the confirmation proceedings, Mr Nxasana seeks leave to appeal against the High Court’s refusal of condonation. Corruption Watch and Freedom Under Law seek the reinstatement of Mr Nxasana.
The majority of the Constitutional Court found that the agreement that terminated Mr Nxasana’s term as NDPP was invalid and so was the appointment of Mr Abrahams. The majority found that the President must now appoint a new NDPP, whilst the minority would have found that Mr Nxasana should have resumed in the position.