ConCourt gives Ramaphosa 90 days to appoint new NPA head

When he came into power in February, President Cyril Ramaphosa needed to dismantle and rebuild the rotten house of corruption established by his predecessor, former president Jacob Zuma. Reforming the National Prosecuting Authority (NPA) would be crucial.

NPA boss Shaun Abrahams and his deputies appeared more concerned about politics than justice and without reform it looked unlikely few involved in Zuma-era corruption would be prosecuted and a new agenda established.

On Monday, the Constitutional Court gave the Ramaphosa administration the gift it was waiting for, ruling that Abrahams must vacate office.

The majority judgment, penned and delivered by Justice Mbuyiseli Madlanga, upheld a high court decision declaring Zuma's termination of former NPA boss Mxolisi Nxasana's appointment constitutionally invalid. In 2015, Nxasana accepted a R17.3-million payout to leave under pressure from the former president.

While not the focus of the judgment, Madlanga hammered Zuma's actions. “At the centre of any functioning democracy is a well-functioning criminal justice system. If you subvert the criminal justice system, you subvert the rule of law and constitutional democracy itself,” he said.

“The facts set out above point to one thing and one thing only: 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,” the judgment continued.

“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.”

And then another direct blow to Zuma from the highest court in the country: “The inference is inescapable that he was effectively buying Mr Nxasana out of office. In my book, conduct of that nature compromises the independence of the office of (National Director of Public Prosecutions).”

The NPA's independence is enshrined in law and the National Director of Public Prosecutions (NDPP) is appointed by the President for a non-renewable 10-year term. An NDPP can resign, but not under “improper interference”.

With Nxasana's termination deemed constitutionally invalid, Madlanga said it follows that Abrahams' appointment is also invalid.

“Advocate Abrahams benefited from this abuse of power. It matters not that he may have been unaware of the abuse of power; the rule of law dictates that the office of NDPP be cleansed of all the ills that have plagued it for the past few years,” reads the judgment.

Nxasana was ordered to pay back the R10,240,767.47 of the payout he had received to the state (the rest was never paid but retained to pay income tax). Madlanga overturned the high court judgment dismissing Nxasana's evidence, but decided not to give him his job at the NPA back.

Normally, the court would say the situation must return to how it was before the invalid decision was taken, but Madlanga said there were exceptional circumstances in this case and the NPA must return to stability as soon as possible.

“For years there has been instability in the office of the NDPP. With the court challenge to Mr Nxasana's vacation of office and the appointment of Mr Abrahams that instability exists to this day. The sooner that ends the better,” said Madlanga.

He criticised Nxasana's acceptance of the payout and said Ramaphosa would probably need to hold an inquiry into his fitness to hold office if he returned to head the NPA, creating further instability.

“Even allowing for human frailties – because Mr Nxasana is human after all – I do not think the holder of the office of NDPP could not reasonably have been expected to do better. His conduct leads me to the conclusion that a just and equitable remedy is not to allow him to return to office,” said Madlanga.

Ramaphosa was ordered to appoint a new NPA head within 90 days. It's unclear whether Abrahams will return to his former job as an advocate in the NPA's Priority Crimes Litigation Unit.

The Constitutional Court also ordered Parliament to amend the National Prosecuting Authority Act to avoid a repeat of the crisis. Madlanga said the law that allowed the NDPP to be suspended indefinitely without pay must be amended to say the President must make a decision on a suspended NDPP within six months and that suspension must be with full pay.

The court said that decisions taken and acts performed while Abrahams was in charge of the NPA will stand as declaring them invalid would “result in untold dislocation in the work of the NPA and in the administration of justice itself”.

NPA spokesperson Luvuyo Mfaku is reported to have said Abrahams is “gravely disappointed”. Nxasana said his life had been hanging in the balance for the last three years and he will now return to practising law full-time.

ANC spokesperson Pule Mabe welcomed the judgment: “The ANC believes that today’s judgement provides President Cyril Ramaphosa with the necessary space to move with speed and urgency to resolve the leadership question at the NPA,” he said.

“What is critical for the ANC is the restoration of the independence, integrity and credibility of this key law-enforcement agency. Anything that compromises the independence of the NPA will undermine its credibility and lead to a serious erosion of the rule of law,” continued Mabe.

DA shadow minister of justice and constitutional development Glynnis Bretyenbach used the opportunity to criticise the former president: “Zuma’s decision to appoint Abrahams as head of the NPA was nothing more than an attempt to prevent the prosecuting authority from reinstating the 783 counts of corruption, fraud, racketeering and money-laundering against him,” she said.

Breytenbach said the system of appointing the NPA head needed to change. She called for Parliament to take a stronger role to prevent political interference, similar to the way in which the Public Protector is appointed.

Parliament's Portfolio Committee on Justice and Correctional Services chairperson Mathole Motshekga said the judgment should end the period of uncertainty at the NPA.

“This has led to uncertainty at the National Prosecuting Authority (NPA). The focus should now revert back to stability and certainty at the NPA.”

Ramaphosa is already taking action against controversial NPA deputies Nomgcobo Jiba and Lawrence Mrwebi, who recently submitted reasons why they should not be suspended.