NPA independence in the spotlight as court hears crucial Nxasana matter

Did former NPA head Mxolisi Nxasana request to be removed from his post in 2015? This is the central question before the High Court this week, but the answer has far-reaching implications.

President Jacob Zuma has stated under oath that Nxasana asked to leave the NPA as a result of tension with other NPA leaders and a forthcoming inquiry into Nxasana’s fitness to hold office.

Nxasana says the president is lying, and that he was effectively forced out of his role with the considerable sweetener of a golden handshake worth over R17-million. In his place, an NPA head widely perceived to be more sympathetic to President Zuma – Shaun Abrahams – was instated.

Now the court must decide whether Nxasana’s removal was lawful – or whether, as charged by applicants Corruption Watch, Freedom Under Law and the Council for the South African Constitution (CASAC), it was both a violation of the NPA Act and the Constitution. The applicants want to see Nxasana reinstated and made to pay back the R17-million.

On Monday, the applicants suffered a blow when an affidavit from Nxasana testifying to the fact that he had not asked to leave office was ruled inadmissible due to being filed a year late. Nxasana’s lawyers had argued that the affidavit was crucial evidence and should be accepted despite its tardiness: an argument rejected by a bench of the High Court led by Judge President Dunstan Mlambo.

“We are disappointed that the Nxasana affidavit has not been admitted but do not believe that it impacts unduly on our application,” CASAC’s Lawson Naidoo told Daily Maverick after court on Monday.

The applicants contend in their court papers that Nxasana’s removal follows a trend of “the government’s ridding itself of unwanted NDPPs”. Nxasana had been in his position for less than a year when he was informed by President Zuma that an inquiry was being instituted against him for allegedly failing to disclose past criminal offences. Just days before the inquiry was due to commence, however, it was announced that the investigation would no longer be going ahead after Nxasana had signed a settlement agreement to vacate his post.

To understand why it might have been considered desirable for President Zuma or the executive to see Nxasana leave his post, more background is necessary.

Nxasana had previously followed legal advice in recommending the suspension of three senior members of the NPA – Advocates Nomgcobo Jiba, Lawrence Mrwebi and Sibongile Mzinyathi – as a result of charges of fraud and perjury, as well as Jiba’s inaction on corruption charges against former crime intelligence boss Richard Mdluli. It is speculated that this may have been one of the factors that drew the displeasure of President Zuma and his allies.

More significantly, however, Nxasana himself has since suggested that his departure was necessitated by fears that he would reinstate corruption charges against Zuma.

The task of the court this week is not to dig deeply into this speculation, however. It is to assess the legality of Nxasana’s departure from the NPA, and the payout he received.

Zuma has contended in court papers, under oath, that Nxasana “requested” to be allowed to leave his post because of growing tension between himself and the three other senior NPA members, and as a result of the inquiry into him instituted by the president. In complying with Nxasana’s request, Zuma says he acted in compliance with the NPA Act, which permits a sitting president to remove the NPA head in circumstances where the head requests this “on account of continued ill-health” or “for any other reason which the president deems sufficient”. As there is no suggestion of ill health on Nxasana’s part, it is the latter clause which is relevant.

The applicants argue, for one, that Nxasana did not in fact make the request – though he did sign the settlement agreement. This claim is lent credence by correspondence from Nxasana’s attorneys during settlement negotiations stating that “it has never been the NDPP’s intention to resign”, and the fact that the settlement agreement contains no mention of Nxasana requesting to be removed.

“I think our counsel has managed to demonstrate, by both what the president has said and not said, how inconsistent the notion is that Nxasana voluntarily resigned with all the other documentary evidence,” Corruption Watch’s David Lewis told Daily Maverick on Monday.

Freedom Under Law’s Nicole Fritz concurred, telling Daily Maverick: “We remain convinced that correspondence that President Zuma didn’t make available in initial disclosure, and that we then specifically had to petition for, makes it overwhelmingly clear that Nxasana’s departure was not at his request, as per the president’s version, but was unlawful and unconstitutional.”

The settlement agreement also states that the president acknowledges that Nxasana is a fit and proper person to hold office. As such, the applicants argue that even if Nxasana did request to be removed, the president’s decision to comply would not be in keeping with the NPA Act as it did not meet the necessary criteria for such a step to be taken. In a supporting affidavit, the Helen Suzman Foundation states that it is untenable that the president be given a “blank cheque” to determine which reasons he “deems sufficient” for removal.

The applicants also contend that for President Zuma to remove Nxasana amounted to a conflict of interests in terms of the Constitution, because of the corruption charges previously withdrawn against him by the NPA.

Beyond this, they argue that the amount of R17-million given to Nxasana was clearly unlawful – or, as Wim Trengrove put it baldly in court on Monday, a “bribe”. The golden handshake, state the applicants’ court papers, was “a payment equivalent to more than eight years’ salary which is a payment to which he would never have been legally entitled as damages and which he could only have claimed as long as he continued to tender his services” to the NPA.

In the affidavit rejected by the court on Monday, Nxasana reportedly states his willingness to pay back this money and take up his position once again – which would mean he would effectively be ejecting his replacement Shaun Abrahams from office.

The case is scheduled to be heard by the High Court until Wednesday, with lawyers for Zuma and the NPA still to give their responses to the arguments given by the applicants on Monday. Lewis said that he would not be surprised if matters were concluded by Tuesday afternoon, however.

“I think our arguments were very well received,” he said.

Naidoo also expressed optimism: “We remain confident that the settlement agreement will be set aside,” he said. “The main issue of dispute appears to now be the appropriate remedy.”

The issue of who helms the NPA is of particular significance at the moment, with President Zuma due to make submissions to the NPA head as to why corruption charges against him should not be reinstated.

In their supporting affidavit, the Helen Suzman Foundation expresses it thus: “The NPA is an indispensable institution in combating and punishing acts of corruption. But it can realistically fulfil this function only if its structural independence and integrity is honoured and protected.” DM

Photo: (L) Mxolisi Nxasana (Paul Botes, Mail & Guardian), (R) President Jacob Zuma responds to his political rivals in Parliament in Cape Town on Thursday, 20 February 2014 following his State-of-the-Nation address. Picture: GCIS/SAPA