Op-Ed: Mxolisi Nxasana must be reinstated as National Director of Public Prosecutions

On Wednesday, the Constitutional Court hears an application for confirmation of the decision by the North Gauteng High Court that the settlement awarded former National Director of Public Prosecutions Mxolisi Nxasana was unlawful.

That finding triggered a subsequent finding – that as the ending of Nxasana’s tenure had been unlawful, there was no vacancy to fill and thus the appointment of Shaun Abrahams as successor had also been unlawful.

But the court stopped short of ordering the other obvious corollary – that Nxasana should be reinstated. Instead they held that it would not be just and equitable to do so.

In the application to the Constitutional Court, Freedom Under Law (FUL) and Corruption Watch (CW) persist in their argument that the Constitution demands the reinstatement of Nxasana.

They argue that failure to reinstate essentially rewards former President Zuma’s unlawful conduct – allowing him to achieve what he had sought all along, namely the removal of Nxasana.

Moreover, failure to reinstate abrogates the legislative scheme governing the removal of an NDPP and safeguarding the independence of this critical position, allowing those facing proceedings for dismissal to meet the charges made against them and to be heard.

The lower court did not admit Nxasana’s affidavit into the record, so affording him no hearing, but nonetheless made significant findings against him.

Given recent political developments, the general public might not be unduly concerned for Nxasana’s fate. They might reckon that with both Abrahams and Nxasana out, President Ramaphosa will now have a free hand in appointing the next NDPP.

But an expedited removal of an NDPP so that a new president might appoint a new prosecutions head is exactly what the independence guaranteed the National Prosecutions Authority by the Constitution and the NPA Act is intended to protect against. One only has to think of a recent example to understand how frightening a prospect, in different circumstances, this can be.

Of course, were FUL and CW arguing that a rogue be returned to the position of NDPP there’d be reason for concern. But even then, the requirements for his or her exit are clear and governed by the processes laid out in section 12 of the NPA Act.

Happily, however, that situation does not obtain in the case of Nxasana.
He is not, as some commentators have inferred, a gravy-train beneficiary, but a whistle-blower. He is an honourable man who accepted an onerous public office, resisted extraordinary pressure from the President but was eventually unlawfully forced out. He wants to do the job he undertook and has always indicated that he would repay the settlement amount.

More significantly perhaps, were it not for his assistance, the unlawfulness of the settlement agreement would never have come to light. In the face of requests from FUL and CW as to the documentary record supporting the settlement negotiation, the President and the Minister of Justice and Constitutional Development provided a desultory few pages that disclosed nothing. It was only through Nxasana’s involvement that the parties were able to access documents unlawfully concealed from them and construct a full record that ultimately put the lie to the President’s defence.

Whatever the outcome of the Constitutional Court case, whether Nxasana is ultimately reinstated or not, the South African public and our constitutional democracy owe him some debt. As we do many of the other public servants unlawfully forced from office by the Zuma administration, only for seeking to uphold their constitutional obligations. DM

Nicole Fritz is the CEO of Freedom Under Law (FUL)

Photo: Former National Director of Public Prosecutions, Mxolisi Nxasana. Photo: EWN