Delay in Abrahams ruling points to division
It has been more than three months since the Constitutional Court heard argument on whether Shaun Abrahams should remain the head of the National Prosecuting Authority and there is still no certainty on when the court will announce its ruling.
The delay in delivering this judgment suggests that the court may be far from united on whether Abrahams should stay or go, with speculation rife that the nine justices who heard the matter are struggling to reach a majority decision.
During the hearing of the case Acting Justice Azhar Cachalia was clearly deeply uncomfortable about whether it would be “fair and equitable” for Abrahams to be removed, as he had not been found to be unfit for his position.
Justice Sisi Khampepe, however, repeatedly argued that allowing Abrahams to remain in his position would effectively reward former president Jacob Zuma for illegally giving a R17.2m golden handshake deal to former national director of public prosecutions Mxolisi Nxasana — a deal that enabled Abrahams to take over.
The delay may, arguably, be good news for Abrahams. It has given him time to counter allegations — and the suspicions of the High Court in Pretoria — that he was a puppet of Zuma.
When Judge President Dunstan Mlambo and his colleagues ruled in 2017 that Abrahams should vacate his office, they expressed disquiet over whether the national director of public prosecutions was truly independent.
It has been more than three months since the Constitutional Court heard arguments on whether Shaun Abrahams should remain the head of the National Prosecuting Authority (NPA) and there is still no certainty on when the court will announce its ruling.
The delay in delivering this judgment suggests that the court may be far from unified about whether Abrahams should stay or go, with speculation rife that the nine justices who heard the matter are struggling to reach a majority decision.
During the hearing of the case Acting Justice Azhar Cachalia was clearly deeply uncomfortable about whether it would be “fair and equitable” for Abrahams to be removed, as he had not been found to be unfit for his position.
Justice Sisi Khampepe, however, repeatedly argued that allowing Abrahams to remain in his position would effectively reward former president Jacob Zuma for illegally giving a R17.2m golden handshake deal to former national director of public prosecutions Mxolisi Nxasana — a deal that enabled Abrahams to take over.
The delay in delivering the decision may, arguably, be good news for Abrahams. It has given him time to counter allegations — and the suspicions of the High Court in Pretoria — that he was a puppet of Zuma.
When Judge President Dunstan Mlambo and his colleagues ruled in 2017 that Abrahams should vacate his office, they expressed disquiet over whether the national director of public prosecutions was truly independent.
Mlambo said Abrahams had associated himself with Zuma on all material issues in the so-called spy-tapes litigation, which challenged the legality of then acting NPA head Mokotedi Mpshe’s decision to withdraw corruption charges against Zuma. This, he said, was inconsistent with the imperative of prosecutorial independence.
In his Constitutional Court challenge to that ruling, Abrahams attached letters he had sent to Zuma’s lawyer Michael Hulley, in which he strongly suggested that the prosecution was almost certain to proceed.
Abrahams also claimed that he had instructed the NPA to concede before the appeal court that the decision to withdraw the case against Zuma was legally unjustifiable.
In the months since the case was heard, Abrahams found there was no reason for Zuma not to face prosecution for corruption and refused Zuma’s request that the charges be withdrawn pending the outcome of a fight over who will pay the costs of his defence.
On Tuesday, Justice Minister Michael Masutha expressed support for Abrahams and sought to undermine suggestions that the prosecution under his watch of then finance minister Pravin Gordhan had been carried out in bad faith.
Masutha’s comments indicate Abrahams does enjoy some political support. Whether it includes that of President Cyril Ramaphosa is, perhaps, the far more pertinent question.