CityPress - - News - ABRAM MASHEGO abram.mashego@city­press.co.za

dvo­cacy group Free­dom Un­der Law is pre­par­ing to launch an ap­pli­ca­tion that seeks to pre­vent Pres­i­dent Ja­cob Zuma from ap­point­ing a per­ma­nent na­tional direc­tor of public pros­e­cu­tions.

The ad­vo­cacy group is also pre­par­ing to chal­lenge the prac­tice of of­fer­ing “golden hand­shakes” to top public ser­vants the pres­i­dent wants to get rid of.

Judge Jo­hann Kriegler, direc­tor of the ad­vo­cacy group, this week told City Press the group not only wanted to clip Zuma’s wings when it comes to the pow­ers granted to ap­point a pros­e­cu­tions head, but also wants to halt the prac­tice of dish­ing out mil­lions in golden hand­shakes to un­wanted top public ser­vants.

“We are very con­cerned about the in­creas­ing ten­dency of public ser­vants be­ing ap­pointed to se­nior po­si­tions, to later be suspended and then be given fi­nan­cial set­tle­ments to re­sign,” he said.

Kriegler, a for­mer Con­sti­tu­tional Court judge, said the group would also seek to have the pow­ers en­trusted in Zuma to ap­point the Na­tional Pros­e­cut­ing Author­ity (NPA) head de­clared un­con­sti­tu­tional.

“We are very con­cerned and are try­ing to find legal ways of in­ter­fer­ing with the process,” he said.

This is not the first time the ad­vo­cacy group has taken the gov­ern­ment on re­gard­ing what it deems ques­tion­able de­ci­sions. In 2012 in the North Gaut­eng High Court, the or­gan­i­sa­tion suc­cess­fully chal­lenged the with­drawal of crim­i­nal and dis­ci­plinary charges against for­mer crime in­tel­li­gence head Richard Md­luli.

The new legal chal­lenge comes as moves are afoot at the top to find a re­place­ment for for­mer head of public pros­e­cu­tions Mx­olisi Nx­as­ana, who left late last month af­ter ac­cept­ing a set­tle­ment of more than R17 mil­lion.

Nx­as­ana left the NPA shortly be­fore an in­quiry into his fit­ness to hold of­fice could com­mence.

City Press has learnt from two se­nior sources in the NPA that se­nior pros­e­cu­tor Shaun Abra­hams has been tipped for the top job.

“The pres­i­dent is avoid­ing a sit­u­a­tion whereby he would be forced to make an ap­point­ment in court. Shaun is a se­nior pros­e­cu­tor and has been rec­om­mended to be ap­pointed to the po­si­tion,” said the source.

Zuma ap­pointed Nx­as­ana un­der duress af­ter the Coun­cil for the Ad­vance­ment of the SA Con­sti­tu­tion ap­proached the Con­sti­tu­tional Court seek­ing an or­der com­pelling him make the ap­point­ment within 30 days.

Legal ex­pert Shadrack Gutto said there were grounds to chal­lenge the grow­ing trend of pay­ing se­nior public ser­vants to leave in­stead of putting them through dis­ci­plinary pro­cesses.

“This is prob­lem­atic, be­cause the is­sues they were ini­tially suspended for are not dealt with, but tax­pay­ers’ money is be­ing used in the fi­nan­cial set­tle­ments,” he said.

Gutto also said there was merit in the pro­posed legal chal­lenge to Zuma’s pow­ers to ap­point the head of the NPA. He said the cur­rent ap­point­ment pro­ce­dures gave the ex­ec­u­tive too much say in the ap­point­ment of the head of a key state agency.

“The process should be trans­par­ent to avoid a sit­u­a­tion where pro­ce­dures are not fol­lowed and proper can­di­dates are not ap­pointed,” Gutto said.

He added that he favoured an ap­point­ment process sim­i­lar to that of pick­ing judges, which in­cluded in­ter­views con­ducted in public by the Ju­di­cial Ser­vice Com­mis­sion.

“There are grounds to chal­lenge the cur­rent ways in which the na­tional direc­tor of public pros­e­cu­tions and deputies are ap­pointed. The process should be open to public scru­tiny so that the public can com­plain if there are con­cerns with such a can­di­date,” he said.

The DA suc­cess­fully mounted a court chal­lenge against the ap­point­ment of Menzi Sime­lane as head of the pros­e­cut­ing author­ity. The op­po­si­tion party deemed him un­fit for such of­fice.

Deputy Chief Jus­tice Dik­gang Moseneke has in the past also ques­tioned the pow­ers vested in the pres­i­dent in terms of the ap­point­ment of var­i­ous heads of cru­cial state in­sti­tu­tions.

Speak­ing at a con­fer­ence on 20 years of democ­racy at Unisa in Novem­ber, Moseneke said that, as much as the Con­sti­tu­tion was sup­posed to rest on co­op­er­a­tive gov­er­nance be­tween the dif­fer­ent lev­els of power, “a care­ful ex­am­i­na­tion of the pow­ers of the na­tional ex­ec­u­tive chap­ter in the Con­sti­tu­tion dis­plays a re­mark­able con­cen­tra­tion of the pres­i­dent’s pow­ers of ap­point­ment”.

Moseneke pointed out that the pres­i­dent also ap­points the chief jus­tice, deputy chief jus­tice, all judges and the heads of in­sti­tu­tions such as the Na­tional Pros­e­cut­ing Author­ity, the Public Pro­tec­tor, the Au­di­torGen­eral, mem­bers of the Com­mis­sion for Gen­der Equal­ity and the Hu­man Rights Com­mis­sion, and can also re­move them on spec­i­fied grounds.

He also ap­points the heads of the po­lice, the mil­i­tary, the in­tel­li­gence ser­vice, the gover­nor of the Re­serve Bank, the com­mis­sioner of the SA Rev­enue Ser­vice and sim­i­lar in­sti­tu­tions.

Pres­i­dency spokesper­son Harold Maloka said he was not aware of the im­pend­ing court chal­lenge and could not com­ment on it.

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