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.