IN THE HOT SEAT
N ational Prosecuting Authority (NPA) boss Shaun Abrahams is in an unenviable position. The concession by President Jacob Zuma’s legal team last week that the NPA’S 2009 decision to drop the 783 charges of fraud, corruption and racketeering against him was irrational is set to cast the spotlight on Abrahams in a way that could make or break him.
Zuma’s counsel, advocate Kemp J Kemp, made the concession during last week’s application for leave to appeal a 2016 high court judgment that said the 2009 decision by then acting NPA head Mokotedi Mpshe to discontinue corruption charges against him should be reviewed and set aside.
Both the president and the NPA sought leave to appeal the matter, but in a stunning about-turn, Zuma — who has spent the better part of the past decade evading the DA’S bid to have charges against him reinstated — conceded that the decision was indeed irrational. The court heard that Zuma would agree to a trial, with a rider: he wants the opportunity to make fresh representations to the NPA.
The move has far-reaching consequences for Zuma, both legally and politically.
It has been argued that the move was simply a delaying tactic, and that Zuma wants to again wrap the case up in layers and layers of legal action before he eventually gets his day in court. But there are some pressing issues that suggest that for Zuma to obtain a stay of prosecution, he had better do it sooner rather than later.
One of these is a court bid by Freedom Under Law and Corruption Watch. The two organisations have approached the court seeking to review the settlement granted to former National Director of Public Prosecutions (NDPP), advocate Mxolisi Nxasana.
Nxasana was paid a R17m golden handshake by Zuma to relinquish his post ahead of the conclusion of his term as NDPP.
Freedom Under Law says the settlement contravened the Public Finance Management Act and the NPA Act. The nongovernmental organisation argues
What it means: Zuma is keen for a pliant person at the helm of the NPA, with a view to scrapping the case against him entirely
that the NPA Act, in guaranteeing the independence of the office, provides “limited grounds” for the removal or resignation of an NPA head.
The organisation also maintains that due to a conflict of interest between Zuma’s official and personal interests, he is constitutionally barred from appointing or removing an NDPP, it said in a statement.
The organisation therefore contends that the June 2015 appointment of Abrahams was effectively unlawful.
Nxasana himself provided an affidavit in support of this application, in which he says Zuma lied in his response to the application when he said the former NDPP wanted to leave his post. In fact, Nxasana said in the affidavit that he had never made a request to Zuma to vacate his office.
“In May 2015‚ the president and I concluded a settlement agreement to which I [relinquished] my position as NDPP and [received] a settlement equivalent to what I would have received as a salary had I served my full term as NDPP. In that agreement‚ the president acknowledged that I am a fit and proper person to hold office as the NDPP.
“I entered the settlement agreement to settle the undesirable and ongoing dispute between myself‚ the president and Mr [Jeff] Radebe [former justice minister; subsequently minister in the presidency]. The source of the dispute was that the president wanted me to vacate the office of the NDPP‚ and I did not want to leave the office,” Nxasana said.
“My fitness [to hold office] was recorded by the president and the minister [Radebe] in the settlement agreement and they do not contend otherwise.”
Reacting to Zuma’s concession last week, Nxasana was widely quoted as saying he was removed because the president was afraid he would proceed with charges against him.
The Nxasana matter is set to be heard in November.
There is, then, a certain degree of anxiety on Zuma’s part to ensure that he has a pliant person at the helm of the NPA. This would allow him to make fresh representations with a view to scrapping the case against him entirely. And Abrahams has proven to be his man in this regard.
If Abrahams’s appointment is overturned by the court, there is a chance Zuma would have to make his submissions to Nxasana, who has said publicly that the president should have his day in court.
It is possible that the Nxasana matter could be delayed and appealed and linger for years, as the spy tapes matter did, but there is further cause for haste. That is the ANC’S December elective conference.
Zuma has endorsed former African Union Commission chair Nkosazana Dlamini-zuma to succeed him. Insiders say she is unlikely to press ahead with charges, or push for charges against him to be reinstated.
Supporters of her opponent, deputy president Cyril Ramaphosa, say he is unlikely to actively pursue charges against Zuma — but he is unlikely to interfere should charges be brought.
While nominations in the succession have only just opened, it appears Ramaphosa may have an edge over Dlamini-zuma at this stage.
Zuma, then, in his concession last week, showed that he is in a rather tight corner.
His conduct is consistent with his actions the last time he found himself in a similarly tight spot. This was ahead of the 2016 local government elections, when the constitutional court was set to hear the EFF case compelling Zuma to implement the public protector’s report on Nkandla.
In a breathtaking about-turn, Zuma admitted that the public protector’s recommendations were indeed binding, and that a report into the Nkandla upgrades by former police minister Nathi Nhleko had no force or effect. He agreed to pay back the money after two years of obfuscation and avoidance.
In that case, he was acting on advice from his senior counsel, Jeremy Gauntlett.
Both the EFF and the DA wanted the court to rule that Zuma’s failure to implement the recommendations was a breach of his constitutional duties — which Gauntlett argued placed the president at risk of impeachment. He argued that the president was not defiant in his actions but had made an error of law, hence the concession.
The Nkandla matter showed that Zuma only concedes when there is no other way out. Hence, his concession last week.
Abrahams’s credibility is already in tatters. The supreme court of appeal judgment has yet to be handed down but, given
Zuma’s concession, that court is likely to uphold the order that the withdrawal of charges against the president was irrational.
It may also be left up to Abrahams to decide whether or not Zuma will be given another opportunity to make representations.
How he proceeds could lead to his complete ruin or vindication.
Sources sympathetic to him say his safest bet would likely be to hand in his resignation.
In the wake of the NPA charging former finance minister Pravin Gordhan and the subsequent withdrawal of those charges, civil society approached the court to force Zuma to suspend Abrahams.
The case was dismissed as it was not considered urgent, but Zuma asked the NPA boss to provide reasons why he should not be suspended. In November, Abrahams made his submission to Zuma and in March the presidency said in a statement that Zuma had opted not to suspend Abrahams.
It was a clear indication that Zuma holds the power to axe Abrahams should he choose to do so — and that he had already once opted to spare the NPA boss.
Abrahams must be keenly aware that how he proceeds will have far-reaching consequences for his own career — but these have to be balanced against justice, the rule of law and the constitution he is meant to serve.