Nxasana case ‘not withdrawn’
PROSECUTIONS head Mxolisi Nxasana (pictured) and the presidency were trying to resolve a dispute about Mr Nxasana’s proposed suspension outside court, his lawyer said yesterday. The case over the suspension has not been withdrawn as was reported, he said.
PROSECUTIONS head Mxolisi Nxasana and the Presidency are trying to resolve a dispute about Mr Nxasana’s proposed suspension outside of court, his lawyer Busani Mabunda said yesterday.
However, Mr Nxasana’s court case over the suspension had not been withdrawn as had been reported, Mr Mabunda said.
This is the latest development in what could be a protracted legal battle over the fitness for office of yet another national director of public prosecutions (NDPP). Mr Nxasana is the third national director to face accusations that he is not fit and proper for the job.
The terms of reference for the inquiry into Mr Nxasana’s fitness for office are yet to be announced. Last month the Presidency announced that Mr Zuma was considering Mr Nxasana’s suspension, pending the inquiry, and gave him an opportunity to make submissions.
This week Mr Nxasana went urgently to court to try to compel the president to give him more information about the grounds for his suspension. He also wanted an order barring any suspension before he had been given the information he sought and an opportunity to supplement his representations.
In the president’s letter to him, Mr Zuma referred to previous convictions for “violent conduct”, comments he made to the media that were “unbecoming of an NDPP” and his failure to disclose “facts and circumstances” of past prosecutions. He said the inquiry would look into whether these were “consonant with the conscientiousness and integrity” expected of an NDPP.
The National Prosecuting Authority Act allows the NDPP to be suspended — “pending such enquiry into his or her fitness to hold such office as the president deems fit”.
The act itself does not require of the president to give the NDPP an opportunity to make representations. But legal experts say general principles of procedural fairness require that someone be given an opportunity to have his say before he is suspended.
In his court papers Mr Nxasana said he could not make proper representations because the president had not told him which convictions, which comments in the media and which prosecutions he was referring to. This put him in an “untenable position”, he said.
But the president’s response — which was attached to the court papers — was that Mr Nxasana had enough information “for the purpose of the representations you are invited to make”. The detailed information sought by Mr Nxasana was a matter for the upcoming inquiry, said the president.
But Mr Nxasana said that the object of giving the president a power to suspend was to “protect the integrity of the office of the NDPP” and to protect any impending investigation against improper influence or interference.
In his case there were “no reasonable grounds for believing” he would interfere or jeopardise an investigation, he said.
Labour Law expert and partner at Bowman Gilfillan attorneys Chris Todd said that generally speaking, the kind of right of reply envisaged when it came to suspension was a “rudimentary” kind of right of reply — which was directed at the consequences of suspension.
It was not meant to be a full hearing or ventilation of the charges against the employee, he said.
Mr Mabunda said the parties had agreed to postpone the case without a return date — in order to try to sort it out outside of court. But the case remained on the urgent roll and all parties had reserved their rights.