Put Zuma decision on hold — Casac
• Prosecutions chief asked to wait until a ruling is made on his own position, which was declared vacant in 2017
The Council for the Advancement of the South African Constitution (Casac) has asked National Director of Public Prosecutions (NDPP) Shaun Abrahams to give an undertaking to the Constitutional Court that he will not make a decision regarding the prosecution of former president Jacob Zuma before the court has ruled on the confirmation application before it. Casac has submitted to the court that it would not be in the interests of justice for Abrahams to make the decision on Zuma’s prosecution before the judges make a decision on the case that deals directly with the position of NDPP. The position was declared vacant by the High Court in Pretoria in December 2017.
The Council for the Advancement of the South African Constitution (Casac) has asked National Director of Public Prosecutions (NDPP) Shaun Abrahams to give an undertaking to the Constitutional Court that he will not make a decision regarding the prosecution of former president Jacob Zuma before the court has ruled on the confirmation application before it.
Casac has submitted to the court that it would not be in the interests of justice for Abrahams to make the decision on Zuma’s prosecution before the judges make a decision on the case that deals directly with the position of NDPP. The position was declared vacant by the High Court in Pretoria in December last year.
The Constitutional Court is set to hear the confirmation application on February 28, following the judgment in which Zuma was found to be too conflicted to appoint the NDPP since he faced looming corruption, money laundering, fraud and racketeering charges.
Zuma resigned last week, which now made that part of the order moot, Casac noted.
“The only real debate is what should happen to [former NDPP] Mr [Mxolisi] Nxasana and Mr Abrahams,” Casac said.
Flowing from that, the organisation argued that only three options existed: Nxasana is returned to his position as NDPP, Abrahams is retained in the position or both of them are removed and a new NDPP is appointed by the president, as the high court ordered.
Nxasana left office with a R17m golden handshake, which was later found to be part of an unlawful settlement agreement.
Casac argued that it was correct to order the position vacant. It said that when deciding what was just and equitable the primary interests at stake were not those of Nxasana and Abrahams, as it was not an employment dispute but a constitutional one.
“While fairness to both of them is a relevant consideration, the primary concern must be whatever best serves to preserve the independence of the NPA,” Casac argued. Casac made the point that even though many people in Nxasana’s position would have made the decision that he did, he should have known that taking the money was unlawful, or at least that taking the money would have undermined the appearance of independence of the National Prosecuting Authority (NPA).
“While one should not judge Mr Nxasana too harshly, it would not serve the interests of the NPA to return him to office. He is a man who has a price,” Casac said, adding that the same was true for Abrahams, even though he had “done no direct wrong”. But Casac emphasised that the context in which Abrahams was appointed should be taken into consideration.
Zuma possibly faced charges and also seemed to have taken sides against Nxasana in favour of the former acting national director of public prosecutions, Nomqoba Jiba.
Casac said that even though, when the initial application was launched, there was no evidence that Abrahams lacked impartiality or independence, the way he had conducted litigation cast serious doubt on his fitness for office.
Corruption Watch and Freedom Under Law, which brought the confirmation application together with Casac, argued in heads of argument that Nxasana should be reinstated and there was nothing in his conduct that suggested he was not fit and proper, having resisted pressure from Zuma to leave.