It’s correct to fire Abrahams, court told
• Constitutional Court hears arguments against retaining NPA head as well as reinstatement of his predecessor
Any outcome of the confirmation hearing that took place at the Constitutional Court on Wednesday that left National Director of Public Prosecutions Shaun Abrahams in office would make a mockery of the Constitution, argued advocate Wim Trengove, SC.
Any outcome at the Constitutional Court that left National Director of Public Prosecutions Shaun Abrahams in office would make a mockery of the Constitution, Wim Trengove SC argued on Wednesday.
The confirmation hearing at the court heard that Abrahams’s sacking would right the wrongs of former president Jacob Zuma’s unlawful payment to get Mxolisi Nxasana out of office.
The confirmation application was for a judgment delivered in December in the High Court in Pretoria. The position of the head of the National Prosecuting Authority (NPA) was declared vacant after it was found that the settlement agreement which saw Nxasana leave office in 2015 with a R17m golden handshake was unlawful.
The high court also ruled that Zuma was too conflicted to appoint a new NPA head because of the possibility of being charged with corruption, fraud, racketeering and money laundering. The high court ruled that then deputy president Cyril Ramaphosa make the appointment. That part of the argument has, however, become moot after Zuma’s resignation.
The heart of what remained of the matter was the decision on who should occupy the position of NPA boss, as both Nxasana’s counsel and counsel for Abrahams argued that their clients were entitled to the position.
Nxasana told journalists after the court proceedings that he was willing to start his old job immediately if the court ordered that he be reinstated.
Trengove, for Freedom Under Law (FUL) — which brought the confirmation application together with Corruption Watch and the Council for the Advancement of the South African Constitution (Casac) — said Abrahams had received an “unlawful windfall” when he was appointed in 2015 because the settlement agreement saw Nxasana leave office almost eight years too early.
If Abrahams remained in the position, it would leave unchanged a situation Zuma created by unlawful means.
Casac and FUL had both argued that Abrahams should not be allowed to make a decision on the prosecution of Zuma. Trengove said Zuma, among others, used public money to get rid of Nxasana for Zuma’s personal benefit and to minimise the possibility of facing charges.
“Any outcome that leaves Mr Abrahams in office will make a mockery of the Constitution,” Trengove said.
The golden handshake has been described as effectively a bribe. Nxasana’s counsel, Michelle le Roux, argued vehemently against this interpretation, adding that Nxasana had been put in an untenable position while in office.
Le Roux said Nxasana had followed all possible avenues before he left office. The high court ordered in December that Nxasana pay back the money.
Hilton Epstein SC, for the NPA, said Abrahams was ready to make an announcement on whether to prosecute Zuma.
Casac had asked Abrahams to give it two weeks’ notice ahead of any announcement.
Abrahams has given Casac the notice, with the date for the announcement set for March 15.
Casac also asked in its court papers that Abrahams give the Constitutional Court an assurance he would not announce a decision before the apex court had decided on the matter.
NPA spokesman Luvuyo Mfaku said if the Constitutional Court gave any directions on the matter, it would be adhered to.