This is President Cyril Ramaphosa’s opportunity to change the National Prosecuting Authority (NPA) and restore it to a place of trust within society, following the removal of Shaun Abrahams as the national director of public prosecutions (NDPP) by the Constitutional Court yesterday.
That was the call from several quarters after Justice Mbuyiseli Madlanga ruled that Abrahams must vacate his job as NPA boss and that Mxolisi Nxasana will not be returning to the position.
Madlanga confirmed the North Gauteng High Court in Pretoria’s finding that the 2015 settlement between former president Jacob Zuma and Nxasana was constitutionally invalid.
Madlanga said no one had suggested Abrahams was not a fit and proper person to hold office.
“… Zuma appointed Abrahams following his unlawful removal of Nxasana. That removal was an abuse of power.
“Abrahams benefitted from this abuse of power. It matters not that he may have been unaware of the abuse of power; the rule of law dictates that the office of NDPP be cleansed of all the ills that have plagued it for the past few years,” Madlanga said.
“Take your things and go,” was forensic consultant Paul O’Sullivan’s terse comment. He’s been on the receiving end of Abrahams’ special prosecuting unit for years and was this month finally cleared of all charges against him in nine cases. “I just hope Ramaphosa will not allow all the ‘acting’ positions to escape justice. I am talking about George Baloyi and Tori Pretorius. They must face the music with him, or the new incumbent will be surrounded by hyenas from the very beginning. The
NPA needs a complete clean-up.”
Political analyst Daniel Silke said yesterday’s judgment was a timely reminder of the institutional damage done during Zuma’s time. “It is also a warning that South Africa came perilously close to being a failed state from an institutional point of view. Still, the judgment reflected the sanctity of the legal system but should in no way deflect from constant vigilance on these and related issues now and in the future,” Silke said.
Wits law professor and practicing advocate James Grant said it was “extremely” exciting a space had now been created for someone who understood the law with integrity to take over the NPA. They clearly take the view he is tainted. “They might not say Abrahams was unfit and improper to hold the position but for him to have stepped in in those circumstances I think the court regarded it as improper,” Grant said. “This confirms the independence of the NPA, and that the court is willing to protect it.”
Ben Theron from the Organisation Undoing Tax Abuse (Outa) said the fight against corruption could start now. “Abrahams was a major stumbling block in this regard. The new NDPP has a tough job: first, restoring the credibility and morale of the prosecution services and, second, dealing with that long queue of corrupt people waiting to go to jail,” Theron said. “Last year Outa opened 12 criminal cases against at least 17 politicians, government officials, and SOE board members – and provided substantial evidence of their corrupt activities – but the NPA under Abrahams did next to nothing about these matters. Instead, he pursued cases against those like Pravin Gordhan who opposed state capture.” Ramaphosa has 90 days in which to appoint a new NDPP, and Theron hoped it would not be the next in line, Nomgcobo Jiba. This, however, is unlikely with Jiba facing suspension together with Lawrence Mrwebi.
Corruption Watch’s Dave Lewis said the organization looked forward to an NPA led by someone of integrity. “When the story of the battle against state capture is told, this day will be remembered as a major milestone,” said Lewis.
So who is next in line?
Ramaphosa has 90 days in which to appoint a new NDPP, and the next in line is Nomgcobo Jiba.
This, however, is unlikely with Jiba facing suspension together with the special director of public prosecutions Lawrence Mrwebi. The Supreme Court in July called Jiba “not a fit and proper person to practice as an advocate”.
What Nxasana must pay back:
Madlanga found then president Jacob Zuma had effectively bought Mxolisi Nxasana out as NPA boss.
He got a R17.3 million golden handshake.
Madlanga ordered Nxasana to pay back the R10 240 767.47 left after tax took the rest of his handshake.
Except Nxasana can’t. He noted at the court yesterday he had effectively been unemployed for the past three years and would have to come to some sort of agreement with the NPA.