THE National Prosecuting Authority is leaderless following a Constitutional Court ruling that found that the appointment of Shaun Abrahams as the national director of public prosecutions (NDPP) was constitutionally invalid.
The judgement was delivered on Monday with Justice Mbuyiseli Madlanga saying the way former NDPP Mxolisi Nxasana left office was inconsistent with the constitution and was invalid.
Madlanga said the appointment was as a result of Nxasana’s resignation and that a consequential act was only valid for so long as the earlier act was not set aside.
“It follows that the appointment of Abrahams is also constitutionally invalid,” Madlanga said.
The judgement was scathing on former President Jacob Zuma and Nxasana. Madlanga said Zuma was hell-bent on getting rid of Nxasana that he did everything in his power to have him removed from office.
He said Nxasana was effectively bought out, which compromised the independence of the office of the NDPP.
“Former President Zuma appointed Advocate Abrahams following his unlawful removal of Mr Nxasana. That removal was an abuse of power. Advocate Abrahams is a beneficiary of that abuse of power. It matters not that he was unaware of the abuse of power. The rule of law dictates that the office of the NDPP be cleansed of all the ills that have plagued it for the past few years,” he said.
Despite the ruling vindicating Nxasana, he was ordered to repay the R10 million he has already received as part of his settlement. Zuma gave him a golden handshake of R17 million when he left office.
The court action was brought by Freedom Under Law (FUL) and Corruption Watch following a judgment in the high court in Pretoria in December, which reviewed and set aside Abrahams’s appointment as NDPP. The high court also found that Zuma could not appoint the National Prosecuting Authority (NPA) head because he was conflicted and gave that power to then Deputy President Cyril Ramaphosa.
The court has now given Ramaphosa 90 days to appoint a new NDPP who is neither Abrahams nor Nxasana.
The judgement drew mixed reactions from the affected parties with NPA spokesperson Luvuyo Mfako saying Abrahams was “gravely disappointed, but he respects the decision of the highest court in the land”.
Nxasana, on the other hand, said judgment vindicated the constitution, and also the independence of the NPA, insofar as that even if a president had powers, the president should not interfere with the functioning of the NPA.
“I am happy and I hope that the members of the NPA, especially the leadership of the NPA, will take a leaf out of this judgment going forward, and make sure that we do not have a repeat of all that has happened,” he said.
Nxasana added that the heart of the reason NDDPs do not complete their term of office was the allegations of political interference, something he hoped the judgement would put an end to.
Former state prosecutor turned politician for the Democratic Alliance Glynnis Breytenbach welcomed the judgement, describing it as great.
“Justice has prevailed; the criminal justice system can now start resurrecting itself,” she said.
The ANC said it welcomed and respected the Constitutional Court judgment. Spokesperson Pule Mabe said the party believed that the judgment provided Ramaphosa with the necessary space to move with speed and urgency to resolve the leadership question at the NPA.
“What is critical for the ANC is the restoration of the independence, integrity and credibility of this key law-enforcement agency. Anything that compromises the independence of the NPA will undermine its credibility and lead to a serious erosion of the rule of law,” Mabe said.