President Cyril Ramaphosa will today appoint an acting head
of the National Prosecuting Authority (NPA).
Glynnis Breytenbach MP, DA Shadow Minister of Justice and Constitutional Development
13 August 2018
The Democratic Alliance (DA) welcomes the Constitutional Court ruling today finding Shaun Abrahams’ appointment as National Director of Public Prosecutions (NDPP) invalid. The Court found that the manner in which former NDPP Mxolisi Nxasana vacated office was Constitutionally invalid.
In December 2017, the North Gauteng High Court declared that former President Jacob Zuma’s decision to terminate Nxasana’s appointment as the head of the National Prosecuting Authority (NPA) unconstitutional. Furthermore, the High Court ordered then-Deputy President, Cyril Ramaphosa, to appoint a new NDPP as Zuma was too compromised.
The DA has propagated the view for some time that the appointment process regarding the NDPP should follow the concept of public and parliamentary involvement similar to the process of appointment of the Public Protector and the judiciary. This would be a good time to revisit that option.
Zuma’s decision to appoint Abrahams as head of the NPA was nothing more than an attempt to prevent the prosecuting authority from reinstating the 783 counts of corruption, fraud, racketeering and money-laundering against him.
Parliament should play a central role in appointing the NDPP in order to prevent political influence over the NPA.
Furthermore, the DA welcomes the Court’s ruling that Section 12(6) of the NPA Act unconstitutional; this section determines that the President can suspend the NDPP for an indefinite period without pay.
The Court has given Parliament 18 months to remedy this defect. In the interim, the President will only be allowed to suspend the NDPP for a period of 6 months and the NDPP will receive a full salary in that period.
President Ramaphosa must stop evading the inevitable and should, with the participation of Parliament, appoint a credible and independent NDPP which will restore the public faith in the integrity of the NPA.
Nxasana Constitutional Court Judgment
Francis Antonie on behalf of HSF – 13 August 2018
The Helen Suzman Foundation (HSF) notes the judgment and order of the Constitutional Court in the case brought by Corruption Watch, Freedom Under Law and the Council for the Advancement of the South African Constitution. The judgment related to, inter alia, the settlement agreement concluded between former President Jacob Zuma, the Minister of Justice and Correctional Services and the former National Director of Public Prosecutions (NDPP), Mr Mxolisi Nxasana, regarding Mr Nxasana’s vacancy of his position.
The HSF was admitted as amicus curiae (friend of the Court) in the matter.
The Court found that Mr Nxasana cannot resume his position as NDPP and must repay the full settlement amount received. The Court further found that the subsequent appointment of Advocate Shaun Abrahams to the position of NDPP was unlawful and invalid. The President is directed to appoint, within 90 days, a new NDPP. Parliament has also been directed to remedy the constitutional defects in the NPA Act within 18 months from the date of the order.
The judgment upholds the rule of law and brings much needed stability to the crucial role in the delivery of justice of the National Prosecuting Authority (NPA) and the Office of the NDPP. The HSF welcomes the judgment and will continue to monitor the implementation of the Court’s order as regards the structural independence of the NPA.
To read the full judgment click here.
SHAUN ABRAHAMS’ REMOVAL WELCOMED BUT CONCERNS ABOUT THE NPA LINGER
FW de Klerk Foundation – 13 August 2018
The FW de Klerk Foundation welcomes today’s majority judgment handed down by the Constitutional Court regarding the position of the National Director of Public Prosecutions (NDPP). It is further testament to the tenacious efforts to ensure the adherence to the Rule of Law by civil society, given that the application before the Court was launched by Corruption Watch, Freedom Under Law (FUL) and CASAC. The judgment, which comes five months after the matter was argued, brings finality to the question of whether Shaun Abrahams is rightfully in the office, given the unlawful departure of his predecessor, Mxolisi Nxasana.
The strongly-worded judgment in which former President Jacob Zuma is said to have abused his power in the unlawful removal of Nxasana perhaps reflects exasperation on the part of the Judiciary. Yet again, the courts are forced to intervene in a matter involving the abuse of power and political interference in State institutions.
It must be pointed out that the Constitutional Court did not find that Shaun Abrahams is not fit and proper to hold the position. Nonetheless, the decision makes apparent that due process is a vital cog in ensuring public trust in State institutions. Shaun Abrahams’ appointment was always tainted by his predecessor’s unlawful departure, while Shaun Abrahams himself did little to reassure the South African public of the ability of the prosecuting authority to act without fear or favour, in line with its constitutional mandate. It is vital too, that the Court made apparent that Shaun Abrahams, as a beneficiary of the improper conduct of former President Jacob Zuma, had no right to remain in the office.
The same decision struck down provisions of the National Prosecuting Authority Act (namely section 12(4) and section 12(6)) concerning the President’s powers to suspend without pay and for an indefinite period. This aspect of the decision is particularly welcomed, as it strengthens the NPA and makes the body less liable to political interference in the future.
That is not to suggest that the problems that have besieged the nation’s crime-fighting body are close to being resolved. The arduous task of finding a suitable replacement for Shaun Abrahams now begins. The Court has given President Ramaphosa 90 days in which to do so. This search takes place while senior members in the ranks of the NPA, including Nomgcobo Jiba and Lawrence Mrwebi, still have questions regarding their competency and fitness to hold office. In the meanwhile, the Hawks have lost a series of court cases regarding allegations of State capture involving the Gupta family. Now, more than ever, there is a need for the NPA to reassure the nation of its capabilities in holding both individuals and the State alike, accountable.