'Audacious' NPA ruling SA's early Christmas present - critics

2017-12-08 15:43
NPA head Shaun Abrahams during the press conference. (Felix Dlangamandla, Netwerk24)

NPA head Shaun Abrahams during the press conference. (Felix Dlangamandla, Netwerk24)

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Judge President Dunstan Mlambo's order that National Prosecuting Authority (NPA) head Shaun Abrahams vacate his post is an "early Christmas gift for the entire South Africa".

"It's wonderful that someone as conflicted as Shaun Abrahams has been removed from the post and that we could now get someone independent," former prosecutor and DA justice spokesperson Glynnis Breytenbach said.

"This will prevent him from making a decision on whether corruption charges should be reinstated against President Jacob Zuma. All in all, we should all be very grateful to the court and Judge Mlambo for this early Christmas gift. It was a brave decision to make."

The court found that it would not be just for former NPA boss Mxolisi Nxasana to be reinstated and that, due to his pending corruption case, President Jacob Zuma was conflicted in appointing a National Director of Public Prosecutions (NDPP).

Mlambo ordered Deputy President Cyril Ramaphosa to appoint a new NDPP in the next 60 days.

Judge Johann Kriegler of Freedom Under Law, who was the second applicant in the case, said the biggest implication of the judgment was that Abrahams would no longer be able to make any decisions on Zuma's corruption charges.

"A second prize is that someone independent could now hopefully be appointed in the position of national prosecutions boss," he added.

But it's not as simple as that.

Zuma has already indicated that he will appeal the decision and the remaining respondents - Abrahams, Nxasana and the justice minister – are also entitled to take the case further.

In such a case, the effect of the judgement would be suspended.

There are, however, other options which can be used to immediately enforce the court's judgment, including an application for an enforcement order.

"If you recall the Berning Ntlemeza case, in which a court found he was to be removed from his post as head of the Hawks, he sought to appeal, but the applicants requested an enforcement order and got it. They were able to kick him out of office," Lawson Naidoo of the Council for the Advancement of the South African Constitution (Casac), one of the applicants in the Nxasana case, explained.

"The other point to bear in mind is that, because it's a decision that deals with Constitutional invalidity, it will have to go to the Constitutional Court for a confirmation order."

In the meantime, Abrahams is to remain in office for as long as it takes Ramaphosa to appoint a new NPA head, or until the appeals process is concluded.

He would have to tread lightly, however, regarding any decision on Zuma's corruption charges.

"The court has come down with a very clear judgment - i.e. that, in these circumstances, where the president is conflicted because he faces corruption charges, any decision he makes on the NPA will be perceived by the public to be conflicted. So, in order to preserve the rule of law, the court said he should not be allowed to have his usual powers," Naidoo said.

"This does not just apply to the issue of new NDPP, but any decision regarding the NPA. For example, if the president doesn't like the person that Deputy President Ramaphosa appoints, he cannot suspend that decision and can take no action as long as he is facing these charges."

The judgment will inevitably raise questions about the separation of powers and the limits of the powers of the court.

Political analyst Ralph Mathekga said, he felt uneasy about the fact that there was so much judicial improvisation around Zuma, as he feared it could impact on the executive's powers and prerogative in the long term.

Further, taking Zuma out of the equation in this instance didn't solve the fundamental problem of protecting the independence of the NPA.

"Firstly, Zuma's hasty decision-making around this issue and his considerations for political expediency have raised genuine questions about the limits of the executive prerogative when it comes to the NPA. This has been triggered by Zuma's personal issues and perceived clashes with the law which has consistently undermined the prosecuting authority," Mathekga says.

"Be that as it may, we are stuck with questions of how we set the limits of the executive and how we should rethink the institutional infrastructure through which the head of the NPA is appointed. The judge now gave the decision to appoint a new prosecutions boss to Ramaphosa, but what is the difference between Zuma and Ramaphosa in this case? Should I be relieved when a judge is deferring decisions to the deputy president just because I see him as a morally sounder person than the president?"

According to Phephelaphi Dube, director of the Centre for Constitutional Rights, the court was well within its rights to hand down the judgment it did.

"It's an audacious judgment, but it does find room in the Constitution if we consider that, in terms of the Constitution, where the president is incapacitated the deputy president can act in his place. So here we find the president is conflicted, and that would constitute a form of being incapacitated," she says.

"It is, however, unfortunate that the failure of our state institutions are unnecessarily politicising the courts."

Interestingly, the same court will rule next week on former public protector Thuli Madonsela's recommendations in the State of Capture report, which includes that the Chief Justice, rather than the president, appoint a commission of inquiry into state capture.

"One could very well read between the lines and see what the court's thinking is," Dube said.

Read more on:    shaun abrahams  |  cyril ramaphosa  |  npa  |  national prosecuting authority  |  corruption

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