Serjeant at the Bar

ConCourt ruling a chance for South Africa to reboot

2018-08-16 16:18
Shaun Abrahams. Picture: Gallo

Shaun Abrahams. Picture: Gallo

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It took more than five months to deliver but, in the end, the Constitutional Court came to a vital finding for the future of the country.

Shaun Abrahams was unlawfully appointed as national director of public prosecutions (NDPP) and President Cyril Ramaphosa was given a free hand to appoint a NDPP who may finally turn the National Prosecution Authority ( NPA) into the kind of institution envisaged in the Constitution: independent of political interference, fearless in its enforcement of the criminal justice system and truly competent.

The critical finding of the court was that Abrahams had been appointed into the job after an illegal move by ex-president Jacob Zuma effectively to "buy out" the then national director Mxolesi Nxasana who had shown unexpected independence after assuming office. In short, this appointment was not fit for purpose, which was being compliant and deferential to presidential needs and the R17m of taxpayers' money that was spent to buy Mr Nxasana out of office was clearly "cheap at the price" of removing an independent national director.

This payment and the purpose for which it was done was clearly in violation of the Constitution and its commitment to an independent prosecution service. That meant that the removal of Nxasana was illegal and it followed that the appointment of Abrahams into a vacancy that had been illegally created was itself invalid.

As Justice Mbuyseli Madlanga noted in the majority judgment, the default position in the light of this finding would have been to order that Mr Nxasana return to office, having been illegally removed from office. But, said Justice Madlanga, the court was clothed with a just and equitable jurisdiction which allowed it to depart from the default position. In this case, although conceding that Mr Nxasana had been placed under intolerable pressure from Mr Zuma and his cohorts and had insisted that he wanted to continue in office, he finally caved in to the pressure, demanded and received some R17m, which included a pay-out for the nine years of unexpired office.

For the majority of the court this was conduct unbecoming of the kind of fearlessly independent person required to be the NDPP. Hence it was found that it would be an incorrect decision to return Mr Nxasana to an institution that is in such need of repair and reconstruction.

In turn this compelled the court to consider whether Mr Abrahams should remain in office. On the record there was no evidence to suggest incompetence on his part, itself not surprising because the case turned on the previous act of removing Mr Nxasana and was not about Abrahams' fitness for office. Notwithstanding, as the court noted, that Mr Abrahams had made much of the absence of criticism of his performance, the court tellingly found that to keep him in office would be to reward the unconstitutional actions of Mr Zuma to rid the country of an independent person and appoint someone clearly more to his liking.

Two justices thought otherwise and held that Mr Nxasana should remain in office. Writing for the minority, Justice Chris Jafta makes a powerful point: the reason that Mr Nxasana's removal from office was illegal was because it bypassed the legal safeguard included in legislation in terms of which there are specified grounds for removing an NDPP and in terms of which Parliament has an important role. By bypassing these safeguards Justice Jafta effectively found that the majority had failed to uphold the sound legal protections set out in the relevant legislation.

Looked at in this way, Mr Nxasana should have been placed back in office and President Ramaphosa could then have taken steps to have him removed in terms of the applicable law. Of course, contrary to the saccharine moralism of those commenting on the judgment who have condemned Mr Nxasana, had the president been compelled to invoke the law in order to him, the latter may have been able to explain in comprehensive detail the precise nature of the pressure he was placed under prior to accepting the payment.

The judgment of the majority describes the level of constitutional destruction that the Zuma regime was prepared to unleash in the country for their own personal ends. It is but another reminder of how far the country travelled from its constitutional moorings during the past decade.

But the order of the court gives the country another chance to reboot. An outstanding appointment as NDPP who can turn the NPA around will move us back onto the constitutional path. Indeed, an independent NPA can begin the urgent task of prosecuting without fear or favour those who engaged in state capture and stole or helped to steal billions of rand that should have gone to the reconstruction of the country and assisted in the eradication of poverty.  

This may well render the state capture commission somewhat irrelevant if the criminal law can be properly enforced. After all, there are mountains of evidence already in the public domain waiting for diligent prosecutors determined to enforce the law.

- Serjeant at the Bar is a senior legal practitioner with a special interest in constitutional law.

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Read more on:    shaun abrahams  |  npa  |  constitutional court


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