Pretoria – The concession made by President Jacob Zuma's legal team over the "unlawful" golden handshake paid to former National Director of Public Prosecutions Mxolisi Nxasana has painted a confusing picture of the case, according to the applicants.
Advocate Ishmael Semenya, for the president, told the North Gauteng High Court in Pretoria on Tuesday that Zuma was not opposed to part of the relief sought – that Nxasana's settlement agreement be set aside and that he repays the golden handshake amount.
Freedom Under Law (FUL) chairperson Judge Johann Kriegler told News24 on Wednesday that the concession had left the court with a "hot potato".
"What it means precisely in terms of what the court will now make, I simply can't tell you. I don't know what the court is going to do. He conceded to bribing Nxasana to vacate office," Kriegler said.
"We don't know what the court will do now. He made the concession because he had no choice," he said.
FUL, Corruption Watch and the Council for the Advancement of the South African Constitution are seeking an order declaring Nxasana's removal invalid.
President 'playing games'
Nxasana accepted a golden R17.3m handshake from Zuma and left the National Prosecuting Authority (NPA) in 2015.
Before that, an inquiry into his fitness to hold office was halted abruptly, without explanation.
The organisations want his removal set aside and the golden handshake repaid.
"It (the concession) is the same game that the president and his legal advisers have been playing consistently for some time," Kriegler said.
"They deny on oath allegations... [and] at the last minute, when confronted by the certainty that the case has not changed at all, they concede. I believe it is not done in good faith. It is part of a technique to delay. It uses up the court's time."
In September, Zuma's legal team and the NPA conceded that the decision not to prosecute him on corruption charges had been irrational.
On October 25, Zuma abandoned a crucial part of his state capture court review, which had asked for the Thuli Madonsela's State of Capture report to be sent back to the Public Protector for further investigation.
Consequences for Shaun Abrahams
In February last year, Zuma's lawyer Jeremy Gauntlett conceded in the Constitutional Court that findings made by then Public Protector Madonsela on the upgrades to Nkandla were binding, and that no reliance should be placed on former police minister Nathi Nhleko.
Meanwhile, the head of legal and investigations at Corruption Watch, Leanne Govindsamy, told News24 on Wednesday that, when Zuma conceded that his decision was unlawful, he cleared the way for the natural consequence, which would be the removal of current NPA boss Shaun Abrahams.
On Tuesday, the court asked the parties to prepare a draft order on what they thought would be the best way to deal with the matter.
Govindsamy said they would file their draft order on Thursday.
"It is now up to the court to decide on the way forward," she said.
She said Corruption Watch wanted Nxasana to be reinstated and Abrahams to be removed from his position.
She also said Zuma was "conflicted" and that any decisions should be made by the deputy president.
'Is he going to tender his pension back?'
During arguments in the High Court on Tuesday, Hilton Epstein SC, representing the NPA, argued that Nxasana had willingly vacated his office after he was "seduced" with a settlement agreement.
"He (Nxasana) was seduced by the money and he wasn't entitled to the money... he was willing to leave and he vacated office."
Epstein argued that the settlement was irrational and unconstitutional, and added: "He received R17m, plus his pension and now he would like to get his job back. Is he going to tender his pension back?"
The NPA had not been involved in the settlement agreement and there were no allegations that Nxasana was "deceived" or "misled", he told the court.
He questioned why Nxasana had kept the money for two years, waiting for a court order to pay it back.
Epstein also submitted that there were no suggestions that Abrahams was not fit to hold office and said it would be unfair for Abrahams to be forced to vacate his position.
Semenya argued that Nxasana's request to leave office was made verbally and was never in writing.
Matthew Chaskalson, for Corruption Watch, said that, at the time of Abraham's appointment, there was no vacancy and this rendered his appointment unlawful and unconstitutional.
Judge President Dunstan Mlambo has reserved judgment.