Former NPA head left willingly, court hears

2017-11-21 21:37
Mxolisi Nxasana. (File, City Press)

Mxolisi Nxasana. (File, City Press)

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Pretoria - Former National Director of Public Prosecutions Mxolisi Nxasana willingly vacated his office after he was "seduced" with a settlement agreement, the North Gauteng High Court in Pretoria heard on Tuesday. 

"He [Nxasana] was seduced by the money and he wasn't entitled to the money...he was willing to leave and he vacated office," Hilton Epstein SC, who represents the National Prosecuting Authority (NPA) argued.

Freedom Under Law (FUL), Corruption Watch and the Council for the Advancement of the South African Constitution (Casac) are seeking an order declaring Nxasana’s removal invalid.

Nxasana accepted a golden handshake from President Jacob Zuma worth R17.3m and left the NPA in 2015. 

READ:  'Zuma tried to seduce Nxasana with public money', court hears

Before that, an inquiry into his fitness to hold office was without explanation halted abruptly.

The organisations want his removal set aside and the golden handshake repaid.

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 was not 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 current NPA head Shaun Abrahams was not fit to hold office and said it would be unfair for Abrahams to vacate his office. 

READ:  Zuma defends Shaun Abrahams' fitness as NPA head

Ishmael Semenya SC, representing President Jacob Zuma, argued that Nxasana left "willingly" and "voluntarily.

"The conduct of Nxasana is that he made a request and he intended to leave and he did in fact leave the office," Semenya said. 

"His [Nxasana] conduct was one that shows he was willing to take R17m. 

"We have a long history of Nxasana's authority being challenged and he found it intolerable," Semenya said. 

He said Nxasana's request to leave office was made verbally and was never in writing. 

Semenya told the court that the president was not opposed to the relief sought - that Nxasana's settlement agreement be set aside and that he repays the golden handshake amount.

"We accept that prosecutoral independence is key," he said. 

Zuma's shoes

But Geoff Budlender, representing Casac, argued on Tuesday morning that Nxasana was unlawfully removed. 

"Nxasana was placed in an intolerable position. His removal was unlawful. The legality would be to reinstate him," he said. 

He told the court that Nxasana should be reinstated or the deputy president should step into Zuma's shoes in appointing the NDPP. 

The court also heard arguments from Freedom Under Law and Corruption Watch. 

Wim Trengove SC, representing FUL said Zuma was undermining the independence of the NDPP. 

He argued that Abrahams' appointment was unlawful. 

He had previously argued that Zuma tried to "bully" Nxasana out of office by using an inquiry into his fitness. 

"He tries to bribe him, seduce him with public money. 

"He was bullied out of the office. The independence of the NDPP was unlawfully undermined," Trengove said, adding that no one should interfere in officials’ exercise of powers.

READNxasana loses bid to introduce answering affidavit over 'golden handshake'

Trengove also argued that there was conflict between Zuma's personal interest and his Constitutional duty and added that he was biased in the appointment of the NDPP.

Matthew Chaskalson, who represents Corruption Watch, said they were asking the court to remove Abrahams from office but they wanted his appointment to be set aside. 

He said, at the time of his appointment, there was no vacancy and this rendered his appointment unlawful and unconstitutional. 

Judge President Dunstan Mlambo has reserved judgment.

Read more on:    npa  |  jacob zuma  |  shaun abrahams  |  mxolisi nxasana  |  pretoria

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