After an unusually lengthy wait, the Constitutional Court finally handed down its decision on Shaun Abrahams on Monday. All the judges, except Chief Justice Mogoeng Mogoeng and Raymond Zondo – who have been absent from the court – reaffirmed the earlier decision that Abrahams’ appointment as National Director of Public Prosecutions (NDPP) was invalid, but they differed on whether his predecessor, Mxolisi Nxasana, should be reinstated.
The majority view on Nxasana, written by Justice Mbuyiseli Madlanga and shared by six other judges, prevailed. Nxasana will not be reinstated and must pay back the golden handshake.
The judgment was a relief and brought an end to a long period of uncertainty. The National Prosecuting Authority (NPA) is not only handling a number of cases currently, but is likely to handle even more as Zondo’s commission of inquiry on state capture concludes its work.
Under Abrahams both the keenness and the urgency of the NPA to tackle state capture was in doubt.
Misgivings about Abrahams’ independence had to do with his appointment.
He was a surprise appointment, whose subsequent conduct only exacerbated public anxiety that he was unfit for the post.
One such disturbing behaviour was Abrahams’ meeting with former president Jacob Zuma at Luthuli House, the headquarters of the ANC on October 10 2016. This was the day before Pravin Gordhan was charged for a supposed offence that no public official had faced before – wasteful expenditure.
Gordhan had allowed Ivan Pillay to take early retirement, which gave Pillay access to his pension. Gordhan was not the first minister to approve such, neither was Pillay the first to take such. It had been done several times before, but these two were the first ones to be prosecuted for it.
Three weeks later Abrahams withdrew the charges and explained that the initial decision to charge Gordhan was not even his. That explanation did not exonerate Abrahams. It simply revealed he was either incompetent or was a proxy of Gordhan’s detractors.
One cannot think of a competent head of national prosecutions who would not look at charges laid against a minister of state involving a vital institution such as the tax collection agency.
Abrahams’ appointment, therefore, was designed to blunt that institution. We expected this of Zuma because he had problems with the law. This was his way of securing protection. What we don’t often look at closely though is the complicity of officials in throttling public institutions. Abrahams not only knew what he was getting into, but was also a willing participant.
A senior state advocate in the Priority Crimes Litigation Unit at the time of his appointment, Abrahams knew he did not deserve the appointment. He was probably surprised by the news of it.
My guess is that Abrahams was deputy NDPP Nomgcobo Jiba’s choice. An unknown senior prosecutor doesn’t just become head of the NPA without someone close to the president influencing the appointment.
Jiba had been doing Zuma’s bidding at the NPA, which is what gained her notoriety. She engaged in selective prosecution: protecting Zuma’s lackeys and prosecuting his detractors.
Zuma probably wanted to appoint Jiba, but she must have had the good sense to realise that it would be too controversial and possibly challengeable in court.
Picking Abrahams was Jiba’s way of gaining indirect control over the NPA. Abrahams not only knew of Jiba’s intentions, but was possibly aware of how strategic the NPA was to the then president’s manoeuvres to evade prosecution.
Abrahams was a willing accomplice in weakening the NPA.
He should never have been the NDPP and his removal is more than warranted. He was appointed to do what Nxasana had refused to do – abuse power.
It is difficult, therefore, not to sympathise with Nxasana.
The court acknowledged that Zuma hounded him out of his job in what amounted to abuse of power by the president. However, Nxasana will not get his job back.
Instead he must pay back the more than R10m payout.
My sympathy for Nxasana stems from the way he conducted his duties as the NDPP. He surprised Zuma by being independent. This raised the possibility that Nxasana could prosecute Zuma.
Of course, Zuma did not want that – which is why he had appointed Nxasana in the first place.
Nxasana told us that Zuma was close to his own father. This made him look at Zuma as a father figure. So, there was some kind of a familial relationship there.
In picking Nxasana, whom people outside his home town hardly knew, Zuma was not just choosing anyone. He was choosing a family friend, more like a son, to look out for his interests at the NPA. Because of this familial relationship and that Nxasana was not the obvious choice for the job, Zuma thought he would be eternally grateful and instinctively protect a “relative”.
But on arrival at the NPA, Nxasana refused to behave as a family relative.
He insisted on being a professional instead. That’s when Zuma stopped acting like a “family relative” and resorted to blackmail. He offered Nxasana money to resign – or face a humiliating public inquiry. The inquiry would have exposed that Nxasana, who was the ultimate authority for public prosecution, had a criminal record. He had murdered someone.
Having uncovered that history, the inquiry would have then concluded that Nxasana was unfit for office. Although Nxasana had revealed his criminal record on his appointment, and that the act was in self-defence, which happened years ago while he was a youngster, the prospect of the probe must have been unpalatable.
Besides, there was the possibility of public scrutiny into his private life. Nxasana said he was subjected to a horrible experience throughout this period. He eventually buckled under the pressure and took the money.
Nxasana, therefore, failed when it mattered most. He failed in his most cardinal function – to withstand outside pressure and remain independent.
Justice Madlanga put it thus: “… I have a lot of sympathy for him for the undue pressure, persistent pressure, to which he was subjected. That said, based on the objectively available material, quite early on, he indicated his preparedness to vacate office if he was paid in full for the remainder of his contract period.
“He made this demand when he had been in office for just more than a year. And yet he wanted a payout for close to nine years, the unexpired period of his term of office …
“Effectively, although Mr Nxasana strongly protested his fitness for office, he was saying he was willing to be bought out of office if the price was right.
“As much as I sympathise with him, I do not think that is the reaction expected of the holder of so high and important an office; an office, the holder of which – if she or he is truly independent – is required to display utmost fortitude and resilience.”
Nxasana lacked the requisite character to be the NDPP. That he came under pressure is not a convincing reason to take the money. Interference comes with the job. His responsibility was to withstand that pressure and protect the independence of the NPA. He failed the test.
- Ndletyana is an associate professor of politics at the University of Johannesburg