While the National Prosecuting Authority (NPA) insists that its national director Shaun Abrahams remains in his job, civil society bodies who beat him in court this week are taking their fight to the next level.
On Friday, a full Bench of the High Court in Pretoria set aside Abrahams’ appointment by President Jacob Zuma, and ordered that Deputy President Cyril Ramaphosa appoint a new national director within 60 days.
The court also ruled that former prosecutions boss Mxolisi Nxasana was removed from his position unlawfully and that he had to pay back his R17m settlement. It also found Abrahams to be biased when dealing with matters involving Zuma.
Both the prosecutions authority and Zuma have announced their intention to appeal the judgment.
But the Council for the Advancement of the SA Constitution (Casac) is preparing to prevent the case being dragged out with an appeal to the Supreme Court of Appeal and on to the Constitutional Court.
Casac executive secretary Lawson Naidoo said the council would make an application to the Constitutional Court for confirmation of the high court’s order.
“In terms of the rules of court, we have 15 days to lodge that application. Our understanding of the law is that any appeal [by Zuma and the NPA] will have to serve as a cross-appeal in the Constitutional Court,” he said.
Naidoo said this would have the effect of precluding any so-called “Stalingrad strategy”, a reference to the delay tactic sometimes employed by Zuma in court matters.
“The fact that the high court delivered judgment in just over two weeks shows how seriously the court sees this matter and that it recognises the urgency in resolving these matters.”
The judgment also hamstrings Abrahams’ ability to consider Zuma’s representations on the “spy tapes” saga, which could see the 783 charges of fraud and corruption he faced being reinstated.
The ruling comes as the prosecutions team, headed by KwaZulu-Natal Director of Public Prosecutions Moipone Noko, is tasked with deciding whether or not Zuma will be charged.
Insiders told City Press this week that Zuma’s representations to Abrahams were contained in scores of lever-arch files, submitted two weeks ago. And, while the prosecutors are still working through their contents, the files perused so far have not added any new material which, prosecutors believe, could convince them not to reinstate the charges.
Meanwhile, there were mixed reactions to the judgment at the NPA’s headquarters in Silverton, Pretoria, on Friday as Abrahams is both a loved and hated figure within the highly divided organisation.
While some celebrated his impending demise, others close to him cried foul and accused the court of “judicial overreach”.
Prosecutors at head office, however, were unable to watch proceedings on television because Abrahams had called them to the auditorium to observe International Anti-Corruption Day.
While Judge Dunstan Mlambo was handing down the judgment, Abrahams delivered a lengthy speech on the importance of the Financial Intelligence Centre Act, prioritising financial and commercial crimes, and how prosecutors should take their jobs seriously.
As Abrahams left the podium, the court had ensured that his days at the helm of the NPA were numbered.
Two prosecutors told City Press that on Friday afternoon, Abrahams refused to step down and appoint an acting interim head.
However, NPA spokesperson Luvuyo Mfaku denied this, saying Abrahams “has not been advised by anyone to step down, nor not to deal with any matter relevant to the mandate of the NPA”.
In a statement on Friday, Mfaku said: “We deem it prudent to record that the order is suspended for a period of 60 days. Abrahams therefore remains in his position as National Director of Public Prosecutions.
“Abrahams’ appointment brought much-needed stability to the NPA,” he said.
Abrahams is not going down without a fight.
“It seems his appeal was already decided long before the judgment,” said one prosecutor.
“In the history of the NPA, it was the first time I have seen such a hastily done appeal, which was filed on the very same day as the ruling.”
In his nine-page appeal, drawn up by the State Attorney’s Office, Abrahams seeks to overturn the ruling on eight grounds, including the finding that there was no vacancy when he was appointed.
“It is submitted that the court erred in finding that an order leaving Abrahams in office would allow the president to achieve, through unlawful means, what he wished to attain all along, there being no evidence that the president entered into the impugned agreement with Nxasana with a mind to installing Abrahams as NPA head,” the appeal states.
Abrahams also argues that the court erred when finding that he behaved inconsistently “with the imperative of prosecutorial independence on certain issues with the position of the president”.
The NPA and Abrahams also want to challenge the court’s ruling that gave Cyril Ramaphosa 60 days to appoint a new national director of public prosecutions, saying it violated the separation of powers and that it was the president’s prerogative to make the appointment, and any ruling to the contrary could be unconstitutional.
TALK TO US
How do you feel about the court ruling? Do you think Abrahams should leave? Is the NPA still credible?
SMS us on 35697 using the keyword NPA and tell us what you think. Please include your name and province. SMSes cost R1.50