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Corruption Watch NPC and Others v President of the Republic of South Africa and Others: the Paralysed state of Instability in the National Prosecuting Authority.

On Monday, 13 August 2018, the Constitutional Court handed down judgment in this matter, in which it confirmed two declarations of constitutional invalidity by the High Court of South Africa, Gauteng Division, Pretoria (High Court). The High Court declared constitutionally invalid then President Jacob Zuma’s conduct in the termination of Mr Mxolisi Nxasana’s appointment as National Director of Public Prosecutions (NDPP) and the subsequent appointment of Advocate Shaun Abrahams to the position.

Nxesana’s appointment which followed the short-lived incumbency of Mr Menzi Simelane took effect from 1 October 2013. Mr Simelane’s appointment had come after that of Mr Vusi Pikoli who following a suspension, a commission of inquiry into his fitness to hold office, some litigation and the conclusion of a settlement agreement had also vacated office in terms of that agreement without finishing his term of office

In July 2014 – within about only nine months of his appointment the then President, Mr Jacob Zuma, informed Mr Nxasana of his intention to institute an inquiry into his fitness to hold office. This was followed by a notice that the former President was considering suspending Mr Nxasana pending finalisation of the inquiry. The former President said that suspension was necessary in order to maintain the integrity and good administration of the NPA. The notice also specified that the inquiry sought to establish whether certain issues were “consonant with the conscientiousness and integrity of an incumbent in the office of National Director of Public Prosecutions as required by the [NPA] Act”. These issues were: Mr Nxasana’s previous criminal conviction for “violent conduct”; allegedly unbecoming and divisive comments which had the effect of bringing the NPA into disrepute made by Mr Nxasana and reported in the media; and alleged non-disclosure of facts and circumstances of prosecutions which Mr Nxasana had faced previously.

It appeared from a letter written on 10 December 2014 by attorneys acting for Mr Nxasana that former President Zuma had engaged Mr Nxasana to get him to agree to vacate office. In the letter Mr Nxasana made it plain that he did not want to vacate office as there was no basis for him to. He stated that he would, however, consider stepping down only if he was fully compensated for the remainder of the contract period.  Thus, an offer to compensate Nxesana was made. An earlier offer contained in a draft settlement agreement was R10 million. Mr Nxasana did not accept it. Former President Zuma was undeterred. Thereafter Mr Hulley sent Mr Nxasana another draft settlement agreement with the amount left blank for Mr Nxasana to fill it in himself. Nothing of moment came of this.

The importance of the office of NDPP in the administration of justice is underscored and amplified by no less an instrument than the Constitution itself. Section 179(4) of the Constitution requires that there be national legislation which guarantees the independence of the prosecuting authority. In terms of section 179(1) the prosecuting authority consists of the NDPP who its head, Directors of Public   Prosecutions and prosecutors is.14 Section 179(4) provides that national legislation must ensure that the NPA exercises its functions without fear, favour or prejudice. That legislation is the NPA Act. Predictably, section 32(1)(a) of the NPA Act requires members of the prosecuting authority to carry out their duties without fear, favour or prejudice, and subject only to the Constitution and the law.

It is worth noting that the NPA plays a pivotal role in the administration of criminal justice. With a malleable, corrupt or dysfunctional prosecuting authority, many criminals – especially those holding positions of influence – will rarely, if ever, answer for their criminal deeds. Equally, functionaries within that prosecuting authority may be pressured into pursuing prosecutions to advance a political agenda. All this is antithetical to the rule of law, a founding value of the Republic.

Instead of settling for such amounts of money, one begins to question themselves as to why did the former President not simply pursue the inquiry? Did he not believe that the evidence that had motivated him to come up with the idea of an inquiry was sufficiently cogent? If so, why did he not just abandon the inquiry and leave Mr Nxasana in office? After all, he was exercising powers as President and not involved in a personal dispute which he could settle as he pleased. It is difficult to comprehend why he would have settled on so huge an amount, and from public coffers to boot.  

It is conduct of such nature that compromises the independence of the office of NDPP. It conduces to the removal of “troublesome” or otherwise unwanted NDPPs through buying them out of office by offering them obscenely huge amounts of money, instead of adherence to due diligence in terms of the prescripts of the constitution.

Now that the manner in which Mr Nxasana vacated office was declared constitutionally invalid, it follows that the appointment of Advocate Abrahams is constitutionally invalid. This is so because the appointment of Advocate Abrahams as NDPP was an act consequential upon the constitutionally invalid vacation of office by Mr Nxasana. Consequential acts which follow on constitutionally invalid conduct are commonplace. In essence, if the first act is set aside, a second act that depends for its validity on the first act must be invalid as the legal foundation for its performance was non-existent”.

Contributor:  Andile Mcineka (Candidate Attorney) (Commercial & Litigation Departments) (Umhlanga Office)

Tel:  031 566 2207

E-mail:  andilem@tmj.co.za