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On Wednesday, the Constitutional Court reserved judgment after hearing arguments by National Prosecuting Authority head Shaun Abrahams on why he should not lose his job, despite a ruling by the high court in December last year that his appointment as the national director of public prosecutions was ruled as invalid.
In December, Judge President Dunstan Mlambo ruled at the North Gauteng High Court: “In our view President [Jacob] Zuma would be clearly conflicted in appointing a director of public prosecutions considering the background of this case and the spectre of allegations against him.”
This after it was found that former prosecutions boss Mxolisi Nxasana, received a “golden handshake” to the tune of R17.3 million. Nxasana left office in 2015. The high court ruled his exit as invalid, and therefore Abrahams’ subsequent appointment invalid.
Nxasana was appointed in 2013 but Zuma had announced an inquiry into his fitness to hold office. Eventually, the inquiry was halted and Nxasana agreed to walk away with a much heavier pocket.
Council for the Advancement of the South African Constitution (Casac) representative, Advocate Geoff Budlender argued that Nxasana took advantage of the situation when he accepted the money and that there was no need to sympathise with him.
Advocate Wim Trengrove, representing Freedom Under Law, argued that the issue in this case was not about the matter of the Zuma prosecution. It was about the integrity of the national director of public prosecutions and the attempt by Zuma to influence this issue. Trengove said the issue wasn’t who was more deserving, but what remedy there was to right the wrong of presidential abuse of power.
Trengrove maintained that there was no lawful vacancy until the termination of Nxasana’s appointment was reviewed and set aside.
Hilton Epstein, for Abrahams, said there was no suggestion that his client was not fit and proper for the office and that this was not at issue in this application.
Epstein said there was a danger in finding there was no vacancy.
“Vusi Pikoli also got a golden handshake,” Epstein said, and that meant that every appointment after that was not valid.
Pikoli had instigated criminal charges against then ANC president Jacob Zuma. In 2008 he was suspended from his duties by former president Thabo Mbeki, and subsequently fired.
In August 2009 Pikoli was granted an interim interdict, which prevented Zuma from appointing a successor to the position.
In November 2009 the government reached a R7.5 million out-of-court settlement with Pikoli to stop his legal bid for reinstatement.
Today Advocate Michelle le Roux argued on behalf of Nxasana, saying that her client was subject to a “smear campaign”, and that “his leadership was undermined ... he was threatened with suspension by the president”.
Abrahams, who was appointed in 2015 by Zuma, has long endured rumours that his close ties to Zuma ensured that the former president would not face prosecution for 18 charges of fraud, corruption, racketeering and money laundering relating to the arms deals which were brought against him.
