Analysis: It's all done baa the shouting for Shaun Abrahams
Court to rule whether appointment of SA's top prosecutor was valid after Zuma 'golden handshake' deal
South Africa’s highest court will rule Monday morning on whether advocate Shaun Abrahams may continue to lead the National Prosecuting Authority, or must vacate his office.
President Cyril Ramaphosa identified “leadership issues” at the NPA among his administration’s key concerns in his first State of the Nation address, but has been hamstrung in addressing these issues because of this outstanding judgment – a ruling that will determine whether Abrahams was properly appointed.
The Constitutional Court has to decide whether the R17.3m “golden handshake” deal that then president Jacob Zuma gave to former NPA head Mxolisi Nxasana to vacate his post – and which Zuma admitted was unlawful – meant that the subsequent appointment of Abrahams was also invalid.
The court has taken 166 days to make that decision, leading to widespread speculation that the justices hearing the matter were split in their ruling.In December 2017, three Pretoria High Court judges, led by Judge President Dunstan Mlambo, found that the settlement deal Zuma gave to Nxasana to leave his position was invalid and violated the NPA Act.
Nxasana maintained that he was removed because Zuma feared that he intended to prosecute him for corruption. However, his affidavit detailing these claims was not admitted into evidence because it was filed too late.
While not entertaining Nxasana’s evidence that Zuma’s campaign to remove him was driven by paranoia and self-interest, the high court found that he had not asked to be allowed to leave his post but rather “was persuaded to vacate the office by the unlawful payment of an amount of money substantially greater than that permitted by law”.
Mlambo and his fellow judges further rejected arguments by Abrahams, Zuma and the NPA that Abrahams should be allowed to stay in his post despite this illegality.“The respondents’ proposal, on the other hand, will not have vindicated the Constitution as pertains to the president’s conduct because his unlawful conduct will then have procured for him a position even better than what he had wanted all along: being rid of Mr Nxasana, at a price much lower than Mr Nxasana’s demand, and with Advocate Abrahams in the saddle,” the judges stated in their ruling.
“Is it just and equitable to leave Advocate Abrahams untouched in the office? We do not believe it is, for these reasons. First, if the vindication of the Constitution is paramount, an order which leaves Advocate Abrahams’s position intact does not serve that objective. As remarked above, the president will have achieved, through unlawful means, precisely what he had wished to attain all along.”While Abrahams and the NPA have repeatedly stressed that Abrahams had not been found not to be fit and proper for his position, Mlambo and his colleagues criticised, among other things, his response to the legal challenge to the Nxasana deal, and his defence of NPA deputy director Nomgcobo Jiba.
Jiba’s conduct has been slammed in four different court rulings, but the Supreme Court of Appeal recently narrowly overturned a judgment striking her from the roll of advocates. The ruling followed an application by the General Council of the Bar, in which the GCB accused Jiba of misconduct and argued that she was unfit to practise as an advocate.
The GCB is now attempting to challenge the appeal court’s decision.
Ramaphosa, meanwhile, is mulling whether to suspend Jiba pending an inquiry into her fitness to hold office.
In court documents Abrahams said he “established that there were some serious criticisms of Advocate Jiba in the court judgments, but much of the material placed before the courts had been manipulated and actuated by ulterior motives with a view to getting rid of Advocate Jiba”.“I ascertained that the criminal proceedings and the GCB application were not initiated by disinterested persons who wished to protect the integrity of the institution. In fact, they could be traced to officials within the NPA, centred around Mr Nxasana, who had long been at loggerheads with Advocate Jiba.”
Mlambo and his colleagues took serious issue with these comments in their high court ruling on the Nxasana deal. But Abrahams argued that this critique was erroneous, and unfair.
He also sought to challenge the high court’s criticism of him as “taking the side” of former president Zuma in the so-called Spy Tapes litigation, and strongly denied any suggestion that he was a political puppet.Abrahams and the NPA further argued that the high court was wrong “in speculating that if Abrahams were to remain in office it would entail the president (Zuma) achieving through unlawful means the objective he had pursued from the start”.
They said there was no allegation or evidence that Zuma “entered the impugned settlement agreement with Nxasana with a mind to installing Abrahams as NDPP, motivated by the belief that the latter would be less likely to prefer charges against the president than Nxasana would be”.
Less than a month after the Constitutional Court heard the Nxasana appeal, Abrahams announced that the state would pursue corruption charges against Zuma.