Analysis: Now that we're shorn of Shaun, these are Cyril's options
As Zuma gets a tongue-lashing from judges, Ramaphosa ponders who the new NPA head will be
President Cyril Ramaphosa is under pressure to appoint a new national director of public prosecutions as soon as possible after the Constitutional Court invalidated the appointment of advocate Shaun Abrahams, leaving the National Prosecuting Authority (NPA) leaderless.
At this point it remains unclear whether the president will choose to appoint an acting national director (NDPP) from the three deputy national directors, or whether he has already decided on the person he wants for the permanent post.
The deputy national directors eligible to act as NDPP under the National Prosecuting Authority Act are Willie Hofmeyr, Silas Ramaite and Nomvula Mokhatla.
Ramaphosa is considering whether to suspend the fourth deputy, advocate Nomgcobo Jiba, pending an inquiry into her fitness to hold office.
The NPA has not released any official comment on Abrahams’s response to the court’s decision, which found that he had benefited from former president Jacob Zuma’s “abuse of power” in paying off former NPA head Mxolisi Nxasana to vacate office.
Zuma illegally paid Nxasana R17,3m to leave his post. Nxasana maintains this was because Zuma was convinced that he intended to prosecute him for corruption.Times Select has established that Abrahams spent much of Monday locked in meetings with Justice Minister Michael Masutha.
Masutha declined to comment on the process that would be followed in appointing Abrahams’s replacement, or whether Abrahams would remain at the NPA, on the basis that he had not yet had a meeting with Ramaphosa.
Sources inside the Presidency say Ramaphosa is “playing his cards close to his chest” about who he wants as NDPP, but the names of former NPA head Vusi Pikoli and Western Cape NPA deputy director Rodney de Kock have been repeatedly identified as favourites for the post.
Pikoli said last week he had not been formally approached, but declined to comment on whether he’d consider a return to the NPA. Similarly, DA MP Glynnis Breytenbach declined to comment on speculation that she may return to the NPA.
However, she hoped Pikoli would be appointed “as he has absolute integrity”.
Ramaphosa’s office released a statement on Monday saying he was studying the Constitutional Court’s ruling, which has given him 90 days to appoint Abrahams’s replacement.“In studying this judgment, the Presidency is guided by the undertaking given by President Cyril Ramaphosa in the February 2018 State of the Nation Address that South Africa’s law enforcement institutions would be strengthened and shielded from external interference or manipulation,” the statement said.
Crucially, the court ruled on Monday that no decisions or actions taken by Abrahams during his three-year term could be rendered invalid based solely on the fact that his appointment was found to be invalid.
In a bid to ensure greater independence for the NPA, the court has also ordered that a section of the NPA Act that enables the president to suspend the NDPP without pay for an indefinite period is unconstitutional and must be amended.
The court repeatedly stressed that the independence of the NPA must be protected.
“The NPA plays a pivotal role in the administration of 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,” Justice Mbuyiseli Madlanga stated.Madlanga referred to how Zuma had threatened Nxasana with an inquiry into his fitness to hold office, and then offered him huge amounts of money to leave his post.
“The facts set out ... point to one thing and one thing only: former president Zuma was bent on getting rid of Mr Nxasana by whatever means he could muster. His was an approach that kept on mutating: it was first a stick; then a carrot; a stick once more; and eventually a carrot.”
While the inquiry into Nxasana’s fitness was still in the beginning phases, Madlanga referred to evidence that Zuma pursued a parallel process where Nxasana was first offered R10m to leave his position. Nxasana refused that offer.“What plainly evinces how desperate former president Zuma was to get rid of Mr Nxasana is that this was followed by a draft settlement in which the amount was left blank. Mr Nxasana was being told to pick whatever figure. Indeed, (Zuma’s former lawyer Michael) Hulley said that he would ‘await the final amount’ from Mr Nxasana.”
Madlanga further questioned why Zuma had not pursued an inquiry into Nxasana’s fitness to hold office, and instead offered him “an extremely huge amount of money”.
“The inference is inescapable that he was effectively buying Mr Nxasana out of office,” Madlanga said.
“In my book, conduct of that nature compromises the independence of the office of the 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.”