Justice Minister Brigitte Mabandla has asked the National Prosecuting Authority (NPA) to reinstate its former deputy director and convicted fraudster Cornwell Tshavhungwa, in an apparent move to reassert her authority over the institution.
Tshavhungwa was fired by the NPA in December 2004, after being charged with fraud and corruption in the Pretoria Magistrate’s Court for accepting bribes from government officials to divert investigations into alleged graft in the Mpumalanga Economic Empowerment Corporation. He was convicted earlier this year.
In a court challenge to his conviction and dismissal, currently being heard in the Pretoria court, Tshavhungwa argues that only the minister, not the NPA, has the power to dismiss him. He also accuses NPA bosses of sacking him without giving him the opportunity to present his case at a disciplinary hearing.
Mabandla, as the reponsible minister, the NPA, and Scorpions boss Leonard McCarthy are cited as respondents.
The NPA insists on its right to fire. But in an answering affidavit submitted by the department’s director general Menzi Simelane on the minister’s behalf, Mabandla implies that the NPA acted unlawfully when it fired Tshavhungwa.
In the affidavit Simelane says the minister concluded that she alone was entitled to terminate Tshavhungwa’s employment after studying the NPA’s report detailing the facts and circumstances of the dismissal.
She wrote a letter to (now suspended) National Director of Public Prosecutions Vusi Pikoli in December last year asking him to reinstate Tshavhungwa so that proper disciplinary steps could be taken against him.
‘The minister believes and has been advised that she has the power to dismiss a deputy director and to do so to the exclusion of all other persons. That power is conferred upon her as the necessary consequence of her express power to appoint a deputy director.
‘That power also flows, by necessary implication, from her constitutional and statutory power to exercise final responsibility over the NPA, in terms of section 179 (6) of the Constitution and section 33 of the NPA Act,†said Simelane.
This week Simelane told the Mail & Guardian: ‘The point we are making is that people at that level [deputy director] should be dismissed by the minister.†He said that in terms of the Constitution the NPA should conduct the disciplinary case against Tshavhungwa and make recommendations to the minister for a final decision.
McCarthy was not available for comment this week, but insists in his affidavit that the NPA was within its rights and followed the correct procedures in effecting the dismissal.
He notes that as deputy director of public prosecutions, Tshavhungwa ‘was encumbered with a high degree of trust and responsibility. Not only were his duties essential to the proper administration of justice in this country, but his own conduct and demeanour bore on the … reputation of the system, as is the case for any senior official in such a position of trust and responsibility.â€
Simelane acknowledges in his affidavit that Tshavhungwa is no longer fit to be the NPA’s deputy director. Because of his serious convictions he said Mabandla believed disciplinary action was necessary.
If he is reinstated the NPA will have to pay Tshavhungwa his salary of R37 000 and benefits, backdated to December 2004.