/ 17 October 2013

New NPA boss Nxasana seeks clarity on Mdluli case

The national director of public prosecutions
The national director of public prosecutions, Mxolisi Nxasana, says his actions will be guided by the Constitution. (Paul Botes, M&G)

Several security checks are required before the Mail & Guardian meets the recently appointed national director of public prosecutions (NDPP), Mxolisi Nxa­sana, at the offices of the National Prosecuting Authority (NPA) in ­Pretoria this week.

Even our cellphones are locked up until we have finished the interview with the 45-year-old attorney who has what is probably one of the toughest jobs in crime-fighting and justice in South Africa.

Nxasana's Durban colleagues approached him about putting himself forward for the top job at the NPA and he agreed. The next step was an interview by a team from the presidency.

Nxasana, who was running his own legal practice, was in court in August, with a client on the stand, when his cellphone started vibrating. The news of his appointment that day changed his life dramatically.

His appointment was made after President Jacob Zuma was taken to court by the civil rights group the Council for the Advancement of the South African Constitution, to force him to appoint a permanent NDPP.

It meant a rushed move and he and his wife, Amagugu Khanyile Nxasana, who is also an attorney and works for a mining company, are still busy settling their family in Gauteng.

Nxasana says he has prioritised the cases of suspended police crime intelligence head Richard Mdluli and NPA prosecutor, advocate Glynnis Breytenbach. Breytenbach, now back at work downstairs in the sprawling NPA offices, still maintains that she was suspended and charged to stop her from proceeding with a fraud case against Mdluli.

Cool-headed attorney
Shortly after his appointment Nxasana informed Parliament that he had launched an application for leave to appeal a Pretoria High Court judgment ordering the reinstatement of criminal charges against Mdluli.

As a result, he soon went from "hero to villain", according to some news reports. The cool-headed attorney says he was not given a chance to explain the rationale behind the move.

The nub of the NPA's court application, seen by the M&G, is that the courts should not interfere with the decisions of an independent prosecutor except in exceptional cases.

The damning judgment by Judge John Murphy was handed down after civil society organisation Freedom Under Law made an application to the Pretoria High Court asking it to overturn the decision by specialised commercial crimes unit head Lawrence Mrwebi to drop the charges against Mdluli.

In his judgment, Murphy ordered the immediate reinstatement of corruption and murder charges against Mdluli.

"We just want the higher courts to give guidance because this is a first judgment of its kind," says Nxasana emphatically.

"If I want to reinstate the charges against Mdluli, I can. Nobody should view the decision as a delaying tactic. I owe nothing to Mdluli and I haven't even met him. I owe the NPA and the people of South Africa, and no one else.

"I am hoping that Judge Murphy will grant us leave to appeal to the Supreme Court of Appeal."

Spy tapes
Nxasana says he is yet to meet Zuma himself and also insists that his cannot be considered a political appointment.

When asked whether he would take up the case of former acting NPA head Nomgcobo Jiba, who came under fire for apparently refusing to hand over the controversial "spy tapes" that let Zuma off the hook, Nxasana says he is not yet aware of what is on the tapes.

"If I feel that there is prima facie evidence that will ultimately warrant prosecution I can tell you my duty, my responsibility, will be mandated by the Constitution, regardless of who appointed me," he says.

"Without putting a name to any person, if a crime is committed and there is admissable and credible evidence, my team will come to a conclusion. It doesn't matter what position a person holds. Even if it is President Zuma, or whoever it is."

Mention his former mentor and close friend, the late attorney Mvuseni Ngubane, and Nxasana's face immediately lights up.

"Whenever I think about him I know he was going to be first person to be proud of my appointment," he says. "I was his candidate attorney, his product. We went on to become very good friends. He had faith in me. So I did look up to him."

Nxasana's reflections on Ngubane are tinged with sadness.

"Mvuseni was my mentor. I wish he were around. He would be able to say: 'You are what you are because of me.'

"As an officer of the court he was a very principled man, who held the value and ethos of the profession in very high esteem. He wouldn't do anything to compromise his profession, and he instilled this in me."

Ngubane was found dead in the back of his Mercedes-Benz in his garage in Durban in 2012, in what was described as a suspected suicide.

The attorney had been appointed to the key position of secretary of the Arms Procurement Commission and would have controlled all the evidence gathered by the inquiry, which is now under way.

To this day, it is unclear why he decided to take his life, says Nxasana.

Regularly detained
"It was suicide. I was glad that I was among the first persons to arrive at the scene and to witness what had happened myself and to see where he was sitting with the firearm. It was just next to him," says Nxasana, who wants to dispel any rumours that his friend's death might not have been a suicide.

"This was captured on the CCTV monitor, which was viewed, and there was absolutely no foul play."

After his appointment Nxasana relinquished his post as chairperson of the Durban branch of the Black Lawyers' Association, a position Ngubane had held until his death.

Nxasana, who is little known outside of KwaZulu-Natal, says he owes his fighting spirit to many people, including his father, Bhakisisa Harold Nxasana, who was a trade unionist in the clothing industry.

The older Nxasana, he says, was regularly detained by police at the family's home in Umlazi. On his release the house would be filled with inspiring visitors like anti-apartheid lawyer Mlungisi Griffiths Mxenge and political activist Rick Turner, both of whom were later assassinated, allegedly by apartheid security forces.

His mother, Toti Clotilda Nxasana, a teacher, mostly raised the family single-handedly, sometimes with financial help from his father's prominent friends.



The Richard Mdluli saga

In early 2011 the police's suspended crime intelligence head, Richard Mdluli, was arrested and charged with various crimes, including murder, intimidation, attempted murder, kidnapping, assault with intent to do grievous bodily harm and defeating the ends of justice.

Later the same year he was arrested again and charged with further counts of fraud, corruption, theft and money laundering. This was after he was sensationally accused of looting the police secret service account for his personal benefit.

The charges against him were withdrawn, but the Pretoria High Court ruled recently that the National Prosecuting Authority (NPA) should reinstate the charges. The NPA has launched an urgent application for leave to appeal that judgment.

Last month the police's specialist unit, the Hawks, laid a criminal charge against the NPA's specialised commercial crimes unit head, Lawrence Mrwebi, for defeating the ends of justice by dropping the corruption charges against Mdluli. – Glynnis Underhill