The faction-riven national prosecuting authority (NPA) has been rocked by yet another crisis after its head, Mxolisi Nxasana, was refused security clearance for not disclosing that at age 18 he killed a man.
Nxasana says he was acquitted of the murder, which took place in 1985 in Umlazi, outside Durban, but this has now come back to haunt him. He could be suspended if his current and former bosses have their way. But Nxasana insists this is part of factional machinations by his rivals at the NPA and politicians who want to get rid of him.
“There have been stories circulating, which I will tell a commission of inquiry if there is one,” Nxasana told the Mail & Guardian. “They have spread rumours that I want to reinstate charges against President Jacob Zuma, that I want to reinstate charges in the Amigos case in Durban [involving ANC politicians].
“My problem is that there are allegations, I am told, that I also am seeing Bulelani Ngcuka, the former NDPP [national director of public prosecutions]. I don’t know where they get all this rubbish. Because I have never ever done anything like this. There has been no handover of cases. How can I ever talk about reinstatement of charges when I have never ever seen the dockets for that matter?” he asked on Thursday (see his full response below).
He was informed about his security clearance’s decision last week, seven months after the state security agency started its vetting process.
Request for resignation
Jeff Radebe, who was still justice minister at the time – and Nxasana’s boss – asked him to resign last week, but Nxasana refused because he believed he was not obliged to disclose a murder of which he was acquitted – he insisted he acted in self-defence.
Radebe was not available for comment this week. The state security agency on Thursday refused to say whether he was asked about disclosing anything other than matters that he had been convicted for, or pending cases.
Not even a week into the job, Radebe’s successor Mike Masutha now has to deal with the crisis. He told the M&G on Thursday that he might recommend to Zuma that he suspend Nxasana.
“If allegations of improper conduct on the part of a person in this position [are made], the procedure to follow is to recommend the institution of an inquiry to the president …[who] will have to make a judgment call if necessary to initiate such proceedings,” Masutha said. “The inquiry will throw some light on this issue.”
But he said he would have to check whether Radebe had already made the submission to the president.
“[If he has], I cannot undo it. If not, I’ll obviously go back to the file to apprise myself of the details of this matter,” he said, adding that the matter had been brought to his attention by the justice director general, Nonkululeko Sindane.
Without referring to the merits of this case, Masutha said anyone occupying a top executive position ought to have disclosed any matter that could cause embarrassment if uncovered. He said failure to do so “is a reflection of the person’s integrity” and “sense of judgment”.
When he assumed his position in October last year, Nxasana was not granted security clearance to handle top-secret documents and was not vetted. The state security ministry then passed the buck to the justice department, which then told the Sunday Independent that “it is not a requirement” that security clearance should “occur before the assumption of duty”.
Asked why vetting was not done before Nxasana assumed office, state security spokesperson Brian Dube said on Thursday that procedure requires an initial screening process when appointments are made.
“On the basis of that, an appointment is made but it is always subject to a full vetting exercise,” he said. “If you are appointed, it is subject to you obtaining a full clearance … The system is working. The government reviews its policy from time to time, so there is always room for improvement. At the next policy review it will continue to be looked at.”
Zuma was apparently briefed about the case.
On Thursday, Zuma’s spokesperson Mac Maharaj said: “The president is aware that the ministry of state security is dealing with the matter of the national director of public prosecutions.
“At the appropriate time, the president will be apprised of the outcome, whereupon he will deal decisively with the matter and a statement will be released at that time.”
Nxasana was directly appointed by Zuma, but the president cannot fire him without following a prescribed process.
The NPA Act says that the president may provisionally suspend the national director from his or her office “pending such enquiry into his or her fitness to hold such office”.
If the inquiry recommends the removal of the top prosecutor, the president is required to inform Parliament within 14 days. Parliament is then expected, within a month, to pass a resolution on whether to retain or remove the national director.
Should Parliament recommend that the national director be retained, the president’s decision would be set aside.
Blame directed at Radebe
According to ANC and government insiders, senior party and Cabinet ministers are aware of the case against the NPA head and some are blaming Radebe for failing to ensure that the proper vetting process was conducted on Nxasana.
“It is the talking point within the ANC and government at the moment,” said a senior government official, who asked not to be named. “People are asking why proper vetting was never conducted on him [Nxasana]. This is another own goal.”
The latest incident exposes the depth of the crisis in the security agencies, particularly the NPA, which saw five national directors in six years (including acting ones) as factional and political battles compromise its integrity. In October last year, the little-known Nxasana rose to prominence in the heart of an organisation torn by factional battles and divided political loyalty after two years of a leadership vacuum.
His predecessor, Menzi Simelani, was removed after the court found that Zuma didn’t apply his mind in appointing him following an earlier inquiry that he was not fit and proper to hold office.
For two years, Zuma failed to fill this crucial top prosecutor position. The acting national director, Nomgcobo Jiba, was also caught up in factional battles and could not steer the organisation out of the crisis.
The case also highlights Zuma’s controversial, politically inspired appointments after he was forced to let go of Simelane and former national police commissioner Bheki Cele. – Additional reporting by Moshoeshoe Monare
‘The Constitution would not count these cases against me’
The national director of public prosecutions, Mxolisi Nxasana, told the M&G this week that he was informed that he had failed his security clearance on two main counts.
The first was for a murder charge he faced in court when he was 18, which he said he had not declared because he was acquitted on the grounds that he had acted in self-defence. During the attack by some youths at his girlfriend’s house, his cousin Peter was hacked with a bush knife, and Nxasana apparently armed himself with a kitchen knife to help to defend them.
The second claim against him was his arrest by two police reservists, who allegedly pulled him off the road and swore at him for “driving without due consideration for others”. But the court refused to place it on the roll because there was no docket. Instead, Nxasana is on record as having laid charges of abuse against the reservists.
“The murder took place in 1985 at Umlazi [outside Durban in KwaZulu-Natal] where I grew up,” he said. “They attacked us when we were at my girlfriend’s place. We also defended ourselves in the process, and I stabbed a guy when they were attacking us.”
The attack had happened at night, and he and his friends had then fled the house.
“I was told the guy I had stabbed had passed away. My dad took me to the police station, after the news was communicated to us. I was charged, and ultimately got bail, and was prosecuted in the Durban regional court in 1986. I was acquitted.”
In his mind, this should not prevent him from taking up the post.
“Remember that I had been practicing as an attorney, and I don’t have a criminal record. The court tried me and found that I acted within the cause of self-defence and I was acquitted,” he said. “I don’t know whether I have failed the security clearance or not, because I have written to the State Security Agency [and] they have not communicated with me.”
Nxasana said the vetting forms ask whether the applicant has any pending cases or previous convictions, and “I disclosed the previous convictions”.
He received a call from then justice minister Jeff Radebe’s office on the Wednesday before President Jacob Zuma’s inauguration saying that he wanted to see Nxasana at his office in Pretoria.
“The minister said that I also did not disclose that I had been arrested for inconsiderate driving and resisting arrest. This was in 2012. It didn’t even become a case, because the police stopped me and they were very rude to me, and they spoke to me very abusively.”
Nxasana said he does have two previous convictions for assault, both of which he had disclosed on the forms. In the one case, he was cautioned and discharged in 1984. In the other case, in the same period, he pleaded guilty and paid a R50 fine.
“If it had happened now the matter would have been resolved by dispute resolution,” Nxasana said. “According to the Constitution, neither of these cases would prevent me from taking the job of NDPP.
“I tried to be as open as possible, and even went as far as disclosing a disciplinary [hearing] I had at the Law Society, which looks at matters involving clients. One client complained that I had not lodged a case timeously, and I was ultimately fined R2 000, which was wholly suspended.” – Glynnis Underhill