Advocates body says NPA’s Nxasana should not be prejudiced

Advocates For Transformation (AFT) has called on newly appointed Justice Minister Mike Masutha to urgently meet with President Jacob Zuma to ensure national prosecutions boss Mxolisi Nxasana is not prejudiced due to having killed a man at age 18 – allegedly in self-defence.

On Friday,  the Mail & Guardian reported that the national director of public prosecutions (NDPP) Nxasana was denied security clearance, apparently for failing to disclose the incident.

Nxasana said he was acquitted of the murder, which took place in 1985 in Umlazi, outside Durban, but this has now come back to haunt him. Nxasana insisted this was part of factional machinations by his rivals at the National Prosecuting Authority (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 M&G. “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. 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 was informed about his security clearance’s decision last week, seven months after the State Security Agency started its vetting process.

On Saturday, AFT chairperson advocate Dumiza Ntsebeza said in a statement that the reports were extremely concerning and unfair to Nxasana. “The AFT, if the reports are true, is extremely concerned that a sitting NDPP could, after appointment, be pursued for things that should have been investigated before his appointment,” it read.

“We are even more perplexed by the reported view that he should have disclosed that in 1985 he had killed a man. For one thing, one does not see how that has to do anything to do with ‘security clearance’. Secondly, it is outrageous that he is expected to resign from a position because he did not disclose having been charged with murder of which he was acquitted by a court of law.

“It is like arguing that Zuma should not have been competent to run for higher office because he had been charged with, and acquitted of, rape,” sad Ntsebeza.

Ntsebeza said that was “not how the rule of law works”.

“The AFT calls upon the newly appointed minister [Masutha] to seek audience with the presidency urgently with a view to making it very clear that the basic tenants of the doctrine of the rule of law are that while no one is above the law, it is equally preposterous that anyone, let alone Mr Nxasana, could be prejudiced in his job because he did not disclose a case of murder in which he was acquitted after an open trial.”

‘Establishing facts’
Meanwhile, the justice ministry on Sunday confirmed to the M&G that it had requested a meeting with Zuma “to establish the facts” around Nxasana’s appointment.

As of Sunday afternoon, the ministry had yet to receive confirmation of a meeting date, according to Masutha’s spokesperson Lawrence Ngoveni. But he could not say what the minister would want to discuss with Zuma.


In terms of section 179 of the Constitution, the president appoints the NDPP. But Ngoveni said the issue of security vetting was the sole responsibility of the State Security Agency and so neither the presidency nor the justice minister were responsible for ensuring this was done.

However, Ngoveni told the M&G that Masutha wanted to “establish the facts” around Nxasana’s appointment from Zuma. As of Sunday afternoon, no response had been received from the presidency, he said.

Red herring
At the same time, Ngoveni could not confirm whether other senior NPA officials were in the same position as Nxasana – appointed without being properly vetted. Ngoveni also did not know whether security vetting was a requirement for the appointment of the NDPP. The Constitution requires that the appointee be a “fit and proper person”.

“You will appreciate that we are new … all the appointments were done by the previous ministry,” he said, referring to Masutha’s appointment last Sunday. Masutha replaced former justice minister Jeff Radebe, who is now minister in the presidency.

Ngoveni also said the ministry was trying to establish what impact, if any, Nxasana’s lack of security clearance would have on his day-to-day work within the NPA.

On Sunday, the new Democratic Alliance (DA) justice spokesperson – and former prosecutor – Glynnis Breytenbach said the party would revive a Private Members’ Bill in Parliament that sought to bring more “independence” to the process of firing the NDPP.

Her predecessor, Dene Smuts, introduced the Bill in June 2013. Had it been passed, it would have required that any NDPP could only be removed by the president after a resolution by two-thirds of the National Assembly. This would follow an inquiry which would have had to find the NDPP incompetent or unfit to hold office. But the ANC rejected the Bill.

Breytenbach said: “The claims made against Nxasana about having not received the necessary security clearance is simply a red herring. The department of state security is notorious for its lengthy processes and the blame can hardly be placed on Nxasana when the delay is not his own doing.

“Furthermore, it is perplexing that the issue of Nxasana’s criminal record is only resurfacing now that there is a hit on his back. The question must be asked why this was never raised before and taken to task. It is hardly conceivable that an appointment of this importance was made without vigorous background checks being completed.”

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