The justice minister will meet with the president this week over the embattled head of the National Prosecuting Authority (NPA), Mxolisi Nxasana, among other issues – but it will be a lengthy road to oust him given the legal framework guarding his position.
President Jacob Zuma and his security cluster are expected to have met and discussed the furore surrounding the relatively new National Director of Public Prosecutions (NDPP) before the week is out.
The battle around Nxasana’s future has heated up with two legal bodies speaking out in his favour. And Nxasana himself has indicated he will not go without a fight, which will make attempts to remove him from his post much more difficult.
Radebe reportedly called Nxasana to a late-night meeting and instructed him to resign, just few days before President Jacob Zuma announced his new Cabinet. He has refused to do so and spoke frankly to the Mail & Guardian about the battle to oust him by certain factions within the NPA and government.
Advocates For Transformation (AFT) and the Black Lawyer’s Association have defended Nxasana and questioned the timing of a call for his resignation.
They were reacting to a May 30 report in the M&G that Nxasana had been asked to resign several months into the position because past brushes with the law jeopardised his security clearance; a tactic Nxasana has blamed on factions out to oust him on the “erroneous” belief he would revive cases against President Jacob Zuma.
Stay and fight
Nxasana’s decision to stay and fight for his position, backed by his supporters in the legal profession, will pose a headache for the executive if they should try to get rid of him.
Prominent advocate Dumisa Ntsebeza in his capacity as Advocates For Transformation chairperson told the M&G following the May 30 article that the body was “extremely concerned that a sitting NDPP could, after appointment, be pursued for things that should have been investigated before his appointment.”
Ntsebeza was referencing a 1985 murder case that has come to light.
Nxasana told the M&G that he was acting in self-defence at the time, and was acquitted by the Durban regional court in 1986. Ntsebeza noted that it was “outrageous” that Nxasana be expected to resign from a position because he did not disclose having been charged with murder given that he was acquitted by a court of Law.
“It is like arguing that President Zuma should not have been competent to run for higher office because he had been charged with, and acquitted of rape,” he said, calling on newly appointed Justice Minister Mike Masutha to meet with the president about the matter to defend Nxasana from further attacks on his position.
Ntsebeza will get his way but it is unlikely that the new justice minister will defend Nxasana to his new boss.
Not even a week into the job, Radebe’s successor Masutha has to deal with the crisis. He told the M&G on Thursday that he might recommend to Zuma that he suspend Nxasana.
Masuthu confirmed at the weekend that he had sought an audience with Zuma.
‘Establish the facts’
On Tuesday evening, a spokesperson for the justice ministry, Lawrence Ngoveni, confirmed that the meeting was expected to occur by the end of this week. He could not confirm what was on the agenda, but the M&G understands that the ministers are expected to discuss, amongst other issues, Nxasana’s situation and Nkandla.
Ngoveni said the intention of the meeting was “to establish the facts” surrounding Nxasana’s hiring.
If Nxasana’s position is in danger, Zuma will have to tread carefully, as the removal of the NDPP is only allowed under strict conditions, and only if he is found unfit to hold office by an enquiry.
Zuma could ask Nxasana to resign, which former justice minister, Jeff Radebe reportedly tried to do, but Nxasana has made it clear that he will not do this.
Zuma will therefore have to follow a lengthy procedure – and the Constitution makes it clear that Nxasana’s previous brushes with the law, including an incident over his driving with police reservists, will not be enough to constitute misconduct. According to the M&G‘s report, the second claim against him was his arrest by the 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.
Lack of security clearance
In any event, as pointed out by the Black Lawyers Association this week, Nxasana was found fit to be admitted as an attorney of the high court – a process during which he disclosed his murder acquittal. If the high court found him fit, it sets a precedent for the security agencies.
His lack of security clearance will also not be enough to remove him from office.
According to section 12 (6) of the National Prosecuting Authority Act, Zuma may only fire an NDPP under limited circumstances.
Zuma can provisionally suspend Nxasana pending the outcome of an inquiry into his fitness for office. If this inquiry finds that Nxasana is guilty of misconduct; cannot continue his functions due to sickness; is incapable of carrying out his duties efficiently; or is no longer a fit and proper person to hold office, Zuma may send a note to Parliament informing it.
Members of the House will then vote, and their resolution determines whether or not Zuma fires the NDPP. With the ANC’s majority in Parliament, an adverse finding by the inquiry would, in reality, spell the end of the NDPP’s term.
So, Nxasana would have to be found incompetent by and inquiry to justify his removal. The fact that he does not have security clearance would not be enough to fire him; in fact, it would constitute unfair dismissal.
‘National security threat’
This is because section 210 of the Labour Relations Act puts the Act above all other laws, if the Act comes into conflict with these laws. This was highlighted in a 2010 Labour Court judgment, which dealt with the dismissal of a senior home affairs official, on the grounds that he was denied security clearance.
The official worked with classified information for a total of 11 years; initially granted security clearance upon his appointment, it was retracted after a second round of vetting that took four years.
While this was not the nexus issue at stake in the case, the court remarked that the fact that the official did not have security clearance was not enough to warrant dismissal – regardless of whatever “national security threat” this may pose. The department was still required to follow the prescripts of the Labour Relations Act.
But this has never been tested in the case of an NDPP, although it was nearly tested when former NDPP Vusi Pikoli threatened to challenge his dismissal in court.
Pikoli and the NPA settled out of court, with Piloki accepting a R7.5-million settlement in exchange for retracting his court challenge.
The ‘politicisation of the NPA‘
His case bolstered the arguments of critics, which from time to time included senior ANC figures, who argued that the provisions in the NPA Act, which govern the removal of the NDPP, are not enough to protect the constitutional independence of the office of the country’s top prosecutor.
And in June 2013, Democratic Alliance (DA) MP Dene Smuts introduced a private members’ Bill, which would have introduced various mechanisms to place more distance between the executive and the ability to fire the NDPP. The Bill was rejected by the ANC, but Smuts’s replacement in the portfolio committee on justice, former prosecutor Glynnis Breytenbach has promised to reintroduce it.
“At the earliest available opportunity, the DA will push for the justice committee to prioritise dealing with the clear politicisation of the NPA as a matter of urgency. Parliament must now be seized with this issue and ensure that it is the first order of business,” Breytenbach said in a statement on Sunday.
Vetting of senior state officials is the sole responsibility of the State Security Agency. Nxasana told the M&G last week that he informed the agency of his history, but the agency did not respond.
Responding to questions about the agency’s role in failing to grant Nxasana security clearance, a spokesperson for the department of state security, Brian Dube, said on Tuesday that he was “not in a position to discuss processes pertaining to the case in point [Nxasana]”.
“I can however say that generally a security clearance is a requirement for strategic senior positions in government and involves a detailed rigorous process of checking suitability candidates,” Dube said.