President Jacob Zuma collapsed the Cassim inquiry into national director of public prosecutions (NDPP) Mxolisi Nxasana at the last moment when it became clear that advocate Nazeer Cassim was likely to sweep aside Zuma’s complaint that Nxasana was unfit for office.
Cassim briefed the legal teams from both sides on his preliminary views last Saturday afternoon.
It is understood that lawyers representing the president realised they were likely to receive a hiding, and that Cassim might wrap up the hearing and rule in Nxasana’s favour within a week.
Cassim intimated as much in interviews following his extraordinary announcement at the opening of the hearings on Monday that the presidency had terminated the inquiry.
He told reporters that, just after 4am on Monday, he received instructions from Zuma’s legal adviser, Michael Hulley, to stop the process.
The fact that Zuma was on a state visit to Russia presumably complicated communication, but Moscow is only one hour ahead of Pretoria.
A “persistent” effort
Sources close to Nxasana previously told the Mail & Guardian that the presidency has been trying, on and off, to negotiate Nxasana’s departure since the president announced in July last year the decision to hold an inquiry.
The inquiry into whether Nxasana was fit to hold office was purportedly prompted by the revelation that he was charged with murder in 1985 when he was 17.
He was acquitted on the basis that he acted in self-defence, but Zuma’s complaint was that he did not disclose this when the president interviewed him before his appointment.
He also did not disclose two convictions for assault in 1985 and 1986, for which he received a caution and discharge, and a R50 fine, respectively.
But the president’s pursuit of these complaints has been widely interpreted as a smokescreen for unhappiness about Nxasana’s combative stance on cases potentially affecting Zuma and his perceived allies, including the former acting director of the National Prosecuting Authority (NPA), Nomgcobo Jiba, the prosecuting head of the Special Commercial Crime Units, Lawrence Mrwebi, and the suspended crime intelligence boss, Richard Mdluli.
Under Nxasana, the NPA has recharged Mdluli with fraud in a case withdrawn by Mrwebi, charged Jiba with perjury relating to her failed prosecution of KwaZulu-Natal Hawks commander Johan Booysen and referred Jiba and Mrwebi’s conduct to the General Council of the Bar.
Nxasana personally wrote to Zuma to ask him to suspend Jiba and Mrwebi, but the president did not accede to this request.
Zuma Junior & co
Nxasana also reacted positively to a request late last year from the then Hawks boss, Anwa Dramat, and the Independent Police Investigating Directorate (Ipid) director, Robert McBride, to review decisions taken by the KwaZulu-Natal director of public prosecutions to withdraw charges against Thoshan Panday, a flamboyant businessperson linked to Zuma’s son, Edward, and a relative, Deebo Mzobe.
Nxasana appointed Gerrie Nel, who was instrumental in charging Jiba’s husband for abusing his attorney trust fund, to manage a reconsideration of the Panday investigation.
Should Zuma have had such concerns about Nxasana, then alarms would have sounded following the comments Cassim made to the president’s lawyers last Saturday.
According to his own account, Cassim told them he viewed Nxasana’s actions in some of these cases as proof of his independence.
He said he based his opinion mainly on Nxasana’s reinstatement of charges against Mdluli and how he handled the Booysen case.
He said the second issue he had raised with the lawyers at Saturday’s meeting was whether Nxasana was the best man available for the job, which could not be answered by Nxasana.
The final question was whether Nxasana had made adequate disclosures. But Cassim told the lawyers that the government was also at fault.
“The third thing I had in my mind is that government needs to do background checks before they appoint the person. It cannot be after the fact,” he said.
Cassim later told Radio 702 that he was not surprised that his intervention led to increased urgency to negotiate a solution.
“I suspected that, as a result of that interaction, they may go back to their principals and something may come of it,” he said.
Negotiations
It is clear Zuma’s negotiating position would have been weakened had the hearing gone ahead and cleared Nxasana. On Monday, the presidency announced the president was “currently engaging with Mr Nxasana with a view to taking decisions which are in the best interest of the National Prosecuting Authority, Mr Nxasana and the country at large”.
No further progress had been announced by Thursday afternoon.
Complicating the negotiations since the start of the process last year has been Nxasana’s consistent position that he would go quietly only if Jiba and Mrwebi left as well. Although Nxasana has refused to comment, there are no indications that he has changed his position.
Jiba did not return calls or respond to messages.
Mrwebi said: “I am honestly not aware of any negotiations between Nxasana and the presidency, nor am I aware of any matter along the lines you suggest. In any event, if I were to be the casualty, as you suggest, so be it. I will accept that despite not knowing the reason for that.”
There is some suspicion in the Nxasana camp that Zuma will prolong the finalisation of a deal in an effort to weaken Nxasana and eventually find some reason to push him out.
The Werksmans report commissioned by Police Minister Nathi Nhleko into Ipid’s handling of the investigation of the Dramat rendition saga recommended that the role of the NPA, including that of its director, be investigated further.
Blunt appraisal
But a perusal of the president’s case against Nxasana, as it stood on Monday morning, suggests Cassim’s blunt appraisal was fair. AmaBhungane obtained copies of the annexures to the president’s complaint, which show:
- Nxasana responded in detail, and within 48 hours, to the president’s initial demand for an explanation to many allegations tabled in a letter from the president on June 19 2014;
- He disclosed the two assault cases in his application for security clearance, completed in December 2013, after he had taken up office;
- In May 2014, he had raised the issue of his murder charge and acquittal with the senior State Security Agency official handling his security clearance; and
- He told the president he believed Jiba was involved in a plot to discredit him.
In correspondence, Nxasana told Zuma: “As early as October 2013, I was provided with two affidavits from two NPA employees confirming that they had been approached by Colonel Welcome ‘WS’ Mhlongo, a member of the Hawks, for information about me.
“One of them provided a voice recording in which Colonel Mhlongo is heard to confirm that he was acting on the authority of deputy NDPP Nomgcobo Jiba to collect information about me to discredit me.”
Mhlongo has previously denied the allegations.
Nxasana continued: “As soon as I was made aware of this, I brought it to the attention of the executive committee of the NPA. I have also brought these allegations to your attention and asked that you investigate them.” – Additional reporting by Sally Evans
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The M&G Centre for Investigative Journalism (amaBhungane) produced this story. All views are ours. See www.amabhungane.co.za for our stories, activities and funding sources.