President Jacob Zuma faces a fresh challenge — this time he is accused of lying under oath.
This startling claim has been made by former National Prosecuting Authority (NPA) boss Mxolisi Nxasana in an affidavit in response to legal bids by Freedom Under Law and Corruption Watch, and additional proceedings by the Council for the Advancement of the South African Constitution (Casac).
The organisations want a R17‑million settlement that Zuma reached with Nxasana to be reviewed, and have asked the Pretoria high court to set aside Nxasana’s removal and the appointment of Shaun Abrahams as the new national director of public prosecutions.
Approached for comment on Wednesday afternoon, the presidency said it had not seen Nxasana’s affidavit.
Central to the case is whether he asked to be relieved of his position or whether he was bullied into leaving.
Zuma, in his answering affidavit, insisted that his decision “was made on [Nxasana’s] request and it is sufficient I make that statement under oath”. In the affidavit, filed in May last year, Zuma stated at least 19 times that Nxasana had “requested” to vacate his office, adding at one point that a court could not force Nxasana to return to office as the head of prosecutions, something “he plainly does not want to do”.
But later in the affidavit, Zuma admitted Nxasana’s alleged request to leave office “was not reduced to writing”.
However, Nxasana has vehemently denied that he wanted out. “The president’s version in this regard is false,” he said. “To be crystal clear, I never requested that the president allow me to vacate the office of the NDPP [national director of public prosecutions].”
In his explanatory affidavit, he added he “is fit and proper to hold the office of NDPP and would serve again”. His version also contradicts Zuma’s account of the reason for the dispute between them. “The source of the dispute was the fact that the president wanted me to vacate the office of the NDPP and I did not want to leave office.”
The settlement agreement, included in court documents, also makes no mention of Nxasana asking to leave office. Insofar as the settlement agreement provides reasons, it seems to back up Nxasana’s version in his explanatory affidavit.
Zuma said that not every reason he took into account was added to the settlement agreement.
The disputed version of events could see the president being forced to take the stand if Casac and Corruption Watch get their way. They have asked the court to hear oral evidence to resolve the disputes of fact that have emerged.
In contradicting Zuma’s claim that he wanted to leave, Nxasana provides a detailed chronology of events in the run-up to the golden handshake that is now being challenged. He said he had agreed to the settlement to avoid a drawn-out legal battle and to protect the integrity of the NPA.
His 23-page statement also reveals the behind-the-scenes involvement of State Security Minister David Mahlobo and alleges that Zuma’s lawyer, Michael Hulley, tried to manipulate the facts.
Nxasana said Mahlobo had facilitated a meeting between him and Hulley on October 23 2015 at the Beverly Hills Hotel in Durban, to discuss Nxasana’s tactical position on the court application by Corruption Watch and Freedom Under Law.
Nxasana said he initially believed the discussions with Hulley were aimed at resolving the dispute so that he could be restored as head of prosecutions. Instead, he claimed that Hulley offered to pay his legal fees in exchange for him “working” with Zuma on the matter.
“I advised him that I had not filed a notice of intention to oppose [the applicant’s cases]. Mr Hulley proposed that I should work with the president on the matter and he offered to pay my legal costs, including the costs attendant on appointing a senior counsel.”
Nxasana said: “It was evident to me that Mr Hulley wanted me to say on oath that I had made a request to the president to vacate my office … I advised Mr Hulley that I was not prepared to make that statement since that was not what had occurred factually. I reminded him that I was an officer of this court and that I would not mislead the court.”
Attempts to reach Hulley on Wednesday were unsuccessful.
According to Nxasana, some of the legal correspondence between his lawyers and Zuma backed his story but, when he requested copies of the letters, he was told by his lawyers “that the files containing it had disappeared from my attorney’s office”.
Although Hulley initially undertook to give him a copy of Zuma’s affidavit, Nxasana said this never materialised.
Zuma had initially instituted an inquiry, the only legal basis for a prosecutions boss’s removal other than a voluntary resignation. But that was abandoned at the last minute when a settlement between Zuma and Nxasana was reached.
Nxasana’s affidavit said that, during his first year in office, his colleagues Nomgcobo Jiba and Lawrence Mrwebi “resisted” his leadership, and he believed they told Zuma that he intended reinstating criminal charges against the president.
Zuma has insisted several times that Nxasana’s axing had nothing to do with claims that Nxasana had planned to reinstate the charges.
In his explanatory affidavit, Nxasana related how Zuma questioned him about a meeting he had supposedly had with former prosecution head Bulelani Ngcuka in a flat in Durban. Ngcuka was one of the voices in the “spy tapes” — recordings of phone conversations that initially formed the basis for the decision to drop the charges against Zuma.
Nxasana said Zuma told him: “Hey, Mfanakithi, umuntu uma eke washo igama lalowomuntu angifuni nokuzwa lutho ngaye indlela angangifuni ngakhona, ngivesane nyihlanye.”
Nxasana loosely translated this to mean: “Once they mention the name of Ngcuka, I don’t want to hear anything about that man — I simply go crazy.”
Casac, Corruption Watch and Freedom Under Law argued that the golden handshake contravened the provisions of the National Prosecuting Authority Act and the Constitution. The decision had been made for an “ulterior purpose”, according to Casac. It said the about-turn from asserting that Nxasana was unfit to hold office to putting on record that he was qualified for the post was unexplained.
Nxasana said he decided not to oppose the organisations’ applications but he wanted to “assist the court” with an explanatory affidavit.
He asked the court to admit his affidavit, explaining that he had decided to enter the fray at such a late state as he “was not happy about what had happened and the version in [Zuma’s] affidavit”. He added that the court proceedings “now affected my reputation and I had to do something”.