President Jacob Zuma insists former prosecutions head Mxolisi Nxasana asked to step down and was not pushed.
He also denied that Nxasana’s exit was linked to the possibility of corruption, fraud and racketeering charges against himself being reinstated.
Zuma was responding in court papers to a claim by Nxasana that the president had lied under oath about the terms of his controversial departure from the National Prosecuting Authority (NPA).
Nxasana left less than two years after he was appointed, after bitter infighting in the NPA was exposed and allegations that he had not been properly vetted for security. In May 2015, on the morning an inquiry into his fitness for office was due to start, it was announced that a settlement had been reached overnight and Nxasana departed with R17-million.
But his departure was challenged in court by nongovernmental organisations Freedom Under Law, Corruption Watch, and the Council for the Advancement of the South African Constitution (Casac).
The central question is whether Nxasana asked to leave the NPA or was forced out of the job. In his initial affidavit, Zuma claimed 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.
Nxasana entered the fray in April this year and vehemently denied that he wanted out. “The president’s version in this regard is false,” he said.
Responding last week, the president remained adamant that Nxasana had asked to go. “Nxasana had unequivocally stated that he no longer wanted to continue as the NDPP [national director of public prosecutions],” said Zuma.
“My negotiation with Nxasana was that it was in the best interest of the NPA for him that he vacates office, given the admitted facts that the instability in the relationship of the leadership in the NPA could not be allowed to continue.”
The settlement agreement was a culmination of “my discussion with Nxasana” when he asked to vacate the office “because of the instability, which persisted within the institution”, Zuma states.
The president refuted claims that Nxasana’s departure had anything to do with rumours that the NPA boss was on the verge of reinstating criminal charges against him. Zuma also disputed that he had questioned Nxasana about an alleged meeting with the former prosecutions head, Bulelani Ngcuka, in a Durban flat.
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.
“At no stage have I discussed the reinstatement of criminal charges against me with any official of the NPA, including Nxasana,” Zuma says. “I specifically deny that I had discussed … Bulelani Ngcuka or made the comments attributed to me by Nxasana.”
Turning to the allegations that the senior management at the NPA – in particular NPA deputy director Nomgcobo Jiba and the head of the authority’s Specialised Commercial Crimes Unit Lawrence Mrwebi – had run a campaign against Nxasana, Zuma said he was “unaware” of this.
Nxasana had said Jiba and Mrwebi had resisted his leadership and believed it was them who told Zuma he was planning on reinstating criminal charges against him.
Zuma said he was “not aware” of a campaign against Nxasana, nor did he condone it.
This week, Zuma’s legal adviser Michael Hulley filed his own affidavit to address an allegation by Nxasana that in 2015 Hulley and State Security Minister David Mahlobo had tried to get Nxasana to “say on oath that I had made a request to the president to vacate my office”.
At a meeting at the Beverly Hills Hotel in Durban on October 23 2015, facilitated by Mahlobo, Nxasana said Hulley offered to pay his legal fees in exchange for him “working” with Zuma on the matter. Nxasana said: “I advised Mr Hulley that I was not prepared to make that statement.”
Hulley said he did meet Nxasana but denied offering to pay the legal fees in exchange for “working” with Zuma. He says the meeting was to “establish Nxasana’s attitude to the application as well as confirm a consultation with him”. He says Nxasana was “noncommittal” about his willingness to consult.
He describes Nxasana version of events as “an attack on my integrity” .
The matter will be heard from November 20 to 22.
How did pop-up NGO get NPA boss’s security form?
Former prosecutions boss Mxolisi Nxasana has questioned the intentions of a newly formed nongovernmental organisation seeking to enter a court case about his controversial departure from the National Prosecuting Authority and demanded to know how it obtained his state security clearance – a confidential document.
The Centre for Defending Democratic Rule (CDDR) – formed six weeks ago – has applied to be a friend of the court in a battle between President Jacob Zuma and nongovernmental organisations Freedom Under Law, Corruption Watch and the Council for the Advancement of the South African Constitution.
CDDR argues that Nxasana cannot be reinstated as national director of public prosecutions because he had resigned on his own accord. The new NGO has attached Nxasana’s security clearance certificate to its papers.
Nxasana has questioned the organisation’s intentions, suggesting it has links with the president and the infamous Gupta family.
“My legal representatives have conducted [an] internet search to try to understand more about CDDR’s history, existence and purpose. They did not yield any results,” he said in court papers.
But, said Nxasana, searches on CDDR chairperson Buyile Matiwane (25) suggested he was a contributor to Independent Media, television channel ANN7 and The New Age.
“These are all media outlets known to be sympathetic to the president,” Nxasana alleges. “It appears to me that the formation of the CDDR and its attempt to participate in the proceedings are … a strategy to ensure that I do not return to public service as NDPP.”
CDDR was registered in May – “the day before it began seeking admission into this litigation”, said Nxasana.
The Mail & Guardian has established that Matiwane was a ward councillor candidate in the City of Cape Town in last year’s local government elections. He also leads the ANC-affiliated South African Student Congress in the Western Cape. Romeo de Lange and Simphiwe Gwashu are listed as directors of CDDR. De Lange is a former manager in the Western Cape’s department of community safety. Gwashu is a former member of the South African National Defence Force.
In his affidavit, Matiwane said the CDDR wanted to place before the court information that was to have been dealt with by the Cassim inquiry into Nxasana’s fitness for office. “In particular, the centre seeks to ensure that our courts of law determine matters within judicial bounds, avoiding unnecessary judicial overreach.”
Nxasana said: “The founding affidavit does not disclose how the CDDR … came to possess my security clearance form or how they obtained an affidavit from such a high-ranking official, Mr [Simon Jabulani] Ntombela [director of the domestic branch for the State Security Agency, SSA].”
He wants the centre to declare its relationship with Ntombela and the SSA and explain to the court how it got hold of his security clearance.