/ 20 November 2017

Court frets about putting a prosecutor who took golden handshake back in charge

Defending his name: Mxolisi Nxasana has submitted an explanatory affidavit to the Pretoria high court
Defending his name: Mxolisi Nxasana has submitted an explanatory affidavit to the Pretoria high court

Former prosecutions head Mxolisi Nxasana has already shown that he would only leave if a price was paid, and that may have to form part of a decision on whether or not to reinstate him, the high court in Pretoria cautioned on Monday.

Civil society organisations Corruption Watch and Freedom Under Law (FUL) are this week arguing that President Jacob Zuma effectively bribed Nxasana to leave his post, and that this must be reversed.

“This is a President who had first tried to bully Mr Nxasana out of office with threats of an inquiry [into his fitness to hold office], and having not succeeded is now trying to seduce him, to bribe him with public money,” FUL advocate Wim Trengove told the court while explaining the sequence of events that saw Nxasana’s departure in 2017.

Nxasana received a golden handshake worth some R17-million.

The nature of Nxasana’s departure raises questions, said Gauteng judge president Dunstan Mlambo, and may require consideration when it comes to the civil society organisations’ argument that Nxasana should be returned — removing current prosecutions head Shaun Abrahams in the process.

“Mr Abrahams was considered and appointed on a supposedly vacant position,” Mlambo put to Trengove. “Mr Nxasana named his price, he said ‘I don’t want to go, I’ll only go if you pay me.’ And he got his price. On a purely fairness basis how can we oust Mr Abrahams?”

Trengove told the court it was not in a position to determine Nxasana’s fitness to hold office, but must only undo his unconstitutional removal, for which the only remedy is reinstatement. Only then can his fitness be considered, by “constitutional methods” such as an inquiry into his fitness for the position.

Such an inquiry was interrupted by Nxasana’s 2015 departure.

The court on Monday refused Nxasana condonation for the late filing of an affidavit, in which he claimed Zuma had lied in saying he had asked to leave office.

That left the court with only Zuma’s version of meetings central to whether Nxasana jumped or was pushed.

But based on the available evidence it was clear that Zuma had provided “a cryptic, and a very improbable account” of events, said Trengove, quoting letters between lawyers as Nxasana’s golden handshake was negotiated.

Such circumstantial evidence alone was enough to overturn Nxasana’s departure, and put him back in the position of national director of public prosecutions (NDPP), said Trengove.

The NDPP, it is widely believed, will soon have to decide whether to prosecute Zuma on charges of corruption — although such a decision will likely be challenged in court whichever way it goes.

Representatives for Zuma are expected to start making their arguments in the matter on Tuesday.