The high court in Pretoria on Tuesday made no promises on exactly when it would deliver judgement in what Gauteng judge president Dunstan Mlambo described as the weighty matter of whether Mxolisi Nxasana was properly removed as the national director of public prosecutions (NDPP) in 2015.
The court would, however, try to expedite the decision, Mlambo promised.
For all its technical nature, the decision — and its timing — has the potential to have a very real political impact: who gets to decide whether or not President Jacob Zuma should be prosecuted for his alleged corruption.
For two days civil society organisations Corruption Watch and Freedom Under Law tried to convince the court that it must undo Nxasana’s departure as prosecutions head, so ousting current NDPP Shaun Abrahams. If that happens it may be Nxasana, who has accused Zuma of lying under oath, who decides whether the President should go on trial.
But Nxasana can not be reinstated, and Abrahams can not be removed, argued his and Zuma’s legal team, with the implication that it will be Abrahams, who has been heavily criticised for not taking decisive action on state capture, who makes the call on Zuma’s charges.
To complicate matters the two civil society organisations argued that Zuma had effectively bribed Nxasana to go with a R17-million golden handshake, but that the court should take no notice of his therefor proven willingness to accept a high enough price. With Nxasana himself silent in the case after the court refused to accept a late attempt to submit an affidavit, his character was defended in only mild terms.
One should be not be too quick to judge Nxasana’s acceptance of that large sum, advocate Geoff Budlender told the court on behalf of amicus the Council for the Advancement of the South African Constitution (Casac).
“He was placed in an intolerable position.”
Budlender also demurred at the word “bribe” to describe Nxasana’s large payout, describing it as “ambitious”.
Those opposed to Nxasana’s return were not pulling their punches in turn. Nxasana knew the law that governs the appointment and departure of an NDPP, said Abrahams’ advocate Hilton Epstein, and should have known R17-million was over the top.
“He would know what he is entitled to. Yet he has taken the money. For two years he has kept the money.”
Only now that Nxasana faces the overturning of that golden handshake, and prospect of having to repay it by court order, has he stepped forward to say he wants his job back, Epstein contended.
“He took his reward, never to return, until now.”
Between them Casac, Corruption Watch and Freedom Under Law painted a very different picture, that of a prosecutions head bullied, then bribed, by a President who feared he would face prosecution himself. While Zuma claims Nxasana asked to leave the job, the civil society organisations insist this could not have been the case, and without a resignation he never lawfully left the post.
That does not mean the court should “conduct, as it were, a beauty contest to determine who would be the better NDPP, Mr Nxasana or Mr Abrahams,” said Budlender. But nor could the court simply ignore that there had been an unlawful payment to Nxasana, which both Zuma and the National Prosecuting Authority (NPA) concede he should repay.
One solution to the conundrum would be a court order that both removes Abrahams and gives deputy president Cyril Ramaphosa the power to replace him, the civil society organisations suggested.
Putting the deputy president in charge of the appointment would be intolerable, Zuma’s advocate Ishmael Semenya countered. It would mean South Africa has “two Presidents in the country at the same time”. Likewise, Semenya argued, Abrahams can simply not be removed by court order under a Constitution that seeks to protect the NDPP from political interference. Not to mention the fact that if Abrahams is removed he too would have to receive a golden handshake “and now we are back at square one”.
Zuma did not explain how his administration came to pay Nxasana R17-million.