In November now outgoing national director of public prosecutions Shaun Abrahams told the high court in Pretoria that it would be unfair to remove him as the head of the National Prosecuting Authority (NPA) because he had done nothing to deserve that.
President Jacob Zuma agreed. Kicking Abrahams out would set up an absurd situation where he would have to be paid a “golden handshake”, Zuma’s counsel told the court.
But on Friday the court said Abrahams is not just collateral damage to an unlawful deal struck between Zuma and Abrahams’s predecessor Mxolisi Nxasana – but that Abrahams’s own conduct was unbefitting the position.
When Abrahams joined with Zuma to fight the challenge to Nxasana’s removal, he “associated himself, inconsistent with the imperative of prosecutorial independence, on all material issues with the position of the president” the court said in its judgment.
At the same time, he failed to accept a high court judgment pertaining to his disgraced deputy Nomgcobo Jiba and defended her in a manner that suggested he cared more about where complaints against her had come from than the nature of the complaints.
While the court went nowhere near a finding that Abrahams is not fit to hold the office, it did note that what it sought was “a result that underscores the imperative of non-interference in the independence of the NPA and its national director”.
As a result, the court gave Deputy President Cyril Ramaphosa until February to appoint somebody in Abrahams’s place. If Ramaphosa fails to make such an appointment by that deadline, Abrahams would lose his job in any event.
In terms of the judgment – which Zuma on Friday indicated he would appeal before even receiving a full briefing on it – the next national director will be in a stronger position than any who have come before. It can not be that a president can be suspended the prosecutions head indefinitely without pay, the court said, so it effectively rewrote the law. Henceforth such a suspension will be possible for a maximum of only six months, and must be with full pay.
“If the office of the NDPP is to stand alone, apart from and independently of the Executive, Parliament and the Courts, in service only of the Constitution and the rule of law, then its independence must be real, and must be supported by a statutory structure that protects the office from outside pressure of any kind,” read the judgement.
The court found that though Zuma and Nxasana may not have intended to respectively bribe and be bribed, both showed a reckless disregard for the law when Zuma used R17.3 million in public money to get Nxasana to leave his office.
Nxasana, the court found, held out until he got his exorbitant price, and Zuma was prepared to pay that price. Neither could be rewarded for such actions, so Nxasana could not be allowed to return to the job even though his removal had not been valid, and Zuma could not be allowed to keep his appointee Abrahams in the job, or appoint a different successor.
In the 10 years of the Zuma administration, during which he faced the threat of a corruption prosecution, South Africa had ten permanent NDPPs. Each had been due to serve a 10-year term.