You have to admire the lawyers who represent President Jacob Zuma and the national director of public prosecutions (NDPP), Shaun Abrahams.
The ink was scarcely dry on the paper of a lengthy and carefully constructed judgment declaring, most significantly, that Abrahams had not been validly appointed to the position of head of the National Prosecuting Authority and that a new appointment had to be made by the deputy president, when it was announced by both affected parties that, on strong legal advice, they would be appealing the judgment.
Within 48 hours, the ANC Youth League and Minister of Social Development Bathabile Dlamini had added their considerable jurisprudential weight (in the latter case, a knowledge doubtless sourced in her conduct during the South Africa Social Security Agency case) about why the judgment was an overreach, and thus legally wrong.
Do they have a plausible argument? To answer this question a brief recourse to the facts that confronted the high court in Pretoria is necessary.
In July 2014, less than a year after his appointment as NDPP, Mxolisi Nxasana was informed that the president intended to hold an inquiry into his fitness for office. This was ostensibly because Nxasana had failed to disclose that he had been charged with a serious criminal offence, though never convicted, but more likely because he had shown independent conduct as NDPP.
Within a year from that date, he and the president had entered into a settlement agreement in terms of which he agreed to relinquish his post in exchange for R17-million. Following this outlay, Abrahams assumed office.
That most admirable of nongovernmental organisations, Corruption Watch, launched an application to set aside the Nxasana settlement agreement. Before the court, even the president’s legal team conceded that the agreement was illegal because there was a clear constitutional procedure to remove an NDPP and, furthermore, Nxasana was not legally entitled to such a payout.
Significantly, the high court was critical of the repeated practice of the president in yet again litigating until the court heard the case and then abandoning his arguments.
Once the agreement by which Nxasana “relinquished” his post was held to be illegal, only two questions remained: What to do about Abrahams? And, if the latter was not legally in the post, what then was to be done?
It surely stands to reason that once, there was no legal vacancy of the position of NDPP, Abrahams could not have been lawfully appointed. So why not reinstate Nxasana?
The court found that because Nxasana had been a party to an illegal agreement from which he had received considerable financial benefit, it would be wrong to reinstate him. Here one should spare a thought for Nxasana: he was subjected to intense pressure from the president and legal advisers. He offered to pay back the money and, more importantly, the court refused to hear his side of the story because it did not admit his affidavit or allow him to put his version before court.
If Nxasana was not to be reinstated, why not allow Abrahams, who has not been found by a court to be unfit and improper, to hold the office of NDPP? Two key reasons were offered by the court. In the first place, to allow Abrahams to continue in office at the expense of Nxasana would create the very result that the president contrived to achieve without recourse to legality. Second, Abrahams’s “conduct in this litigation and previous cases did not impress the court. In both this case and the Spy Tapes case he had enthusiastically embraced the line adopted by the president even if in both cases that line was abandoned by the president for want of a legal basis. To the court this hardly reflected the conduct of an independent NDPP.”
That leads to the second issue. If the post is legally vacant, who makes the next appointment?
Given that the president is a man under criminal charge as a result of a decision of the Supreme Court of Appeal, how could it be possible to give such a person the right to appoint the NDPP, who must, in turn, decide whether to accept his representations or to proceed to criminal trial? To order that the deputy president must make the decision is unusual, but surely far less an affront to legality and the constitutional values of accountability and transparency than to allow a person under criminal charge to make a decision on the office of his prosecutor.
Viewed accordingly, the judgment of the high court is neither an overreach of judicial powers nor the commission of a legal mistake. Rather, it represents the courts asserting the supremacy of the Constitution and its values.