/ 19 January 2018

NPA appeal papers: This is what Shaun Abrahams said

The NPA under Shaun Abrahams is essentially asking the appeal court to overrule its own decision
The NPA under Shaun Abrahams is essentially asking the appeal court to overrule its own decision

National Director of Public Prosecutions Shaun Abrahams has argued that at no time during court proceedings was it suggested by the applicants that he acted improperly or that he is not a fit and proper person to occupy his position.

Abrahams and the National Prosecuting Authority (NPA) on Friday filed an appeal with the Constitutional Court against a ruling by the North Gauteng High Court in Pretoria that his appointment was invalid.

According to Abrahams’ answering affidavit, he contested the High Court’s finding that there was no vacancy which resulted in his appointment.

This was after the court found that former NDPP Mxolisi Nxasana had not requested to vacate the office, but was persuaded by the “unlawful payment of an amount of money substantially greater than that permitted by law”.

Abrahams disputed that the invalidity of the settlement meant there was in fact, no vacancy.

He said in his affidavit that he was appointed after the termination of the acting appointment of Dr Silas Ramaite, who served in that capacity immediately after Nxasana left.

The fact that Nxasana did not comply with transitional arrangement regulations when he left office, did not mean his employment was not terminated, Abrahams argued further.

Not aligned with Zuma

Abrahams also contested the court’s criticism of his conduct after it found he had associated himself “on all material issues” with the position of President Jacob Zuma, that he had attacked certain submissions of the applicants in strong language, and that he questioned judgments in which the conduct of former NPA deputy director Nomgcoba Jiba and other prosecutors were criticised.

He expounded that he had not aligned himself with Zuma.

Additionally, Abrahams said he did not have any involvement in the settlement agreement or termination of Nxasana’s employment and would not comment on the facts surrounding it.

Abrahams also denied that he had attacked certain submissions made by the applicants with strong language.

He said that when, for example, he referred to the relief sought being unmeritous, illogical, incompetent and amounting to an absurdity, this was directed at the relief sought and not at the applicants.

On the court’s finding that him remaining in office would put Zuma in a position “even better than what he had wanted all along – being rid of Mr Nxasana… and with Adv Abrahams in the saddle”, Abrahams said these were inferences that were unsupported on the record.

“There is no allegation – let alone any evidence – that the president entered the impugned agreement with Mr Nxasana with a mind to installing me as NDPP. It is simply not true that I was the intended beneficiary of the conduct that led to Mr Nxasana’s departure,” he submitted.

“Not only did the applicants fail to suggest that I acted improperly or that I am not a fit and proper person to occupy this office, they expressly denied that they wished to impugn my fitness.”

FUL, Corruption Watch, Casac ConCourt application by Christine Rupiah on Scribd

He said he and the NPA argued in their appeal that the court had erred in declaring that Zuma may not appoint, suspend or remove the NDPP.

“It rejected my argument that the appointment powers of the president are in any event constrained by the need to act with the concurrence of the Cabinet (in which the deputy president serves). The court also erred in dismissing the point that the appointment of judicial officers – and indeed Mr Nxasana himself – would be open to question, if all similar appointments in which the president plays a dispositive role are open to questions,” he said.

“I reiterate that it was unfair of the court to find that my taking issue with the applicants’ arguments on this score rendered it just and equitable that I be removed from office – especially bearing in mind that the applicants argue vigorously that my initial appointment by President Zuma in 2015 was itself invalidated by virtue of the purported conflict.”


The NPA’s application follows Zuma’s notice of appeal to the Constitutional Court on Thursday.

The president’s papers state that the grounds for the appeal include that the court erred in holding that Zuma, who was found to be “conflicted”, was unable to perform his powers as president in terms of appointing an NDPP, but that he was able to perform his other functions as president. This was a position not authorised by the Constitution.

“The court a quo erred in law in holding to be constitutionally permissible to have two presidents in the country at the same time and both exercising presidential powers,” the papers read further.

Zuma’s pending corruption case resulted in him being “conflicted” in appointing an NDPP, Gauteng Judge President Dunstan Mlambo ruled.

The ruling stated that Deputy President Cyril Ramaphosa must appoint a new NDPP within next 60 days.

The court at the time further ruled that it would not be just for Nxasana to be reinstated.

Freedom Under Law, Corruption Watch and the Council for the Advancement of the South African Constitution (Casac) had gone to court seeking an order declaring Nxasana’s removal invalid.

Nxasana accepted a golden handshake from Zuma worth R17.3-million and left the NPA in 2015. – News24