The Constitutional Court has reserved judgement in the matter where National Director of Public Prosecutions has appealed a ruling by the Pretoria high court ordering him to vacate office.
Hilton Epstein SC, representing Abrahams, argued that the high court was wrong last year to declare his appointment invalid after finding that his predecessor, Mxolisi Nxasana, was not lawfully removed from the post in May 2015.
Epstein said that Nxasana had agreed to a settlement of R17.3-million to resign from office in 2015, and therefore the position of NDPP was vacant at the time Abrahams was appointed.
Epstein maintained that the settlement was unlawful, but said that it was nevertheless an agreement Nxasana had negotiated with former president Jacob Zuma to leave office.
Abrahams came under scrutiny in the court for his own reliability to make a decision on whether Zuma should be prosecuted for charges related to the arms deal. Zuma faces 18 charges where he is accused of fraud, money laundering, and racketeering.
Abrahams has made a decision in the matter but will reportedly only make an announcement on March 15.
Freedom Under Law (FUL), Corruption Watch, the Helen Suzman Foundation (HSF) and the Centre for the Advancement of the South African Constitution (Casac) have argued that Abrahams cannot be trusted to make a decision because he has been compromised.
“His [Abrahams] very appointment was the result of the President’s abuse of power,” Wim Trengove SC, representing FUL, said in court on Wednesday.
Nxasana, meanwhile, has conceded that the payment he received was unlawful, but said that he understood it was a settlement to pay out the remainder of his contract and resolve legal disputes that were ongoing against him.
If the court has the power to prevent Abrahams from making the decision on the Zuma prosecution, then lawyers have conceded it may take another year for a decision to be made. A new prosecutions team will have to be appointed to investigate the matter and make recommendations to a new NDPP.
The Concourt will now have to decide if Abrahams’s and Nxasana’s legal teams have made convincing arguments in their appeals and if either of them deserve to have an opportunity to return to the NDPP post. The other alternative is that the court may direct President Cyril Ramaphosa to made a decision on who should be NDPP, following the same course as the Pretoria high court.