Mxolisi Nxasana’s legal team has conceded that he made a mistake in accepting R17.3-million to leave his position as National Director of Public Prosecutions (NDPP) in 2015, but maintains that Nxasana did not take a bribe.
In the Constitutional Court on Wednesday, none of the applicants nor the respondents challenged that the payment Nxasana received to leave office was unlawful.
The Concourt was hearing appeals from both current NDPP Shaun Abrahams and Nxasana against the Pretoria high court’s 2017 ruling, which said Nxasana’s removal was invalid and Abrahams’s appointment was therefore also invalid.
Nxasana’s lawyer, Advocate Michelle le Roux, argued in court that the payment was a settlement package Nxasana “negotiated” with former president Jacob Zuma to resolve litigation disputes.
“What they’re settling is all claims whatsoever arising out of his employment as NDPP. This is simply not a bribe. This is a settlement of all these disputes … after every single door was closed in my client’s face,” le Roux said.
Le Roux rehashed how Nxasana was facing a commission of inquiry into his fitness to remain in office, and an “acrimonious” court dispute with Zuma. She argued that Nxasana resisted Zuma’s attempts to remove him from office, but agreed to leave if the remainder of his contract was paid because he was “entitled” to it. The settlement, le Roux said, was also “part of negotiations to resolve” the disputes.
But she also conceded that the agreement – which led to Nxasana leaving the NDPP’s office – was unlawful.
“It’s common cause that settlement agreement was unlawful and must be set aside,” she said.
Nxasana was also in attendance on Wednesday, where he sat next to deputy NDPP Willie Hofmeyr. A smiling Nxasana said that he could not comment on the merits of the case, but his legal team has argued that he should be allowed to be reinstated because it would remedy the invalidity of his removal.
Justice Mbuyiseli Madlanga and acting Justice Azhar Cachalia both pointed out that Nxasana asked for a sum of money to leave his position, and therefore benefited from an unlawful deal.
Cachalia said that Nxasana had chosen to “abandon” the National Prosecuting Authority (NPA) when he knew that his leadership was being undermined and that there was political interference from then President Zuma’s office.
Le Roux argued that with the commission of inquiry, ongoing litigation, and subordinates who were “whispering” to Zuma, Nxasana had little choice but to leave instead of signing on for another 8 years in office.
Cachalia challenged Le Roux, saying that Nxasana should have seen his court battle against Zuma through instead of accepting an unlawful agreement to the tune of R17.3-million in public funds.
Three of the applicants in the case – Freedom Under Law (FUL), Corruption Watch, and the Helen Suzman Foundation (HSF) – have argued that Nxasana should be reinstated.
The Council for the Advancement of the South African Constitution (Casac), however, says that it wants a new NDPP in charge who does not have any history with Zuma or the case.
Speaking to the Mail & Guardian outside the court during an adjournment, HSF director Francis Antonie explained that Nxasana should be reinstated because the only reason Zuma wanted him gone was to avoid prosecution for the arms deal charges.
But Hilton Epstein SC, representing Abrahams, said that when the Democratic Alliance launched an application in 2009 to review the NPA’s decision to withdraw the charges against Zuma, Nxasana opposed the DA’s case.
Nxasana has offered to repay the R17.3-million, but Epstein argued that he has had two years to make the repayment and has yet to do so.
The explanation that didn’t make it to court
Last year, Nxasana submitted a late affidavit to the Pretoria high court claiming that the settlement was for the remainder of his contract and litigation. The court did not accept his affidavit, because it would not accept his reasons for a late submission.
On Wednesday, Le Roux argued that Nxasana only knew of the court case at a late stage. She said that Zuma’s lawyer, Michael Hulley, had promised to send the president’s affidavit to Nxasana.
Hulley, according to le Roux, asked Nxasana what his attitude would be towards the case, and when he responded saying he did not ask to resign, documents proving he did not request a resignation were stolen from his attorney’s office.
In court papers, Nxasana has referred to Zuma as an “utter liar” for suggesting that he requested to leave. Justice Cachalia said that this submission would disqualify Nxasana, if he became NDPP, from making a decision on if Zuma should be prosecuted.
But Casac have argued that neither Abrahams nor Nxasana should be in charge of the NPA.
Geoff Budlender, representing Casac, said that President Cyril Ramaphosa could make a decision on who to appoint as the next NDPP.
“It would be extraordinary if Mr Ramaphosa had not already given thought as to who he would appoint,” Budlender said.
With suspicion against both Abrahams and Nxasana, the Concourt is faced with an option to leave the new president of the country to appoint an NDPP.
Last week, an appeal by the Presidency filed under Zuma’s administration, against the Pretoria high court order that the deputy president, then Ramaphosa, to decide on a new NDPP, was withdrawn by President Ramaphosa.
Acting spokesperson in the presidency Tyrone Seale said that Ramaphosa had withdrawn the appeal because it had been rendered “moot” since he is now president.