Who will decide on Zuma’s prosecution?

The Constitutional Court has heard arguments that it would be “inappropriate” for the National Director of Public Prosecutions Shaun Abrahams to decide on former president Jacob Zuma’s prosecution, and the court has also questioned the reliability of former NDPP Mxolisi Nxasana to make that decision.

Wim Trengove SC, representing Freedom Under Law, argued in the Concourt on Wednesday that Abrahams should not be allowed to make the decision on whether Zuma should be prosecuted for 18 charges related to the arms deal saga, because he is conflicted.

Trengove also suggested that the prosecuting team that made the recommendations on the Zuma charges to Abrahams may have been compromised.

“Was there an appropriate exercise of power? Was that team appropriately put together? … There are a number of components to that decision which ought not to have been made by Mr Abrahams,” he said in court.

Zuma may have vacated the Presidency, but the long-standing charges of fraud, racketeering, and money laundering have continued to hang over him. In recent weeks, Abrahams has faced consistent pressure to announce that the National Prosecuting Authority will pursue Zuma, but the NDPP has remained quiet. He will reportedly only announce his decision on March 15.

The Concourt is currently hearing Abrahams’s appeal against the Pretoria high court ruling last year that said his appointment as NDPP was invalid.

The high court made the ruling after finding that the removal of Abrahams’s predecessor, Nxasana, was invalid.

Abrahams argued in court papers that the invalidity of Nxasana’s removal does not mean his own appointment was unlawful.

But Freedom Under Law and Corruption Watch, which is also an applicant in the case, have demanded that Nxasana be reinstated as NDPP.

Trengove said that Zuma abused his power when he removed Nxasana, because he simply wanted to get Nxasana out of office and replace him with someone else to avoid being charged. Abrahams, he argued, wasn’t “earmarked” to be Nxasana’s successor, but he was “used” by Zuma as a replacement.

“His [Abrahams] very appointment was the result of the President’s abuse of power,” Trengove said.

A respectable NDPP, Trengove said, would “relinquish” their position if their appointment was the result of an abuse of power.

But Abrahams has shown no sign of being willing to leave. His legal team has yet to present arguments in court, but they are expected to do so later today.

Acting Justice Azhar Cachalia, meanwhile, suggested that if Abrahams cannot make the decision on Zuma’s prosecution then there would be a further delay in the saga. The case has been ongoing for around 15 years and the former president has yet to face the courts.

While Trengove argued that Nxasana should be reinstated to undo the wrong Zuma committed by unlawfully removing him, Justice Cachalia suggested that Nxasana was also not capable of making a fair decision on Zuma’s prosecution.

“Do you understand if Mr Nxasana is reinstated he would also be disqualified from making that decision? He has filed papers in this court calling Zuma an ‘utter liar’,” Cachalia said.

The other NDPP

Nxasana was removed from office in May 2015 after receiving a settlement of R17.3-million. Zuma maintained that Nxasana requested to resign, but Nxasana has accused Zuma of lying.

READ MORE: Zuma and Nxasana’s fates linked

Trengove recounted correspondence in court on Wednesday where Zuma’s lawyer, Michael Hulley, had first tried to offer Nxasana R10-million to leave. Hulley later wrote to Nxasana offering him a “blank” amount of money to get out of office.

According to Trengove, Nxasana refused to leave office when Zuma attempted to “bully” him into going, but he did succumb to the “seduction” of a large sum of public money. Nxasana, Trengove said, told Zuma he would leave on condition he was paid the full amount of his contract.

Eventually, he was paid the R17.3-million settlement, which was an amount equal to the remainder of his salary.

The payment and removal, according to Trengove, was an abuse of Zuma’s power because:

1. Zuma simply wanted to replace Nxasana with another NDPP
2. Zuma violated “prosecutorial independence” as stated in the Constitution and the NPA Act in doing so
3. Zuma “unlawfully used public money to have his way”
4. He used that money and removed Nxasana for his own personal benefit to “minimise the risk of public prosecution”
5. Zuma violated the Constitution by prioritising his own interests, therefore creating a conflict of interest

Justice Cachalia said, however, that Nxasana’s “unlawful solicitation” of public money could be the premise of the case rather than Zuma’s “unlawful seduction” as argued by Trengove.

It remains to be seen who will be the NDPP after the court makes its judgement, but in the meantime neither Nxasana nor Abrahams seem to have inspired confidence that they have what it takes to decide on Zuma’s fate.