Concourt: Abrahams out, Nxasana to pay back the money

On Monday, the court ordered that Ramaphosa appoint a new NDPP within 90 days of its order. (Oupa Nkosi/M&G)

On Monday, the court ordered that Ramaphosa appoint a new NDPP within 90 days of its order. (Oupa Nkosi/M&G)

The Constitutional Court ruled on Monday that the termination of Mxolisi Nxasana as the National Director of Public Prosecutions (NDPP) was unconstitutional, thus sealing the fate his successor, Shaun Abrahams.

Abrahams — in his capacity as NDPP — appealed the December 2017 ruling by the Pretoria high court which would have had Abrahams vacate his position in favour of Nxasana. The appeal was heard by the Constitutional Court in February.

In a majority judgment, the country’s highest court confirmed the high court’s order that the terms in which the former NDPP left office were constitutionally invalid. Also in accordance with the high court’s decision, the appointment of Abrahams in Nxasana’s stead was declared invalid.

Though the Constitutional Court upheld the high court’s order, the judgment found that the high court was wrong not to consider Nxasana’s evidence about his removal, because it was filed too late.
Nxasana’s appeal was upheld and his explanatory affidavit admitted.

Following the judgment, Nxasana said he felt vindicated by the court’s order.

“It’s a sigh of relief for me. I am vindicated. The high court made findings about me without hearing me and today I am glad that their decision has been set aside.”

[Former NDPP Mxolisi Nxasana. (Paul Botes/M&G)]

In his judgment, Justice Mbuyiseli Madlanga said it is an imperative of the court to ensure the independence of the National Prosecuting Authority (NPA).

“The importance of the office of the NDPP in the administration of justice is underscored and amplified by no less an instrument that the Constitution itself,” Madlanga explained.

Madlanga added that it would not be in the interests of stability at the NPA for Nxasana to be reappointed into his position, as he may well face an inquiry into his fitness to hold office for accepting a “golden handshake” worth R17.3-million from former president Jacob Zuma.

Nxasana was ordered to pay back R10 240 767.47 of the golden handshake as that was the amount paid to him. The other R7-million was retained by the state as income tax.

Timeline of events

In June 2014 — following internal conflict within the senior leadership of the NPA — Zuma took a decision to institute a commission of inquiry into Nxasana’s fitness to hold office and informed him that he would be suspended pending the outcome of the inquiry. 

In February 2015, a commission of inquiry was formally appointed.  However, a settlement was eventually reached between Zuma and Nxasana, and the latter vacated his position as NDPP in May 2015, with the R17.3-million settlement.In December 2017, the high court ordered Nxasana to pay back the R17.3-million paid to him, while Abrahams was ordered to vacate his office. President Cyril Ramaphosa, who was Zuma’s deputy at the time, was ordered to appoint a new NDPP.

Before stepping down as president in February this year, Zuma had joined the appeal against Abrahams’s dismissal. But the case was dropped after Ramaphosa assumed the presidency.

Abrahams’s appeal had stalled this process and it was revealed in June this year that Ramaphosa was waiting for the court’s judgment on Abrahams before making a decision.

On Monday, the court ordered that Ramaphosa appoint a new NDPP within 90 days of its order.

Sarah Smit

Sarah Smit

Sarah Smit both subs and writes for the Mail & Guardian. She joined the M&G after completing her master’s degree in English Literature from the University of Cape Town. She is interested in the literature of the contemporary black diaspora and its intersection with queer aesthetics of solidarity. Her recent work considers the connections between South African literary history and literature from the rest of the Continent. Read more from Sarah Smit

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