15 August 2018

South Africa's highest court rules top prosecutor's appointment invalid

Constitutional Court building,Constitution Hill,

Constitutional court points to abuse of power by former SA president in refusing appeal over top appointment.

The South African Constitutional Court has ruled the appointment of the new national director of public prosecutions (NDPP) Shaun Abrahams was constitutionally invalid and has subsequently dismissed his appeal with costs.

Abuse of power

Justice Mbuyiseni Madlanga said the appointment of Mr Abrahams was invalid because the removal of his predecessor, Mxolisi Nxasana, was also constitutionally invalid due to the fact that former president Jacob Zuma ‘bought’ him out of office. Delivering his judgement, he explained, ‘the removal of Nxasana by Zuma was an abuse of power. Advocate Shaun Abrahams is a beneficiary of an abuse of power. It does not matter whether he was part of the abuse of power.’ Last year, the North Gauteng High Court declared that Mr Zuma acted unconstitutionally in terminating former prosecutions boss Mr Nxasana and replacing him with Mr Abrahams. The application was brought to the highest court by civil society organisations who challenged Mr Nxasana's R17 million payout, which he has now been ordered to pay back as it was invalid. The organisations argued that Mr Abrahams’s appointment was a product of Zuma’s unlawful abuse of power from which he sought to personally benefit by minimising his own risk of prosecution.

Fitness questioned

Mr Nxasana was appointed to the position in October 2013 but his fitness to hold office came under question a year later after a breakdown in the relationship with the former president. Mr Zuma instituted a commission of inquiry into his fitness to hold the office, which led to a legal battle, which ended with the R17 million settlement and paving the way for the appointment of Mr Abrahams. Judge Madlanga questioned why Mr Zuma failed to pursue an inquiry into Nxasana but instead abandoned it to pay him a ‘huge amount’ to leave his post. He said, ‘this inference is inescapable’ and undermined the independence of the NPA. Judge Madlanga concluded, ‘for years there has been instability in the appointment of NDPP. The sooner it is brought an end, the better.’