Despite President Zuma’s assurance last week that NPA head, Shaun Abrahams will not face an enquiry into his fitness to hold office, his predecessor may nevertheless be about to get his job back.

The North Gauteng High Court will today hear applications by CASAC as well as Corruption Watch & Freedom under Law seeking to set aside the golden handshake of R17m paid to former National Director of Public Prosecutions (NDPP), Mxolisi Nxasana in May 2015. Nxasana had been appointed in October 2013 after CASAC had brought an application in the Constitutional Court ordering President to make a permanent appointment – Nomgcobo Jiba had been Acting NDPP for over 18 months after Menzi Simelani’s appointment was declared irrational by the Constitutional Court.

In May 2015, facing an enquiry into his fitness to hold office, Nxasana entered into an agreement with the President to vacate office on payment of the generous gratuity. The Enquiry had been abandoned at the 11th hour by the President without explanation. Shortly after his appointment it was alleged that Nxasana did not have security clearance due to a criminal history – he had been acquitted of murder many years previously. This alleged failure to disclose his brushes with the law formed the basis of the enquiry. Nxasana later received the security clearance.

CASAC will ask the court to order that Nxasana return to his office as NDPP, repay the R17m, and that President Zuma not be allowed to take any decisions regarding the NDPP whilst criminal charges are pending against him in the courts. We will argue that the settlement agreement is unlawful, irrational and was taken for an ulterior purpose (to protect Jiba and Lawrence Mwrebi as well as Richard Mdluli who should have been prosecuted by them).

We contrast the President’s attitude towards Nxasana with his inaction against Jiba, Mwrebi and Sibongile Mzinyathi whose ethical conduct and honesty has been questioned by the courts. We argue that it was precisely because Nxasana sought to take action against these 3 top officials that he was removed. Even after Jiba and Mwrebi were stuck off the roll of advocates by the court, the President has failed to even suspend them; they are on ‘special leave’ pending their appeal. The President states in his reasons that Nxasana requested to leave office but provides no proof of this, and indeed Nxasana denies that he did so. The President has also been caught out in not initially disclosing to the court the full correspondence with Nxasana’s attorney which reveals the negotiations surrounding his departure – this largely focused on the quantum of the payment.

Nxasana has now filed an affidavit in which he categorically states that he did not request to resign, that he considers himself fit and proper to carry out his functions as NDPP and wishes to resume office. The President’s contradictory approach is revealed in the settlement agreement where he confirms that Nxasana possesses the conscientiousness and integrity to hold such a position. Indeed Nxasana’s alleged request to resign does not find any expression in the agreement. The President has been blind-sided by Nxasana’s affidavit which he clearly did not anticipate.

However even if Nxasana made the request to leave, the settlement agreement is unlawful as it strikes at the independence of the NPA and is beyond the prescripts of the law. The NPA Act protects the independence of the NDPP by providing security of tenure – a ten year non-renewable term of office and limited grounds on which an incumbent can be removed from office, being misconduct, incapacity, ill health or otherwise no longer being fit and proper. Even then such grounds must be established by a formal enquiry and confirmed by Parliament. While s.12(8) of the NPA envisages a resignation by the NDPP it must be for ill health or another reason deemed satisfactory by the President, and must provide six months’ notice. If these criteria are met the NDPP would be granted a normal pension payment due to a public servant. The settlement agreement clearly does not fall within the ambit of s.12(8). The R17m paid to Nxasana represents the remuneration he would have received had he completed his ten year term of office.

Once the President has initiated an enquiry into the fitness of the NDPP it cannot be substituted by another process to achieve the same objective. It should be concluded so that the public can have confidence in the suitability of the NDPP to hold office. Nxasana himself wanted the opportunity to clear his name. A resignation in these circumstances will raise suspicions about its motive as it has done in this case. It becomes a mechanism to remove an NDPP from office when no lawful reason for that removal exists.

It is evident that golden handshakes are being used to either force out of office persons who are doing their jobs well but in a manner that inconveniences their political principals, or to get rid of persons who deserve to be fired but a disciplinary inquiry or prosecution is not pursued. Neither are legitimate actions; it merely constitutes corruption by another name. CASAC will also argue that the President would be conflicted in appointing a new NDPP because of the potential criminal charges he faces – he would be tempted to appoint someone who is less likely to reinstitute the charges relating to fraud, corruption and racketeering. We propose that such power should therefore be exercised by the Deputy President.

The order we seek is for the court to direct Nxasana to repay the R17m and resume his position as NDPP, or direct the Deputy President to appoint a new NDPP, with Abrahams serving as Acting NDPP until that appointment is made. The President now concedes that Nxasana was not entitled to the R17m and that it should be repaid. We propose that the court declare that Nxasana is the incumbent NDPP as his departure was unlawful and must be set aside. Nxasana has confirmed that he is willing and able to resume his duties. His reinstatement will furthermore restore public confidence in the independence of the NPA, which has deteriorated under Shaun Abrahams tenure. The failure to reinstate Nxasana would set a dangerous precedent; a President may again unlawfully remove an NDPP and then claim that such a removal could not be undone. Any prejudice to Abrahams is trumped the greater need to restore the independence and integrity of the NPA.

Although Nxasana had in 2014 sought to reassure the President that he was not about to reinstate charges against him, the recent ruling of the Supreme Court of Appeal (SCA) that the decision by Mokotedi Mpshe to drop the charges in April 2009 was indeed irrational changes things. Should Nxasana return as NDPP he would have to apply his mind in terms of the SCA judgment. This is not a scenario that Zuma would have anticipated, and is one that might just be causing him some anxiety. The wheels of justice may turn slowly, but so long as the rule of law is respected, they do turn.