adminJOHANNESBURG. – Shaun Abraham’s appointment as national director of public prosecutions by former president Jacob Zuma has been declared invalid by the Constitutional Court, which ruled he must vacate the office at the National Prosecuting Authority immediately.
Justice Mbuyiseli Madlanga, who handed down judgment yesterday morning in Johannesburg, also said that the termination of Abrahams’ predecessor and subsequent “golden handshake” recipient, Mxolisi Nxasana, was also invalid.
The court also ruled that Nxasana would have to pay back R10 240 767.47.
This declaration upholds the North Gauteng High Court’s judgment on December 8 2017 that declared Zuma’s actions with regards to the director of public prosecutions as unconstitutional.
In December, Judge President Dunstan Mlambo ruled at the North Gauteng High Court: “In our view President (Jacob) Zuma would be clearly conflicted in appointing a director of public prosecutions considering the background of this case and the spectre of allegations against him.”
The Constitutional Court also declared sections of the National Prosecuting Authority Act that deal with the director of public prosecutions’ term of office and indefinite suspension as constitutionally invalid.
In May 2015 Nxasana was given R17.3 million to leave office by former president Zuma and was replaced by Abrahams. “The majority held that since Nxasana’s vacation of office was invalid, it follows that the appointment of Advocate Abrahams was also constitutionally invalid,” the court said.
This was on the basis that “no director of public prosecutions will be entitled to benefits that exceed those to which they would ordinarily be entitled under section 12(8) [of the NPA Act].”
The Constitutional Court then considered if it would be acceptable for Nxasana to take up his former position. The majority of the judges declared that “the resumption of office by Mr Nxasana would not be just an equitable.”
This, the judges reasoned, was “that the conduct of Mr Nxasana in his willingness to vacate office if he was paid the right “price” is not conduct that befits an director of public prosecutions.”
Since both Abrahams and Nxasana cannot constitutionally hold office as head of public prosecutions, President Cyril Ramaphosa was required to appoint a new director of public prosecutions within 90 days.
It was also confirmed that any decision and acts performed by Abrahams “in his official capacity will not be invalid”. – City Press
Online Reporter