Analysis

The Urgency of Now: ConCourt’s delayed decision on Nxasana’s past and Shaun Abrahams’ future

By Stephen Grootes 16 July 2018

National Prosecuting Authority (NPA) boss Shaun Abrahams during a session with the Portfolio Committee on Justice and Correctional Services in Parliament on Tuesday 24 April, 2018. Photo by Leila Dougan

Within all of the discussions and debates around who holds ultimate political power and whether President Cyril Ramaphosa is “strong” or “weak”, there is a sub-discussion about the levers of power. As President, he has his hands on many of these levers. But not all of them. One of the biggest levers, in an environment as politicised as South Africa’s right now, is some form of control of the National Prosecuting Authority. The reason for that is that the Constitutional Court has still to make up its mind about a case that will have a bearing on whether Advocate Shaun Abrahams was legally appointed to the post or not.

Is it now surely time for the good justices to make up their mind, if only to put the entire nation out of the difficult position of not knowing whether the man entrusted with some of the most important decisions affecting those accused of wrongdoing is at his job legally or not.

It can be difficult to over-estimate the gravity of the decision the court has to make. While it might be strictly a legal decision, just the handing down of the judgment in real terms could hand Ramaphosa substantially more power than he has now. In essence, no matter which way the court goes, it will allow him to embark on a crucially important process of cleaning up the NPA and trying to make a less politicised institution than it has been for the longest time.

It is important at this point to remember that the NPA, since its inception, has been a politicised institution. It was then president Thabo Mbeki who appointed Bulelani Ngcuka as its first head. And we now know it was Ngcuka himself who interfered, illegally it appears, in the timing of the announcement of the decision to charge Jacob Zuma with corruption, just days after he won the ANC’s Polokwane Conference. It’s also important to note that no matter what Ramaphosa does, his critics will claim that he is simply repoliticising it to his own ends.

The crisp issue before the court actually has very little to do with Abrahams and his conduct. While he obviously faces important questions about his role, and why has he appeared to behave in such a political manner, this case is actually about the way his predecessor, Mxolisi Nxasana, left his post.

Nxasana left his office in 2015, after reaching a settlement with Zuma. But as part of that settlement he received the salary he would have received for 10 years on the job as one payment. And thus he entered the record books as the person to receive the biggest payout from government for leaving a job – at over R17-million.

(It may be old history now, but the person who held the record before him was the current EFF’s Dali Mpofu, who was in 2009 paid a then-breathtaking R13.4-million to leave the position of Group CEO at the SABC.)

This decision, the actual payout itself, was challenged by several groups, including Freedom Under Law, Corruption Watch and the Council for the Advancement of South Africa’s Constitution. They won their case in the High Court. Along the way, they also argued that then President Zuma was conflicted, and should not have appointed a new head to the NPA, because he was still to face corruption charges of his own.

Abrahams himself argued that he should be allowed to finish his term and had not done anything to suggest that his conduct demonstrated that he was less than “fit and proper” for the post. Cynics would surely suggest that his decision earlier in 2018 to proceed with the charges against Zuma should be seen in this context.

These groups won their case, with the High Court in Pretoria (that is still its official title, despite ongoing debate about the name of our country’s administrative capital) ruling in NGOs’ favour. But, in any case in which a High Court rules presidential conduct is unconstitutional, the Constitutional Court has to confirm the order.

It is this ruling that is now being waited for.

Thus far, there has been no explanation as to the delay. The case was heard on the last day of February, four and a half months ago. It is a case that is surely critically urgent. Any doubt about the probity of the NPA as a whole, and the people who lead it, surely has implications for how the criminal justice system as a whole is perceived by the general public, and could have an impact on their view of the rule of law. But in this case, it is also going to allow wrong to be perpetuated. As an example, Abrahams has allegedly invited one of his deputies, Advocate Nomgcobo Jiba, to his office. She accepted the invitation, with the result that she may be guilty of contempt of court, because of findings against her in another case.

The other aspect of this case that is slightly odd is that no matter which way it goes, it will allow Ramaphosa to act, to make a decision about the NPA.

First prize for him is if the judges find that the settlement given to Nxasana was unlawful, thus rendering the appointment of Abrahams invalid. This will give him a free hand to appoint his own person to the post. However, if the judges decide that the settlement wasn’t unlawful and that the appointment of Abrahams was valid, it simply means he has to take a harder and longer route to the same end.

In that case, Ramaphosa would always have the power as president to suspend Abrahams. This has happened in the past: Mbeki suspended Advocate Vusi Pikoli as NPA head (unfairly as it turned out, Pikoli was about to arrest then National Police Commissioner Jackie Selebi, who was eventually, in the end, convicted of corruption and protecting drugs dealers). Mbeki then instituted an inquiry chaired by Frene Ginwala into the conduct of Pikoli. This would obviously drag on for several months, perhaps longer.

However, there is another way to go. The NPA Act states that the president may provisionally suspend the NDPP for “misconduct, on account of continued ill-health, on account of incapacity to carry out his or her duties of office efficiently; or on account thereof that he or she is no longer a fit and proper person to hold the office concerned”.

While the Act does mention that there should be an enquiry, it also says that the final decision is made by Parliament. It may be possible for Ramaphosa to short-circuit the process and simply go straight to Parliament. The Act also makes no mention of a special majority, so it would be a simple majority vote. And while the ANC whips might be kept busy, surely the opposition parties would vote in favour of removing Abrahams.

However, the fun could come through what happens in the interim. Under the Act, if an NDPP is absent for any reason, the President has to appoint, in consultation with the Justice Minister, one of the four deputy heads of the NPA to act as NDPP. This obviously limits Ramaphosa’s choices by more than somewhat. At the moment the four deputy heads are Dr Silas Ramaite, Advocate Nomgcobo Jiba, Advocate Nomvula Mokhatla and Willie Hofmeyr.

Of the four, it is most likely that Ramaphosa would prefer Hofmeyr to act as NDPP. This is because Hofmeyr has actively fought against the “capture” of the NPA, while the others (in particular Jiba) are accused of helping or standing idle while Zuma captured the institution). At one point, Hofmeyr even deposed to an affidavit in which he detailed how Abrahams’s conduct “suggests to me there is a systematic pattern of protecting Ms Jiba and others improperly, not just in this case, but in others as well”.

However, there could also be problems with that choice. Whoever heads the NPA after Abrahams is surely going to face public pressure to act as quickly as possible against those who were involved in the State Capture led by the Guptas. Hofmeyr would likely be accused of leading a charge against black people who are being targeted unfairly. The fact that his own track record in being a part of the ANC’s delegation during negotiations over the Constitution suggests he has very different views to conservative white people could be ignored. What will also be ignored is how many of the people involved in this State Capture are not black. If there is one thing that State Capture has taught us, it is that people of all races are happy to work together to corrupt ends; corruption does not not know or see colour, all are equal when it comes to this (Eskom is a prime example of this, Eric Wood, McKinsey, Anoj Singh, Ben Ngubane, Brian Molefe… those who left their leadership positions at KPMG are other examples of how so many people from different backgrounds enabled corruption).

What cannot be in doubt is that the Constitutional Court is clearly conflicted over the issues it has to decide. They are complex and have many implications, even by the standards of the matters it normally hears.

The fact that four of the judges who heard the case were in acting capacities surely doesn’t help things. Neither does a heavy caseload with many other matters outstanding, no doubt all of them urgent to those who lodge them.

But in this matter, there is surely a pressing case for urgency. These issues need to be resolved. The longer this goes on, the more damage can be done to the NPA and the country, the worse the situation can get. DM

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