Opinionista Tseliso Thipanyane 27 August 2018

The implication of the Constitutional Court’s Nxasana decision for independent statutory bodies

What is worrying about the termination of Mxolisi Nxasana’s appointment as the National Director of Public Prosecutions, and surrounding incidents and circumstances, is the flagrant disregard for the rule of law and the independence of the National Prosecuting Authority by former president Jacob Zuma and his advisers and the implications for other independent constitutional bodies such as the South African Human Rights Commission and other Chapter 9 bodies.

The recent decision of the Constitutional Court in Corruption Watch NPC and Others v President of the Republic of South Africa and Others where the court, among others, declared that the termination of Mxolisi Nxasana’s appointment as the National Director of Public Prosecutions by former President Zuma was unconstitutional, has raised several issues that have important implications for the rule of law and independent statutory bodies such as the South African Human Rights Commission.

In terms of section 179 (4) of the Constitution of the Republic of South Africa, Parliament is required through appropriate legislation to ensure that the prosecuting authority exercises its functions without fear, favour or prejudice.

In this regard, the preamble of the requisite legislation and section 32(1) (a) of the National Prosecuting Authority Act 32 of 1998 (NPA Act), makes reference to the need and importance of the prosecuting authority and all its officials to exercise its functions without fear, favour or prejudice. This requirement is also what the Constitution requires from all independent state institutions established to support and strengthen constitutional democracy, the so-called Chapter 9 bodies comprising the South African Human Rights Commission, the Public Protector, the Auditor-General and others as per section 181 of the Constitution.

Under the NPA Act, the National Director of Public Prosecutions, who is appointed for a non-renewable term of 10 years and who has to “be a fit and proper person with due regard to his/her experience, conscientiousness and integrity”, can only vacate his or her office on three grounds.

These are:

  • removal from office by the President upon confirmation by Parliament for acts of misconduct, ill-health, incapacity or not being fit and proper to hold the office;

  • attainment of the retirement age of 65 years and;

  • voluntary resignation.

In the case of Nxasana, the Constitutional Court found that the circumstances that led to his relinquishing his office after a R17.3-million (before tax) settlement payment made to him, were unconstitutional and invalid. Minister of Justice and Correctional Supervision Michael Masutha and former President Zuma signed a settlement in this regard on 14 May 2015.

Before this settlement, now declared invalid, former President Zuma had, within nine months of Nxasana’s appointment on 1 October 2013, expressed his intention to hold an inquiry into his fitness to hold office as the National Director of Public Prosecutions. The basis for this inquiry was among others, Nxasana’s previous criminal conviction for violent conduct and comments made by him deemed to be inappropriate and that had the effect of bringing the National Prosecuting Authority into disrepute.

However, the failure by former President Zuma to provide sufficient information on the grounds for the inquiry that resulted in Nxasana approaching the High Court in this regard, put an end to the inquiry and signalled the start of settlement discussions at the instance of the former president for Nxasana to vacate his office – a settlement which at one point allowed Nxasana to determine the settlement amount he would want to be paid in order to leave.

This inquiry, if it had taken place and its objectives confirmed, would have led to Nxasana’s removal from office and would have raised questions about the effectiveness of the appointment process for such a key institution for our democracy, the rule of law and the country’s criminal justice system.

What is worrying about this case and surrounding incidents and circumstances, is the flagrant disregard for the rule of law and the independence of the National Prosecuting Authority by the former president and his advisers, and implications for other independent constitutional bodies such as the South African Human Rights Commission and other Chapter 9 bodies. The disregard of the decisions of our courts, especially those of the Constitutional Court, passed prior to attempts by the former President and his advisers to remove Nxasana from office, is also a concern.

The need and importance of respecting the independence of autonomous constitutional bodies was stated by the Constitutional Court in 1996 in Ex Parte Chairperson of the Constitutional Assembly: In Re Certification of the Constitution of the Republic of South Africa, 1996 (4) SA 744 (CC)

There is… a constitutional guarantee of independence, and any legislation or executive action inconsistent therewith would be subject to constitutional control by the courts (para 146),” the Constitutional Court said. In this regard, the constitutional and statutory requirement for any officer bearer in the National Prosecuting Authority, and in any other independent constitutional and statutory body, to act without fear, favour or prejudice, is a crucial guarantee of such independence and for an effective and lawful functioning of all independent bodies.

In the case of the National Prosecuting Authority and in the words of the Constitutional Court, an office bearer who does not act without fear, favour or prejudice in the execution of his or her duties and powers would result in a National Prosecuting Authority that is “malleable, corrupt or dysfunctional” – a situation that would severely undermine the effectiveness of the National Prosecuting Authority in the fight against crime and in holding powerful individuals in our country to account.

This situation would also open the National Prosecuting Authority, as the Constitutional Court rightly observed, to political manipulation that could result in the National Prosecuting Authority being used for a political agenda. This situation would apply to other independent constitutional bodies in the exercise of their different constitutional mandates.

The attempt by the former president and his advisors to undermine the independence of Nxasana in his capacity as the National Director of Public Prosecutions and the National Prosecuting Authority and prevent him from doing his work without fear, favour or prejudice, was not only unconstitutional but was clearly an attempt to undermine the effectiveness of the National Prosecuting Authority in fighting crime in our country.

This conduct by the former President was also a breach of his oath of office, requiring him to uphold our constitution and laws of the country – the Constitutional Court found the conduct to amount to an abuse of power by the President. In this regard, section 32(1)(b) of the NPA Act states:

Subject to the Constitution and this Act, no organ of state and no member or employee of an organ of state nor any other person shall improperly interfere with, hinder or obstruct the prosecuting authority or any member thereof in the exercise, carrying out or performance of its, his or her powers, duties and functions.”

The conduct of the former president was certainly in breach of this provision, which incidentally, also constitutes a criminal offence and carries a sentence of imprisonment up to 10 years and or a fine.

While there could be some sympathy for Nxasana in view of the circumstances leading to his removal from office, it is a pity that he allowed himself to be pressurised by the former president and his advisers to not only undermine his own oath as the National Director of the National Prosecuting Authority but also breach the constitutional and statutory provisions pertaining to him having to conduct himself without fear, favour or prejudice. His conduct in this matter, might also, like that of the former President and his advisers, constitute an offence under the NPA Act.

This case, despite the sad conclusion that Nxasana should repay the sum of R10,240,767.47 paid to him for his departure from the National Prosecuting Authority, while not being re-instated to his original post immediately (the President has 90 days to appoint a new National Director of Public Prosecutions), should serve as an important warning to office bearers and staff in independent constitutional bodies of the need and importance of carrying out their functions and exercising their powers without fear, favour or prejudice.

The case also serves as a warning to the state, members or employees and members of the public, of the consequences of not respecting the independence of independent constitutional bodies and of improperly interfering with them or their members and staff or hindering them or obstructing them in their work.

The Constitutional Court has indicated that this interference, while not exhaustive, entails intimidation, improper promises or inducements and corruptly influencing the decision-making or functioning of these bodies. In relation to the conduct of Nxasana in this regard, Madlanga J, on behalf of the majority of the Court, said (at para 85):

Effectively, although Mr Nxasana strongly protested his fitness for office, he was saying he was willing to be bought out of office if the price was right. As much as I sympathise with him, I do not think that is the reaction expected of the holder of so high and important an office; an office holder of which – if she or he is truly independent – is required to display utmost fortitude and resilience. Even allowing for human frailties – because Mr Nxasana is human after all – I do not think the holder of the office of National Director of Public Prosecutions could not reasonably have been expected to do better. His conduct leads me to the conclusion that a just and equitable remedy is not to allow him to return to office.”

We will unfortunately never know whether this is a sad end to what might have been an important appointment for the National Prosecuting Authority or a lucky escape for the organisation. DM

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