Mxolisi Nxasana may soon be on Zuma’s case
National Director of Public Prosecutions (NDPP) Shaun Abrahams, who has been accused of dragging his feet in prosecuting those accused of state capture, could be out of office sooner than he expected.
Abrahams’s fate depends on whether his predecessor, Mxolisi Nxasana, gets the job back. The issue is at the heart of a case to be heard in the High Court in Pretoria this week.
If the court grants an order sought in a review application by Corruption Watch, Freedom Under Law and the Council for the Advancement of the South African Constitution, the settlement under which Nxasana left office in 2015 will be set aside.
Nxasana would have to pay back a R17m golden handshake but he will be back in the post.
The court must determine who has lied under oath, as the president claimed Nxasana requested to leave
Nxasana left the National Prosecuting Authority (NPA) less than two years into his term as NDPP, after President Jacob Zuma initially indicated that he would establish a commission of inquiry to establish if he (Nxasana) was fit and proper to hold office.
In his answering affidavit, Zuma said he had discussions with Nxasana about the discord in the NPA in the lead-up to the settlement, especially between Nxasana and senior managers.
Nxasana had obtained a legal opinion which suggested that disciplinary action be taken against deputy NDPP Nomgcobo Jiba, head of the specialised commercial crimes unit Lawrence Mrwebi and Sibongile Mzinyathi, director of public prosecutions in Gauteng.
Freedom Under Law and Corruption Watch stated that just as Nxasana obtained the legal advice against the senior state advocates, the president took steps to remove Nxasana.
The inquiry into Nxasana was abandoned, and in the settlement it was declared that Nxasana was fit and proper.
This week the court will have to determine who has lied under oath, as the president claimed in court papers that Nxasana requested to leave the office, while Nxasana claims he did not do so.
Freedom Under Law and Corruption Watch said the only sensible inference on the pay-out of Nxasana’s salary for his full term in office was that "Nxasana was paid to leave office despite the fact that there was no justification for it".
Nxasana was silent on his version until he deposed a bombshell affidavit earlier in 2017. The crux of it was direct: the president lied. Nxasana said he did not ask to leave, that he was willing to pay back the money and take up his position as NDPP.
The court still has to rule on whether condonation would be granted, as Nxasana filed his affidavit late.
But Corruption Watch’s David Lewis said last week that there was still a case, even if it was not granted.
This difference in the version is significant, as the NPA Act dictates how an NDPP can leave office or be removed.
Zuma said he based his decision on section 12(8) of the act, which declares that the president may allow the NDPP or a deputy national director to vacate his or her office, at the office holder’s request, if it is based on continued ill health or for any other reasons the president sees fit.
Zuma has only 10 days left to make representations to Abrahams as to why he should not face charges of fraud, corruption, racketeering, money laundering and tax evasion.