President Jacob Zuma. Picture: REUTERS
President Jacob Zuma. Picture: REUTERS

The spy tapes saga showed that President Jacob Zuma and the National Prosecuting Authority (NPA) had worked in cahoots over the past eight years to keep him from being charged, and so he could not make decisions about the appointment, removal or suspension of the authority’s head, Freedom Under Law told the High Court in Pretoria on Monday.

It asked the court to order that the deputy president does so instead.

Freedom Under Law and Corruption Watch with the Council for the Advancement of the South African Constitution brought an application in the court to review the settlement agreement that led to former National Director of Public Prosecutions Mxolisi Nxasana leaving office with a R17m golden handshake.

The organisations argued that if the court reviewed and set aside the settlement, Nxasana should be reinstated in his position as prosecutions chief, and that current head Shaun Abrahams should vacate the position, as it was never vacant in the first place.

Nxasana and the president, however, differed on a crucial aspect of the settlement, which is whether Nxasana asked to resign or not. Nxasana said he had not made a request, while the president argued that he had.

Wim Trengove SC, for Freedom Under Law, said Zuma was "irredeemably conflicted". He cited the appointment of former prosecutions chief Menzi Simelane, which the Constitutional Court found to be irrational. "That was already a manifestation of his [Zuma’s] impaired judgment," Trengove said. Nxasana was appointed in place of Simelane after the post had been vacant for close to a year.

Trengove said the Constitution specified that cabinet members may not act in a way that was inconsistent with their office or expose themselves to conflicts of interest.

"That disqualifies the president from appointing the [prosecutions chief] while he stands to be prosecuted on very serious charges."

Trengove said the recent judgment delivered by the Supreme Court of Appeal — which dismissed an application by the president and NPA to appeal against a High Court in Pretoria ruling that the decision to drop corruption charges against Zuma was irrational — showed "how the president and the NPA joined forces to run a case for eight years".

The application was dismissed after an 11th-hour concession by Zuma’s legal counsel that the decision by then NPA head Mokotedi Mpshe to drop charges in 2009 was irrational.

Zuma has until November 30 to submit new representations to Abrahams on not being charged.

The matter is set down until Wednesday. Argument by the president, the NPA, the minister of justice, as well as friends of the court the Helen Suzman Foundation and the Centre for Defending Democratic Rule have not yet been heard.

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