Mxolisi Nxasana. Picture: TREVOR SAMSON
Mxolisi Nxasana. Picture: TREVOR SAMSON

President Jacob Zuma made yet another major admission in court on Tuesday, conceding that the R17m golden handshake offered to former National Prosecuting Authority (NPA) boss Mxolisi Nxasana was unlawful.

Zuma’s lawyer, Ishmael Semenya, said that the payment to the former national director of public prosecutions was unlawful and that Nxasana should pay back the money.

Zuma has made similar about-turns in court recently. He conceded in the Supreme Court of Appeals in Bloemfontein that the decision to drop corruption charges against him in 2009 had been irrational. This was after a protracted legal battle.

This was also after he told the Constitutional Court that he would pay back the money for the Nkandla "security upgrades" — this too came about after a protracted legal battle.

Zuma’s latest climbdown has created another legal headache. If Nxasana’s resignation was unlawful, what should happen to the current leadership of the NPA? The court has given the applicants, the respondents and the amicus curiae until Thursday to file draft orders as to how to proceed. The applicants have demanded the reinstatement of Nxasana as head of the NPA.

They have also demanded that Zuma not be involved in the appointment as he was conflicted. This should be done by the deputy president.

Judge President Dunstan Mlambo reserved judgement.

The applicants have all argued that Shaun Abrahams should vacate his position and pave the way for Nxasana.

As an alternative, Geoff Budlender for the Council for the Advancement of the South African Constitution (Casac), which appeared as an amicus curie, said if that relief was not to be granted, Abrahams should be acting director for 60 days until the deputy president appointed a new head.

Civil society organisations have asked the court for a declaratory order directing the deputy president to make all decisions regarding the appointment, suspension or dismissal of the NPA head, while Zuma is still in office.

Zuma has until November 30 to submit reasons to Abrahams why he should not be tried on the corruption, fraud, racketeering and money laundering charges that were irrationally dropped by former acting director Mokotedi Mpshe in 2009.

Casac’s Lawson Naidoo told Business Day on Tuesday the case "went to the very heart of the independence of the NPA".

"There is lots of concern about its capacity to act independently. We have seen no action in the various cases of state capture and other corruption allegations. So it’s to hope that by strengthening the institutional capacity of the NPA, we will be able to achieve proper accountability for the wrongdoing that has happened."

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