The judgment of the High Court in Pretoria on Friday, which set aside the removal of previous National Director of Public Prosecutions (NDPP) Mxolisi Nxasana, was the most scathing commentary yet by the judiciary on the credibility of President Jacob Zuma and his suitability to be president.

A full bench of the court, in a judgment read out by Judge President Dunstan Mlambo, stripped Zuma of a key presidential power — to appoint the prosecutions chief — as he had too deep a conflict of interest due to the 18 possible charges of corruption, fraud, racketeering and money laundering he is facing.

The charges had been dropped by former NDPP Mokotedi Mpshe in 2009.

The bench said the president had already told the Supreme Court of Appeal that he had every intention to use the processes available to him to resist prosecution.

The court also reviewed and set aside the appointment of current NDPP Shaun Abrahams. It found that as Zuma was in a conflict of interest he could have nothing to do with the appointment, removal or suspension of the NDPP — and the deputy president had to appoint the chief prosecutor while Zuma was still in office.

The judges did not accept the president’s version of events, that Nxasana had requested to leave office, as it was not backed up by the record of decision making.

Zuma’s actions in the settlement agreement were labelled "reckless".

The president, the National Prosecuting Authority (NPA) and Abrahams have all indicated that they will appeal against the judgment.

Council for the Advancement of the South African Constitution director Lawson Naidoo — who was among the parties that brought the application — said the applicants would take the order to the Constitutional Court for confirmation as parts of it had to do with the constitutionality of the NPA act.

Naidoo said it was hoped that they could take the entire order directly to the Constitutional Court. This could minimise possible delays as it could cut out the Supreme Court of Appeal in the litigation. The different parts of the order could lead to cross appeals in different courts as not all of the order would require confirmation.

The bombshell ruling comes a week before the ANC’s national elective conference begins at Nasrec, where Zuma will be backing former African Union Commission chairwoman Nkosazana Dlamini-Zuma for the position of ANC president, against Cyril Ramaphosa.

While broader public perceptions do not generally influence ANC leadership contestation the judgment will add to the baggage that Dlamini-Zuma will need to lug around should she win against Ramaphosa and front the ANC’s election campaign in 2019.

It is also possible that the judiciary will land a further blow against Zuma this week, when the same court is expected to deliver judgment on his application to have the remedial action of the public protector’s State of Capture report set aside.

In the report, then public protector Thuli Madonsela ordered a judicial commission of inquiry into allegations of state capture to be established under a judge selected by Judge Mogoeng Mogoeng.

Again the reasoning was that Zuma had too deep a conflict of interest to make the appointment himself.

Zuma has asked the court to grant the alternative that he establish the commission. Should it rule against him it will be the second time that he has been limited in his powers due to conflicts of interest.


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