Mxolisi Nxasana. Picture: SUNDAY TIMES
Mxolisi Nxasana. Picture: SUNDAY TIMES

A Constitutional Court judgment that has stripped Shaun Abrahams of his position as national director of public prosecutions (NDPP), vindicates the constitution and the independence of the National Prosecuting Authority (NPA), former head Mxolisi Nxasana says.

On Monday, the Constitutional Court ruled that a settlement agreement that saw Nxasana leave office in 2015 was unconstitutional and invalid, and ordered him to pay back R10m, which he received as part of the golden handshake that facilitated his move. As a consequence of that, it rendered Abrahams without a job, as his appointment was therefore also constitutionally invalid and was set aside.

WATCH: The Constitutional Court finds NDPP Shaun Abrahams's appointment invalid

SA’s highest court ruled on August 13 2018 that advocate Shaun Abrahams was not validly appointed to lead the NPA because he had benefited from former president Jacob Zuma’s abuse of power. Justice Mbuyiseli Madlanga, writing on behalf of the Constitutional Court’s majority, found that Zuma had used a R17,3m 'golden handshake' to get rid of former NPA head Mxolisi Nxasana.

The court has given President Cyril Ramaphosa 90 days to appoint a new NDPP who is neither Abrahams nor Nxasana. The minority judgment written by justice Chris Jafta, differed with the majority, saying that Nxasana could have taken up the job again.

The court also confirmed, among others, that section 12(6) of the National Prosecuting Authority Act was constitutionally invalid, to the extent that the section permits the suspension by the President of an NDPP and deputy NDPP for an indefinite period and without pay.

Nxasana said the judgment vindicated the constitution, and also the independence of the NPA, insofar as that even if a president had powers, the president should not interfere with the functioning of the NPA.

"I am happy and I [hope] that the members of the NPA, especially the leadership of the NPA, will take a leaf out of this judgment going forward, and make sure that we do not have a repeat of all that has happened. … At the heart of the reason [NDDPs] do not complete their [term of office] is the allegations of political interference, and I hope this judgment will put that to an end, and that the members of the NPA, in discharging their judgment, will do so according to the constitution and the NPA act … without fear or favour or prejudice," Nxasana said.

He added that he would go back to the NPA to serve in any capacity, and that paying back the full amount of R10m, was a blow for him.

NPA spokesperson Luvuyo Mfako said Abrahams was "gravely disappointed, but he respects the decision of the highest court in the land".

Glynnis Breytenbach, a former senior state prosecutor, and now DA spokesperson on justice and constitutional development, said it was "a great judgment", and that she understood the reasoning behind the minority judgment but that it was perhaps "best that a new broom comes in and sweeps clean".

"But justice has prevailed; the criminal justice system can now start resurrecting itself," Breytenbach added.

The ANC said it welcomed and respected the Constitutional Court judgment. "The ANC believes that today’s judgment provides President Cyril Ramaphosa with the necessary space to move with speed and urgency to resolve the leadership question at the NPA.

"What is critical for the ANC is the restoration of the independence, integrity and credibility of this key law-enforcement agency. Anything that compromises the independence of the NPA will undermine its credibility and lead to a serious erosion of the rule of law," ANC spokesperson Pule Mabe said in a statement.

The party said it had confidence in Ramaphosa to handle this matter in a manner that would restore public confidence in the NPA.