Shaun Abrahams. Picture: THE TIMES
Shaun Abrahams. Picture: THE TIMES

Shaun Abrahams’s appointment as national director of public prosecutions (NDPP) was “constitutionally invalid”, the Constitutional Court has found, and it would not be “just and equitable” for him to remain in office.

Justice Mbuyiseli Madlanga, reading out the judgment on Monday, said the way former NDPP Mxolisi Nxasana left office was inconsistent with the constitution, and was thus invalid.

He said Abrahams’s appointment was consequential of Nxasana’s resignation, and that a consequential act was only valid for so long as the earlier act was not set aside.

“It follows that the appointment of Abrahams is also constitutionally invalid,” Madlanga said.

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 confirmation application was brought by the Council for the Advancement of the South African Constitution (Casac), Freedom Under Law (FUL) and Corruption Watch following a bombshell judgment in the high court in Pretoria in December, which reviewed and set aside Abrahams’s appointment as NDPP. This order was confirmed by the apex court.

Declaring the office of the NDPP vacant, flowed out of the high court’s finding that the settlement agreement in which Nxasana left office in 2015 was constitutionally invalid. The court ordered Nxasana to pay back the R17m golden handshake that he received from the government. This was confirmed by the Constitutional Court.

The high court also found that former president Jacob Zuma could not appoint the National Prosecuting Authority (NPA) head because he was conflicted, ordering that now president Cyril Ramaphosa should appoint the NDPP while Zuma was still in office. The issue, by the time it was argued in the Constitutional Court, was moot, as Zuma had resigned as president of the republic on February 14, while the application was heard on February 28.

Corruption Watch and Freedom Under Law had argued that Nxasana should be reinstated and there was nothing in his conduct that suggested he was not fit and proper, having resisted pressure from Zuma to leave. Casac, however, argued that while one should not judge Nxasana too harshly, it would not serve the interests of the NPA to return him to office, as he was a man with a price.

Nxasana had appealed the high court’s decision to not grant him condonation for filing his affidavit to the court late, in which he gave his version of the events. His appeal succeeded.

The NPA and Abrahams had appealed the judgment, but it was dismissed with costs.

President Cyril Ramaphosa was ordered to appoint a new NDPP within 90 days.

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