Unusually, Gauteng Judge President Dunstan Mlambo and the two judges who sat with him on the Mxolisi Nxasana matter penned a 42-page judgment on a high court case that ran for just two weeks.
It’s an extraordinary and welcome judgment. It ruled the 2015 settlement agreement in which President Jacob Zuma essentially paid former national director of public prosecutions Nxasana R17m to go away to be invalid, as is the appointment of Shaun Abrahams as Nxasana’s successor.
But its even more far-reaching finding is that Zuma himself is unable to appoint the new national director of public prosecutions because he is too conflicted, given the criminal charges he faces. Instead, the court has ruled that the deputy president must make the appointment within 60 days.
Predictably, Zuma wasted no time appealing against the judgment. So before anyone gets too excited at the prospect of Deputy President Cyril Ramaphosa appointing a new head of the National Prosecuting Authority (NPA) forthwith, it’s worth keeping in mind that the judgment is suspended while the appeal is under way and the appeal could take some time.
But under the Zuma administration the prosecuting authority has been anything but stable, with more than half-a-dozen heads or acting heads over the past 10 years
Almost as striking as the ruling is the complicated 42-page chronology of the meddling and fiddling around the office of the national director of public prosecutions.
Over the past decade, a frightening amount of expensive legal time has gone into keeping Zuma out of court to face corruption allegations — and into trying to create a quiescent NPA.
A string of national directors of public prosecutions has been appointed, suspended and replaced over the past decade, accompanied by expensive litigation at almost every turn.
SA’s Constitution allows for the national director of public prosecutions to be appointed for a nonrenewable term of 10 years. That clause was designed to ensure the independence and stability of the NPA.
But under the Zuma administration the prosecuting authority has been anything but stable, with more than half-a-dozen heads or acting heads over the past 10 years – and significant effort has gone into ousting any head who attempted to be too independent, as the Nxasana evidence indicates.
The judgment is a damning indictment of Zuma’s own conduct. Not only does the court effectively find he lied when he said Nxasana requested to resign, but more damningly, it speaks of "the broader pattern of the president’s conduct in litigation, of defending what ultimately turns out — on the president’s own concession — to have been indefensible all along".
Current national director of public prosecutions Abrahams doesn’t come out smelling good either, nor indeed does Nxasana, who should have known the R17m settlement he took was
unlawful – which is why he shouldn’t be reinstated and a new national director should be appointed.
The court makes it crystal clear that, following the recent Supreme Court of Appeal ruling on the Zuma corruption charges, there "is no longer any obstacle in the way of the criminal charges [against Zuma] proceeding".
Zuma is therefore conflicted and unable to appoint a new head of the NPA, and the task falls to the deputy president.
The appeal will clearly delay this and who makes a new
appointment in the end will hinge crucially on the outcome of the ANC’s elective conference.
We can but hope that the obstacles to the appointment of a new, independent and highly competent head of the NPA will be cleared sooner rather than later.
The NPA’s competence and credibility has been eroded over the many years of political interference, along with its independence, leaving SA’s system of law enforcement much weakened. SA can no longer afford for the NPA to be a political football – it urgently needs stability and independence to be restored to such a key institution.