Picture: THULI DLAMINI
Picture: THULI DLAMINI

A fight about an unlawful R17m golden handshake made to former national director of public prosecutions Mxolisi Nxasana has opened up the possibility that deputy president Cyril Ramaphosa may have to execute an important presidential function.

This comes after more than eight years in court, during which President Jacob Zuma first fought to keep the so-called spy tapes out of the hands of the DA.

The tapes were used as the basis for former prosecutions boss Mokotedi Mpshe’s decision to drop the corruption charges against Zuma in 2009, shortly before he was inaugurated as president of the republic.

Last week legal representatives of Freedom Under Law, Corruption Watch and the Council for the Advancement of the SA Constitution argued in court that Zuma was conflicted in relation to the appointment of the prosecutions chief. He has, after all, shown that he was willing to pay R17m unlawfully to get rid of a national prosecutions head he did not like, the court heard.

The court application seeks to review and set aside the decision to drop the corruption charges and the golden handshake.

The core issue in the case is now the independence of the National Prosecuting Authority (NPA), advocate Wim Trengove said last week.

He accused the authority of colluding with the president to keep SA’s number one citizen from being charged with fraud, corruption, racketeering and money laundering.

In 2016, after years of litigation, a full bench of the Pretoria high court declared that Mpshe’s decision to drop the charges had been irrational. The implication was that charges should be reinstated. However, Zuma and the NPA appealed the judgment. Then, in a stunning concession after all those years of litigation, the two parties conceded in the appeal court that Mpshe’s decision had indeed been irrational.

Though the concession came from both the appellants, it was the NPA that was slated in the appeal court judgment for the way it had drafted papers and dealt with the case, and specifically for deciding to defend Mpshe’s decision.

This behaviour has now come back to haunt the applicants, as Trengove claimed in court that it showed that the two parties had been working together to keep Zuma out of a criminal court.

Corruption Watch, Freedom Under Law and the Council for the Advancement of the SA Constitution want the court to order that Zuma may not appoint the prosecutions director while he is president, as he would clearly benefit from one who favours him. For Zuma’s term only, the civil society organisations have asked the court to order the deputy president to appoint the national prosecutions head.

Advocate Hilton Epstein, for the NPA, has told the court that there are also other people in cabinet who would be seen to be conflicted, referring directly to Ramaphosa. Epstein pointed out that the EFF had expressed the intention to make Ramaphosa pay for the Marikana massacre of 34 striking Lonmin mineworkers in 2012.

The now ANC presidential hopeful was a nonexecutive director of the mine and sent an e-mail saying that the actions of the miners were criminal and that "concomitant action" should be taken.

Ramaphosa was cleared by the Farlam commission, which probed the killings, and he has apologised for the actions he took before the tragedy.

Ramaphosa would be the person to decide who to appoint as prosecutions director if SA’s political hierarchy remains the same for the remainder of Zuma’s term, which ends in 2019.

Constitutional law expert Prof Pierre de Vos says the constitution does allow for this possibility, as section 90 holds that an acting president can be appointed when the president is absent from the country or is otherwise unable to fulfil his duties, or during a vacancy in the office of the president. The deputy president is first in line in such a case, followed by a minister designated by the president.

If the court finds that there is a conflict, it would indeed be impossible for Zuma to fulfil his duties as president with regard to appointing the prosecutions boss
Pierre de Vos

De Vos says if the court finds that there is a conflict, it would indeed be impossible for Zuma to fulfil his duties as president with regard to appointing the prosecutions boss.

However, the court would have to find that the president is not capable of taking the decision, which would be a drastic finding.

This is the second time in recent history that an attempt has been made to outsource the president’s executive powers. Former public protector Thuli Madonsela said in her "State of Capture" report that chief justice Mogoeng Mogoeng was to select a judge to oversee a judicial commission of inquiry into state capture, as the president might be conflicted.

The present case, described by Gauteng judge president Dunstan Mlambo as "weighty", also comes at a time when the NPA clearly needs to be seen to be independent.

Zuma has until November 30 to give reasons to current prosecutions boss Shaun Abrahams — whose fate also depends on what the full bench of judges finds — why he should not be charged on the counts irrationally dropped by Mpshe.

After almost a decade, a prosecutions chief will once again determine whether Zuma will have his day in court.

mailovichc@businesslive.co.za

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