Vusi Pikoli. Picture: GALLO IMAGES/NARDUS ENGELBRECHT
Vusi Pikoli. Picture: GALLO IMAGES/NARDUS ENGELBRECHT

President Cyril Ramaphosa will soon get certainty over the legality of Shaun Abrahams’s leadership of the National Prosecuting Authority (NPA), with the Constitutional Court expected to rule within two weeks on whether the appointment is valid.

SA’s highest court has taken over five months to reach a decision on whether Abrahams should stay or go. The delay has led to rampant speculation over the court’s decision, which is expected to be split. Legal consensus strongly suggests that the court’s majority decision will be that Abrahams will have to vacate his office.

And, if that is the case, who will replace him?

Insiders have confirmed to the FM that former national director of public prosecutions (NDPP) Vusi Pikoli was approached months ago to consider returning to the post he was suspended from by then president Thabo Mbeki in 2007.

Pikoli maintained that his removal was motivated by the Scorpions’ corruption prosecution of former national police commissioner Jackie Selebi, a longtime Mbeki ally. Selebi was convicted of corruption in 2010 and sentenced to 15 years behind bars.

Pikoli did not respond to requests for comment, but sources have confirmed that he is a "strong contender" for the post.

He has broad support in the ranks of the NPA.

Pikoli’s exit from the NPA has been linked to the perceived demise of the institution’s independence and credibility. His return may be an effective way for Ramaphosa’s administration to signal a "new dawn" for the prosecuting authority.

In his state of the nation speech in February, Ramaphosa made it clear that his administration was intent on dealing with the NPA’s leadership problems.

"We will urgently attend to the leadership issues at the NPA to ensure that this critical institution is stabilised and able to perform its mandate unhindered," he said.

But the legal battle over the unlawful R17.3m "golden handshake" given by former president Jacob Zuma to ex-NPA head Mxolisi Nxasana to vacate his office in 2015 effectively stymied Ramaphosa in addressing those issues.

The North Gauteng High Court found in December last year that Nxasana’s removal was unlawful and unconstitutional, but that to automatically reinstate him would also be unlawful as he had acted "recklessly" in accepting the deal.

A full bench, led by judge president Dunstan Mlambo, also found that while the appointment of Abrahams as NDPP was unlawful, any decisions made by him while in the position were not invalid. He ordered that Ramaphosa, deputy president at the time, should appoint a replacement for Abrahams within 60 days, as Zuma, then facing the prospect of prosecution for corruption, was too "conflicted" to do so.

Days after that decision, Ramaphosa was elected ANC president. Two months later, Zuma resigned — and one of Ramaphosa’s first moves as SA president was to withdraw his predecessor’s bid to appeal against the Nxasana/Abrahams ruling.

That decision was read as an indication that Ramaphosa did not want to keep Abrahams in his position. Abrahams, in turn, has repeatedly denied suggestions that he was Zuma’s "puppet", and has been a key driver in the NPA’s "state capture" prosecution campaign.

Embarrassingly for Abrahams, however, the state’s efforts to freeze and seize R250m in Gupta family assets as the alleged proceeds of crime linked to the Estina dairy project have repeatedly failed.

It’s crucial to note that the court order that Abrahams should be removed from office was not linked to any finding that he was unfit for the position. Rather, it was based on the legal consequence of Nxasana being unlawfully removed from his post.

It was this issue that seemed to preoccupy several of the Constitutional Court’s justices when they were hearing arguments on whether it would be "fair and equitable" for Abrahams to lose his post.

Ramaphosa seems far less conflicted.

In June, he was asked in parliamentary questions whether he believed the NPA was capable of exercising its mandate under Abrahams’s leadership. Ramaphosa said nothing to support or endorse the NPA’s current leadership: "As we committed to do in the state of the nation address, we are working to ensure that the entire leadership of the National Prosecuting Authority is strengthened."

But he stressed that he could only make a decision on Abrahams’s continued leadership once the Constitutional Court has ruled.

That ruling will either enable Ramaphosa to enforce the changes he wants quickly and bloodlessly, or force him to launch a potentially messy inquiry into Abrahams’s fitness to hold office. The president, under pressure from all sides of his divided party, would arguably be hoping for the former.

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