EDITORIAL: Constitutional Court saves SA from the politicians
The Shaun Abrahams ruling has now led SA’s highest court to change the law to protect the prosecutions authority from a worst-case president
This week, when the Constitutional Court ruled that the appointment of advocate Shaun Abrahams as national director of public prosecutions was invalid, it did far more than simply remove him from office.
Effectively, the court gave President Cyril Ramaphosa a master class in how to preserve the National Prosecuting Authority (NPA) from the cancer of political interference that has been eating away at the organisation for over a decade. It was a cancer, of course, that was inextricably linked to former president Jacob Zuma and his own desperate campaign to avoid prosecution.
"The NPA plays a pivotal role in the administration of justice," said Justice Mbuyiseli Madlanga. "With a malleable, corrupt or dysfunctional prosecuting authority, many criminals, especially those holding positions of influence, will rarely, if ever, answer for their criminal deeds."
It means, said Madlanga, that functionaries within the NPA may then be pressured "into pursuing prosecutions to advance a political agenda".
Recent history provides a litany of examples of that scenario, such as the aborted effort to prosecute then finance minister Pravin Gordhan over the R1.47m early-retirement payout for former SA Revenue Service commissioner Ivan Pillay.
Madlanga’s ruling this week is yet another sterling illustration of how the courts have, in the absence of real political leadership, filled the gap. In recent years the ANC’s top brass have climbed on every pulpit they could to complain about how the courts have "overreached" to "meddle" in politics. But the Abrahams ruling is yet another example of how, when corrupt politicians make unconstitutional decisions, our courts have been the last refuge of our democracy.
The court was scathing in its critique of how Zuma had used an exorbitant R17.3m "golden handshake" deal to get rid of former prosecutions boss Mxolisi Nxasana — a clear "abuse of power".
Nxasana believed Zuma was convinced he intended to prosecute him for corruption. Zuma even accused him of holding secret meetings with former prosecutions boss Bulelani Ngcuka. Zuma told him in Zulu, apparently, that when he heard Ngcuka’s name, it made him "crazy".
This is why, the court said, "Zuma was bent on getting rid of Mr Nxasana by whatever means he could muster". To do this, he first offered Nxasana R10m to leave — but Nxasana refused.
"This was followed by a draft settlement in which the amount was left blank. Nxasana was being told to pick whatever figure. Indeed, [Zuma’s former lawyer Michael] Hulley said that he would ‘await the final amount’ from Nxasana."
Effectively, Zuma tried to "buy" Nxasana out of office. This, the judge said, "compromises the independence" of the prosecutions service.
The Nxasana payout also showed Zuma’s belief that the prosecutions head’s tenure was contingent upon the president’s personal satisfaction. That is what drove rights organisations to push the Constitutional Court to order that the legislation be changed, so that the president can no longer suspend the prosecutions boss indefinitely.
They succeeded. The Abrahams ruling has now led SA’s highest court to change the law to protect the prosecutions authority from a worst-case president. It may have been naive that we didn’t have such a protection originally. But the one benefit of the Zuma years is that we have lost our innocence.
A new prosecutions boss may well bring renewed credibility to the NPA. But a new president, who understands that the NPA is not his personal tool for either protection or vengeance, is a far more valuable gain for the country.