Court ‘can’t hold beauty contest between Nxasana, Abrahams’

The court could not hold a “beauty contest” between Mxolisi Nxasana and Shaun Abrahams to decide who would be the better National Director of Public Prosecutions (NDPP) the High Court in Pretoria has heard.

Geoff Budlender SC, representing the Council for the Advancement of the South African Constitution (CASAC), argued that a full bench of the court should set aside the R17.3 million golden handshake negotiated between President Jacob Zuma and Nxasana, and declare Nxasana’s removal as NDPP as unlawful.

He said if Nxasana was unlawfully removed through conduct that was unlawful, it followed as a matter of logic that he must be reinstated and that Abrahams could not have been appointed as the position was not vacant.

Quizzed by the judges if this would not be unfair to Abrahams, who did nothing wrong, Budlender said if the court declared Nxasana’s removal invalid, but did nothing about it, it meant the constitution would not have been vindicated.

He said one should not be too quick to judge Nxasana’s conduct in accepting the R17.3 million severance package, as he was placed in an intolerable position.

The court could either reinstate Nxasana on the basis that his removal was unlawful or declare that the settlement and his removal was unlawful, that Abraham’s appointment was invalid, but decline to reinstate Nxasana and rule that there must be a fresh appointment of an NDPP.

He said it would be tough on Abrahams, but it would be no more tough than on the tenderer who gets a contract and starts working, only for the contract to be set aside.

Asked by Judge President Mlambo if the court did not have a responsibility to see that fairness prevailed, Budlender said fairness could not trump the constitution.

CASAC, Corruption Watch and Freedom Under Law have argued that although under the ordinary process, President Zuma must appoint the NDPP, the president was in this case conflicted because he faced criminal charges and the court should therefore rule that the deputy president must appoint the NDPP.

Ishmael Semenya, for president, Zuma, conceded that the so-called golden handshake was illegal and that Nxasana must pay back the money, but argued that Nxasana had resigned voluntarily as the president said this was so and there was nothing to contradict his version.

He said the applicants were inviting the court to indirectly exercise power only the executive had, namely to appoint or suspend the NDPP which was in conflict with the separation of powers doctrine.

“Even if we accept the ppresident may be conflicted, we must yet see what he proposes to do. The President does not intend to suspend or appoint anyone… How can it ever be constitutional to have two presidents in the country at the same time? It would be judicial overreach for the court to say to the President assign your powers to your deputy,” Semenya said.

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