High court dismisses former NPA head Nxasana’s affidavit

A full bench of the High Court in Pretoria has declined a bid by former national director of public prosecutions Mxolisi Nxasana to hand in an affidavit in which he contradicts President Jacob Zuma’s allegation that he had asked to resign.

Judge President Dunstan Mlambo dismissed with costs Nxasana’s application for the court to condone the late filing of his answering affidavit in an application by Corruption Watch, Freedom Under Law and the Council for the Advancement of the South African constitution to set aside Nxasana’s removal from office and to force him to repay the R17.3 million golden handshake he received.

He filed the affidavit, in which he says he is ready to resume office and willing to repay the money, more than a year late.

The rights groups want the court to declare that Nxasana still holds office and to set aside the appointment of Shaun Abrahams as NDPP.

They also want the court to declare that President Zuma has a conflict of interest, as he faces criminal charges, may not take decisions relating to the appointment, removal or suspension of members of the NPA and that all such decisions must be made by the deputy president.

Judge Mlambo allowed a little known nongovernmental organisation, the Centre for Defending Democratic Rule (CDDR), to intervene as a friend of the court.

The CDDR supports the bid to force Nxasana to pay back the R17.3 million, but does not want Nxasana reappointed, arguing that the settlement agreement he reached with the president in 2015 bordered on corruption.

Wim Trengove, for Corruption Watch, argued that the settlement agreement reached with Nxasana was inconsistent with the constitutionally enshrined independence of the NDPP and contravened the NPA Act.

He said Section 12 of the NPA closely regulated the circumstances in which an NDPP could be removed form office, and did not permit the president and the justice minister to “buy” an NDPP out of office.

Trengove argued President Zuma had not disclosed all documents relating to their negotiations and his decision to remove Nxasana. He said there was overwhelming circumstantial evidence that Nxasana was never willing to leave because of the discord in the NPA, and it was highly unlikely that he had asked to leave as President Zuma alleged.

He said it appeared from documentation now available (some of it supplied by Nxasana) that the president had first tried to bully Nxasana to leave by threatening him with an inquiry into his fitness to hold office and then tried to seduce him to leave by offering him more than R17.3 million in public money.

He said an NDPP was only entitled to his ordinary civil service pension, and one could not use public money to persuade him or her to leave. Even the president accepted that the settlement agreement had been unlawful, he added.

The application continues.

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