28/02/2018 06:18 SAST | Updated 28/02/2018 06:33 SAST

Abrahams' Last Chance To Argue To Keep His Job

The Constitutional Court is expected to hear that Nxasana should be reinstated.

Shaun Abrahams.
Siphiwe Sibeko / Reuters
Shaun Abrahams.

National Director of Public Prosecutions (NDPP) Shaun Abrahams will have one final opportunity to state his case when he tries to convince the Constitutional Court that he should keep his job on Wednesday. He is appealing an earlier judgment that ruled that the removal of his predecessor, Mxolisi Nxasana, was unlawful.

In the Constitutional Court on Wednesday, Abrahams is likely to argue that this is not the case, and that his appointment is valid. Meanwhile, the Court will also hear arguments that Nxasana was an "honourable" man who should be reinstated to continue doing the job he was appointed to do.

Freedom Under Law (FUL), Corruption Watch and the Council for the Advancement of the South African Constitution (Casac) went to court in an effort to have Abraham's appointment set aside on the grounds that former NDPP Mxolisi Nxasana's removal was unlawful. They wanted an order reinstating him or, alternatively, stating that the office was vacant and a new NDPP should be appointed.

The High Court in Pretoria agreed with them in so far as the office was now vacant because Nxasana's removal was unlawful, but the NPA and the presidency appealed. Last week, the presidency said it would no longer appeal.

The presidency under former president Jacob Zuma contended that the court was wrong in saying that Zuma was too conflicted to decide on a new NDPP, and that his deputy, who was Cyril Ramaphosa at the time, should make the appointment.

Last week, Ramaphosa withdrew this appeal, eNCA reported. This is reportedly a strong indicator that Ramaphosa does not intend keeping Abrahams in his post, irrespective of whether the court rules that his appointment was lawful.

But the NPA still wants to appeal the ruling that Abraham's appointment is invalid.

Last week, the NPA filed papers in which it argued that Abrahams was validly appointed, as Nxasana was prepared to leave the post if fully compensated, reported News24. The NPA also argued that, because Zuma was no longer president, the issue was partly moot.

But the NPA still wants the settlement between Zuma and Nxasana set aside and for the R17.3-million to be paid back.

In an advisory issued on Tuesday, the Court explained that Zuma had appointed Nxasana from 1 October 2013. Zuma instituted a commission of inquiry into Nxasana's fitness to hold office in June 2014 following "internal conflict within the senior leadership of the NPA", and suspended him pending the outcome of the inquiry.

In August 2014, Nxasana went to court seeking to interdict his suspension. That case was never finalised because he entered negotiations with Zuma in an attempt to end their dispute. He left his position in May 2015 with a R17.3-million golden handshake.

Writing for the Daily Maverick on Wednesday, Nicole Fritz, CEO of FUL, said FUL and Corruption Watch will argue on Wednesday that Nxasana must still be reinstated. This is because not reinstating him "essentially rewards Zuma's unlawful conduct", which was his removal.

And failure to reinstate him also hurts the independence of the NPA, as it means that anyone facing dismissal proceedings can "face the charges against them and be heard".

The High Court also did not admit Nxasana's affidavit, yet made "significant" findings against him, Fritz argued.

She said Nxasana is not a "gravy-train beneficiary", but is a "whistle-blower", and "honourable man", who "resisted extraordinary pressure from the president but was eventually unlawfully forced out".