Publications
Partners
Pretoria - National director of public prosecutions (NDPP) Mxolisi Nxasana has dismissed allegations that he is unfit to serve in his post as a plot by some of his colleagues to discredit him.
Nxasana filed an urgent application in the North Gauteng High Court this week seeking an interdict to stop President Jacob Zuma from suspending him before he had been provided with full details of the allegations against him and given a chance to make further representations.
Judge Joseph Raulinga postponed his application indefinitely.
Zuma informed him in a letter dated 4 July that a decision had been taken to institute an inquiry into his fitness to hold office.
Inquiry
He received a further notice on 30 July, informing him that the president was considering suspending him on full pay pending the finalisation of the inquiry against him.
He was informed that the inquiry would examine if his conduct was in line with the integrity of an incumbent to the office of NDPP, having regard to "his convictions for violent conduct; reported comments in the media that are unbecoming of a national director of prosecutions, divisive and have the effect of bringing the National Prosecuting Authority (NPA) into disrepute", and the lack of disclosure of the facts and circumstances of prosecutions which he faced.
Nxasana is specifically seeking details about his past criminal convictions, the specific comments he allegedly made to the media and on which dates, the prosecutions he was accused of not disclosing, and to whom and when he failed to make these alleged disclosures.
Nxasana was at first given until 1 August to make representations, but was later granted two further extensions, although the president refused to give him further particulars of the allegations against him, saying the information he had was "sufficient".
He said he was forced to make preliminary and inadequate representations because he did not want to risk being accused of ignoring the president, but believed it was unfair that he was required to speculate about the allegations.
Expunging criminal record
"I cannot say whether they are true, or whether they are sufficiently serious to warrant suspension, or whether they are such that it is not possible for me to interfere with an investigation into them or with witnesses who make them.
"The president's failure puts me in an untenable position. I do not believe that there are sufficient grounds to suspend me. I want to supplement my representations to show that there are none," he said.
In his preliminary representations, which formed part of the papers before court, Nxasana maintained the allegations against him did not constitute serious misconduct.
"Section 271A(b) of the Criminal Procedure Act entitles me to apply to expunge my criminal record.
"Although I have not done so, I intend to do so. When I do, the director general will be obliged to issue me with a certificate of expungement.
"These two convictions will fall away and in law, I will not have any criminal convictions.
"The two assaults of which I was convicted concern events that took place almost 30 years ago.
"They are unrelated to the NPA or to my responsibilities as NDPP nor were they related to an employment situation.
"The first assault happened in 1985. I do not recall the details or what I was found guilty of. I had forgotten about it.
Charge related to ‘fight with girlfriend’
"I was reminded of it when I applied for my security clearance during December 2013.
"I was convicted of the first assault on 23 July 1985. At the time I was 17 years old. I was cautioned and discharged.
"The second assault happened in 1986, at Nongoma. I was charged and convicted on 13 November of common assault for assaulting my girlfriend at the time.
"I remember that my girlfriend and I had a fight, although I do not recall the details.
"I was sentenced to 30 days imprisonment or a R50 fine. I paid the fine," he said.
Nxasana said he had disclosed the assault conviction when he applied for admission as an attorney in the KwaZulu-Natal High Court in Pietermaritzburg and the court found him a fit and proper person to be admitted.
"A high court has already found me to be fit and proper. It has already found that my past criminal record does not make me unfit or improper to be admitted as an attorney.
"There cannot be any reason why two very old criminal convictions for minor offences, that will be expunged, should render me unfit or improper to be appointed as NDPP," he said.
Other charges
He said he suspected the allegations about his failure to disclose prosecutions he faced related to his arrest and subsequent acquittal for murder and a further arrest on charges of inconsiderate driving and resisting arrest in October 2012.
"The facts are that in December 1985, in an attack by a number of men on the occupants (including me) at my girlfriend's house, I reacted in self-defence and one of the perpetrators died. I was acquitted of a charge of murder.
"I explained the background circumstances in my letter to you [Zuma] on 21 June 2014. I also raised it with the former minister of justice and constitutional development [Jeff Radebe] when I met with him on 21 May 2014.
"At the time the minister questioned why I had not disclosed that I had been arrested for murder when I was undergoing my security clearance.
"I did disclose these facts to the SSA before it refused to grant me a top secret security clearance.
"The second incident that I suspect is being referred to is an event that took place during October 2012.
"Although I cannot remember the exact date, one evening in October 2012 while driving my wife's BMW along Sydney Road, I was arrested for inconsiderate driving and resisting arrest.
"I was released on R1 000 police bail... The senior public prosecutor... declined to place the matter on the roll.
"I have laid criminal charges against the police officers that arrested me.
"I have subsequently learned that two of the police officers are in fact police reservists. That investigation has not yet been finalised," he said.
‘News reports accurate’
Regarding news reports, Nxasana said he suspected it related to comments reported in the Sunday Independent and the Weekend Argus on 1 June and the Sunday Times on 6 July.
He was reported as saying two of his deputies, Nomgcobo Jiba and Lawrence Mrwebi, were plotting to have him fired; that Jiba had sanctioned people to investigate him with the intention to "find dirt on him" and that he had learned about the president's intention to establish an inquiry against him from the media.
"These news reports are accurate.
"As early as October 2013 I was provided with two affidavits from two NPA employees confirming that they had been approached by Colonel Welcome "WS" Mhlongo, a member of the Hawks for information about me.
"One of them provided a voice recording in which Col Mhlongo is heard to confirm that he was acting on the authority of deputy NDPP Nomgcobo Jiba to collect information about me to discredit me.
"As soon as I was made aware of this I brought it to the attention of the executive committee of the NPA.
"It was also brought to my attention that rumours about me were circulating. One of the rumours is that I intended reinstating criminal charges against the president. That rumour is false.
"The information by Col Mhlongo gives rise, at the very least, to a reasonable suspicion that there is a plot by Jiba to discredit me," he said.
