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The Constitutional Court's judgment that Shaun Abrahams should vacate the office of the National Prosecuting Authority (NPA) is a scathing reflection of former president Jacob Zuma's decision-making and the first step towards restoring the integrity of the national prosecutor, legal experts say.
The Constitutional Court found that the vacating of office by former National Director of Public Prosecutions (NDPP) Mxolisi Nxasana, as per an agreement with Zuma, was unconstitutional and the subsequent appointment of Abrahams in the position therefore invalid.
The majority judgment, handed down by Justice Mbuyiseli Madlanga on Monday, was widely welcomed, but experts warned that it's a long way to go to restoring the effectiveness and integrity of the NPA.
"The court's scathing words for Zuma don't come as a surprise if one bears in mind the slew of adverse judgments against him in the past," constitutional expert Phephelaphi Dube said.
"There has been a sense of exasperation on the part of judiciary about his conduct, so the fact that the judgment is couched in such strong language doesn't come as a surprise."
Madlanga said it appeared that Zuma was hell-bent on removing Nxasana, "buying him out of office" rather than following processes.
Lawson Naidoo, of the Council for the Advancement of the South African Constitution (Casac) said: "The way in which Zuma behaved in regard to the NPA and other institutions, especially those in the criminal justice system, has been laid bare. It's just another indication of his abuse of power for his own benefit."
'The institution was being decimated over the last 10 years'
Dube warned that it was too soon to talk about the effect of the judgment on the integrity of the NPA.
"Time and again, the NPA has proven that it's quite susceptible to political interference and it is now very important for the prosecuting authority to distinguish itself as the independent institution the Constitution envisions it to be," she said.
"The fact is, the institution was being decimated over the last 10 years and a lot of skills have been lost. While this judgment and the appointment of a new NDPP will go some way to restoring the public's confidence in the NPA, it is a long way to go to the recovery of the prosecutor."
The Constitutional Court also ruled that Nxasana must pay back the golden handshake of more than R10m he received, according to a settlement with Zuma in which he agreed to leave office. A minority of judges argued that Nxasana should be allowed to return as NDPP, but this was rejected by the majority.
"The NDPP has to be someone that is beyond reproach and the manner in which he behaved in accepting what he must've known was an inflated amount to vacate office must have played a role in the court's decision," Naidoo said.
'NPA needs a new broom'
President Cyril Ramaphosa now has 90 days to appoint a new NDPP, although there is the hope that he might do so sooner to return stability to the authority. The question becomes, who he will choose to replace Abrahams?
"I hear Vusi Pikoli's name being bandied about, but I'm not sure it's a good idea. He brings his own set of issues, bearing in mind the cloud under which he left the office," Dube said. "There are many hard working career prosecutors in the NPA and that's where Ramaphosa should be looking," Dube said.
Former prosecutor and DA MP Glynnis Breytenbach expressed her hope that Ramaphosa would appoint a clean broom with integrity to guide the NPA.
"It's a wonderful decision for the criminal justice system and for the NPA. The NPA needs somebody to start afresh, somebody with integrity, a new broom that can sweep clean the office of the national prosecutor," she said.
"Certainly, if right person is appointed it would bode well for the NPA, the criminal justice system and for South Africa."
Read the full judgment:
