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Johannesburg – Former National Prosecuting Authority (NPA) head Mxolisi Nxasana was prepared to leave his position if compensated fully, therefore NPA boss Shaun Abrahams was validly appointed into the vacancy, the NPA argues in court papers.
On Wednesday, the Constitutional Court will hear the appeal in the case involving Nxasana and the future of his successor, Abrahams.
In its heads of arguments, the NPA states that Nxasana's resignation was a "unilateral act which, as a matter of fact, created a vacancy – irrespective of what motivated either the president or Mr Nxasana".
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The NPA further argues that Abrahams was validly appointed into a vacancy created at the end of Dr Silas Ramaite's stint as acting National Director of Public Prosecutions (NDPP).
It also argued that the development of Jacob Zuma resigning from his position as president on February 14 and Ramaphosa being sworn in as president, renders part of the order moot.
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While Zuma was still president, he had filed papers stating the grounds for the appeal, including that the court erred in holding that he was found to be "conflicted", was unable to exercise his powers as president in terms of appointing an NDPP, but that he was able to perform his other functions as president.
This was a position not authorised by the Constitution. The NPA filed an appeal against the ruling that the appointment of Abrahams was invalid.
"It is respectfully submitted that the court a quo erred in reviewing, declaring invalid and setting aside the appointment of Advocate Shaun Abrahams... as NDPP on the grounds that there was no vacancy in that office into which Abrahams could be appointed," the application argues.
The NPA, however, still wants the settlement agreement between Zuma and Nxasana set aside, and the R17.3m he received paid back.
Freedom Under Law, Corruption Watch and the Council for the Advancement of the South African Constitution went to court seeking an order declaring Nxasana's removal invalid.
Abrahams' removal 'unjust'
Nxasana accepted a golden handshake from Zuma worth R17.3m and left the NPA in 2015.
On December 8, 2017, the High Court ruled that NPA head Abrahams must vacate his seat.
The court further ruled that it would not be just for Nxasana to be reinstated.
The ruling stated that Ramaphosa, as deputy president, must appoint a new NDPP.
But in its heads of argument – the NPA argues that the departure of Nxasana created a vacancy into which Ramaite, and therefore Abrahams, were validly appointed.
"It cannot be said that the departure of Mr Nxasana and the appointment of Adv Abrahams created no vacancy, even if it be so that the departure was motivated by ulterior motives on the part of the president. There is no evidence that Adv Abrahams was party to any such scheme.
"It is not just and equitable for Adv Abrahams to be removed from his position."
Abrahams has been in office as NDPP for nearly three years.
The court papers further state that it was unfair to remove Abrahams in circumstances where the applicants at no stage alleged that he was not fit and proper.
"The recent ascendancy of Mr Ramaphosa to the Presidency removes whatever justification there may have been for the removal of Adv Abrahams from office.
"Mr Nxasana was prepared to leave if compensated fully for his remaining years of service (plus minus eight and a half years)."
