Constitutional Court rules on former National Director of Public Prosecutions

Corruption Watch NPC and Others v President of the Republic of South Africa and Others [2018] ZACC 23

Court: Constitutional Court of South Africa

Date of judgment: 13 August 2018

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On 13 August 2018, the Constitutional Court of South Africa declared that the termination of the appointment of Mr Nxasana, the former National Director of Public Prosecutions (NDPP), was constitutionally invalid. The Constitutional Court further held that certain provisions of the National Prosecuting Authority Act 32 of 1998 (NPA Act) were constitutionally invalid. In terms of the Constitutional Court’s order, the President of the Republic of South Africa was directed to appoint an NDPP within 90 days of the order.

Background

In July 2014, former President Jacob Zuma informed the then-NDPP, Mr Nxasana, of his intention to hold an inquiry into Mr Nxasana’s fitness to hold office and to suspend him. This led to various correspondence between former President Zuma and Mr Nxasana, through which Mr Nxasana indicated that he did not want to vacate office as there was no basis for him to do so. Mr Nxasana noted, however, that he would consider stepping down if he was fully compensated for the remainder of the contract period. As described by the Constitutional Court: “The facts … point to one thing and one thing only: former President Zuma was bent on getting rid of Mr Nxasana by whatever means he could muster. His was an approach that kept on mutating: it was first a stick; then a carrot; a stick once more; and eventually a carrot.”

On 9 May 2015, Mr Nxasana signed a settlement agreement with former President Zuma and the Minister of Justice and Correctional Services (the Minister). In terms of the agreement, Mr Nxasana would relinquish his position as NDPP and receive a sum of R17.3 million (ZAR) as a settlement payment. Mr Nxasana was ultimately paid an amount of R10 240 767.47, with the rest retained by the state for income tax.

The applicants in the matter approached the High Court seeking the review and setting aside of the settlement agreement, as well as an order that the settlement amount be repaid and that the subsequent appointment of Advocate Abrahams to fill the vacancy of NDPP be set aside. Furthermore, the applicants sought to have sections 12(4) and 12(6) of the NPA Act declared unconstitutional. The High Court of South Africa (Gauteng Division, Pretoria) (High Court) granted the applications. Accordingly, the matter came before the Constitutional Court by way of confirmation proceedings.

Majority judgment (per Madlanga J)

At the outset, the majority highlighted the important role played by the NDPP as the head of the National Prosecuting Authority (NPA), and the constitutional imperative for the independence of the NDPP to be guaranteed. It also noted the recent history of instability that was experienced by the NPA.

Before the Constitutional Court, the parties were all in agreement that, in the present matter, the NDPP had not vacated office in terms of section 12(8) of the NPA Act that provides for an NDPP’s removal from office. The applicants argued that Mr Nxasana vacated office in a manner that was at odds with the Constitution and the law; Advocate Abrahams and the NPA argued that an NDPP is not precluded from vacating office voluntarily otherwise than under section 12(8); and Mr Nxasana accepted that his vacation from office was not constitutionally compliant.

While the majority deliberately eschewed deciding the question of whether an NDPP can vacate office outside of the provisions of section 12(8) of the NPA Act,  it did note that “[t]he inference is inescapable that [former President Zuma] was effectively buying Mr Nxasana out of office” and that “conduct of that nature compromises the independence of the office of NDPP”. Furthermore, the majority stated that it can never be permissible that vacating office outside of the provisions of section 12(8) of the NPA Act would ever entitle an NDPP to more benefits than those set out in section 12(8).

Accordingly, the majority held that the settlement agreement, Mr Nxasana’s vacation of office and the obligation to pay the sum of R17.3 million were all constitutionally invalid for having come about in a manner inconsonant with the constitutionally required independence of the office of the NDPP. It held further that, as the manner in which Mr Nxasana had vacated office had been declared constitutionally invalid, it followed that the subsequent appointment of Advocate Abrahams as NDPP was also invalid.

Furthermore, the majority considered the constitutional validity of section 12(4) of the NPA Act – regarding the extension of the term of office of an NDPP who is otherwise liable to retire on the grounds of age – and section 12(6) of the NPA Act – regarding the provision that an NDPP may be indefinitely suspended by the President without pay or with such pay as the President may determine. Relying on its earlier jurisprudence that “[r]enewal  invites a favour-seeking disposition from the incumbent whose age and situation might point to the likelihood of renewal” and that “[n]o holder of this position of high responsibility should be exposed to the temptation to ‘behave’ herself in anticipation of renewal”, the Constitutional Court declared section 12(4) to be constitutionally invalid. Furthermore, noting that section 12(6) of the NPA Act “has the potential to undermine the independence and integrity of the offices of NDPP and Deputy NDPP and, indeed, of the NPA itself”, the majority concluded that section 12(6) is constitutionally invalid for empowering the President to suspend an NDPP and Deputy NDPP without pay and for an indefinite duration.

In reaching its conclusions on the remedy, various matters had to be determined. Some of the salient aspects included the following:

• With regard to whether Mr Nxasana should resume office, the majority noted that “although Mr Nxasana strongly protested his fitness for office, he was saying he was willing to be bought out of office if the price was right.  As much as I sympathise with him, I do not think that is the reaction expected of the holder of so high and important an office; an office the holder of which – if she or he is truly independent – is required to display utmost fortitude and resilience.” As such, the majority concluded that Mr Nxasana’s conduct led to the conclusion that a just and equitable remedy is not to allow him to return to office.
• With regard to  whether Advocate Abrahams should be allowed to retain his position as the NDPP, the majority noted that although there was no suggestion that Advocate Abrahams was not fit and proper to hold office, he nevertheless benefitted from an abuse of power. As stated by the majority: “It matters not that he may have been unaware of the abuse of power; the rule of law dictates that the office of NDPP be cleansed of all the ills that have plagued it for the past few years.” As such, it concluded that it was not be just and equitable to retain Advocate Abrahams as “this would not vindicate the rule of law.”
• With regard to the repayment of the settlement amount, it was noted that Mr Nxasana did not resist paying back the money. In this regard, the majority described the order of repayment as “a natural consequence of the declaration of constitutional invalidity of the manner in which Mr Nxasana vacated office.”

Minority dissenting judgment (per Jafta J)

The minority dissenting judgment disagreed on only one aspect with the majority: whether Mr Nxasana was entitled to resume office in light of the declaration that his removal was invalid. According to the minority, the termination of Mr Nxasana’s appointment as the NDPP amounted to a nullity in the eyes of the law. It follows, according to the minority, that Mr Nxasana must be taken as if he had not been dismissed. The minority noted further that: “In the present matter there is nothing exceptional or extraordinary that warrants the exercise of remedial power to prevent Mr Nxasana from returning to office. His return will certainly not cause a constitutional crisis or a national crisis.  On the contrary, his return would enable the President to follow the law if he wishes to remove him from office and Parliament would play a vital part in that process. And more importantly, preventing Mr Nxasana from returning to office without pronouncing on the validity of his employment contract would not only be unfair to him but would also create considerable uncertainty on the parties’ rights and interests. This would be antithetical to the rule of law which promotes certainty.”

Order of the Constitutional Court

In the result, the Constitutional Court made the following order:

1. The appeal of Mr Mxolisi Sandile Oliver Nxasana is upheld with no order as to costs and Mr Nxasana’s explanatory affidavit is admitted.
2. The costs order by the High Court of South Africa, Gauteng Division, Pretoria (High Court) against Mr Nxasana is set aside.
3. The appeal of Advocate Shaun Kevin Abrahams and the National Prosecuting Authority is dismissed with costs, including the costs of two counsel.
4. The declaration by the High Court that the settlement agreement dated 14 May 2015 concluded by former President Jacob Gedleyihlekisa Zuma, the Minister of Justice and Correctional Services and Mr Nxasana in terms of which Mr Nxasana’s incumbency as the National Director of Public Prosecutions (NDPP) was terminated is constitutionally invalid is confirmed.
5. The declaration by the High Court that the termination of the appointment of Mr Nxasana as NDPP is constitutionally invalid is confirmed.
6. The declaration by the High Court that the decision to authorise payment to Mr Nxasana of an amount of R17 357 233 in terms of the settlement agreement is invalid is confirmed.
7. The declaration by the High Court that the appointment of Advocate Abrahams as NDPP is invalid is confirmed.
8. The declaration by the High Court that section 12(4) of the National Prosecuting Authority Act 32 of 1998 is constitutionally invalid is confirmed.
9. The declaration by the High Court that section 12(6) of the National Prosecuting Authority Act is constitutionally invalid is confirmed only to the extent that the section permits the suspension by the President of an NDPP and Deputy NDPP for an indefinite period and without pay.
10. The declaration of constitutional invalidity contained in paragraph 9 is suspended for 18 months to afford Parliament an opportunity to correct the constitutional defect.
11. During the period of suspension—
    • section 12(6)(aA) will be inserted after section 12(6)(a) and it will read:

The period from the time the President suspends the National Director or a Deputy National Director to the time she or he decides whether or not to remove the National Director or Deputy National Director shall not exceed six months.

• section 12(6)(e) will read (with insertions and deletions reflected within square brackets):

The National Director or Deputy National Director provisionally suspended from office shall receive, for the duration of such suspension, [no salary or such salary as may be determined by the President] [her or his full salary].

12. Should Parliament fail to correct the defect referred to in paragraph 9 within the period of suspension, the interim relief contained in paragraph 11 will become final.
13. Decisions taken, and acts performed, by Advocate Abrahams in his official capacity will not be invalid by reason only of the declaration of invalidity contained in paragraph 7.
14. Mr Nxasana is ordered to repay forthwith to the state the sum of R10 240 767.47.
15. The President is directed to appoint an NDPP within 90 days of the date of this order.
16. The President, the Minister of Justice and Correctional Services and the National Prosecuting Authority are ordered to pay all costs in this Court that are additional to the costs referred to in paragraph 3, such costs to include the costs of two counsel.

The full judgment is accessible here.

Please note: The information contained in this note is for general guidance on matters of interest, and does not constitute legal advice. Power Singh Inc. was not involved in this matter. For any enquiries, please contact us at [email protected].