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The Constitutional Court has ruled that Shaun Abrahams’ appointment as national director of public prosecutions (NDPP) was wrong, ending a fierce legal battle. 

It decided that the way in which his predecessor Mxolisi Nxasana left office was invalid and unconstitutional.

Corruption Watch had pursued the case, and the ruling was welcomed by the organisation’s chief David Lewis.

“This could be the beginning of a new renewal for the NPA,” he said.  

“This is a vindication of the role of the Constitutional Court.”

It is now up to President Cyril Ramaphosa to appoint a new NDPP.

Abrahams was appointed after Nxasana was given a R17m golden handshake, and the Court ruled that, as a consequence, the appointment had been illegal. 

The move by former President Jacob Zuma to oust Nxasana was seen as an attempt by him to secure a more sympathetic leadership in the NPA.

The Organisation Undoing Tax Abuse (OUTA) welcomed the Constitutional Court’s eviction of Shaun Abrahams from office.

“Once again, the Constitutional Court saves South Africa,” said Ben Theron, OUTA COO.

The NPA Act sets out that when the NDPP is not available, the President may appoint any deputy NDPP as the acting NDPP. OUTA said it hopes that South Africa will not have to put up with the compromised Deputy NDPP Nomgcobo Jiba as acting NDPP.

“We urge the President to make the appointment of the new National Director as soon as possible. We hope he has an outstanding candidate in mind who will ensure justice,” says Theron.

OUTA said it was relieved that a decision had been made, as this matter has been pending since the Pretoria High Court decision in December 2017 that neither Mxolisi Nxasana nor Abrahams should be NDPP.

”This decision gives finality to the matter and encourages much-needed stability in the National Prosecuting Authority (NPA),” it said.

”The decision also underlines the abuse of power by former President Jacob Zuma and the rot that flowed from this, including the settlement which tainted Mxolisi Nxasana and pushed him out of office and the now-invalid appointment of Abrahams. OUTA welcomes the that Nxasana must repay the excess portion of his payout.”

OUTA also congratulated Corruption Watch and Freedom Under Law for taking on this case. “It is organised civil society and independent organisations which hold the state to account and ensure good governance which promotes our democracy.

“Now the fight against corruption can start. Shaun Abrahams was a major stumbling block in this regard.

“The President must find the correct replacement: a strong, independent NDPP. The Concourt has reminded us all that the head of the NPA should be allowed to do his job without fear or favour. The new NDPP has a tough job: firstly, restoring the credibility and morale of the prosecution services and, secondly, dealing with that long queue of corrupt people waiting to go to jail.”

Last year, OUTA said, it opened 12 criminal cases against at least 17 politicians, government officials and SOE board members – and provided substantial evidence of their corrupt activities – but the NPA under Abrahams did next to nothing about these matters.

”Instead, he pursued cases against those like Pravin Gordhan who opposed state capture. We now look forward to a re-energised NPA which acts on these matters, ” it concluded.

Business Unity South Africa (BUSA) President Sipho Pityana said: “The criminal justice is totally compromised because of a litany of hand-picked  candidates such as Abrahams without any due process that enjoys public confidence, This is an opportunity to open a new chapter.

“A competent, ethical, efficient and credible criminal justice system is the bedrock of any democratic government, and the prosecution service is a gateway to justice. 

“The NPA’s leadership has been dogged by controversy for years, and the institution’s compromise has enabled crime to thrive -- with crippling consequences on business, the economy and the people of South Africa.”

Said Glynnis Breytenbach, the DA Shadow Minister of Justice and Constitutional Development:  ”The DA has propagated the view for some time that the appointment process regarding the NDPP should follow the concept of public and parliamentary involvement, similar to the process of appointment of the Public Protector and the judiciary.  This would be a good time to revisit that option.

”Zuma’s decision to appoint Abrahams as head of the NPA was nothing more than an attempt to prevent the prosecuting authority from reinstating the 783 counts of corruption, fraud, racketeering and money-laundering against him.

”Parliament should play a central role in appointing the NDPP in order to prevent political influence over the NPA.

”Furthermore, the DA welcomes the Court’s ruling that Section 12(6) of the NPA Act unconstitutional; this section determines that the President can suspend the NDPP for an indefinite period without pay.

”The Court has given Parliament 18 months to remedy this defect. In the interim, the President will only be allowed to suspend the NDPP for a period of 6 months and the NDPP will receive a full salary in that period.

”President Ramaphosa must stop evading the inevitable and should, with the participation of Parliament, appoint a credible and independent NDPP which will restore the public faith in the integrity of the NPA.”

Said the ANC: ”The ANC believes that today’s judgement provides President Cyril Ramaphosa with the necessary space to move with speed and urgency to resolve the leadership question at the NPA. What is critical for the ANC is the restoration of the independence, integrity and credibility of this key law-enforcement agency. Anything that compromises the independence of the NPA will undermine its credibility and lead to a serious erosion of the rule of law.

”The ANC has confidence in its President, who is also the President of the country, Cde Cyril Ramaphosa, to handle this matter in a manner that will restore public confidence in our prosecuting authority.”

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