The matter arose from a public scandal surrounding the 2015 departure of Mxolisi Nxasana from the office of the National Director of Public Prosecutions in exchange for a substantial golden handshake. The court was also called to adjudicate the constitutionality of the underlying settlement agreement, which it invalidated on the grounds that such arrangements could compromise prosecutorial independence. However, while invalidating Nxasana's termination and the appointment of his successor, Shaun Abrahams, the court ordered that a new National Director should be appointed, instead of endorsing Nxasana's return to the office. While the court was unanimous on the other legal issues, it was split seven to two on this remedy; Justice Chris Jafta wrote a partly dissenting judgment which argued that, in ordering the appointment of a new National Director, the court risked trenching on the separation of powers.
Background
On 1 October 2013, President Jacob Zuma appointed Mxolisi Nxasana as the National Director of Public Prosecutions (NDPP), the head of the National Prosecuting Authority (NPA). His brief tenure in the NPA coincided with a great deal of internal instability, and in June 2014, Zuma decided to suspend Nxasana from his office, pending the outcome of a commission of inquiry which he intended to institute to investigate Nxasana's fitness to hold office.[1] Neither the suspension nor the inquiry ever took effect, because Nxasana sought to interdict Zuma's decision in the High Court of South Africa and then entered into settlement negotiations with Zuma and his Minister of Justice and Correctional Services. In May 2015, in terms of a settlement agreement, Nxasana vacated his office voluntarily in exchange for a settlement payment of R17.3 million. Zuma controversially appointed Shaun Abrahams to succeed Nxasana as NDPP.[2]
High Court action
Corruption Watch and Freedom Under Law, two non-profit organisations, objected strongly to Nxasana's vacation of office and the settlement payment he received, and they applied to the Pretoria High Court to challenge the lawfulness thereof.[3] Another non-profit organisation, the Council for the Advancement of the South African Constitution (Casac), brought its own application challenging the constitutionality of sections 12(4) and 12(6)of the NPA Act, 1998. Section 12(4) granted the President of South Africa the discretion to extend the term of office of the NDPP or his deputies beyond the retirement age, while section 12(6) granted the President the discretion to provisionally and indefinitely suspend the NDPP and his deputies from office pending an inquiry into their fitness to hold office.
The two applications were consolidated and heard in the High Court in November 2017, and they were granted the following month: the Pretoria bench, led by Judge President Dunstan Mlambo, found that Nxasana's settlement payment and vacation of office were unconstitutional, as were sections 12(4) and 12(6) of the NPA Act. In an extraordinarily intrusive order, the court also agreed with the applicants that the criminal corruption charges against Zuma created a conflict of interest which made it untenable for him to make decisions about the appointment, suspension, or removal of the NDPP; the court ruled that those powers would be vested, for the rest of Zuma's term, in Deputy President Cyril Ramaphosa, who was instructed to appoint a new NDPP to replace Abrahams.[4]
The applicants approached the Constitutional Court of South Africa for confirmation of the High Court's order of constitutional invalidity. At the same time, the third respondent, Nxasana, cross-appealed on a procedural matter – the High Court had refused to condone his late filing of an explanatory affidavit – and the High Court's costs order, while the fourth and seventh respondents, the NPA and Abrahams, cross-appealed against the declaration that Abrahams's appointment as NDPP was invalid. The Helen Suzman Foundation was admitted as amicus curiae. Counsel for the applicants included Matthew Chaskalson SC (for Corruption Watch), Wim Trengove SC (for Freedom under Law), and Geoff Budlender SC (for Casac).[5]
Holding
When the Constitutional Court handed down judgment on 13 August 2018, it agreed unanimously with the High Court that sections 12(4) and 12(6) of the NPA Act were unconstitutional. In a majority judgment written by Justice Mbuyiseli Madlanga, the court held that those provisions, in granting the President certain discretionary powers, threatened the independence of the NDPP's office: while an indefinite suspension could be used to punish non-compliant directors, a term extension (as a perceived benefit)[6] could be used to reward compliant ones. Indeed, Madlanga's judgment was notable primarily for its strong statement on the requirement of prosecutorial independence, which it said was grounded in section 179(4) of the Constitution and buttressed by various institutional protections in the NPA Act.[7][8]
In this vein, the court held that the settlement agreement between the President and Nxasana had been inconsistent with the NPA Act and, because it had the potential to compromise the independence of the NDPP (since Zuma was "effectively buying Mr Nxasana out of office"), inconsistent with the Constitution. The settlement agreement was therefore invalid, as were the resulting payment of R17.3 to Nxasana and his vacation of the office of the NDPP. These were set aside, as was the appointment of Abrahams to replace Nxasana.
On Mxasana's procedural cross-appeal, the Constitutional Court held that the High Court had misdirected itself on the facts in denying Nxasana condonation for the late filing of his explanatory affidavit; he was granted condonation and his explanatory affidavit was accepted.
Remedy
Having invalidated Nxasana's vacation of office, his settlement payment, and Abrahams's appointment, the majority ordered Nxasana to repay the full amount of the settlement payment and ordered Abrahams to vacate the office of the NDPP. However, the court nonetheless ordered the President to appoint a new NDPP, rather than restore Nxasana to the office. In this it diverted from the default legal position outlined in Steenkamp v Edcon Limited,[9] which entailed that, with the improper conduct having been nullified, the proper remedy was to restore the status quo ante. For the majority, Madlanga wrote that a just remedy in this case would vindicate the rule of law, which required vindicating the integrity and stability of the office of the NDPP, and Nxasana's return would not serve that purpose.
Justice Chris Jafta wrote a separate opinion, in which Acting Justice Xola Petse joined, which concurred with the majority judgment in all respects except the remedy ordered. Jafta favoured restoring the status quo ante, per the Steenkamp principle, and therefore permitting Nxasana's return to office. Per Jafta, if Nxasana were to be removed from office, it should not be by court order but by section 12 of the NPA Act, which prescribes constitutionally valid procedures for such removal; complying with those procedures would respect the separation of powers, enhance the independence of the NPA, and enhance the rule of law.
The Constitutional Court of South Africa is a supreme constitutional court established by the Constitution of South Africa, and is the apex court in the South African judicial system, with general jurisdiction.
The National Prosecuting Authority (NPA) is the agency of the South African Government responsible for state prosecutions. Under Section 179 of the South African Constitution and the National Prosecuting Authority Act of 1998, which established the NPA in 1998, the NPA has the power to institute criminal proceedings on behalf of the state and to carry out any necessary functions incidental to institution of criminal proceedings. The NPA is accountable to Parliament, and final responsibility over it lies with the Minister of Justice and Correctional Services.
The Directorate of Special Operations (DSO), commonly known as the Scorpions, was a specialised unit of the National Prosecuting Authority of South Africa formed by President Thabo Mbeki, tasked with investigating and prosecuting high-level and priority crimes including organised crime and corruption. An independent and multidisciplinary unit with a unique methodology which combined investigation, forensic intelligence, and prosecution, the Scorpions were known as an elite unit, and were involved in several extremely high-profile investigations, especially into the Arms Deal and into high-ranking African National Congress (ANC) politicians including Jackie Selebi, Jacob Zuma, and Tony Yengeni.
Sandile Ngcobo is a retired South African judge who was the Chief Justice of South Africa from October 2009 to August 2011. He served in the Constitutional Court of South Africa from August 1999 until his retirement in August 2011. Before that, he was a judge of the Cape Provincial Division and the Labour Appeal Court.
Baaitse Elizabeth "Bess" Nkabinde is a former judge on the Constitutional Court of South Africa.
Vusumzi "Vusi" Pikoli is a South African advocate and the former head of South Africa's National Prosecuting Authority. He is noted for instigating criminal charges against disgraced South African police commissioner Jackie Selebi and ANC president Jacob Zuma. In 2008 he was suspended from his duties by President Thabo Mbeki, a close confidant of Selebi, and then subsequently fired by Mbeki's successor, Kgalema Motlanthe, who is an ally of Zuma. As such, opposition parties and sections of the press have claimed Pikoli is the victim of two separate political conspiracies. In October 2014 Pikoli was appointed as the Western Cape's first police ombudsman by Premier Helen Zille, whose choice was unanimously backed by the provincial legislature's standing committee on community safety.
Dikgang Ernest Moseneke OLG is a South African judge and former Deputy Chief Justice of South Africa.
The Judicial Service Commission is a body specially constituted by the South African Constitution to recommend persons for appointment to the judiciary of South Africa.
Mogoeng Thomas Reetsang Mogoeng is a South African jurist who served as the Chief Justice of South Africa from 8 September 2011 until his retirement on 11 October 2021.
Christopher Nyaole Jafta is a retired judge of the Constitutional Court of South Africa.
Mbuyiseli "Russell" Madlanga is a judge of the Constitutional Court of South Africa, having been appointed on 1 August 2013.
Mxolisi Sandile Oliver Nxasana was the National Director of Public Prosecutions (NDPP) in South Africa, the head of the National Prosecuting Authority. In August 2013 he was appointed NDPP by President Jacob Zuma effective from 1 October 2013. After a protracted enquiry into his fitness to hold office, Nxasana agreed to step down from his position as NDPP on 31 May 2015, effective from 1 June 2015.
Nomgcobo Jibawas the Deputy National Director of Public Prosecutions in South Africa.
Shaun Abrahams is a South African lawyer and the former national director of public prosecutions (NDPP) at the National Prosecuting Authority.
Jacob Zuma, the former president of South Africa, is currently being criminally charged for proven corruption in the 1999 Arms Deal. He was first indicted on the charges in June 2005, but attempts to prosecute him have been beset by legal challenges and political controversy. He is currently charged with two counts of corruption, one count each of racketeering and money laundering, and twelve counts of fraud, all arising from his receipt of 783 payments which the state alleges were bribes from businessman Schabir Shaik and French arms company Thales.
William Andrew "Willie" Hofmeyr is a South African lawyer and former politician who was Deputy National Director of Public Prosecutions from 2001 to 2019. He was the founding head of the National Prosecuting Authority's Asset Forfeiture Unit from 1999 to 2011 and the head of the Special Investigating Unit from 2001 to 2011. Although he was removed from the AFU by Shaun Abrahams in 2015, he returned in 2019 before he retired late that year.
Democratic Alliance v President of the Republic of South Africa and Others, often known as Simelane, is a 2012 decision of the Constitutional Court of South Africa which expanded rationality review to include evaluation of the relationship between the procedure by which executive decisions are taken and the purpose for which the relevant executive power is conferred. Applying this augmented standard, the court held that President Jacob Zuma had acted irrationally and unconstitutionally in appointing Menzi Simelane as the National Director of Public Prosecutions, given that he had neglected to consider prima facie evidence of dishonesty by Simelane.
↑ Per Justice Alliance of South Africa v President of Republic of South Africa and Others; Freedom Under Law v President of Republic of South Africa and Others; Centre for Applied Legal Studies and Another v President of Republic of South Africa and Others (CCT 53/11, CCT 54/11, CCT 62/11) [2011] ZACC 23; 2011 (5) SA 388 (CC); 2011 (10) BCLR 1017 (CC).
↑ Steenkamp v Edcon Limited [2016] ZACC 1; 2016 (3) SA 251 (CC); 2016 (3) BCLR 311 (CC).
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