Constitutional Court dismisses Shaun Abrahams's appeal

Monday, August 13, 2018

The Constitutional Court has ruled that Shaun Abrahams’s appointment as the National Director of Public Prosecutions (NDPP) was constitutionally invalid and has subsequently dismissed his appeal with costs.

Abrahams and the National Prosecuting Authority (NPA) this morning appealed the order setting aside his appointment.

Justice Mbuyiseni Madlanga on Monday said the appointment of Abrahams was invalid because the removal of his predecessor, Mxolisi Nxasana, was also constitutionally invalid due to the fact that former President Jacob Zuma “bought” him out of office.   

“The removal of Nxasana by Zuma was an abuse of power. Advocate Shaun Abrahams is a beneficiary of an abuse of power. It does not matter whether he was part of the abuse of power,” said Madlanga when delivering his judgment on Monday.

Last year, the North Gauteng High Court declared that Zuma acted unconstitutionally in terminating former prosecutions boss Nxasana and replacing him with Abrahams.

The application was brought to the highest court in the land by civil society organisations who challenged Nxasana's R17 million payout, which he has now been ordered to pay back as it was invalid.

The organisations argued that Abrahams’s appointment was a product of Zuma’s unlawful abuse of power from which he sought to personally benefit by minimising his own risk of prosecution.

Nxasana was appointed to the position in October 2013 but his fitness to hold office came under question a year later after a breakdown in the relationship with Zuma.

Zuma instituted a commission of inquiry into his fitness to hold the office, which led to a legal battle. The legal battle ended with the R17 million settlement, while making way for the appointment of Abrahams.

Judge Madlanga questioned why Zuma failed to pursue an inquiry into Nxasana but instead abandoned it to pay him a “huge amount” to leave his post.

“This inference is inescapable,” Madlanga said, adding that the independence of the NPA was also undermined by the former President.

“Former President Jacob Zuma was hell-bent on removing Nxasana at all costs.”

The judge further stressed that the return of Nxasana to the office would prolong the instability at the NPA. Instead, Madlanga ordered Nxasana to pay back a sum of more than R10 million.

President Cyril Ramaphosa has been ordered appoint a new NDPP within 90 days.

"For years there has been instability in the appointment of NDPP. The sooner it is brought an end, the better,” Madlanga said. –