Pretoria – President Jacob Zuma was reckless when he offered former NPA boss Mxolisi Nxasana a multi-million-rand golden handshake, and he should not be allowed to appoint someone to the top position, the North Gauteng High Court in Pretoria has ruled.
A full Bench of the high court handed down the ruling on Friday in a case which several lobby groups had lodged to challenge Nxasana’s departure and a R17.3m golden handshake paid to him.
Gauteng Judge President Dunstan Mlambo and Judges Natvarlal Ranchod and Willem van der Linde found that Zuma and Nxasana had acted recklessly and that the settlement agreement between them was unlawful.
“He (Zuma) must have known that the law prescribes what Mr Nxasana is permitted to be paid. Despite this, he paid Mr Nxasana what Mr Nxasana wanted,” the judgment read.
“His attitude must have been that he is allowed freely to use the public purse to secure the removal of Mr Nxasana.”
However, the judges added that it would be an inferential conclusion to say that Zuma knew he was acting outside the ambit of the law when he made the settlement agreement, because the court did not have his testimony.
“We prefer therefore to conclude, as we do, that the president was simply reckless as to whether his conduct was unlawful.”
‘President would be conflicted’
The court declared Nxasana’s termination invalid and ordered him to pay back the R17.3m.
The judges did not order his reinstatement as a result of their finding that he had acted recklessly in accepting the settlement.
However, they declared the appointment of current National Director of Public Prosecutions (NDPP) boss Shaun Abrahams invalid and set it aside.
Zuma will not be allowed to appoint his successor.
“In our view, President Zuma would clearly be conflicted in having to appoint an NDPP, given the background to which we have referred, particularly the ever-present spectre of the many criminal charges against him that have not gone away,” said Mlambo.
Referring to the corruption charges which have been hanging over Zuma’s head for years, the court cut Zuma’s wings and removed his power to appoint, suspend or remove an NDPP, handing them to Deputy President Cyril Ramaphosa instead.
READ: Ramaphosa must appoint new NPA head as court rules Abrahams must vacate office
“It is declared that, as long as the incumbent president is in office, the deputy president is responsible for decisions relating to the appointment, suspension or removal of the NDPP.”
“The president told the [Supreme Court of Appeal] that he ‘had every intention in the future to continue to use such processes as are available to him to resist prosecution,’ in other words, not to stand trial at all. And this would place the incumbent NDPP firmly on the spot,” said Mlambo.
“It seems incongruous that, under those circumstances, President Zuma should be seen to be appointing an NDPP, since his conflict, both actual and perceived, is self-evident.”
Zuma intends to appeal
Furthermore, the court said there was nothing preventing Zuma from standing trial and answering to corruption allegations against him.
“There is no longer any obstacle in the way of the criminal charges proceeding.”
The court also noted Zuma’s conduct of litigation of “defending what ultimately turns out – on the president’s own concession – to have been the indefensible all along, banking on any advantage that the passage of time may bring.”
“This pattern has played out in well-publicised cases in the courts, and would be naive to ignore. We refer here particularly to the Nkandla case and the spy tapes case.”
The presidency has announced that Zuma intends to appeal.