Johannesburg – Here are some of the top quotes from the Mxolisi Nxasana judgment by a full bench – comprising Judge Dunstan Mlambo, Judge Natvarlal Ranchod and Judge Willem van der Linde – in the North Gauteng High Court in Pretoria on Friday.
The judgment follows litigation by Freedom Under Law, Corruption Watch and the Council for the Advancement of the South African Constitution (Casac), who sought an order declaring former NDPP Mxolisi Nxasana’s removal invalid.
1. “He [President Jacob 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,” said Judge Mlambo, reading out the judgment.
2. “His attitude must have been that he is allowed freely to use the public purse to secure the removal of Mr Nxasana.”
3. “We prefer, therefore, to conclude, as we do, that the president was simply reckless as to whether his conduct was unlawful.”
4. “In our view, President Zuma would clearly be conflicted in having to appoint a 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.”
5. “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.”
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6. “There is no longer any obstacle in the way of the criminal charges proceeding.”
7. “It follows that, in our view, the settlement agreement is invalid because Mr Nxasana did not request to be allowed to vacate the office of the NDPP as required by s.12(8)(a) of the NPA Act, but rather because he was persuaded to vacate the office by the unlawful payment of an amount of money, substantially greater than that permitted by the law.”
8. “First, there is the broader pattern of the president’s conduct in 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 the 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.”
9. “Mr Nxasana, too, must have known that the bargain he was driving was unlawful. First, he was, after all, the NDPP and the NPA Act was ultimately his charge to administer.”
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10. “Third, in this litigation – as in the president’s and the NPA’s appeal to the SCA – Advocate [Shaun] Abrahams has associated himself, inconsistent with the imperative of prosecutorial independence, on all the material issues with the position of the President.”
11.”The judgments that questioned the integrity of advocates [Nomgcobo] Jiba, [Lawrence] Mrwebi and [Sibongile] Mzinyathi were judgments of the High Court and advocate Abrahams should not have questioned, but should instead have acted on their result.”