Abrahams's appointment is valid‚ his legal team tells Con Court
National Director of Public Prosecutions Shaun Abrahams's counsel said it was irrational to use state funds to pay his predecessor Mxolisi Nxasana a salary for the remaining period of his contract to leave his post.
However‚ this did not mean the appointment of Abrahams was invalid and should be set aside as there was a vacancy when Abrahams was appointed.
These were among the arguments heard in the Constitutional Court Wednesday.
Abrahams's advocate‚ Hilton Epstein‚ SC was presenting argument in the appeal by the NPA and Abrahams against an order by the Pretoria High Court in December‚ which declared as invalid Abrahams's appointment as NDPP.
The high court also set aside the settlement agreement between former president Jacob Zuma and Nxasana when he left office in 2015 – a golden handshake which left Nxasana with a R17.3-million payout. The high court also ordered that Nxasana repay the money.
Freedom Under Law‚ Corruption Watch and Council for the Advancement of the South African Constitution on Wednesday asked the Constitutional Court to confirm the high court orders.
However‚ Abrahams was appealing against the high court order that his appointment was invalid.
After hearing arguments from lawyers representing Abrahams‚ Nxasana‚ the three organisations and the Helen Suzman Foundation‚ the court reserved judgment.
Freedom Under Law counsel Wim Trengove SC argued earlier in the day that former president Jacob Zuma abused powers given to him in 2015 by getting rid of Nxasana and replacing him with an amenable one who was unlikely to prosecute him.
“Any outcome that leaves Mr Abrahams in office would make a mockery of the Constitution as it would leave the situation as Mr Zuma intended to be‚” Trengove said.
However‚ Epstein said Nxasana left his employ after he resigned and Abrahams occupied a vacant position.
Epstein said Nxasana decided to go after receiving his money in terms of the agreement.
“His attorney was quoted as saying Nxasana was not booted out but he resigned‚” Epstein said.
Epstein said there was no suggestion from the three organisations that Abrahams was not a fit and proper person to be NDPP.
Epstein said the agreement between Zuma and Nxasana was invalid and should be set aside.
Notwithstanding the settlement agreement which was declared unlawful‚ Epstein maintained that a vacancy remained and Abrahams was entitled to occupy it. This meant his appointment was not tainted.
“When Mr Abrahams was appointed‚ there is no suggestion that he knew what the terms of the settlement agreement were‚” Epstein said.
Epstein also said what was unlawful was the reward for Nxasana to resign‚ not the resignation itself.
Epstein also said after Nxasana left his post on May 31 2015‚ Dr Silas Ramaite was appointed as acting NDPP until Abrahams was appointed as national director of public prosecutions three weeks into June.
Epstein said in terms of Section 11(2)(b) of the National Prosecuting Authority Act‚ the president may appoint any deputy national director as acting director if there was a vacancy.
“The appointment of Dr Ramaite could be made if there was a vacancy‚” Epstein said.
Nxasana's advocate Michelle le Roux said the settlement agreement with Zuma to leave office was not a bribe‚ but it comprised of money owed to him from his contract as head of the prosecuting authority.
Nxasana is appealing against the high court's refusal to grant him condonation to file an affidavit explaining his recollection of his departure as NDPP.
In the affidavit that was refused by the high court‚ Nxasana sought to inform the court that he never intended to leave office.
Le Roux said Nxasana had taken responsibility for his part in accepting the unlawful settlement and had tendered to repay the money.
In reply‚ Trengove said the president sought to undermine independence of the National Director of Public Prosecutions NDPP.
"What this court should do to that such conduct of this kind is impermissible. The only way to right the wrong is to set aside termination of Mr Nxasana's employment and to set aside the appointment of Mr Abrahams‚" Trengove said.