On 8 December 2017, the North Gauteng High Court in Pretoria, South Africa, gave a judgment in the parallel cases between both Corruption Watch (RF) NPC and Freedom Under Law (RF) NPC, and the Council for the Advancement of the South African Constitution (applicants), against the President of the Republic of South Africa (Mr J.G. Zuma) and others (respondents). One of the other respondents was Mr M.S. Nxasana, who had been National Director of Public Prosecutions (NDPP) from 1 October 2013 until 31 May 2015. The NDPP is appointed by the President of South Africa for a non-renewable term of ten years. Already in July 2014 the President had informed Mr Nxasana that he intended to investigate whether Mr Nxasana met the requirement under law that he was ‘a fit and proper person, with due regard to his or her experience, conscientiousness and integrity, to be entrusted with the responsibilities of the office concerned’. In May 2015, the President and the Minister of Justice and Correctional Services on the one hand, and Mr Nxasana on the other hand, concluded a settlement agreement. Under the terms of the agreement, Mr Nxasana would vacate the office of NDPP and would receive a termination benefit to the amount of 17.3 million South African Rand. The President then appointed a new NDPP.
In the opinion of the applicants, the settlement agreement was unlawful and should be set aside, implying that either Mr Nxasana should be reinstated as NDPP, or that a new NDPP should be appointed. In the latter case, the appointment should not be made by the President, but by the Deputy President, on the argument that the President was unable to make a new appointment for reasons of conflict of interest (as there were criminal charges pending against the President). The respondents argued that setting aside the agreement would not imply that Mr Nxasana should be reinstated, simply because ‘the President […] accepted a request made to him by Mr Nxasana’ to be dismissed from office, ‘and that their decision consequent upon the request […] lawfully terminated Mr Nxasana’s term of office’. On the issue of a conflict of interest, the President argued ‘that in any event no criminal charges are pending against him’: ‘The charges were withdrawn in a Court and so their current status is that the NDPP must decide whether or not he will press them’.
Interestingly, all parties to the dispute agreed that the settlement agreement should be set aside. As the High Court put it: ‘The parties are all agreed […] that the settlement agreement must be set aside. There was no debate either that the reason why it has to be set aside, is that there was no statutory or other power to have concluded it. The parties were unanimous too in their demand that Mr Nxasana should repay all amounts he received under the settlement agreement’ (paragraph 48).
The High Court considered that the argument advanced by the respondents, to the effect that the settlement agreement had been concluded because Mr Nxasana himself had requested to be relieved from office, was incorrect. The High Court considered that ‘There is no scope here for a version that first came a request to vacate, accepted by the President; and having agreed that part, next commenced the negotiations for an exit package’, inter alia because Mr Nxasana had at some point stated that he would ‘only “consider the option of leaving office, as the President would want him, if he is fully compensated for the remainder of his contract”’ (paragraph 67). This led the High Court to consider the next question of whether the setting aside of the settlement agreement implied that Mr Nxasana should be reinstated. The High Court concluded that this was not the case: ‘In our view, given then the conduct of these two main protagonists […], it is not just and equitable, in the context of vindicating the Constitution and the independence of the prosecutorial authority, to reinstate Mr Nxasana’ (paragraph 94). However, the High Court also concluded that the appointment by the President of a new NDPP should be set aside: ‘if the invalid act cannot wholly be undone, respect for the rule of law would require that nonetheless it must be undone in such a manner that the result still projects respect for the Constitution and the rule of law’ (paragraph 96). Finally, the High Court considered that ‘In our view President Zuma would be clearly 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’ (paragraph 114). This led the High Court to give the order ‘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 National Director of Public Prosecutions’.
The judgment of the North Gauteng High Court in Pretoria can be found at: www.saflii.org, South Africa, South African courts, tribunals and journals, South Africa: North Gauteng High Court – Pretoria, 2017, December 2017.