The national director of public prosecutions (NDPP) Shaun Abrahams, appointed in 2015, is a beneficiary of former president Jacob Zuma's abuse of power at the National Prosecuting Authority (NPA), Constitutional Court Justice Mbuyiseli Madlanga said on Monday.
''Former president Zuma appointed Abrahams following his unlawful removal of Nxasana. That removal was an abuse of power... Advocate Abrahams is a beneficiary of that abuse of power, and it matters not that he may not been aware of such abuse of power,'' Madlanga said.
The Constitutional Court said on Monday Abrahams' appointment by former president Zuma as the head of the NPA was unconstitutional.
The court further directed President Cyril Ramaphosa to appoint a new NPA boss within 90 days.
Abrahams and the NPA approached the highest court to appeal a judgment last year that ruled that the removal from the post of Mxolisi Nxasana, who received a R17,3 million golden handshake, was unlawful, and therefore rendering Abrahams' appointment by Zuma invalid.
Judge Madlanga said a return of Nxasana to the NPA will not help the unstable prosecutions office.
''For years, there has been instability in the NDPP, with the vacation of office by Nxasana and appointment of Abrahams...that instability persists to this day. The sooner it is brought to an end, the better. An order that would be prolonging the instability cannot be justified...Mr Nxasana's return to office will have that effect as the president might institute an inquiry into his fitness and for agreeing to the R17,3 million settlement to vacate office,'' he said.
Nxasana received R10 million of the payout, with the rest of the amount retained by government as income tax.
Regarding the payout, Madlanga said it undermined the independence of the NPA. He added that Zuma was ''hellbent'' on getting rid of Nxasana by ''whatever means he could master''.
''It should be borne in mind that this entire saga started because former president Zuma held a view that Nnxasana was no longer fit to hold office. It must have been a matter of relative ease then to pursue the inquiry instead of offering Nxasana what is by all accounts an extremely huge sum of money. Crucially, the high court noted that the parties agreed that R17m far exceeded what Nxasana would have been entitled to had he vacated office in terms of the NPA Act.
''Instead of settling for the huge amount, why didn't the former president pursue the inquiry? Did he not believe that the evidence that prompted him to come up with the idea of the inquiry was sufficient? If so, why did he not abandon the inquiry and leave Nxaza in office?...after all he was exercising powers as president and was not involved in personal dispute.''
He said such huge payments to an NDPP were seen as ''buying out ''unwanted and troublesome individuals''.
''It cannot be that vacating NDPP office will ever entitle an NDPP to more benefits than those set out in NPA Act, Section 12 A., which is very specific on public service benefits. The problem with benefits that are not cleared by this section is that they leave an impression that the NDPP was bought of office...such compromises the independence of the office.Whatever we make of the section 12 A, the manner of vacating an office should never undermine the constitutional imperative of the independence of the office of the NDPP.''
The high court case was brought by Freedom Under Law (FUL), Corruption Watch and the Council for the Advancement of the South African Constitution (Casac) who wanted Abrahams' appointment be set aside.
They also wanted an order reinstating Nxasana or, alternatively, declaring that the position was vacant and a new prosecutions boss must be appointed.
Nxasana has since indicated that he would return the money and that he wanted his job back.
Zuma appointed Nxasana to head the troubled NPA in 2013. Following internal conflict, while corruption charges hung over Zuma's head, a commission of inquiry was instituted in 2014 to investigate Nxasana's fitness to hold office.
As a result, he was suspended pending the outcome of the inquiry. In August 2014, Nxasana launched an urgent application in the high court seeking to interdict his suspension. However, the court process was never finalised as Nxasana and Zuma began negotiations in an attempt to settle the dispute. Nxasana was given a R17.3 million golden handshake by Zuma in 2015 to vacate his post. He was temporarily replaced by Silas Ramaite, before Abrahams was then appointed permanently.