Press Release: The independence of the NDPP confirmed by Constitutional Court following CASAC’s intervention

For Immediate Release: 15 August 2018

On 13 August 2018 in the Constitutional Court, judgment was handed down in the matter of Corruption Watch, Freedom under Law and Council for the Advancement of the South African Constitution v President of the Republic of South Africa. The Legal Resources Centre represented the Council for the Advancement of the South African Constitution (CASAC).

The matter concerned the legality of the agreement between then President Zuma and Mxolisi Nxasana, that Mr Nxasana would step down as National Director of Public Prosecution (NDPP) in exchange for a “golden handshake” of R17,3 million. Advocate Shaun Abrahams was then appointed in his place.

Much of the attention regarding the outcomes of judgment has been focused on the removal of Shaun Abrahams as the NDPP and the fact that Mxolisi Nxasana must pay back the money he received as part of the golden handshake. However, the intervention by CASAC also sought to ensure the institutional independence of the National Prosecuting Authority (NPA) through a declaration that sections of the National Prosecuting Authority Act were unconstitutional.

CASAC sought an order declaring sections 12(4) and 12(6) of the National Prosecuting Authority Act inconsistent with the Constitution. Section 12(4) allows the President to extend the tenure of the NDPP and the Deputy. Section 12(6) affords the President the power to suspend the NDPP and Deputy unilaterally, indefinitely and without pay. CASAC argued that these sections undermine the independence of the NDPP and, consequently, the NPA as a whole.

The High Court agreed with CASAC that the sections were unconstitutional and the Constitutional Court was subsequently approached to confirm the High Court judgment. CASAC and the LRC are pleased to note that the Court upheld our arguments on the unconstitutionality of section 12(4) and 12(6).

In respect of the President’s power to extend the contract of an NDPP or Deputy NDPP, the Constitutional Court confirmed its earlier judgments on the independence of the Chief Justice and the Hawks that, “no holder of this position of high responsibility should be exposed to the temptation to ‘behave’ in anticipation of renewal” and declared it unconstitutional that the President may unilaterally extend the contract of a NDPP or Deputy NDPP.

The Court declined to make a finding on whether the President should be allowed to unilaterally suspend the NDPP as set out in s12(6), but found that the fact that the President may suspend the NDPP for an indefinite period of time, without pay, was enough to render the section unconstitutional. Parliament now has 18 months to remedy sections 12(4) and 12(6).

Speaking on behalf of the LRC, Carina du Toit noted that the importance of the judgment goes beyond the specifics surrounding the former president, Mr Nxasana and Mr Abrahams. The amendments required to the NPA Act will ensure that the NPA is independent and protected from undue interference with its functioning.

Lawson Naidoo, on behalf of CASAC: “The Constitutional Court judgment has emphatically affirmed the independence of the National Prosecuting Authority and lamented the ‘paralysing instability’ that has afflicted this key institution over the past decade. In a judgment confirming the orders made by the Gauteng High Court in December 2017, the Court has paved the way for a new NDPP to be appointed by President Ramaphosa within 90 days. Furthermore, CASAC successfully challenged the constitutionality of sections 12(4) and (6) of the NPA Act, which were deemed to grant the President excessive powers over the extension of tenure of a NDPP and suspending a NDPP indefinitely and without pay.”

ENDS