Unconstitutional Ruling By The North Gauteng High Court

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Paul Ngobeni

 

The plaintiffs, Freedom Under Law, Corruption Watch and the Council for the Advancement of the South African Constitution (Casac) filed a lawsuit in court seeking an order declaring former NDPP Nxasana’s removal invalid. Pursuant to a negotiated settlement agreement, Nxasana accepted a golden handshake from President Zuma worth R17.3m and voluntarily resigned from the National Prosecuting Authority (NPA) in 2015.

 

As I understand it, Nxasana was faced with allegations/charges that he was not fit and proper as leader of the NPA based on his violent acts for which he had been acquitted, denial of security clearance and based on the fact that he was at war with his subordinates in his office. Instead of fighting the charges in a Disciplinary Hearing, Nxasana compromised and settled and accepted R17 million payment (approximate value of his remaining contract) and resigned. It remains a valid question whether compromises or settlements in the face of disciplinary charges can be nullified where both parties bargained for and received benefits they sought. It is certainly absurd to characterize a bargained for consideration or settlement as a “bribe” as some have done. Once the resignation was duly accepted, the NDPP position was vacant and the President was entitled to appoint a successor. Even a later declaration that the resignation was unconstitutional would not retroactively make the vacated NDPP position “not vacant.” Abrahams could be and was lawfully appointed as NDPP after Nxasana left office or purported to leave office.  It should be remembered that there was an inquiry into his fitness to hold office which was abruptly halted without explanation.  Unfortunately, the defence put by the President Zuma’s legal team was very weak and unconvincing.  During the hearing in November, the applicants argued that court Zuma tried to “bully” Nxasana out of office by using an inquiry into his fitness.  But the evidence in support of the disciplinary charges was not frivolous – there was a public statement from the General Council of the Bar acknowledging that there was political infighting in the NPA under Nxasana and that his leadership was not garnering unanimous support from his deputies.  The denial of security clearance was neither manufactured nor imagined – Nxasana had apparently not received it.  As pointed out below, instituting an inquiry does not require absolutely airtight case or solid evidence as it may also be done to give the accused person an opportunity to answer allegations, put rumours to rest and thus clear his name.

The High Court has found that the termination of Nxasana’s contract was invalid and that he should pay back the R17 million golden handshake. Bizarrely, the court finds it would not be just and equitable for Nxasana to be reinstated, or for incumbent National Director of Public Prosecutions, Shaun Abrahams, to remain in the post. A new NDPP has to be appointed within 60 days. Again, prematurely, the court ruled that because President Jacob Zuma is facing criminal prosecution himself and is conflicted, he may not appoint the new NDPP. It falls to the deputy president to make the appointment and Ramaphosa must appoint a new NDPP in the next 60 days.

 

  1. Was the Removal of Nxasana Through a Settlement Agreement Lawful and Enforceable?

This question requires that we consider what appropriate constitutional limits, if any, exist in the appointment, suspension or removal of the NDPP? Given the guarantee of independence and security of tenure for the NDPP is there a heightened duty placed upon the President in the suspension and removal of the NDPP?

The Constitution expressly empowers the President, as the head of the national executive, directly to appoint three functionaries, each with a leading role to play in security: the National Director of Public Prosecutions,  the National Commissioner of Police  and the head of the NIA.   It will be noted that there is no special procedure which distinguishes the President’s appointment power in relation to Cabinet Ministers from the President’s power to appoint these three functionaries except the express power to dismiss cabinet ministers and deputies.   In regard to the NDPP, even when parliament had the opportunity to spell this out in the legislation, it merely stated in Section 10 of the NPA Act that the President must appoint the NDPP pursuant to Section 179 of the Constitution and that suspension and removal shall be in accordance with Section 12 of the NPA Act.   Admittedly, there appears to be a residual qualitative distinction based on the fact that the three are not purely political appointees placed in positions of governmental leadership. Rather, they are important public officials with one foot in government and one in the public administration.  This does not mean that the courts can make personnel decisions for the executive branch under the guise of judicial review.

In Masetlha v President of the Republic of South Africa and Another [2007] ZACC 20; 2008 (1) SA 566 (CC), the Concourt (per Moseneke DCJ enunciated a principle which appears to have been ignored by the applicants and the High Court here – appointments and dismissals are only reviewable on circumscribed grounds).  The Concourt stated at para. 77:

​“It is clear that the Constitution and the legislative scheme give the President a special power to appoint and that it will be only reviewable on narrow grounds and constitutes executive action and not administrative action. The power to dismiss – being a corollary of the power to appoint – is similarly executive action that does not constitute administrative action, particularly in this special category of appointments. It would not be appropriate to constrain executive power to requirements of procedural fairness, which is a cardinal feature in reviewing administrative action. These powers to appoint and to dismiss are conferred specially upon the President for the effective business of government and, in this particular case, for the effective pursuit of national security.

 

Taking into account that Nxasana and the President reached a compromise and settlement agreement which granted Nxasana monetary benefits and opportunity to leave the NPA with his reputation intact, the power to dismiss which would have been exercised if Nxasana had contested the charges instead of throwing in the towel cannot be unconstitutionally circumscribed by a court’s hindsight view that the benefits were a “bribe” as alleged by the applicants.

 

  1. Was the Court’s Removal of NDPP Abrahams Lawful and Constitutional?

 

For the removal of a serving NDPP, the President must undertake a proper enquiry of whether the objective requirements of Section 12 (6) are satisfied. Section 12 of the Act is entitled “Term of office of National Director and Deputy National Directors.” Section 12(6) of the Act states:

(a) The President may provisionally suspend the National Director or a Deputy National Director from his or her office, pending such enquiry into his or her fitness to hold such office as the President deems fit and, subject to the provisions of this subsection, may thereupon remove him or her from office –

(i) for misconduct;

(ii) on account of continued ill-health;

(iii) on account of incapacity to carry out his or her duties of office efficiently; or

(iv) on account thereof that he or she is no longer a fit and proper person to hold the office concerned.

The judgment of the Mlambo court does not order Abraham’s removal on these statutory grounds.  Rather, it appears to be based on the assertion that the position was not “vacant” when Abrahams ascended it and the strange logic that if Nxasana’s removal was unconstitutional then the President was hamstrung from appointing a successor. I believe that such legal conclusion is misplaced and constitutionally infirm.   This can be illustrated by a recent labour court case involving Shakes Mashaba, the national football coach.

In Mashaba v South African Football Association (“SAFA”) [2017] 6 BLLR 621 (LC), the applicant, Mr Mashaba, was dismissed from his position as head coach of the South African National Football team (Bafana Bafana) and referred an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA). Before the matter was set down at the CCMA, the applicant became increasingly concerned that, if his dismissal was found to be substantively unfair, the CCMA Commissioner may be reluctant to reinstate him if a new head coach had been appointed by the South African Football Association (SAFA). Consequently, the applicant instituted urgent proceedings in the Labour Court for an order restraining SAFA from appointing a new head coach before the CCMA proceedings were concluded.

The applicant contended that his application was for interim relief only and was accordingly required to demonstrate, among other things, a prima facie right to the relief sought and a well-grounded apprehension of irreparable harm if the relief was not granted.

The court noted that s 193(2) of the Labour Relations Act 66 of 1995 (the LRA) requires an employee whose dismissal is found to be substantively unfair to be reinstated unless –

  • the employee did not wish to be reinstated;
  • the circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable; or
  • it is not reasonably practicable for the employer to reinstate the employee.

In this regard, the court found that the appointment of a new head coach would have no bearing on whether the restoration of the employment relationship would be tolerable, nor would the appointment of a new head coach make the applicant’s reinstatement reasonably ‘impracticable’.

The court held that an employer may not prevent a dismissed employee’s request for reinstatement by replacing him and then arguing that it cannot reinstate the dismissed employee because there is someone occupying his former position. The right, which the LRA provides by virtue of s 193(2), is the right of an employee to be reinstated if their dismissal is found to be substantively unfair and provided none of the exceptions listed above are applicable.

Importantly, the court held further that ‘an order of reinstatement pays no heed to other contractual arrangements that might have come into existence between the employer and a replacement.’ That is an eventuality an employer must take into account when it replaces a former employee who is challenging their dismissal. If an employer does not take appropriate steps in its contract with the replacement employee, it runs the risk that it may be faced with the possibility of terminating that relationship or of trying to renegotiate the replacement’s contract if the former employee is reinstated. It followed that the appointment of a new head coach would not cause the applicant irreparable harm.

The court found that the applicant had failed to prove a prima facie right to the relief sought because SAFA’s contract with a new head coach had nothing to do with his unfair dismissal dispute. The court could not dictate how employers should conduct themselves in contracting with third parties, unless the contract was unlawful. Moreover, the applicant’s right to be reinstated did not translate to a right to have his position kept vacant on the assumption that the unfair dismissal claim might succeed.

In the circumstances, the court appears to have based its Nxasana relief on purely political considerations. If Nxasana’s removal was unlawful then he was entitled to reinstatement absent the exceptions mentioned above.  It is equally puzzling why the court, instead of the employer, saw it appropriate to make a decision about Abrahams removal in this context.

 

  1. Are the Court’s Orders Regarding the Reassigning to the Deputy President the Constitutional Duty to Make NDPP Appointment Valid and Constitutional?

 

The SCA recently set aside the NPA’a decision to withdraw corruption charges against President Zuma.  Consistent with the separation of powers, the SCA referred the matter back to the NPA for its decision on whether or not to proceed with the charges.  At the moment, the NPA has appointed a team of senior prosecutors to review the entire record and the accused’s representations and advise on whether to reinstitute the criminal charges.

Different branches of government have different responsibilities, and the power to determine when to prosecute and when to refrain is, within broad limits, a prerogative of the Executive Branch.   Accordingly, it is a bedrock principle of our system of criminal justice that a judge may not interfere with the government’s prosecutorial decisions solely to vindicate his subjective view of the wisdom of a given enforcement strategy.

It follows inexorably that Judge Mlambo has no idea what the NPA will decide in regard to Zuma and whether the criminal charges will ever be re-instated.  It is premature for the judiciary to speak of a conflict of interest on the basis of pure speculation and guess-work. Zuma cannot be said to be conflicted on the basis of potential NPA decision that remains unknown.  It would be legally incompetent to deem Zuma as an “accused” person based on the North Gauteng court decision in the circumstances  – that would effectively amount to putting into operation and execution of a charging decision which the NPA has not even made.  Even if a conflict of interest may arise in the course of Zuma’s performance of his constitutional duty to appoint an NDPP, the resolution of that matter should be left in the hand of the executive and not be pre-empted by the judiciary.