Former National Prosecutions Authority (NPA) boss Mxolisi Nxasana was entitled to the R17 million golden handshake he received to vacate his post as he was subjected to very difficult circumstances by former South African president Jacob Zuma, the Constitutional Court heard on Wednesday.
Nxasana’s advocate Michelle Le Roux argued that her client faced an “untenable situation” where NPA senior officials such as Nomgcobo Jiba allegedly plotted against him by interacting directly with Zuma.
“He [Nxasana] put the NPA above himself for the country and for the stability of the NPA…that is why he ultimately decided to do this…perhaps it is easier for us to sit here and question why did he not stick it out and reject the payment,” Le Roux told the court.
“He explored every avenue that could improve his situation to absolutely no avail — he brought in retired justice [Zak Yacoob who completed an investigation into the NPA] hoping the president would listen to them, he got honourable members in the NPA to make submissions to the minister that things needed to change.”
Justice Johan Froneman interjected: “I accept all that and I have sympathy for him…couldn’t he not refuse to settle?”
Le Roux responded asking: “If we were truly reflective, I am not sure how many people would endure that two years and sign up for another eight. I think that is the just and equitable part that this remedy takes into account…if we put ourselves in his shoes, could we seriously expect him to continue for another eight years?”
“He was facing a commission of inquiry, high court litigation, a campaign against him where the police were sent to find dirt on him…could he endure that for a further eight years?…he took the president to court so he can stop interfering with his work, and stop threatening him with an inquiry.”
The justice minister and Zuma failed Nxasana, she added.
“It came to a point where he said I am here as per my contract, I am being prevented from doing my job by the number one citizen in the land. So he was ultimately entitled to his contractual worth…his position was — you want me out, then I am entitled to the value of the contract.”
Le Roux argued that Nxasana agreed to pay back the R17 million and continued assisting parties to get to the bottom of what happened in the long drawn case.
In December last year, the North Gauteng High Court set aside current NPA boss Shaun Abrahams’ appointment as National Director of Public Prosecutions (NDPP) and ruled that President Cyril Ramaphosa appoint a new NPA boss, and that Nxasana repay the golden handshake.
Nxasana’s affidavit to the high court, in which Le Roux said contained evidence of communication trail between Nxasana and Zuma, was rejected by the court because it was filed too late.
Nxasana is appealing the high court’s refusal to admit his affidavit, he wants the Constitutional Court to admit his condonation so that his version of the events can be heard. Le Roux said it was unfair for the high court to label her client as “a man with a price” and that he committed to paying back the money.
However, Hiton Epstein, for the NPA, argued that Nxasana, after taking the payment and leaving the NPA in June 2015, never sought to return.
He asked where was the R17 million was that Nxasana had been promising to pay back.
“The first time he indicated he wanted to return was only in August 2017…he sat back for more than two years, content to keep the money. But the State should be saying ‘show me the money’…where is the money he got? He keeps tendering that he will pay it back but he is still here today talking about paying it back,” said Epstein.
“The court should note that not only did he get the R17 million, he received his pension and leave benefits.”
Epstein said his client agreed with the high court that the golden handshake was unlawful.
“It is irrational to use public funds to pay someone upfront to leave, including his pension. That is an absolute abuse of power…especially that the most he could have got was just his pension.”
Abrahams and the NPA are appealing the high court decision nullifying Abraham’s appointment, arguing that his appointment was valid and that the high court erred in its decision.
Judgment was reserved.