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REPUBLIC OF SOUTH AFRICA ry INTHE HIGH COURT OF SOUTH AFRICA [GAUTENG DIVISION, PRETORIA (0) REPORTABLE: ves [2] OFINTERESTTO OTHER JUDGES: YES 8) RevSeD Date: 05/'*/2"7 obo FULL COURT (CASE No: 62470/2015 In the matter between: ‘CORRUPTION WATCH (RF) NPC. Fiest Applicant FREEDOM UNDER LAW (RF) NPC Second Applicant and ‘THE PRESIDENT OF THE REPUBLIC ‘OF SOUTH AFRICA Fist Respondent ‘THE MINISTER OF JUSTICE AND CORRECTIONAL SERVICES Second Respondent [MXOUIS SANDILE NXASANA Thiel Respondent SHAUN ABRAHAMS Fourh Respondent DIRECTOR GENERAL: DEPARTMENT OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT Fith Respondent (CHIEF EXECUTIVE OFFICER OF THE NATIONAL PROSECUTING AUTHORITY Sith Respondent NATIONAL PROSECUTING AUTHORITY Seventh Respondent DEPUTY PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA In the matter between: ‘COUNCIL FOR THE ADVANCEMENT OF THE SOUTH AFRICAN CONSTITUTION and PRESIDENT OF THE REPUBLIC (OF SOUTH AFRICA [MINISTER OF JUSTICE AND CORRECTIONAL SERVICES NATIONAL PROSECUTING AUTHORITY [MXOUISI SANDILE NXASANA SHAUN ABRAHAMS DEPUTY PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA ‘THE HELEN SUZMAN FOUNDATION ‘CENTRE FOR DEFENDING DEMOCRATIC RULE NPC Dates hearing 20.and 21 November 2017 Date judgment: 8 December 2017 Judgment Ihe cour: Eighth Respondent ‘CASE ND. 93083/2015 Applicant Fist Respondent Second Respondent Third Respondent Fourth Respondent F th Respondent Sinth Respondent ‘Amicus Curiae Amicus Curie Introduction a B 8) Before us are two parallel appctions for orders declaring invalid and setting ade the ‘riten settlement agreement reached on 14 May 2025, between the President of the country, Mr 46 2uma, the Minister of Justice and Correctional Services, and the predecessor to the current Natlona Director of Puble Prosecutions (*NDPP"), Mr MSO ‘nxasana, for being incompatible with the Constitution, and rele ancilary to the main rele. In one of the applications, that by Cound for the Advancement of the South African Constitution (*CASAC’), thre is algo challenge to the consttwtonalty of twa provision ofthe National Prosecuting Authority Act 32 of 1998 the “NPA At"). ‘The contentious settlement agreement recognises“. the Important and pivot role that the National Prosecuting Authority occuples in our constitutional democracy and the {Suretionng of the rleof low". The parties to the agreement agree that Mr Wrasana “is professionally competent, suftienty experienced and conscientieus and has the requisite integrity to hold a senior pubic postion both inthe publc ana private sector." ‘And they agree that he would rlinguih his post a NDPP as from 5 June 2015 for a7 as7 233 Ie was common cause before us that the amount of R173 milion fr exceeded what Mr xasanasfnancal entitlement would have been hed his office been lawful vacated in terms of 5.1218 ofthe NPA Ae. Fr this reason the parties, ncudng the President and the Minister, all accepted thatthe agreement shouldbe declared invalid in ters of ‘.272(2)0) of the Constitution, The central iesue wae what fllowed upon such 2 dectaration. ‘The partes and reiminarymatets “4 “Two separate applications were launched: one by Corruption Watch (RF)NPC "CW" and Freedom Under Law (RF) NPC ("FUL"), under ease number 62470/15; and one by Counc for the advancement ofthe South African Constution ("CASAC") under case number '93043/15, Inthe former, the President was joined, as were the Minister of Juste and Correctional Senices, Mr Nxasana, Adv Abrahams (the curent NDP, the Director General of the Department of Justice and Constitutional Development, the Chef * Sarai) of the Canstuton previes that when deciding a costtutanal mater within power, 3 aut = must decors thot any lw or condut tha ncansatrt ith he Contation iva the exe leconiteny”| Executive Officer ofthe Nationa Prosecuting Authority, andthe Deputy President ofthe country. in the latter application all ofthese respondents, except the Director General and the Chief Executive Officer, were Joined, The parties wore agreed thatthe two applications ought to be consolidated, and we made such an order. [5] Two amici curiae were joined: by order dated 14 August 2017, the Helen Surman Foundation SF") and, after apposition before us on the est day of he hearing, Centre {or Defending Democrtie Rule NPC (*CODR"). We are grateful fr the helpful written and oral submissions [6] There was also an opposed interlocutory aplication inthe folowing ctcumstances. On 12 April 2017, Mr Nrasan fled what he called a “Notice fo able’. Inthe sald that he abides the decon ofthe Court, The notice continued “Be pleased to tke note further that the affidavit of vos Sande Olver Nasane wil be used to explon the position of the Third Respondent (Mr Nuasona himself) herein.” Attached tothe notice was an affidavit by Mr Nxassna dated 11 Apel 2017, called: “Explonatory Ado by the Tied Respondent’ nit he deposed to his version ofthe central factual dispute between the President and the applicant. [7] Thisaffsauit came long after the ast afidavit nthe main apletions hd been led! on 19 December 2036, nd even after the CW and FUL applants had led thet heads of argument. The afdavit purported to support the factual inferences that these two spplicants ha sought to draw in ther heads of argument agains he President version ofthe interchanges between the President and Mr Nxasana, The President oppoted the emission of this affidavit and, after the exchange of = full set of affdets and subsequent ora submissions from the Baron the fst day ofthe hearing we refused the mission ofthe affidavit with costs [8] There were prmariy two reasons for our ruling. One was that the explanation forthe delay in lng the affidavit was not persuasive, and the other was tht it is generally accepted that when evidence i presented so late in proceedings, here isthe danger oft having been tallored oft particular positon, ‘Thedisoutes identified {91 The elit sought by the applicants was attenuated during the cours of the hearing. The espondents too refined their postions, gven the concession about the unlawhiness of the settlement agreement. We therefore asked the partis t the end ofthe heating to furnish us with their proposed deft orders, which they dd, and for which we are fateful, In essence, the applicants all ask” for a setting aside of the setlement agreement including a setting aside of Mr Nrasana's vacating of his offi: reinsatement of Mr Nxasana as NOPP, alternately, a declaration thatthe offi vacant andrecting ‘the Deputy President within 60 days to appoint a permanent NDPP onthe bass that the President himself s declared “unable” in terms of 5.801) ofthe Constuton to act for his confit of intrest; (only CASAC) 2 declaration of unconstitutional! In respect of ':12(¢) and (6) ofthe NPA Act; and costs. [10] The respondent panies’ contestation was essentially threefold First the respondents all agreed with 2 setting aside ofthe settlement agreement. But they didnot agree to an "he dat order of Ch, FUL and CASAC reas 8 flows: “The stement agreement between the fst, second and thre espendents dated 14 Mey 2015 (he setemen) i reewe’, cored nad on de 2 he dction o authorise payment tothe tid respondent of on amount of R17 38723, tems of he Setement is reseed, decored inl and state. 3. The appointment of he fourth respndent ar Nana Diector of ube rozevtons (‘NOP is reviewed, declared vod an stoi beds token nd ce performed by the fourth reaponcen in hs cpacy athe Nation! Decor of ble Precis oe ot Invalid merely becouse ofthe ively of hs eppiniment. 5. es dele that the thi respond hols ie as he NOP. 6. delved et the the espondent i obiges refurd the eo he money he ‘ected in term ofthe setement. 7. declared that in tems of St) of he Constaton, the Incumbent President ay not agai. spend or remave the MOPP. ts dered tos lng os the Incumbent resident iin fee, the Deut Presient i response or decors etn tothe oppatnent ‘Sepention or removal ofthe HOP 2: Te cots of ths opication mast be pot Joy ond several By he {isto thid ond fith respondents” Aa seratve raft nde was presets." Thesettementepeenert Detweon the st second and thd responsents dated 14 May 2015 (the eetemen) fe eewsd declared Invalid and ete 2. The terminton af the appaintment of Mr Morano or Navona ctor of Publ Prosecutions NOPP i decoredunconttinal end ina The Secon to author payment the hr espandent of an arnt of 7 357253, n ems ofthe steer reviewed deledInveld and et ide. 4. The eppoitment of the fourth respondent os NDPP I reviewed, declared vol and set ede. 5. Decisions ten ond acts performed by the fourth respondent ns capac as he Maton Deca of ube Prosecutions ore ot inal mery beaut ofthe inaiy of Neopian. & es decked thatthe tid respondent i bliged to refund fo the state al the money he ecved i ems of he stemert. 7. etre hat Incas of 62) ofthe Constante number Preset may not api pando remove the NOPP 8's decoed to, a lng os he ncurbent Preset sof, the Capt Peet responsible for decions reoig tothe opplnment,siipension ar removal of the NOPP9. The odes of Invaliyin paragraphs 2 ond above are suspended foro peried of 6 day runt sch tne Othe pty ‘Presden hs opened NOPD in terms of prayer ? core, whichever the str peri 10 The cost of ‘is pecan mst be pid int end severly he ft to thir ond respondents The CASAC propose sft order reds as follows: "5 declared that secon 1214 of the Nation Prosecuting Authonty Act 32 of 1998 surest! and inal. 2. dered tha ein 126) ofthe [NPA Act 1s unconstutional and iad to the extent that 1 pers the President to spend the NOPE ‘nloteaty Indefintey ond without poy. 3. The ede of vay pryer 2's sarpendefr 18 month. 4. During te period of suspension 4.1 aon sabecton shal be ised oft 16) a a “(at The period from the ie the Preset spent the National Dicoror a Depaty Neon Deter to theme eo she decides whether oro f reove te National Dre o Deputy Nan) recta sal at ‘ceeds mone" and 42 Section 1216) sal read: “The Netoal Ueto Deputy Nationa Orector rovsonly suspended fom offi shall rece, for the duration of such suspeson, bs a fll no Solary or such salary os ay be determined bythe President] 5. Soul Parmer alt enact kesleton ‘remedying the defet tet i prayer 2 tener orn pryer sol became fal Te Fs Second ‘nd Tid Respondent al ay the Appa csts nding the conte of to counsel” order setting aside Mr Nrasana's vacating of his ofc, which weuld have imped his relotatement. The President and the Minster argue thatthe President, ating awfully In terms of 22(8Na)i of the NPA Act, accepted a request made to hin by Me Nxasona in terms of :2(8).), and that ther decison consequent upon the request, sine it was screte and severable fom the unlawful and invalid setement agreement, lawfully terminated Mr Naasana’sterm of of [1] The NPA and Ady Abrahams greed with the President and the Minster, but for shhtiy dierent reasons. They too accepted unquaifedy thatthe settiemen: agreement was Uunlatl, and in fac ertieed Mr Nason’ conduct as reflected inthe agreement. But ‘thoy submitted that, 352 mater offct, Mr Naasana ha vacated his off, and that 22 ‘matter of law, he was entitled to have done so, On their argument Adv Abrams was thus duty appointed and since these proceedings were not cancarned with whether he was qulifed to have been appinte, his postion as NOPP should remain unscathed [22] The second area of dispute concerns the questions whether the President i conficted ‘and thus “unable to appoint, suspend or remove @ NDPP. That issue arises in this way. ‘There are multiple criminal charges pending agains the incumbent President. The applicants contend that for that ceason he is conficted in terms of £96(2\0) of the Constitution and thus “unable” to actin terms of 90) ofthe Constution. This sue wil arse pertinent, Ifthe setting aside as invalid ofthe setlement agreement is not followed by the automatic reinstatement of Mr Nasana but intend by decoration that the position of NDPP vacant. The applicant’ argument was however not dependent on this eau [13] Tae respondents disputed that the President was “unable” to act n tems of 39011) of ‘the Constitution. They submited tha that section envisages the Deputy President being “te Presidents proposed drat order reas: “I ordered thot .The settlement agreenent Between the ‘st, second ond hd respondents ted 14 My 2015 he setiement) is reewed coed iva a et ‘ie 2. The eecion authorise payment the th respondent ofan aunt of 17 3572330 in ems ‘ofthe settement I evewed, dered Ina and sete, 2. hr Ravana st rep the amour of 51735725300 4 The Minster i © poy Mr Neoana the amount section 121) of the Navona Drsecting Auton Act 5 cots” "The Minster’ proposed sat ocer reds “Lite courts that Mr sone bos mode > request fave ofc in terms of eon 128i, then te flowing ede shel be mace 1.1. Tot the monty a of ‘he oer severed rom the rest ofthe Setiement kgreement 1.2 The Setoment Aree oon to ‘he ene that he President has alowed Mr Nassar to wocte office. 2. i declared that there exe @ cane tthe Of of the National Detar of Publ Process. 3 The recmmendtin for opentment {and apsiniment ofA Abrohons is deciored awful. The applation to dele Section 1) on the NPA ‘et fanconsttuoal is decned 5. cou ids that Nxsona isnot oak to vacate ofc within he ‘meaning of 12), but ta he intended o resign: 5.The SttementAarerantdecoe nai 52 Te ielored hat asona voeoted the Ofc. 53. There war ovacony nthe Of” " Reantin reterrea ton 9011 of he Consuton We quot the subsection below, 1a) bs ns) a7 sworn in a8 acting President and acting assole President ofthe county insted of the President. The section doesnot envisage two Presidents, a permanent ene andan ating ‘one, bath being present and avaable to act atthe same time, So, i vaceny in the ‘ole of NDPP arses, the President himself must make the appointment. ‘The President submitted that in any event no criminal charges are pening against him. ‘he charges were withdrawn na Court and so ther current status s thet the NDPP must ecide whether or not he wil press them. And the NPA and Ady Abrahams submitted that even if the President was conflicted, that conflict wil effectively dssolve when the President makes the appointment with his cabinet members, because they are not conte, “The thi issue concer the CASAC attack on the constittonaity of 124) and 22(6) of ‘the NPA Act: Here the President id not resi he substance ofthe attack bu, ving on South Afican Reserve Bonk and Another v Shuttleworth and Another, submitted that the tele sought was academic in the context ofthe present matter. These thre sues all arise within a greater context and background, and itis necessary fst tosketch ‘The Constituon provides that there Is 2 single national prosecuting buthory in this ‘country, In whieh vests the power to institute criminal proceedings on behalf of the state? in terms of 5.1718): “Notionl leisltion must ensure thot the prosecuting authority exercees Its functions ‘without fear, favour or prejudice.” The head of that authority Is the Natlonal Director, and s/he is appointed by the Presiden. The NPA Ac establishes the Office of the National Director” The NPA Act ets ‘the qualifications for the appointment as National Director “9. Quolfieavons for appointment as National Director, Deputy National Diector or Director (1) ny person to be appointed as National Drectr, Deputy National Dicctor or Dretor must. Thine Holngs Southern Aa) (Fy) Ld and Another Nations Detor of Publ ume v National Decor of Puc Proseetons 209 [1] SA 1% [C2008 (2) SACRSS7(Cy (CCT S07, CTBT [2008] {nce 4, 2009) cin 305 (C0. F035 6) 54 18666 * 5379 of the Constuton (6) possess legal qualifications thot would entitle him or her to practise nal courts Inthe Repub and (0) bea fi and proper person, with die regard to his or her experense, conscientiousness and itagity, tobe entrusted wlth the responsibilities ofthe office concerned” [38] The tem ofoffce of the NDPP is « non-enewable ten years, but the ofce must be ‘vacated when the incumbent becomes 65 years oli 5.12) gives the Present the power to extend the term of ois beyond age 65, but not beyond ten years ill. The NPA Act no doubt envisages that, inthe interests of stability, each ten ear tem would bbe occupied by 2 permanent appointee, yet n the last ten yeets there have been four ‘permanent NDPPS and fr nearly haf f tat period, an etng NDPP. [19] Theparties are agreed that, a these frequent changes presaged, the recent histry a the National Prosecuting Authority has been one of paralysing instabity. It began In ‘September 2007 wien the then NOPP, Ady Vusl Pk, was suspended pending an ‘enquiry in terms of 5.126) ofthe NPA Act into hs fines old offi. The precursor to that event was hs Inctmant two years esl on 20 June 2005 o! the incumbent President on corruption charges. Si days eal, on 14 lune 2005, Presdent Mbeki had reloved the then Deputy President Zuma of hs offs. Subsequently, on 34 Wy 2006, when the criminal case against Mr Zume was called, twas struck off hero because the NPA was not ready o proceed [20] Reverting to 2007 atthe end ofthat year, on 18 December 2007, Mr Zuma was elected {3s President ofthe African National Congress. Thereafter, the Acting NCPP, Ady Mipshe, Indicted Mr Zuma on 18 counts of racketeering, coruption, money laundering, tax ‘evasion and feud. On 12 September 2008 Nicholson, J set aside that decon on the bass that twas tainted by potical interference. On 4 November 2008 the ery into ‘Ad Pho’ ftness to hold offi, chaled by Or Fene Ginwals ecomrende that Adv Pik’ suspension be uplifted, However, on § December 2008, Ad kal was removed ‘rom office by President Metianthe. [21] On 22 January 2009 the Supreme Court of Appeal ("SCA") overtumed the judgment of [Nicholson 1 n that Judgment the SA sid: "/2] The Iitigotion between the NOPP and [Mr Zuma has ong and trouble history ond the fow reports are replete with judgments S22) ofthe wea ee "zuma v National recor of Publi Prosecutions [2005] SAS IN (8552/0) [008 2AKZHC7;2008 (3) BcUR 62. natona rector of Publ Proscutinsv Zum 209 SA 277 (CAL 20081) SACR 36 (SCA 20084) ‘AR 383 (Sc (2005] 2 ASA 243 (SCA (573/08) 2003] 2SCA 1 lang withthe matter.” On 1 Ape 2008, Av Mahe withdrew the chages aginst Mr Zuma, and on7 April 2008 the Democratic Allance(*DA") brought procadings to review and set aside hi decision to withdraw these charges. On 6 May 2008, Mr Zuma was lected President ofthe country [22] _ Its necessary to leave the chronology fora moment to say that the review application of the DA, which became known clloqully a the "spy tapes case", was eventually heard ‘on ts merits on 1 to 3 March 2016 by a Full Cour of this Dison sting as Cour of fist Instance. On 29 April 2016 this Court reviewed and set aide Adv Mpte's decison to resident appealed tat judgment, but Just cently on 13 October 2017 the SCA dsmiseed that appeal” [23] From the judgment ofthe SCA csmissng the appeal, we cite the following passage as its pertinent othe present matter (emphasis supple) “1a] The current apolcaions ore port ofthe continuing Iiigation sage thet has endured ‘over many yeors and invoed numerous court cases, Its doubtful that «decison inthis withdrew the charges against the President. The case wil be the end ofthe continuing cantestatons concerning the prosecution of Mr Zuma, Minutes ito the argument before us counsel for both Mr Zum ond the NPA ‘sonceded tha the decion to discontinue the prosecution was flawed. Counsel on behalf Mr Zuma, having mode the concession, with the ful eolsction thatthe consequence that the prosecution of his cllent would revive, gave notice tat Mr Zama had Cin y im ‘est prosecution” (26) This notice by the President's counsel was given in open Court on 14 Septomber tis ear, when the matter was argued before the SCA. The NPA refered to in is passage was represented in the appeal by Ady Abrahams. The concessions made by Ady Abeahams, and his aligning himsclf in that matter with the President, appear from the judgement of the sca [25] _ Reverting tothe chronology: the President was appointed to that postion on 6 May 2009. On 11 August 2009 Ad Pk btained an order against the President intrdcting him from appointing any successor inthe office of the NOPP, pending Adv Pikol’s pplication to review and set aside his removal om office. pamoerte Allene v Acting National Orecor of Puc Prosecatons and Others (1957/208) [2036] _AGPPHC 255; 026 (2 SACR 1 (P2016) 3 AA 78 (6) 201 (8) BCR 1077 (GP) 29 Ap 2016). * Zuma v Oemecrate Allnce and Otis; Aeing Nateral Orectr of Publ Proscutans and Arata Democrat lance and Another (73/2036, 1270/2016) [2017] 22SCA 146 (23 Ober 2017, "Tall resent ofthe RA ane Oars 2010 (1) SA 40 (GNP. es en 20 (on 21 November 2009 the President and Adv Pil reached a settlement agreement in ‘terms of which the President acknowledged that Adv Pik had the requ inery to hold senior pul postion and Adv Pika aroed Yo resin for R75 milion.” CASAC say ‘that that settlement agreement “. is strkingly similar tothe settlement agreement between the President, the Minster ond Mr Nxasana that iS the subec of ths pplication," and te President doesnot depute this™ (On 25 November 2009, the President appointed Ady Meni Simelane as NOP. But in subsequentl setting asde his appointment two years Iter on 1 Dacemter 2023, the SCA hel: “1571 In order to fall appreciote the importance of the NPA and the NOPP in our ‘constitutional democrocy itis necessary, frst, t0 bear in mind thatthe Contittion “empowers those whe govern and imposes limits on thelr power and, second, to consider the wider constitutional scheme in which both the institution and the individ are det with. A good starting place is an examination of the founding proviions of ‘the Constitution Section 1c ofthe Constttion stotes thatthe Republi 3 South Ac is one, sovereian, democrat state founded, among other values, onthe sypremary ofthe Constitution andthe rule of ow. Section 1), commits government fo democracy and to accountability, responsiveness and openness. Section 2 ofthe Constitution reafims that the Constitution i the supreme law ofthe Republic and that law or conduct inconsistent With is invalid an thatthe obligations imposed by it must be flies. Ths, every ‘tlken and every axm of goverment ought right) to be concerned about onstitutionolism andi preservation ‘Concerning the power of the NDP, sald “172} Yo understond the importance ofthe office ofthe NOPP and the rower that he or ‘she wields, regod shouldbe had fist tothe provisions of 179(2) ofthe Consttuton set cout in pora (65) above, The prosecuting autho has the power to lstuteerminal proceedings on behalf ofthe State and to carry out ny necessary functions indent to instituting criminal proceedings. This power i echoed in 201) af the Act Section 201) ofthe Act ges the prosecuting euthorty the power to dscontinue ernie proceedings It hardly needs stating thot these are cwesome powers ond that i ental tothe preseraton ofthe rule of lw that they be exercised with the utmost integrty. That 2 can foun fv, 6, pare 35; Presiden’ answering aia, 094, ra 27: ot pute. a * opmacratic lance v The Present of te RSA & Others (26/21) [2011] ZASCA 241 20121) S17 (CA); (aoiz} asa 243 (Sc 20135) BCL 201 (CA (2 Decerber 201) a ‘must mean thatthe people employed by the prosecuting outhoity must themselves be people of integrity who willoct without fear, favour or prejudice." [25] 0n5 October 2012 the subsequent appeal tothe Constitutional Court wis unsucessul ‘That Court endorse te reasoning ofthe SCA and hl 169} The prouisions ofthe Constitution and the Act must be token togeter to determine the purpose for which the power was conferred, It is evident thot the purpose of the confrral ofthe power upon the President was to ensure thatthe person oppainted os National Director is suffenty consclentous and has the integrity eequted to be entrusted with he responsible ofthe offen particu, to ensure that — {a the prosecuting euthorty performs its functions honesty and without fear, fvour or prejudice; (b) decisions to instute criminal prosecution are taken honesty, fly and without fear, {favour or prejutie: {6 prosecution po s determined honesty ends apororite to the needs of ou country: (4) the crimino justice system insofr os concerns prosecutions ke faltyadmintered; (6) any improper interference, hindronce or obstruction ofthe prosecuting euthony by any organ of state isnot tolerated; and (Directors of Public Prosecutions cory out the functions honesty ond fail. eis obvious that dishonesty Is inconsistent withthe hallmarks of cnscetiousness ond Integrity that ore essential prerequistes tothe proper execution ofthe remonsibiies of @ tional rector.” [30] These decisions had thus all been handed down when the President appointed Mr "Nasana as NDPP on 30 August 2013, with eect from 1 October 2013. Inthe meantime, {allowing the SCH judgment regarding Ady Selon on 1 December 201, the President had suspended Ad Simolne, an had appointed Adv Nomgcobo ila as Acting NOPP [31] But on 23 September 2013 ths Court made adverse findings against advocates J, Mewebl and Malnyath, relating to the withdrawal of criminal cherges, Including ‘murder, attempted murder, Kidnapping, asaut fraud and coruption, aginst Major General Richard Maul Those adverse fndings were later confirmed bythe SCA ® Democratic Alans v Present ofthe RSA an Others 2031) SA 248 CC}2012 (2) BELA 1297 (0); geriza/3} pona| zac 28 2 reedom Under Law v National Sector of Public Prosscuton 202 (1) SA 254 (GNP; 244 a) SAC 112 (gue: 26512/12 2013] znGPPnC 77; [201] «ASA 67 (ON). On 38 pl 2014 Nationa Oretr of Pubic Proection Freedom Under L201) A 28 (SCA) (orf [214] 28a 58 20182) SACR 107 SA) [2014] 8 ASA 27 (SH, 2 [52] Eariyin 2024, on 25 February, in Booysenv Acting National Director of Publ Prosecutions and Others the KwaZulu-Natal Ovislon ofthe High Court said of Ad a “1341 Mr Booysen was clearly within his rights to dealin reply with the inaccurate ‘assertions by the NDFP in her answering affdovit and to sve the challenge and Inittion in question. He hod not seen the statements until they were annexed to the answering aff As regards the inaccuracies, the NOPP after al, an offer ofthe court. She must be taken to know how Important it to ensure tha he afidovit is ently accurate. If i shown to be inaecurote and thus misleodng fo the court she ‘must olso know thot is imgortant to explain ond, f oporopricte, cect any inaccuracies. Despite ths, the invitation of Mr Booysen was not taken ue by the NDPP by oy of request, or apaliectio, to delver a further affidavit. nresponseto Mr Booysen's sserion of mendocity on her par, there a deafening sence. In such cicumstarces, the ‘court is entitled to drow on lference adverse tothe NDPP. Te inference this cote need 0.0 further than tat, on her version, the NDPP cd not have before herannexure NU at the time. n ociton, i clear that annexure MI isnot a sworn statement. Mast significant, the inference must be drawn that nae of the information on which he says ‘he relied inked Mr Booysen tothe offences in question Thi mene thatthe documents (on which she says she relied didnot provide a rational basis forthe delions to sue the ‘uthorisavons to charge Mr Booysen for cntravetins of 2) ond espective.” [33] Two and a hal years later, on 16 September 2016, on the application by the General Counell ofthe Sar (“6CB"), 2 full bench of ths Olvion would strike the names of advocates ba and Mae from the rol of advocates. In the meantime on 4 uy 2024 loss than a year after he was appointed, Mr Nasana recelved alter fam the President advising him that he Intended instituting an enquty nto his fitness to hold the office of [NDPP. On 7 July 2034 senior counsel in private practice, on bref by the NPA, advised it that there was compeling justification for disciplinary proceedings agans:edvocates ia, Mrweb and Miya [34] 0918 July 2034 Adv Wile Hofmeyr, then Acting NDPP, wrote to the Minster ating him to forward the contents ofa memorandum he had prepared capturing ts adic to the President, and asking im to request the President provisionally to suspend advocates iba, Mewebi and Mainyath, pending an enquity into thelr fess to hal office. On 31 2 (ees) 2014 ZANE 3; 2004] 2 SA 361 AD}, 2036 (9) BCLR 1064 KY 2A (2) SACR 6 ({20) (26 Ferry 2038 General Coun ofthe Bar of South Af ib and Oshes 235762015) [016] ZAGPPAC SS; (2016 A S443 (69); 20171) SCR 7 (6 2017 (2) SA 122 (GP) 15 September 2018, a July 2016, the CEO of the NPA informed the Minister that the NPA had appointed @ committee headed by retired Constitutional Court Justice Yacoob, to investigate "unethical and unprofessional conduct by NPA staf, indng advocates iba, Mrvebi and Mainyathi [35] on August 2014 Mr teasana made representations to the President ina ten page letter 25 to why he should not be suspended, nit he gave 3 fl explanation concerning what the press was asserting a6 the complaints aginst him, but he asc asked that the President ave him reasons for conducting an enquiry. On & August 2.18 the President ‘wrote saying that he dd not deem it appropriate to engage on mater that would form the subject-matter ofthe enquly. [35] On the same day, 8 August 2014 the Minister wrote to Mr Nrasana, responding tothe Hofmeyr memorandum, and enquiring: whether the negative Jud comment about advocates sb, Mri and Meinythi had! boon pu to them for commen; whether Mr "Nasana had putin place measures to prevent a recurrence ofthe everts leading tothe ‘negative comments; and whether the CEO was acting under hit instrction when she appointed the Yacoob commitee. [B71 0m August 2014 Mr Nxasana launched an application against the President compeling him to provide parculars ofthe alegstion against him, and interdicing the President ‘rom suspending him until the particulars had been furnished In his affidavit he forthighty asserted his fnes forthe ofce of NDPP. On the same dey he wrote to the [Minister saying thatthe two of thom had not yt discussed matters inthe NPA since the [Minstr’s appointment, and saying it was hs “humble view" thatthe two should mest to éscuss matters generally, but aso the lsues raised inthe Miniter’ ltr. The Minter brushed aside this equeston 12 August 2014 saying he was awalting response to his eter. {381 On 12 September 2014 Mr wasana personaly handed the Hofmeyr memnrandum, recommending the suspension of advocate ia, Mrwebl and Malnythi the President, and on 17 September 2014 he wrote tothe Minster, saying that Adv ba had ignored requests concerning the Malull mater, and to provide an offical handover report on matters that she had deat wit as Aetng NDPP. [39] _ In October 2014 the Yacoob committe reported sd that the withdrawal of charges against Major General Mall was a matter of grave concer, Negative comments about ‘the credibility of advocates ba, Mewebl and Malnyathl were made, “ z dence and events surrounding the concuslon ofthe ete t [40] On 3 November 2014, Mr Naasana's attorney wrote tothe Presiden’ attorney, seine that Mr Nxasana was willing to participate in the mediation process thatthe President had proposed. On 30 December 2014 Mr Nrasane’s attorney wrote tothe President, marke forthe attention of Ms Mokhene. This letter of fourten paragraphs featured ‘bromine inthe partis’ submissions, and best be quoted in ful “We refer to the above mater ond particularly othe meeting we helson the 6 instant {ot Mahlombaniomfu wherela It was discussed, oovised ond agreed as folows: 141 Following the settlement proposl that you presented tous, werequested you to {furnish us with the NOPP's total unexled term package inline with the annexure tothe presentation. 41.2 You requested the NDPP to fumish you with information regarding 121 Leove balances; nd 122 Pension benefits (5.4.2 (8) c (44s) ofthe NPA At 32 of 1998 (NPA Act; 113 We wil furnish you withthe above infrmation by no later than the cose of ‘business on Tharsdoy the 11° December 2014 2. Following our discussions ofthe 8 instant and the subsequent instrutions from cent ‘regarding the proposed settlement we wuld ike to place the following on recor 2. We ore ofthe firm view that the prescripts which you rely on pertaining to settlement ore not applcabein the present case forthe following reasons 2.1.1 Te provisions of the NPA Act which you seek to rely on del with a ‘scenario where the NOPPIs removed fom office in terms of ection 12 (6). 3, The procedure thereof ls sucinty spelt ut in Seton 12 subsection: 6 7, Band 9 of, the NPA Act We would consequenty ik to draw the flowing o your attention: 53.1 Thott has never Been the NDPPs intention to resign from hi postion src he considers himself tobe ft and proper person to hold this position, 4. The proposed settlement was triggered by theascussions which the NDPP had withthe President following the loter's amouncement of hs decison to bold an enauiy into the NOPE’ fitness to hold ofc and the posible suspension pending the engl. *tyewas na dota reference to 218) ofthe Act a5 5. Our instructions futher ore thet the meeting between the NOPP andthe Present only took place after numerous ottempts by the by the NDPP to sack audience with the Presiden without sucess. 65 te must be remembered thatthe only time the President agreed to meet the NDPP was ‘ater the later hod lodged court application, inter ai, inerdcing the President from suspending the NOPP before the President provided further and cufletparticlanty to {enable the NDPP fo respond or show couse why he should not be suspended 7. We are odvsed thot during the lscussions the NDPP had with the President the NDPP ‘made It very clear that he wll only consider stepping down from fice if he Is fly ‘compensated forte remainder of his entire contrac as hed o the National Prosecuting Authority. 4. We reterate thot here sno fotual or legal bass for our client to step down from his positon 9.18 sour considered view, night ofthe obove thot the Prvions ofthe NPA Ac read With the Provisions of the Public Service At, which you have alluded to, donot apply to this proposed setlement. 10. nthe circumstances ur een wil only consider the option of leaving offi, 0s the President would want hint, ihe uly compensated forthe remainderof hs controt 11, We confirm thatthe President advised us thatthe Minster ofthe state Security ‘Agency (the Minister) has confirmed that he has upheld the NDPPs appeal egsnst the ‘fsa to grant him the security clearance and he hos orcad Kued tut is wating to ‘hand over tothe NDPP upon fnalstion of sttement between the pares, 42, While we do appreciate and welcome the Minister's deckion to upnold the NDPP's ‘npeo i sour respetfal view that the granting of the secury clearance certificate to ‘the NDPP is and/or shoul nt be a condition for any proposed etlement 413. We are accordingly binging it to your attention that we are dsptchrg a eter tothe Minister to release the Security Clearance Crtfcaeto the NDP. 14. We await heor from you." [41] On 12 December 2014 Nir Nxasana’satorney responded to the Presidents legal ‘advisor, providing Mr txasana’s estimated pension benefits (before tax) 3¢ of 31 December 2014, as wel as his entement to leave days ef ths date. Ch 12 December 2014 the President responded through his legal advisor to Mr Nxasan’'s letter of 10 6 December 2014 n It she wrote thatthe President had intervened ir the “epotated settement pertaining to your elent’s employment os NOP" because resenations had been expressed about the Miniter. She wrote too: “Notwithstanding such intervention, the President Is not at liberty to depart from accepted prescrpts which regulate ‘government conduct” [4atshe concluded that accordingly the partes were unable to resolve thelrdspute between ‘themsoves, and Mr Nrasana was Ite to indlcate by 18 December 2014 hater he was agreeable to embark on an independent and negotiated medion process. Mr xasana's attorney responded on 15 January 2026, sying that he wae agreeable to ‘mediation, but nota confident one He recorded to that the settlement negtiatons hha been initiated by the President, not Mr Nhasara. The President's response on 23, January 2014 was to say that he was proceeding with an enguiry imo Mr Nuasana’s fitness to hold ofie. Mr Naasana responded on 26 January 2014 init the proposed terms of reference [a3]0n 9 February 2015, an enquiry in terms of 12/6) ofthe Act, headed by Ad Nereer assim, SC was appointed in terms of General Notice 102, “to determine the fines of. Neasona fo hold office as Notional Director of Puble Prosecution." On 26 February 2015, Adv Casi drcted the Minster to fle is submisions by 27 March 2015, and on the next day, 27 February 2035, the NPA informed the Minister of the Yacoob committe inings. {a4]0n 4 March 2015, in tandem with the enquiry process Mr Hulley, fo the Presiden, sent draft settlement proposal to Mr Nvasana, proposing compensation of 30 51988, On 26 March 2015, Mr Huley set another draft, again proposing the R10, lon. On the ext day, 27 March 2015, Mr Hlley sent a further df, ths time leaving the settlement ‘amount blank On 3 Api 2015 Ay Cassi fesued 2 rng to say thatthe enauiry would ” stl proceed on 11 May 2015, and directing thatthe Minster must do hs beso fle is submissions by 20 Apri 2015. These were not forthcoming, [45]On 11 May 2015 the Cassim enquiry was terminated, and on 14 May 2015 the settlement agreement concluded. Mr Nuasana “relinquished” his pos, a6 required In terms ofthe settlement agreement on 1 June 2015, On the same date Or Ses Ramaite \w2s appointed as Acting NDPP, and on 18 June 2015, Adv Abrahams was applnted as NOP. Short after his appointment, Adv Abrahams withdrew the cririalproseedings that the NPA had nstuted against Ad iba, And the President has nol taken any steps against advocates ib, Mrebi and Maint [se1Against this background one may now turn to deal with the thee contentious Issues identified above Issues does the setting aside of the cetlement agreement Dicestor of Publi Prosecution vacant? fen fs} ‘The dscusson stars with s.1721) ofthe Constitution: “Powers of courts in constitutional maters 172.(1) When deciding a constttional matte within ts power, a court— (o) must dectre thot any low or conduct that Is inconsistent withthe Constitution is linvalid othe extent of ts inconsistency; and (0) may make any order tht is just and equitable, including — (ian ererlrting the retrospective effec of the decoration of ivy and (i) an order suspending the decartion of isolity for any period and on any ‘ondions, to allow the competent cuthority to correct the defect.” “The parties are all agreed, 25 we have sid thatthe settlement agreement mut be set aside. There was no debate ether that the reason why tha tobe setae that there was no statutory or other power to have concluded it. The parties were unanimous to in their demand thet Mr Nxasana should repay all amounts he receved under the setement agreement. lt folows thatthe fist substantive declaration must be that the setdement agreement between the President and Mr Niason® must be reviewed, (aay (so) si al 153) sa) a8 eclred invalid, and st aside, and thet Mr Neasana must be ordered 0 repay what he had received under ‘The applicants the President and the Minister are egred to that ress Me Nxasone “requested” in terms of &.12(8),, to be allowed to vacate the oe of NOPP, the President had no power to allow him to vacate the office; but they are dived as to whether onthe facts there had been such a request The applicants submitted that, onthe facts, there was no such request. The President on ‘the other hand submited that, onthe President's version whch stood uncontested on the affidavits, there was such @ request by Mr Naasona, That request, which was accepted by the President, was prior to, independent of and severable fom the settlement agreement, and so doesnt fll witht ‘he NPA and Ady Abrahams submited, eying on Government Employes Penson Fund v Strydom. that there was Scope for Mi Neasana, lawfully vacating the offie of NDPP ‘outside the reach ofthe NPA Ae. nother words, no “equest” a envisaged inthe NPA ‘Act was necessary a a recondition to Mr Nxasana awful vacating the fc of NDPP. ‘The President, the Minster, the NPA and Ady Abrahams” joined in submitting that the Uniwfuines ofthe settlement agreement thus ayn the amount that was agreed, would be paid to Me Nasa, ‘And beyond this pont, the partes were then all agreed again that, whatever thelr respecte postions concerning 2 “equest” and its acceptance by the Presiden, Mr ‘wxasana could never lawfully have recelved more money fr vacating the ofc than that ahi is provided fr in .12(8) and (9) of the NPA Aet Thats why he histo repay what he received, We des! with these submissions in tum, bu begin by quoting 512(8) and (8) of the NPA (8) (0) The President may olw the Nationl Director ora Deputy National Director at his orher request, to vocate is r her ofe- (0 onaccount of continued itheot; or (i) foranyother reason which the President deems suffeent. (0) The request in terms of paragraph (a) sl be addressed tothe Fresident atleast six colendor months prior to the date on which he or she wishes to vacate hi or her offic, unless the President grants oshorter period in aspecficcase. (6) the Navona Decor oro Deputy National Diretor- 5 (ano) 02] ZASCA A; 20313) SA 6 (SA (2001 3 ASA 263. * counselor the NPA ae Ad Abrahams ced the semen gram ‘uncostutonlond atone” » () vacates his or her office i terms of porsaraph (a (he ar she shol be ented to such pension ashe or she would have been entitled to ender the pension law applicable to him or her if his or her services had been twminated on the round of continued itheoth occasioned without him or her bing instrumental thereto; or (i) vacates his or her offie in terms of paragraph a), he or she shal be deemed to have been reed n terms of section 16 (4) of the Publ Src Act, ond ‘ne or she shal be entitled to such pension ashe or she would hae been ettled Linder the person lw applicable to him or her if he or she hades so rete. (9) f the National Director ora Deputy National Drctr, immediately sir to is or her ‘appointment os such, was on ofcer or employee Inthe publ service, and is appointed under an Act ofParkament with his or her cansent to an offi to which the provisions of this Act or the Public Src Act donot epply, he or she sll a from the date an which ‘he or she isso appointed cease to be the Notional Directr, a Deputy Notional Director ‘nd at that date he or she hos not reached the age a which he or She would in terms of the Publi Service Act hove hod the right tore he or she shall be seemed to have ‘retired on that date ond hal subject to the sold provisions, be entitled te such pension as he or she would hove been ented to under the persion law epplcabl shim orher had he or she been compel to retire from the puble serve owing to the aboton af his or her post" 155] Counsel for CW and FUL submitted that the NPA Act generally, but these prouions in articular, were to be intervetd strictly so that te the constutina imperative of prosecutorial independence. Counsel refered to 5.179(8) of the Constuton (quoted love) 35 well as 32(1) and (of the NPA Act: "32 Importelty of and oath o affmation by members of prosecuting thority (2) (a) A member ofthe prosecuting authoty shall serve impartaly and exerci, camry ‘ut or perform his ar her powers, duties and functions in good foith and without fear, {favour or predic and subject only to the Constitution and the law (0) Subject othe Constitution and this Act, no organ of state and no member or employee (of an organ of stote nor any other person shal imoroperty interfere with, hinder or ‘obstruct the prosecuting authority or any member thereof inthe eerie coring out or performance of, his or her powers, duties and functions 53212 ys down the oath of of in terms of which the Incumbent NDPP undertakes to usbold and protect he Constitution an he fundarental ps entrenched hers, and to ene thea the county ‘without fear, vou peu anim acordance wth the Consttion sd he Lam 20 [56] It was submitted that, consonant with this approach, 512 of the NPA Act accords security of tenure tothe office ofthe NOPP, and to the same end =.22(1] provides forthe term of office of tn yeas to be non-renewable, And so the concept of a Yequest” in 5.12(8a, ft sto this leglave scheme, as must, shoud be interpeted as refering to an incentive that emanates wholly and bona fie from the ofc hade, end not as referring simply to a negotiated atiude ofthe NDPP, procured end compromised by promise of reward. [571s it happens, the respondent parties all deferred to this Interpretive approach to 5.12(8)a), and the meaning to be attributed to “request”, as envisged in that sub- Section. We too subscribe otha view. [58] Indeed, even the unlawful settlement agreement itself records the “pvt role which the ‘Nationa Prosecuting Authority occuples In ou canstitutional democracy” If the affice of ‘the NOPP i to stand alone, apart from and independently ofthe Excite, Paament land the Courts, inservice only of the Constitution and the rule of law, then its independence must be rea, and must be supported by 2 statutory structure thatprtects ‘the ofc from outside pressure of any kind Was there 2 “eauest“? [59] Was there then 2 “request rom Mr Nxasona in this vende? The case fr CW and FULs that the record ofthe President's decison to conclude the sttlemet agreement is destructive of any such notion; and eying on Wightman t/a JW ConstretionvHeaefour (01 ted and Another*, they submited thatthe President dd not rie rel, bona file spute of fat, n regard to this issue, on the papers. > (ea007 [2008] 2ASCA 6 2008) SA 371 (CA) [2008 2A SA S12 (SRI “TA ra, genie and ono {depute of ot cn estoy where the cout is said tht the pry wh pups rae the pate asin sofa serousy ond urambiguayassresed the fot sal toe ite. Ther il of eouse be Instances where bare denial mets the requirement becoue thee ter way open fo Durey whi the howtesge ofthe overing party and no basis ad or disputing te very o aun of {he vermont. When the ots overed are Suh het the aputig party must neces poss owed of them and beable o prow on one or countering evidence) fey be ot tue a aca bt tad of dig sores cose ona bare or embiguus den te cur wl pneraly have fest in fing tat the ts isons. 1507 ‘eer becouse factual vets som ond part fam a oeader mati of ‘reumstaces al of which neds to be bane nmin honoring oo dt gent may not heey ‘recognise ov undertond the vances of ar or genera dela geist ova tempt grape wth lt ‘elevont fcta aleporins mode by te oer pry. But when he gn he answering afar ects ise ots contents agequete as they maybe and wl oni exceptional cumstances be permited ‘soem the Theres this serious duty imposed vpn ga adie who ste an arewering ofa escertin nd engoge with ot which is lent aputes onda reflect such depute uly ona acre he a (60) The President submitted thats. 128)a() and s.12(8M ofthe NPA Act enisaged two lzcrete concepts fst comes the request and its acceptance ("he President may allow to vocate"| under .2(8Hi, and upon that, then follows the deeming provision in 128), whichis determining of the financial entitlement of the vacating office horn this case there was a request tht emanated wholly rom Mr Naan, which ‘was accepted by the Presiden, and which was fectualy independent of and unrelated ‘the ultimately agreed R17 millon. The ultimately agreed R17 milion was not law, because it was nt justified by5:12(8)), and thus the settlement agreement had tobe st aside. But the prior request and is acceptance were severable, and they std? [st] tts necessary then to consider the three sources of avaliable materia: the Presidents reasons, the record, and the President's affidavit Starting with the Presidents reasons {for the decision: the frst observation is thatthe reasons thatthe President fished ‘were the reasons fr the decison to enter Into the settlement agreement thats whet was asked" and furnished. The reasons funished explain how it came about that Mr Nasana made the request tobe allowed to vacate the ofc, and wy the President ‘accepted the request. This questions the asserted severablty In f:t between the ‘request [and its acceptance) andthe settlement agreement. {62} The second observation concerns the internal logcalty ofthe version pul up, ant lows from the following. The reasons commence by setting out tht on 4 July 2024 the Presiden, aftr consideration of ll the evidence before him, had decide to instute an lenguiry in terms of 5:12(6[a) of the NPA et. Then, during the period 4 Jy 2014 to 9 May 2015 (the date on which Mr Neasana signed the settlement sereemeat), the President and Mr Nasona ha various decsslons “regarding the dscord that existed in ‘the National Prosecuting Authority between Mr Nasane ond senor monagement* [63] Ts discord was pronounced senior management divided, andthe NPA destabiked. The looming enquiry contributed othe dtcord, The reasons then continue “6. Me Nasana made the request on those grounds. 7. The President therefore deemed the reasons provised by Mr Nxasons, together with ‘the amcpoted protracted tigation andthe holding of the inquiry aot 10 be inthe Best Interest of the Notional Prosecuting Authority, Mr Nxasona and the publ a lage, tobe sufficient tallow Mr Rxasana to vacate office” ‘nswerng effian. thot doesnot happen shoul come ma surprise that he court tok a obs ew of hemor” [resides heads of argument, par s7and 56. * casenes240/15 93, serraph 5.2; ‘Reazons fh ints of rl SH) p42 2 [8] Assuming that the grounds on which Mr Nxasana made his equest ref tothe cord in the NPA, Mr Nasana must have made his request to vacate just before he sed the settlement agreement on 9 May 2015, since according to these resore, the dicussions were hal during the period 4 July 2014 09 May 2015 [65] There are dear problems with this version f the request was as late as that, then the regotations concerning the fnancal settement must have been had by then, Because ‘these were concluded by May 2015. And then it not posible thatthe request and its ‘acceptance came fst, unrelated tothe flnancll settlement that came only aferwards There could then not have been 2 seperate, carer, request as an incentive that ‘emanated holy and bona fe rom Mr Neasana, {66] But more importany, general, when the reatone fumished for 2 decison being ‘reviewed donot fit the record ofthe decison being reviewed, then usualy the decison maker's mere s3y-s0 does not survive” And that is the case here. Mr Nason attome/’ letter of 10 December 2014 quoted above records thit the President presented a settlement proposal to Mr Nxasana, and not the ather way ‘ound, The letter lexoresi records that It has never been the NDP®'s intention to resign from offce, because he regards himsalfas fe and proper for office, (67| Mr Nrasana had attempted to meet the President to discuss the inaury that the President had announced, but without sucess. Iwas only when Mr Nxasana brought the pplication to interdict his beng suspended thatthe President agreed tosee him. Bu Mr "Neasana madeiclerin the letter that he “wll only consider the option af leaving ofc, 25 the President would want him, If he Is fuly compensated forthe reminder of his ® minister of ute w Hfmeye (40/1) 1993] ZSCA 40; 1993 (2) SA. 124 AD} [983] 2 5A 22) 26 Mach 1953) at 58:60; "n ths connection Kg J reminded his fot 131 CO) thot tele eal of on niminstrate offeileeresing © cseton not dei ond tot the lgitiocy ofthe laters tons ‘od to be tested ogi othe able viene King) stated ft 131 F.6) hs fal cochtns nthe {flowing words" hereon onus 2 litt show o fave tence dreton heb my cw. {he respect outlined above ssid tur hl thot the segregated annem which pl war Setaed {or te bul of Ws perod of detention the fot tha he ws ot lowed some fom of deo cere the wo not allowed acest oaks ond mogacnes fom ouside he pizon and that he we so lowed sae form of acces o rao toodes' constitute wngfl and uo conduct ax aged fy pant Ifo ‘nyse wth respec i genera opreeren thal ef he remarks ut quate” See au Joanna Los fond Transporation Boar Dawe Morton Traspere (Py Ld 197) SB? (A) 895: he seer plc, {he crowing of such an inference may, depending upon the cumstonces, be the more eiffel the cmon f th Commision hos fle a elf ofan consisting not mere ofthe eC fo bare deere does a ight infer dereliction of ty and untae fom a respon bod St the Cut mast ot ich {rem an examination of such efor nthe oh of alo the cnstances, ode fo scenan wheter ‘elite. The degre of roof reque of on apoleent on rie & thot of prepanderance of obey, 07 “tut in review prceeings the Supreme Court in my view, cled upon to enamine fe ise tof 0 stout farctonay tot he as diy apis min] te Igo al eevortcondertions with view {0 determining ts objec cure Fale WO VC Sstms (Py) (63/0) [005 285852, 200) 4326 (54) 3 [5515 (63) (69) v0 va val va 2 contract." There is no scope here for 2 version tht fist came a request to vecate, accepted by the President; and having agreed that part, nest commenced the negotiation for an ext package. Thus the record of the decsion™ as embodied Inthe correspondence artery the negotiations reflected there and the subsequent decision to proceed withthe enguly is not compatible with 3 request to vacate afl having emanated from Wr Nxasana at al, nor with the decison to resign being substantively unconnected with the reward recorded inthe settlement agreement. ‘The President's retort on 12 December 201, that mediation would heveto follow and his response on 23 January 205, that the enquiry would have to proceed, a Ikewise Incompatible with an earler standalone request to vacate having 2een made and ‘accepted early in December 2014 then Mr xasana vcatinghisffce would have Been @ {alt accompli, and a medation/enqulry woul have served no purpose 1 the request to vacate only came later, in 2025 in the run-up tothe signing ofthe selement agreement by Mr Nasana on 9 May 2015, then that s destructive of the version that the request to resign came fst and was uncoupled frm the financial The reasons furnished forthe decson to enter into the settlement aprement and the record ofthe decion are thus internally incompatibie as concerns the central factual sue in this mate, namely whether there was a request incensed by Mir Kxasana, ‘emanating whol and bona ide rom him, tobe alowed to vacate the ofce, ‘We turn next tothe Presiden’ answering afta. Pat ofthe answer, rom paragraphs 53 to 58, follows the witten reasons forthe decision closely, But che contents of paragraph 5.10 are ferent emphasis supple “Tere were extensive negotiations eating tothe nancial terms with which he would be ‘oareeable to leave office having mode the request tod £0. wes informed tat there were offers made to Neosona ond counter-ffrs made by him around the amount he contended he wos entitled 0." ‘The answering affidavit doesnot sy when and where the request ovacte was made by "Mr kasana, nor when and where it was accepted by the Presiden. The closest comes Isin poraraph 127 (emphasis supplied) case n.62470/205,p,paraeraph 5, read wth supplementary af nes of $38) (976) ‘nd further supplementary afin In ters of ele SU) (pst, especialy p28 parroph 1 9639 rasraph 24, 640 paraeraph 32,35) Ps “tt was during the end of 2014 and the beginning of 2015, that! again had discussions with nazana and! had dlecussons with the Minster. was during these escusions that ‘neasona requested to vacate his position os head of the National Prosecuting Autharty, citing the contined discord with the senior members of the Natonal Prsecuting Authority ond the inguty as the primary reason. | deemed the reasons to be suflent cand accepted the request he request was not reduced to wring” Ite in our view portcularly tellng that the request was not referred to in the contemporaneous wrtten record ofthe decision to enter nto the setement areement [74] _Inthis paragraph the President suggests the discord and the enquiry (threatened by the President himself] were the primary reasons advanced by Mr Nasana.Concening the lscon-Eans Pats tv Van Rebecck ars (Py 2964 (3) A 673 (x (198) ZASCA Sa 864 nr ‘an certain instances the den by respondent of ofc ailegd y th anpcon may net be such 0 rosea ‘ol genuine or bana fie dt of fat ae thi rear Raam ire Co (Py epe Stet Marans (Pe ed 19495) 555) of 1163-5; Do atv Oto NO 1973) SA8SB A) 08820 A). in sch cae the respondent has ot ead himself of is ight pp fr th depnens concerned ob alle for css ‘tamination ander Aue 615) the Uniform Rules of Cour Petersen Cuthbert & Co 1945 AD 420 ot 428; oom hire cos sopra at 116) ard the Cours Sted as tthe Inherent ees of the opens {ectwl ovement tay proceed onthe bas of he canectness there an nce thi ct mang tose ‘pen which determines wheter the appcant is ented to the flee whch be sek se 0 hao ¥ ast and Administration Board ond Another 983 (4 $A 278} ot 283). Moro, tate ray be ceptions to this genera rule os for eomple, where the olegotins or denis of th espandnt ar 0 fa {etched o” ceri arenabe tha the COUT ssid eectn hem merely nthe papers (ete remarks {20TH Aun te Assooted South Aan Batre case, spr at 924)" 26 of s.126)a of the NPA Act tobe allowed to vacate the office of NDPP, nthe manne in hich this concept isto be interpreted asset out above for these reasons. [st] _ Fist onthe facts thre was no request tal. There was a negoisted agreement terms lof which Mr asana would vacate the offie if he was paid price nat aermited by the [NPA Ae. But second, again in favour of the President, even ifthe Prcdents ffiduit version were accepted ofan actual request andthe reasons fort then on thefts here "ti not emanate from Mr Nrasana at his incentive rather, the “request” flowed rom the conflunce of tree objectively established factors: an unjustified treat of public {enguiry, inaction by the President in respect of the senor persons inthe NPA whose Integrity had already been impugned by Courts and, uitimately, the payment of an ‘exoritant amount of money not permitted by law, [82] _ I follows that in our view the settlement agreement i valid becouse Me Nissan dd rot request to be allowed to vacate the offce of the NOP? as required bys.12(8)) othe [NPA Act, but rather becuse he was persuaded to vacate the ofee by the vnlawful payment of n smaunt of money substantially greater then that permite by ow ‘Tavacateornotto vacate 183) Does this conclusion result in the office being vacant? The applicants argued that the efauit postion that follows, 35 a matter of logic, would be that Vr asana be reinstated and that Adv Abrahams be vacated. The Constution and wih it, the Imperative of prosecutorial Independence must be vindicated and thats achieves by restoring the postion that pertained, had the invalid act not been performed thus restitution ofthe stotus quo one, as it were, n accordance with the gesera law nthe alternative, the applicants contended for an order that would dedare the office vacant, requiring that tbe filed in 60 days [84] The other parses argued that Mr Nxasana should not be reinstated ven that he knew that he was not entited to the extent ofthe reward for which he was hong out, ‘moment forgetting thet it was the President and the Mitr who were pethaps for ‘-ualy prepared to pay him his price. According to the argument, Ady Aarahams should be retained in the postion of NDPP, particular since none contendedthat he was not ‘it and proper to hol the ofc, [a5] na sense, both proposals are unsatisfactory from a perspective of what i jst and ‘equitable, The applicants’ primary proposal would no doubt vindicate the Constitution (3 (sa (20) 2 and its relevant values as pertain to the President's conduct, bu not as pertains to Mr recasana’s conduct. Assuming the latter knew full wel that he was Fong out for 2 positon that he knew was not permitted by aw, his uniawul conduct wil have been ‘rewards by achieving for him what he had wanted al along: back nthe sade, with no unjustified threat from the President ‘The respondents’ proposal onthe other hand wil not have vindlsted the Consttution as pertains tothe Presiden’ conduct because hi unlawful condct wl thn have procured for him, @ postion even better than what he had wanted al along: being rd of Mr "Nasana, at 2 price much lower than Mr Nasana's demand, and with Adv Abrahams in ‘the saddle And Mr Nrasaa wl have lst the office of NDPP without hving been found tobe not fi for off Ie seems tous tobe relevent in the context of what i just and equtale to ngur into ‘the state of mind ofthe President and Mr Nason, relative tothe unlewulnes oftheir conduct: were they unoware ofthe unlauness oftheir conduct, or sit they know it was unlawful, or were they reckless sto whether thelr conduct was unwul? ‘Beginning wit the President, thee ae the following considerations. Fst, there i the broader patern of the President's conduct in Itgation, of defending what utimately ‘urns aut ~ on the President's own concession - to have ben the indefensible al along, banking on any advantage that the passage of time may bring. This pattern hs played ‘ut in wel-publised cases n the Cours, and would be nave o Ignore. We refer here parcclarly othe Nkanla case” and the spy tapes ese™ Second, the Presiden’ letter of 12 December 2014 ("the President I not at liberty to depart from accepted presripts which cegulte government conduct) already rases @ ‘ed fag, Tied, the President must have known that he can only act win the law; he heads upa modern, constitutional state where the lew rules Sole must ave known that the law prescribes what Mr Nasana i permitted to be paid. Despite :his, he pald Mr ‘casa what Mr Nrasona wanted. And sos attitude must have been tat he fallowed freely to use th Fourth, n these proceedings the President proposes thatthe settlement agreement that he himself negated and condded was unlawful and should be declared iva and be ube pure to secure the removal of Me Nxasana © ceqnomi Freedom Fghersv Speke f the National Asembly and Others: Democrat ance Speaker of he hational ever ana Others (CCT 149/15; CCT 17/5) 2036] ZACC 112016 (9) BUR 68 (EC, 2016 (g)sAs80 (cc (3 waren 2016) see footote 1M above ea) (oa) 3 a, 185) ps 28 set aside, He does not suggest that his knowledge about the unamfuiness ofthe agreements 2 recent dlscovery, and we are not ale to infer that In these ckeumstances the inference thatthe President knew al along that his consuct. was not permitted bylaw, beckons strongly. ut this would be an inferential conclusion on affidavit concerning the Presidents sate of mind, without having had the vantage ofthe President's viva voce testimony. We prefer therefore to conelude, 38 we do, that the President was simply reckless a¢ to whether his conduct was unlawful given the {actors refered to above Mr Nasana too must have known thatthe bargain he was driving was ula Fist, he ‘was afterall the NOPP and the NPA Ac wae uate his charge to administer; he must have been aware of its provisions. Second, his attorney's eter of 10 December 2014 shows that he was ful aware ofthe specie statutory provisions relate to his nancial entitlement; bu that he thought that since he was not fering voluntary to res they {not apply to Ni ~ the President was at large to agre to his demands. Third, he abide the decision ofthe Courts to the Inwfulnes of the settlement agreement, but ‘as not prepared to say when the realisation of potential uniawfuness came tom. [As inthe case ofthe President, the inference that Mr Nxasana knew thit he ws ating without lawful foundation is strong: but, 3s in the case ofthe Presiden for the reason there articulated, we prefer to conciude that he was reckless as to whether his demend was awful In our view, given then the conduct of these two main protagonists and the considerations to which we have alluded, i ot just and equitable, ithe contest of vindicating the Constitution and the independence of the prosecutorial authority, to reinstate Me Nrasano. |sitjust and equitable to leave Adv Abrahams untouched inthe ofce? We do not believe Ie ls for these reasons. Fis, the vindication of the Constitution is paramount, an oder which leaves Adv Abrahams’ poston intact doesnot serve that obec. As remarked shove, the President will have achieved, trough unlawul means, precy what he had ished to attain ll along Second, we bear in mind the remarks of the Consttutional Court in Bengwenyoma ‘Mineral (Pty) td ond Others v Genorah Resources (Pty) Ltd and Other” "185} The apporent anomaly that on unlawful oct con produce legally effective consequences isnot one that admits easy and consistently logical solutions. But then the ect 3/20 ao.) zac 26; 201 (4) 5.123} 2013 (3) AR 225, 28 law often i « progmatc blend of logic ond experience. The opporent gour of eclering conduct in conflict withthe Constitution and PAIA unlawful i ameliorted In Both the Constitution and PALA by proving fora just and equitable remedy Inks woke Ido nat {hink that 1 1s wise to ttempt to lay down inflexible rules in determining ost ond equitable remedy following upon a decloraton of unlawful administrative action. The rule ‘of low must never be relinquished, but the crcumstonces of each case mus be examined In order to determine whether fact! certainty requires some omelioaton of legoty ‘and, if 50, 10 what extent. The approach taken will depend onthe lind of challenge presented — elector clloteral the interests involved andthe extent or matey ofthe brooch ofthe consituionl ight to jut administrative ation I each paeuar ase.” ‘We take from this passage the notion that, if he invalid act cannot wlll be undone, respect for the rule of aw would require that nonetheless it must be undone in such a ‘manner thatthe result stil projects respect forthe Constitution and the rule flaw. We suggest that In this ease this implies a result that underscores the imperative of non- Interference Inthe independence ofthe NPA and is National Director. [97] The, inthis tigation as Inthe President's and the NPA’ appeal 1 the SCA - Ay [Abrahams has astoclated himself, Incondlstent withthe Imperative of prosecutorial Independence, on allmteral issues withthe postin of the President. a example s the three pont he argued: the vacancy issue, the conflict ssve, and remedies, {981 Fourth, his conduct in the tigation went even further. He attacked the case of the applicants, non-profit organisations in language such as 7 submit thatthe ele sought |s unmertorous, logical, Incompetent ond amounts to an absurdity He had Ile reserve in easing sweeping asprsions: “I established thot there were some serious crtcisms of Adv iba inthe court judgments, but much ofthe moteria placed before the courts had been menipulated and actusted by ulterior motives with view to getting rd (of Adv ba“ nthe same vein: “ascertained thatthe criminal proceedings and the GCB ‘pplication were not intioted by disinterested persons who wished to protect the integrity ofthe insttution. n fact, they could be traced to ofl within the NPA, centred around ‘Mr nxasano who had long been at loggerheods with Ad. ba." {99} This is esconcerting language and, on the face oft, sugestng ofa lack of appreciation for whether or not the complaints that were ralsed for Instance against Ady ba were ‘mertorius, respective oftheir source. The judgments that questioned the integrity of * anwering afin the CASAC appt, p5, aa 522. * anowering ait in the CW and FUL oppo, 14 pa 37.12 © araworing fis op pra 37.14 30 advocates Ja, Mrwebi and Mainjathl were judgments ofthe High Court, and Adv ‘Abrahams should not have questioned but should instead have acted onthe result. And Inthe event, the judgment of Legodi inthe GCB mater vindicated the compli [100] Tht leaves, a ego the poston of Ad Abrahams, the argument put upon his behalf, ‘namely that Mr Ruasana was ented awful to relinquish his poston, ousife of the framework of the NPA Act As stated he relied on Strydom supe, in which 2 magistrate had resigned before hie full erm office had expire, [101] There 135) ofthe Magistrates Act 90 of 1993 aplled, and provided allows 5) (0) The Minister may, ot the request of o magistrate, ollow such magistroteto vote is he office (on cccount of continued heath or wa (i) forany other reoson whch the Minster deems sufient” ‘he Court there held that 2 mapstrate was entitled laufuly to resign unter and without the Ministers concurence. {102} Adv Abrahams submitted that that was the proper interpretation also f 5221) ofthe [NPA Act and that Mr Nasana could resign unfaterally. Counsel for CW and FUL

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