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Karyn Maughan @karynmaughan
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Former NDPP #MxolisiNxasana in the Concourt for the #ShaunAbrahams hearing. He says he’s willing to return to his post - and believes he was forced out because then President Zuma believed he would prosecute him for corruption.
Former AFU Head Willie Hofmeyr - slammed by SCA over his involvement in decision to drop Zuma prosecution - is in Concourt for #ShaunAbrahams hearing. He’s sitting next to #MxolisiNxasana.
CJ Mogoeng not in court today for #ShaunAbrahams hearing. Justice Khampepe leading the justices.
Wim Trengove is arguing for Freedom Under Law. He says it’s not In dispute that the R17million golden handshake given to #MxolisiNxasana was unlawful and invalid.
Trengove says former President Zuma “unlawfully concealed” crucial documentation related to the #MxolisiNxasana case - which FUL only found out about because Nxasana told them about it.
He says this correspondence is “damning”.
Fmr President Zuma maintained #MxolisiNxasana asked to leave. But correspondence showed that this was not the case. When Zuma confronted with it, he chose not to explain his apparent dishonesty. #ShaunAbrahams
Trengove again argues that fmr President Zuma tried to “bully” #MxolisiNxasana with the threat of an inquiry into his fitness to hold office.
“When that didn’t work, he tried to seduce him with an obscene amount of money”. #ShaunAbrahams
Trengove questioned whether if - #ShaunAbrahams appointment invalid - his decisions then unlawful. He points out that High Court order made it clear this ruling would not invalidate Abrahams decisions.
Trengove says High Court correct to rule that #ShaunAbrahams appointment invalid - given #MxolisiNxasana removal was unlawful and there was “therefore no vacancy” for Abrahams to fill.
Trengove says former President Zuma “abused his powers to remove himself of the incumbent NDPP and replace him”.
But he’s not arguing that Zuma “earmarked” Abrahams for the NDPP position.
Trengove says fmr President Zuma “knew what was he was doing...he was offering Mr Nxasana increasing amounts of public money to leave.
“And that was completely unconstitutional”.
Justices Cachalia and Froneman point out that High Court “shied away” from ruling that Zuma had made illegal pay out to #MxolisiNxasana with ulterior purpose. Court said Zuma was “reckless”. #ShaunAbrahams
Trengove says Zuma used public money to get rid of #MxolisiNxasana “for his personal benefit, to minimize his prospects of facing prosecution”.
“And any outcome that leaves Mr Abrahams in office will make a mockery of the Constitution”. #ShaunAbrahams
Trengove says he will accept that #ShaunAbrahams was “used” by fmr President Zuma: to remove and replace #MxolisiNxasana.
“Whether he was complicit or a pawn, he was a beneficiary of the President’s abuse of power”.
Trengove: “there cannot be any other outcome that #ShaunAbrahams must go”.
Trengove says it’s “not appropriate” for #ShaunAbrahams to make the call on former President Zuma’s prosecution.
“An NDPP other than him should make that decision”.
Cachalia: and you accept the consequence of that may be a delay of up to a year?
Cachalia says it’s clear that #MxolisiNxasana would be disqualified from making any decision on the case against fmr President Zuma.
“He’s filed affidavits in this case calling Mr Zuma an utter liar”.
Matthew Chaskalson argues for Corruption Watch, and says that #MxolisiNxasana exit as NDPP amounted to a “constructive removal”. #ShaunAbrahams
Justice Froneman questions why an NDPP can simply not resign if he “has just had enough”.
Cachalia repeats the question: why is unilateral resignation of NDPP not allowed?
Chaskalson: there have to be reasons and there has to be acceptance.
There must be scrutiny he says.
Geoff Budlender now argues for CASAC. He says there are “reasons to feel sympathetic” for #MxolisiNxasana - who he says was put under pressure to leave office, seemingly because he was acting independently, “he came clean” about the unlawful R17million payout he received.
Budlender however points out that there are adverse aspects to #MxolisiNxasana conduct: he turned the efforts to remove him to his own advantage, by accepting the golden handshake deal.
Nxasana has agreed to pay this R17million back. #ShaunAbrahams
Budlender argues #ShaunAbrahams must vacate his position. He says Abrahams had been paid for work he’s done, “so there’s no prejudice”.
Budlender says “potential prosecution of a former President is a momentous matter”.
#ShaunAbrahams in an impossible position, he argues: he’ll either be accused of trying to protect Zuma, or trying to curry favour with the new President.
Budlender: the question is not just whether to prosecute (Zuma), but who should prosecute?
These decisions need to be made by a person in whom the public has confidence.
There are too many senior people in the NPA who carry toxic baggage. #ShaunAbrahams
Cachalia again asks Budlender if he realizes that not allowing #ShaunAbrahams to announce his Zuma decision may delay the prosecution process by a year.
Delay would be justified, Budlender says, but he doubts it would take long for President Ramaphosa to appoint new NDPP.
HSF says it’s irrelevant whether #ShaunAbrahams knowingly involved himself in illegal removal of #MxolisiNxasana. He benefitted from it.
And question is not whether Abrahams is independent, it’s about whether he is perceived to be independent.
HSF points to Appeal Court ruling on Spy Tapes case, where judges questioned why NPA had tried to defend irrational decision to drop Zuma prosecution. High Court found Abrahams had aligned himself with Zuma legal strategies. And it criticized how he failed to act against Jiba.
Justice Cachalia pushes HSF advocate on whether it’s fair to find that #ShaunAbrahams was biased in favour of former President Zuma. Justice does not believe this was justified.
Michelle le Roux argues for #MxolisiNxasana, saying he was subjected to a “smear campaign” orchestrated by the SAPS and designed to impugn him over murder case he was acquitted of as a young man, where he was found to have acted in self defense.
Le Roux says High Court was unfair to say that #MxolisiNxasana was a “man with a price”.
This, she points out, was done “without the court even hearing his side”.
High Court refused Nxasana application for his affidavit to be admitted - because it was submitted too late.
Le Roux tracks the entire tumultuous history of #MxolisiNxasana’s leadership of the NPA.
This was defined by authorities pursuing a campaign against him, his subordinates (Jiba etc) plotting against him, Zuma failing to act.
Le Roux says R17million golden handshake given to #MxolisiNxasana was “not a bribe”. It was the amount owed to him from his NPA contract.
Le Roux says Zuma lawyer Michael Hulley met him before he filed his response to golden handshake case. MN made it clear he would contradict JZ claims he wanted to leave office. He said this apparent from letters between his and JZ lawyers. Lawyer office then burgled,letters gone
Le Roux arguing for #MxolisiNxasana affidavit - which High Court refused to admit as evidence because it was filed too late - should be included as evidence. It provides insight into the meetings that Zuma had with MN.
#MxolisiNxasana stated under oath that Zuma told him that “people are telling me you’re dangerous” and that he was intent on prosecuting Zuma for prosecution.
“He told me when he hears Bulelani Ngcuka’s name, he goes crazy”. #ShaunAbrahams
Le Roux says #MxolisiNxasana has taken responsibility for his part in accepting the R17million golden handshake. But he has agreed to pay back that money. And assisted parties fighting this case in Court to get to the bottom of what happened.
Justice Froneman questions whether #MxolisiNxasana should be reinstated - given that he violated the law by agreeing to the golden handshake deal.
Cachalia: the fact is that he succumbed to the pressure.
Hilton Epstein arguing for #ShaunAbrahams.
“There’s no suggestion that Mr Abrahams is not fit for office”.
He points none of the parties involved in #MxolisiNxasana have claimed he is unfit.
Epstein: there’s no suggestion that #ShaunAbrahams had any involvement in #MxolisiNxasana golden handshake deal.
He adds that Nxasana was intent on challenging DA Spy Tapes litigation.
Epstein: #MxolisiNxasana keeps tendering to pay back the money. “But the state needs to say: show me the money.”
He says Nxasana has not actually paid back the R17million golden handshake payout.
Epstein argues #MxolisiNxasana could have gone through the inquiry into his fitness to hold office. He didn’t have to agree to the golden handshake deal #ShaunAbrahams
Epstein argues #ShaunAbrahams did not replace #MxolisiNxasana. Instead he replaced Advocate Silas Ramaite, who was acting NDPP. He insists #Nxasana resigned.
Epstein has confirmed what @JamesGrantZA has argued: effect of Spy Tapes ruling is that Zuma prosecution stands.
#ShaunAbrahams deciding on Zuma argument about whether NOT to go ahead with it.
Trengove: #ShaunAbrahams has seen an unlawful windfall that he would not have seen without the former President’s abuse of power.
#ShaunAbrahams judgment reserved.
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