ANALYSIS
The judgment delivered by Judge Dunstan Mlambo in the North Gauteng High Court is a political nuclear bomb.
It means one of President Jacob Zuma's keepers (Shaun Abrahams) is removed from office, while his nemesis (Deputy President Cyril Ramaphosa) will now have a direct bearing on his future.
The court agreed with applicants Freedom Under Law, Corruption Watch and the Council for the Advancement of the South African Constitution (Casac) that the golden handshake President Jacob Zuma gave then-NDPP Mxolisi Nxasana a few years ago was invalid, and that his successor, Shaun Abrahams, must vacate his office. Nxasana is also to repay the R17-million he received.
Ramaphosa's moment is now. There will inevitably be an appeal, but if Ramaphosa is serious about cleaning up the wreckage left by grand corruption and state capture (as he has said he is), he needs to take charge of the moment and set in motion the process to appoint a new national director of public prosecutions immediately. Court processes need to be respected, and an appeal might mean a lengthy delay, but Ramaphosa can set the tone with decisive actions and leadership.
The court has suspended the invalidity of Abrahams' appointment for 60 days or until Ramaphosa makes an appointment. He could therefore technically still make a call on Zuma's prosecution. He shouldn't be allowed to.
Abrahams has been nothing but subservient to Zuma's interests ever since he was appointed by the president in 2015. When the selfsame North Gauteng High Court ordered that the 18 charges of corruption and fraud against Zuma should be reinstated, quick as a flash, Abrahams indicated that the National Prosecuting Authority would appeal the judgment, even though leave to appeal was refused.
South Africa has never been in this situation before, and the strength of our institutions, the rule of law and separation of powers will now be tested.
And while he was busy helping Zuma in his Stalingrad defence, he also sought to intimidate then-Finance Minister Pravin Gordhan. Abrahams famously told a press conference in October last year that "the days of disrespecting the NPA are over. The days of not holding senior government officials accountable are over."
Puffed up and basking in his own importance, he proceeded to charge Gordhan, only having to drop the charges soon after, throwing his own colleagues under the bus in doing so. And what was he doing in all that time about politicians "who disrespect the NPA", ie. Zuma? Nothing.
Abrahams has refused to charge Zuma, and has sought every avenue available to him to frustrate efforts to do so. He has inflicted more damage on an already scarred NPA –– an NPA that Zuma has over the years crippled with dubious appointments (Menzi Simelane), cadre deployment (Nomgcobo Jiba) and intimidation (Nxasana).
It is a remarkable and far-reaching development, and the court will be criticised for usurping constitutional provisions.
If the removal of Abrahams by the court is telling, the decision to give the responsibility of appointing a new NDPP to the deputy president is even more so. The Constitution dictates that the president is solely responsible for the appointment of the NDPP. Unlike other critical appointments –– like judges or the public protector –– this appointment is not made based on a parliamentary process.
The court has now said it doesn't trust Zuma to make a rational decision when appointing a replacement for Abrahams, because he is conflicted in the matter. The new NDPP, after all, will have to make the decision whether or not to prosecute a sitting head of state. It is a remarkable and far-reaching development, and the court will be criticised for usurping constitutional provisions.
South Africa has never been in this situation before, and the strength of our institutions, the rule of law and separation of powers will now be tested. Zuma will not sit idle. He will fight back. Bet on it.