Quote of the week

Sexual harassment, we might then say, is the great male performative, the act through which a man aims to convince his target, not only that he is the one with the power – which is true – but also that his power and his sexuality are one and the same thing. As Judith Butler has argued, the performative is always melancholic, since the performer knows the role they are enacting is no more than skin deep (‘melancholic’ also because of all the other buried and unconsciously grieved sexual lives one might have led).

Jacqueline Rose
London Review of Books
10 December 2017

On the Nxasana judgment: No, the Constitution does not allow the President to flout the Constitution

The judgment handed down on Friday by the Gauteng High Court, which declared the “resignation” of the previous National Director of Public Prosecutions (NDPP), Mxolisi Nxasana, (as well as the subsequent appointment of Shaun Abrahams as NDPP) unconstitutional and invalid, and ordered that the Deputy President must appoint a new NDPP in his capacity as acting President, raises profoundly important and interesting constitutional issues. Unfortunately, some comments on the judgment have been ill-informed and lacking in a basic understanding of constitutional law and the jurisprudence of the Constitutional Court.

What is to be done when President Jacob Zuma is unable to perform a constitutional obligation because this is prohibited by the Constitution? Put differently, is the President permitted to flout a constitutional obligation in order to fulfil another constitutional duty.

This was the conundrum faced by the full bench of the Gauteng High Court in the case of Corruption Watch and Another v President of the Republic of South Africa and Others (but whether this issue should have arisen at all is at least debatable).

The court held – correctly in my view – that the President is not permitted to flout section 96(2)(b) of the Constitution (which prohibits him from exposing himself to any situation involving the risk of a conflict between his official responsibilities and his private interests), and that he is therefore unable to appoint the NDPP because he has a vested interest in appointing somebody who will make his corruption case go away.

But whether it was necessary to decide that the Deputy President was the appropriate person to appoint the NDPP is at least open to question. To understand why this is so, it is necessary to delve a bit deeper into the arguments presented to the court.

Section 12(8)(ii) of the National Prosecuting Authority Act states that the President may allow the NDPP to vacate his or her office “at his or her request”. Mr Nxasana could therefore have legally vacated his office (and could have been granted a sum of money considerable less than he was eventually paid), if President Zuma had agreed to a request from him to do so. Absent a request from Mr Nxasana, the President had no legal authority to allow the NDPP to vacate his office or to pay him any sum of money.

The President had told the court under oath that Mr Nxasana did make such a request. The court rejected this claim and held that this claim by President Zuma could not have been true. (Less politely, the President must have lied under oath to the court about the existence of the alleged request.)

This is, amongst other reasons, because the record shows that Mr Nxasana (in various letters written to the President) was adamant that he was not willing to vacate the office. The record also shows that it was the President’s office who was eager to get rid of Mr Nxasana and negotiated with him about a package that would convince him to leave.

The President eventually agreed to pay Mr Nxasana an amount which Mr Nxasana was not entitled to, in order to get rid of him. As judge Dunstan Mlambo puts it, Mr Nxasana:

was persuaded to vacate the office by the unlawful payment of an amount of money substantially greater than that permitted by law…. [President Zuma’s] attitude must have been that he is allowed freely to use the public purse to secure the removal of Mr Nxasana.

The court hinted, but did not in the end find, that this was done intentionally: in other words, that President Zuma was willing to “bribe” Mr Nxasana to get him to leave. (Why the President was so eager to get rid of Mr Nxasana is not fully explored in the judgment.) If this was indeed a bribe given by President Zuma, this would have been a novelty for him, because in the past the money had always flowed the other way.

In any event, it was unconstitutional and invalid for President Zuma to allow Mr Nxasana to vacate office without a request from Mr Nxasana himself. This means, for legal purposes, it is as if Mr Nxasana never left office and as if Shaun Abrahams was never appointed as NDPP (because he could not legally be appointed to a position that was not vacant).

And this is where it gets interesting. Normally, this would mean that Shaun Abrahams (“appointed” to replace Mr Nxasana) would have to go back to his mid-level job as a prosecutor, while Mr Nxasana would again become NDPP. The High Court could have left things there without having to worry about the fact that President Jacob Zuma is fatally conflicted with regards to the appointment of a NDPP.

But the High Court did not believe that this would be a just and equitable outcome. This is because it was more than likely that Mr Nxasana – reluctant to leave office – nevertheless decided that he would leave “if the price was right”. If this is so, he was holding out for a position (and an amount of money) which he knew was not permitted by law.

[H]is unlawful conduct will have been rewarded by achieving for him what he had wanted all along: back in the saddle with no unjustified threats by the President.

The court held that given the unconscionable behaviour of both President Zuma and Mr Nxasana, it would not be just and equitable, and would not vindicate the independence of the NPA, to “reinstate Mr Nxasana”.

I am not sure that it was open to the court to “reinstate” or not to reinstate Mr Nxasana. Having declared the original departure invalid, this must have meant that Mr Nxasana is automatically “reinstated”. If a court invalidates a decision, the position return to what it was before the decision was taken.

It is unclear whether the High Court has the power, so to speak, to “fire” the newly reinstated Mr Nxasana, as his fitness for office or the rationality of his appointment was not before the court. One can, at least, make a credible argument that the court overreached when it decided to “fire” the newly reinstated Nxasana.

But if we assume that the court did have the power to “fire” Mr Nxasana, another question arises. Did the court have the power to order that the Deputy President should appoint a new NDPP? I would suggest that it did.

As the court correctly held, the President is conflicted and if he were to appoint the new NDPP he would act in breach of section 96(2)(b) of the Constitution which prohibits him from exposing himself to any situation involving the risk of a conflict between his official responsibilities and his private interests. And the fact that he is conflicted is hardly in doubt. As the court noted:

The President told the SCA that he “…had every intention in the future to continue to use such processes as are available to him to resist prosecution,” in other words not to stand trial at all, and this would place the incumbent NDPP firmly on the spot. It seems incongruous that under those circumstances President Zuma should then be seen to appoint the NDPP, since his conflict both actual and perceived is self-evident.

The High Court held that given the fact that the President is conflicted, he is “unable to act” as he is prohibited from acting by the Constitution itself (section 96(2)(b).

Some critics of the judgment have noted that section 179(1)(a) of the Constitution authorises the President to appoint the NDPP. As the President did before the court, they in effect argued that it was fine for the President to flout a constitutional obligation (imposed by section 96(2)(b) of the Constitution), because another section (section 179(1)(a)) allows him to do so. This is not a particularly informed view.

The Constitutional Court has often held that the provisions of the Constitution must be read together (see Government of the Republic of South Africa and Others v Grootboom and Others), and that it must be assumed that each section is in harmony with all other sections.

I suspect this is why the High Court invoked section 90(1)(a) of the Constitution (which must be read with section 96(2)(b) and section 179(1)(a)), which states that “[when the President is…. unable to fulfil the duties of President” the Deputy President acts in the capacity as acting President and then has “the responsibilities, powers and functions of the President”. Section 90(4) also makes clear that once sworn in as acting President, the Deputy President does not have to be sworn in again.

So section 90(2) is clear: the acting President “has the responsibilities, powers and functions of the President”. That includes the power in terms of section 179(1) to appoint a new NDPP.

Although the High Court did not elaborate sufficiently on this point and although its reasoning could have been stronger, I suspect that it must be right that where the Constitution prohibits the President from acting because of a conflict of interest, he must be “unable to act”, and that this means the Deputy President must act as President for that purpose instead.

Section 90 does not use broad terminology as it does elsewhere in the Constitution (see section 89(1)(c) where it talks about the President’s “inability to perform the functions of office”). It is therefore possible to interpret the wording of section 90 as meaning that the Deputy President must act not only when the President is unable to perform his task generally (say because he had a stroke) but also when, in an individual instance, he is prohibited from acting by the Constitution itself (and is thus “unable to act”).

I suspect an appeal will challenge this view and will try and argue that “unable to act” is exactly the same as “inability to perform the functions of office”. However, if this argument succeeds it would mean the President would be required by the Constitution to act unconstitutionally. This, in my view, would be a rather absurd interpretation of the various provisions read together.

As the High Court also declared certain sections of the NPA Act to be unconstitutional, and as this declaration must be confirmed by the Constitutional Court, the case will have to go directly to the Constitutional Court. It will be interesting to see whether the President will once again throw in the towel at the last minute (as he has done on previous occasions), or whether he will fight tooth and nail to ensure that the “right” person (in other words, a person who will not prosecute him) remains the head of the NPA.

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