Abrahams, NPA apply to appeal Nxasana judgment

The National Prosecuting Authority (NPA) and its head Shaun Abrahams on Friday said it would apply for leave to appeal the judgment that sought to remove him from the job, just hours after that judgment was delivered.

Their lawyers said they would appeal the decision on the basis of seven different errors.

President Jacob Zuma’s office on Friday said he too would appeal the judgment, even though he had not yet fully considered it.

“Whilst the President awaits a full briefing on the judgement, he has been advised that an early assessment displays, with respect, various grounds upon which a successful appeal may be prosecuted,” read a statement from the Presidency.

On Friday morning, the court ruled that Zuma and former national director of public prosecutions (NDPP) Mxolisi Nxasana had broken the law by agreeing to a R17.3-million payment in order for Nxasana to leave office. It said that Abrahams had to leave the post, but that as a potential criminal accused again Zuma could not appoint the person who would have to decide on whether he is prosecuted, so gave that job to the deputy president.

Because Nxasana was found to have never lawfully left the office, the court found, Abrahams could not have been validly appointed, but it declined to allow Nxasana to return to the job.

Abrahams and the NPA said the court should have found that Nxasana left office, and so there had been a vacancy Abrahams could fill.

They also objected against a finding that allowing Abrahams to remain in office would reward Zuma.

“It is submitted that the court erred in finding that an order leaving Adv Abrahams in office would allow the President to achieve through unlawful means, what he had wished to attain all along, there being no evidence that the President entered into the impugned agreement with Mr Nxasana with a mind to installing Adv Abrahams as NDPP,” the application reads.

The application for leave to appeal holds that the court should not have rejected the argument that Zuma had not, or will not, appoint the person who decides whether he will be charged with corruption afresh, because appointment of the NDPP is “with the concurrence of the cabinet”.

In argument on the matter the NPA had said that because Zuma acts with his cabinet in the appointment, his conflict of interest is effectively diluted to the point where it no longer matters.

Members of the cabinet and are appointed and serve at the sole pleasure of the President.

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