Corruption Watch NPC and Others v President of the Republic of South Africa and Others; Nxasana v Corruption Watch NPC and Others (CCT 333/17; CCT 13/18) [2018] ZACC 23; 2018 (10) BCLR 1179 (CC); 2018 (2) SACR 442 (CC) (13 August 2018)

Corruption Watch NPC and Others v President of the Republic of South Africa and Others; Nxasana v Corruption Watch NPC and Others (CCT 333/17; CCT 13/18) [2018] ZACC 23; 2018 (10) BCLR 1179 (CC); 2018 (2) SACR 442 (CC) (13 August 2018)

The Constitutional Court confirmed the High Court's orders declaring the settlement agreement terminating Mr Nxasana's appointment as NDPP, the payment to him, and the appointment of Advocate Abrahams as NDPP constitutionally invalid. The Court found that the manner in which Mr Nxasana was removed from office, including the excessive settlement payment, compromised the independence of the prosecuting authority and violated constitutional guarantees. The appointment of Advocate Abrahams was invalid as it was a direct consequence of the unlawful removal. Sections 12(4) and 12(6) of the NPA Act were declared unconstitutional to the extent that they permitted executive extension of tenure and...

Citation
[2018] ZACC 23
Parties
Applicant: Corruption Watch NPC; Applicant: Freedom Under Law NPC; Applicant: Council for the Advancement of the South African Constitution; Respondent: President of the Republic of South Africa; Respondent: Minister of Justice and Correctional Services; Respondent: Mxolisi Sandile Oliver Nxasana; Respondent: Shaun Kevin Abrahams; Respondent: Director General: Department of Justice and Constitutional Development; Respondent: Chief Executive Officer of the National Prosecuting Authority; Respondent: National Prosecuting Authority; Respondent: Deputy President of the Republic of South Africa; Amicus: Helen Suzman Foundation
Court
Constitutional Court
Jurisdiction
South Africa
Judgment Date
13 August 2018
Case Number
CCT 333/17; CCT 13/18
Procedural Posture
Constitutional Confirmation / Confirmation of High Court Orders of Constitutional Invalidity and Related Appeals
Outcome
The Constitutional Court confirmed the High Court's declarations of constitutional invalidity, dismissed the appeals of Advocate Abrahams and the NPA, upheld Mr Nxasana's appeal regarding condonation, ordered repayment of the settlement amount, and directed the appointment of a new NDPP.
Judges
Cachalia AJ, Dlodlo AJ, Froneman J, Goliath AJ, Jafta J, Khampepe J, Madlanga J, Petse AJ, Theron J
Legal Topics
Independence of Prosecuting Authority, Security of Tenure, Unlawful Removal From Office, Settlement Agreement Invalidity, Judicial Review of Executive Action, Constitutional Invalidity of Statute
Constitutional Law Administrative Law Independence of Prosecuting Authority Security of Tenure Unlawful Removal From Office Settlement Agreement Invalidity Judicial Review of Executive Action Constitutional Invalidity of Statute

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Parties

Corruption Watch NPC

Applicant

Freedom Under Law NPC

Applicant

Council for the Advancement of the South African Constitution

Applicant

President of the Republic of South Africa

Respondent

Minister of Justice and Correctional Services

Respondent

Mxolisi Sandile Oliver Nxasana

Respondent

Shaun Kevin Abrahams

Respondent

Director General: Department of Justice and Constitutional Development

Respondent

Chief Executive Officer of the National Prosecuting Authority

Respondent

National Prosecuting Authority

Respondent

Deputy President of the Republic of South Africa

Respondent

Helen Suzman Foundation

Amicus

Procedural Posture

Constitutional Confirmation / Confirmation of High Court Orders of Constitutional Invalidity and Related Appeals

Legal Issues

  1. 1 Whether the settlement agreement and Mr Nxasana's vacation of the office of NDPP are constitutionally valid.
  2. 2 Whether Mr Nxasana should be required to repay the R17.3 million settlement payout.
  3. 3 Whether the appointment of Advocate Abrahams as NDPP is constitutionally invalid.

Ratio Decidendi

The Constitutional Court confirmed the High Court's orders declaring the settlement agreement terminating Mr Nxasana's appointment as NDPP, the payment to him, and the appointment of Advocate Abrahams as NDPP constitutionally invalid. The Court found that the manner in which Mr Nxasana was removed from office, including the excessive settlement payment, compromised the independence of the prosecuting authority and violated constitutional guarantees. The appointment of Advocate Abrahams was invalid as it was a direct consequence of the unlawful removal. Sections 12(4) and 12(6) of the NPA Act were declared unconstitutional to the extent that they permitted executive extension of tenure and...

Court Disposition

The Constitutional Court confirmed the High Court's declarations of constitutional invalidity, dismissed the appeals of Advocate Abrahams and the NPA, upheld Mr Nxasana's appeal regarding condonation, ordered repayment of the settlement amount, and directed the appointment of a new NDPP.

Orders

  • Mr Nxasana's appeal is upheld with no order as to costs and his explanatory affidavit is admitted.
  • The High Court's costs order against Mr Nxasana is set aside.