The new president‚ Cyril Ramaphosa‚ should be the one to appoint a new National Director of Public Prosecutions (NDPP)‚ following the Pretoria high court judgment in December last year which set aside current incumbent Shaun Abrahams's appointment.

The Council for the Advancement of the South African Constitution (Casac) made this submission before the Constitutional Court on Wednesday‚ as it answered a question of what should be the solution going forward.

The Pretoria high court also set aside the R17.3m settlement agreement that Abrahams's predecessor Mxolisi Nxasana reached with then-president Jacob Zuma to leave the position in 2015‚ and ordered Nxasana to repay the golden handshake.

The high court judgment had also ordered in December that the deputy president - which was Ramaphosa at the time - should make an appointment of who should be NDPP or acting NDPP.

Zuma had appealed against the order that Ramaphosa should appoint the NDPP‚ but he was removed as president earlier this month. Ramaphosa withdrew the president's application last Friday‚ stating that the matter was now moot.

Casac counsel Geoff Budlender SC asked‚ now that Nxasana's settlement agreement had been set aside‚ what the next step should be. Budlender said the ordinary course to follow would be Nxasana's reinstatement.

Budlender said there were some reasons to be sympathetic to Nxasana as he accepted the unlawful settlement to leave the office.

“He was placed under pressure to leave as National Director of Public Prosecutions. The evidence strongly suggests he was under that pressure because he was acting independently of the executive.

"He has come clean and made a full disclosure. He says he will return proceeds of golden handshake‚” Budlender said.

However‚ the Casac counsel said there were also some uncomfortable facts surrounding Nxasana's position.

“He turned to his own advantage the president's desire to remove him to obtain unjust payments. He was an active party in the unlawful agreement. He abandoned his constitutional duty as NDPP in order to secure the unlawful payment. He did nothing to reverse this until this litigation was started‚” Budlender said.

He said there had been no question whether Nxasana was in a fit and proper position to become national director of public prosecutions.

“It is not appropriate for the court to come to judgment as to his suitability for the office. His suitability has not been in question. The judgment as to whether Nxasana is suitable is best made by the president. The president decides who should be NDPP‚” Budlender said.

Budlender said the just and equitable remedy was for the court to leave the task of the appointment of the national director of public prosecutions to Ramaphosa.

On the question of whether Abrahams should keep his position‚ Budlender said the default position was that if Nxasana's appointment was unlawfully terminated‚ there was no vacancy into which Abrahams could be appointed.

“He cannot claim justice requires him to remain in a job in which he was unlawfully appointed. He too would have to vacate his position‚” Budlender said.

Budlender said the appointment of a new national director of public prosecutions came at a time when a decision on whether or not Zuma should be prosecuted had to be made.

Budlender said Abrahams found himself in a difficult position. “If he refuses to prosecute‚ there would be suspicion he did that to protect the former president. If he prosecutes‚ there will be a question of 'why only now' when there is a new president. These are natural questions and natural suspicions‚” Budlender said.

Abrahams and the NPA are still to argue their case before the Constitutional Court on Wednesday.

Abrahams wants to appeal against the order setting aside his appointment. His lawyer would argue his case later on Wednesday.