Two Zuma-backed NPA officials lose top court appeal

Two senior National Prosecution Authority (NPA) officials who were appointed directors of public prosecutions by former president Jacob Zuma lost their appeal in the Constitutional Court on Thursday after President Cyril Ramaphosa refused to finalise their “fast-tracked” appointments.

In the final days of his presidency in 2018, Zuma sought to appoint Khulekani Mathenjwa and Simphiwe Mncwabe as directors of public prosecutions (DPPs) in the NPA.

Mathenjwa, who had served for almost three decades in the NPA, was asked by then NPA head Shaun Abrahams to submit his CV in 2017. After various consultations with other senior NPA officials, Mathenjwa was recommended to become DPP for Mpumalanga from February 2018, as outlined in a signed presidential minute.

Similarly in 2017, Abrahams also asked Mncwabe, who was a magistrate in Brakpan at the time, to submit his CV. He was informed that he was appointed, in line with the presidential minute, to become DPP for the Northern Cape.

There was no public announcement on either of these appointments.

Both were to start in 2018, but Zuma resigned early that year.

Ramaphosa says in court papers he had “concerns these appointments may have been fast-tracked”. He says that when he took over as president, he noticed various long-vacated positions that had stood empty for years had suddenly been filled in Zuma’s final days in office.

At the time, there were also concerns over the NPA leadership in general, as evidenced when the Constitutional Court ordered Abrahams to vacate his position as NPA head in 2018.

Ramaphosa received legal advice that the appointments were not final. He therefore exercised his discretion to not finalise the appointments of Mathenjwa, Mncwabe and others.

Mathenjwa and Mncwabe took this refusal on review to the high court.

The Pretoria high court in 2021 dismissed their reviews because, as there had been no public notification, the appointments were not final. Ramaphosa thus retained the power to turn them down.

Mathenjwa and Mncwabe argued that given the process began in 2017, the idea of the appointments being fast-tracked was “misleading”.

In the Constitutional Court, Mathenjwa and Mncwabe argued their appointments were final when it was communicated to them by Abrahams. Public notice, they said, such as publishing in the Government Gazette, is not a requirement for a DPP appointment. Mncwabe highlighted other appointments that had been made final in this way, including an earlier DPP appointment. These others would have to be dismissed too, if the court agreed with Ramaphosa, he argued.

Ramaphosa’s main argument was that personal notification by Abrahams, as relied on by Mathenjwa and Mncwabe, had no legal standing as Abrahams had no authority to notify them.

Writing for the majority, justice Steven Majiedt ruled in Ramaphosa’s favour, noting “Zuma’s appointments were not final decisions, [so] President Ramaphosa was not obliged to treat them as having any legal effect at all.”

Legal standard

Majiedt noted the mere signing of the presidential minute “could not … be sufficient to finalise the appointments”. There had to be a personal notification from an authorised person to appointees for the decision to be finalised. Therefore the main question was whether Abrahams was that person.

“Statutory power to appoint DPPs,” wrote Majiedt, “vests exclusively in the president – not [the NPA head].” While it may be practical for the NPA head to notify appointees, “practicality is not the legal standard”.

“There is nothing in Mr Abrahams’ affidavit that suggests that he was authorised to communicate the decision,” Majiedt said.

The appointments were thus not final and Ramaphosa “was not obliged to treat them as having any legal effect at all”.

He therefore was lawfully allowed to not finalise Mathenjwa and Mncwabe’s appointments.

Majiedt dismissed Mathenjwa and Mncwabe’s appeal.

– BusinessLIVE