Corruption Watch NPC and Another v President and Others; Council for the Advancement of the South African Constitution v President and Others [2017] ZAGPPHC 743 in the High Court of South Africa, Gauteng Division
Court membership
Judges sitting
Froneman J, Jafta J, Khampepe J, Madlanga J, Theron J, Cachalia AJ, Dlodlo AJ, Goliath AJ and Petse AJ
Case opinions
Section 179(4) of the Constitution provides for the independence of the National Prosecuting Authority. Sections 12(4) and 12(6) of the National Prosecuting Authority Act, 1998 are therefore unconstitutional insofar as they compromise the independence of the National Directors of Public Prosecution. In addition, Mxolisi Nxasana's departure from the office of National Director in exchange for a golden handshake was unconstitutional.
Decision by
Madlanga J (Cachalia, Dlodlo, Froneman, Goliath, Khampepe and Theron concurring)
Concur/dissent
Jafta J (Petse concurring)
Keywords
Golden handshake
executive power
just and equitable remedy
National Director of Public Prosecutions
National Prosecuting Authority Act, 1998
National Prosecuting Authority
prosecutorial independence
section 172(1) of the Constitution
section 179 of the Constitution
Corruption Watch NPC and Others v President of the Republic of South Africa and Others; Nxasana v Corruption Watch NPC and Others is a 2018 decision of the Constitutional Court of South Africa on prosecutorial independence. In a judgment written by Justice Mbuyiseli Madlanga, the court affirmed unanimously that section 179(4) of the Constitution provided for the independence of the National Prosecuting Authority. It therefore held that sections of the National Prosecuting Authority Act, 1998 were unconstitutional insofar as they granted the President discretion over certain aspects of senior prosecutors' terms of employment, thereby compromising prosecutorial independence.
The matter arose from a public scandal surrounding the 2015 departure of Mxolisi Nxasana from the office of the National Director of Public Prosecutions in exchange for a substantial golden handshake. The court was also called to adjudicate the constitutionality of the underlying settlement agreement, which it invalidated on the grounds that such arrangements could compromise prosecutorial independence. However, while invalidating Nxasana's termination and the appointment of his successor, Shaun Abrahams, the court ordered that a new National Director should be appointed, instead of endorsing Nxasana's return to the office. While the court was unanimous on the other legal issues, it was split seven to two on this remedy; Justice Chris Jafta wrote a partly dissenting judgment which argued that, in ordering the appointment of a new National Director, the court risked trenching on the separation of powers.
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