Corruption Watch NPC v President RSA

Constitutional invalidity confirmed and set aside Shaun Abrahams’s appointment as national director of public prosecutions (NDPP)  as it would not be “just and equitable” for him to remain in office and President Cyril Ramaphosa was ordered to appoint a new NDPP within 90 days.  Two judges dissented and would have reinstated the previous NDDP because his dismissal was a nullity.

“In the present matter there is nothing exceptional or extraordinary that warrants the exercise of remedial power to prevent Mr Nxasana from returning to office. His return will certainly not cause a constitutional crisis or a national crisis. On the contrary, his return would enable the President to follow the law if he wishes to remove him from office and Parliament would play a vital part in that process. And more importantly, preventing Mr Nxasana from returning to office without pronouncing on the validity of his employment contract would not only be unfair to him but would also create considerable uncertainty on the parties’ rights and interests. This would be antithetical to the rule of law which promotes certainty.” [para 112]

Essence

Constitutional invalidity confirmed but 2 judges would have allowed the previous NDDP to resume work because his unlawful dismissal meant that he was in fact never dismissed and it was a nullity.

Decision

Two judges dissented but majority upheld judgment of Mlambo JP in high court dated 8 December 2017.

Judges

(CCT 333/17; CCT 13/18) [2018] ZACC 23 (13 August 2018).

Cachalia AJ, Dlodlo AJ, Froneman J, Goliath AJ, Jafta J, Khampepe J, Madlanga J, Petse AJ and Theron J.
Judgments:

Madlanga J (majority): [1] to [94] – see separate post
Jafta J (minority): [95] to [129] – quoted below

Reasons

Constitutional invalidity confirmed

Discussion by GilesFiles
Court summary

The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.

Media summary 13/8/2018

On Monday, 13 August 2018 at 10h00 the Constitutional Court handed down judgment in this matter, in which it confirmed two declarations of constitutional invalidity by the High Court of South Africa, Gauteng Division, Pretoria (High Court). The High Court declared constitutionally invalid then President Jacob Zuma’s conduct in the termination of Mr Mxolisi Nxasana’s appointment as National Director of Public Prosecutions (NDPP) and the subsequent appointment of Advocate Shaun Abrahams to the position.

The High Court further declared section 12(4) and (6) of the National Prosecuting Authority Act 32 of 1998 (NPA Act) constitutionally invalid. These subsections respectively allow for the extension of the NDPP’s term of office and indefinite
suspension of the NDPP and Deputy NDPP without pay by the President.

The President appointed Mr Nxasana as the NDPP from 1 October 2013. Following internal conflict within the senior leadership of the National Prosecuting Authority (NPA), in June 2014 the President took a decision to institute a commission of inquiry into Mr Nxasana’s fitness to hold office and to suspend him pending its outcome. The proposed suspension never took effect as that issue was settled after Mr Nxasana launched an urgent application in the High Court for an interdict. Before the commission of inquiry could commence with its task, Mr Nxasana concluded a settlement agreement with the President and Minister of Justice and Correctional Services. Pursuant to this, Mr Nxasana vacated his position as NDPP in May 2015 in exchange for a settlement payment of R17.3 million. Subsequently, former President Zuma appointed Advocate Abrahams in his place.

The applicants, Corruption Watch and Freedom Under Law, challenged the lawfulness of Mr Nxasana’s vacation of office and the settlement payment in the High Court. They asked for: the setting aside of the settlement agreement; the reinstatement of Mr Nxasana as NDPP; or, in the alternative, a declaration that the office of NDPP was vacant; and an order directing the then Deputy President within 60 days to appoint a new NDPP on the basis that under section 90(1) of the Constitution, the President would be declared “unable” to act because of his conflict of interest. The Council for the Advancement of the South African Constitution (CASAC) brought another application challenging the constitutionality of section 12(4) and (6) of the NPA Act. Although Mr Nxasana was cited as a party in both applications, he did not file answering affidavits. At a very late
stage, he asked the High Court to allow him to file an “explanatory affidavit.”

The High Court heard the applications simultaneously. It refused to condone the late filing of Mr Nxasana’s affidavit. On the merits, it held that the settlement agreement between the President, the Minister of Justice and Correctional Services and Mr Nxasana and the decision to pay Mr Nxasana an amount of R17.3 million were invalid and that the resultant vacation of the office of NDPP by Mr Nxasana was inconsistent with section 12(8) and (9) of the NPA Act and thus invalid. It accordingly set aside the settlement agreement and Mr Nxasana’s vacation of office. It also declared the appointment of Advocate Abrahams invalid and set it aside. Mr Nxasana was ordered to pay back the R17.3 million. The High Court ordered the then Deputy President to appoint a new NDPP within 60 days of the order. It also declared section 12(4) and (6) constitutionally
invalid.

The applicants approached the Constitutional Court for confirmation of the declarations of invalidity. Mr Nxasana cross-appealed against the High Court’s refusal to grant him condonation for the late filing of his explanatory affidavit and the costs order granted against him. The NPA and Advocate Abrahams cross-appealed against the declaration that the appointment of Advocate Abrahams was invalid.

In a majority judgment written by Madlanga J, in which Cachalia AJ, Dlodlo AJ, Froneman J, Goliath AJ, Khampepe J and Theron J concur, the Constitutional Court declared the settlement agreement, the obligation to pay the sum of R17.3 million and Mr Nxasana’s vacation of office constitutionally invalid for being inconsistent with the constitutionally required independence of the office of NDPP. While not deciding the question of whether the NDPP may vacate office outside of section 12(8) (which regulates an NDPP’s departure from office), the Constitutional Court held that no NDPP will be entitled to benefits that exceed those to which they would ordinarily be entitled under section 12(8).

The majority further held that since Mr Nxasana’s vacation of office was invalid, it follows that the appointment of Advocate Abrahams was also constitutionally invalid. The majority thus dismissed the appeal by Advocate Abrahams and the NPA. On the  validity of section 12(4) and 12(6), the majority held that this section undermined the independence of the office of NDPP and confirmed the High Court’s declaration of invalidity.

The majority also held that the High Court misdirected itself on the facts when it denied Mr Nxasana condonation for the late filing of his explanatory affidavit and that the Constitutional Court was therefore entitled to interfere in its exercise of discretion and grant him condonation and accept his explanatory affidavit.

The majority then proceeded to consider whether it was just and equitable to allow Mr Nxasana to resume office as NDPP. It held that the resumption of office by Mr Nxasana would not be just and equitable as it would not vindicate the rule of law. The
majority reasoned that the conduct of Mr Nxasana in his willingness to vacate office if he was paid the right “price” is not conduct that befits an NDPP. On whether it would be just and equitable for Advocate Abrahams to remain in office, the majority held that he was a beneficiary of the improper conduct of former President Zuma and that it would not be proper to allow him to continue in office.

With the exception of granting the appeal by Mr Nxasana on the admission of his affidavit and the costs order against him, the majority upheld all the orders made by the High Court and confirmed all the declarations of invalidity made by that Court.

In a minority judgment by Jafta J, in which Petse AJ concurs, Jafta J held that if it is accepted that the termination of Mr Nxasana’s appointment and the settlement agreement were unlawful, the consequence of setting them aside is an automatic restoration of the status quo ante (the default position). That entails the return of Mr Nxasana to office.  Jafta J further elaborated that in this matter there is nothing exceptional or extraordinary that warrants the exercise of the Court’s remedial power to prevent Mr Nxasana from returning to office. The minority reasoned that Mr Nxasana’s return would certainly not cause a constitutional crisis or a national crisis.

On the contrary, his return would enable the President to lawfully remove him from office and Parliament would play a vital part in that process. More importantly, preventing Mr Nxasana from returning to office without pronouncing on the validity of
his employment contract would not only be unfair to him but would also create considerable uncertainty on the parties’ rights and interests.

Allowing Mr Nxasana to return to office does not mean that he is fit to continue as NDPP. If his involvement in the conclusion of the settlement agreement makes him unfit to hold office, it would be open to the President to invoke section 12(6) and establish an inquiry to determine his fitness, with Parliament’s involvement contingent on the outcome. Jafta J concluded that to require Mr Nxasana to pay back the money in circumstances where he is not allowed to go back to office cannot be fair to him. On the other hand, allowing him to go back to his job would meet the objects of the Constitution and the rule of law.

Media summary 28/2/2018

On 28 February 2018 at 10h00 the Constitutional Court will hear an application to confirm two declaratory orders of constitutional invalidity made by the Gauteng Division of the High Court, Pretoria (High Court) on 8 December 2017. The High Court declared the President’s conduct in the termination of the third respondent, Mr Mxolisi Nxasana’s appointment as National Director of Public Prosecutions (NDPP) and the appointment of the fourth respondent, Mr Shaun Abrahams, to the position of NDPP, unconstitutional. A further declaration of constitutional invalidity was made in respect of section 12(4) and section 12(6) of the National Prosecuting Authority Act 32 of 1998 (NPA Act). These sections allow for the extension of the NDPP’s term of office and the unilateral, unpaid suspension of the NDPP for an indefinite period of time by the President.

The President had appointed Mr Nxasana as the NDPP from 1 October 2013. Following internal conflict within the senior leadership of the NPA, in June 2014 the President took a decision to institute a commission of inquiry into Mr Nxasana’s fitness to hold office and informed him that he would be suspended pending the outcome of the inquiry. In August 2014 Mr Nxasana launched an urgent application in the High Court seeking to interdict his suspension. He did not pursue this application to finality since negotiations had commenced between himself and the President in an attempt to settle the dispute that had arisen between them. In February 2015 the commission of inquiry was formally appointed. Pursuant to a settlement agreement concluded between the President and the Minister of Justice and Correctional Services on the one hand and Mr Nxasana on the other, Mr Nxasana vacated his position as NDPP in May 2015 and received a settlement payment of R17.3 million.

In the High Court, the applicants, Corruption Watch and Freedom Under Law, challenged the legality of the termination of Mr Nxasana’s appointment and the settlement payment. They sought an order setting aside the settlement agreement, the reinstatement of Mr Nxasana as NDPP or, in the alternative, a declaration that the office was vacant and an order directing the Deputy President within 60 days to appoint a new NDPP on the basis that the President himself would be declared “unable” in terms of section 90(1) of the Constitution to act because of his conflict of interest. The Council for the Advancement of the South African Constitution sought a declaration of constitutional invalidity in respect of sections 12(4) and (6) of the NPA Act. Mr Nxasana sought to file an explanatory affidavit out of time. The High Court denied him condonation to do so.

The High Court held that the conclusion of an agreement between the President, the Minister of Justice and Correctional Services and Mr Nxasana and the payment of a settlement amount of R17.3 million which resulted in the termination of Mr Nxasana’s term of office as NDPP did not meet the statutory requirements in section 12(8) and (9) of the NPA Act for the lawful removal of the NDPP and were therefore invalid. It accordingly set aside the agreement and held that Mr Nxasana’s removal and Mr Abraham’s appointment were invalid. Mr Nxasana was ordered to pay back the R17.3 million paid to him, while Mr Abrahams was ordered to vacate his office. The then Deputy President was ordered to appoint a new NDPP within 60 days of the order.

In the Constitutional Court, the President, Mr Abrahams and the National Prosecuting Authority seek leave to appeal against the High Court’s order. The President appeals against the High Court’s order directing the Deputy President to appoint a new NDPP while Mr Abrahams and the NPA appeal against the setting aside of Mr Abrahams’ appointment. In a separate application which will be heard together with the confirmation proceedings, Mr Nxasana seeks leave to appeal against the High Court’s refusal of condonation. Corruption Watch and Freedom Under Law seek the reinstatement of Mr Nxasana.

Quotations from judgment

Note: Footnotes omitted and emphasis added

JAFTA J (Petse AJ concurring):

[95] I have had the benefit of reading the judgment prepared by my colleague Madlanga J (first judgment). I agree with it except in relation to one issue. This is whether Mr Nxasana is entitled to resume office in light of the declaration that his purported removal was invalid. The first judgment concludes that he may not. I think he may.[96] With reference to the decision of this Court in Steenkamp, the first judgment accepts that the termination of Mr Nxasana’s appointment as the NDPP amounted to a nullity in the eyes of the law. This principle was laid down by this Court in Steenkamp where the Court emphasised that a dismissal which is invalid has no force and effect, hence it constitutes a nullity.[97] While accepting this to be the position in law, the first judgment holds that it does not follow that Mr Nxasana may resume office. I disagree.[98] Steenkamp tells us that an invalid termination of employment or a dismissal has no legal consequences. In that matter Zondo J declared:

“An invalid dismissal is a nullity. In the eyes of the law an employee whose dismissal is invalid has never been dismissed. If, in the eyes of the law, that employee has never been dismissed, that means the employee remains in his or her position in the employ of the employer.”

[99] Therefore on the authority of Steenkamp, Mr Nxasana must be taken as if he has not been dismissed. Since his dismissal constituted a nullity, there is nothing further that may be done in the law to vindicate his rights arising from the dismissal. Steenkamp informs us that, in his case, reinstatement is incompetent because he cannot be reinstated to the post he had not vacated in terms of the law. This means that he may report for duty and resume his work.[100] To make the position clearer, Zondo J held that it is open to an employee whose dismissal has been declared invalid on the ground of unlawfulness to report for work. And if the employer prevents him or her from entering the workplace, the employee may seek a court interdict against the employer. In this regard, our colleague said:

“An employee whose dismissal is invalid does not need an order of reinstatement. If an employee whose dismissal has been declared invalid is prevented by the employer from entering the workplace to perform his or her duties, in an appropriate case a court may interdict the employer from preventing the employee from reporting for duty or from performing his or her duties. The court may also make an order that the employer must allow the employee into the workplace for purposes of performing his or her duties.”

[101] It is apparent from the judgment of the High Court that that Court proceeded from a mistaken premise with regard to whether Mr Nxasana could resume office. The High Court assumed that his reinstatement was necessary; hence it withheld such an order on the ground that it was not just and equitable to reinstate him. The High Court stated:

“Mr Nxasana too must have known that the bargain he was driving was unlawful. First, he was after all the NDPP and the NPA Act was ultimately his charge to administer; he must have been aware of its provisions. Second, his attorney’s letter of 10 December 2014 shows that he was fully aware of the specific statutory provisions relative to his financial entitlement; but that he thought that since he was not offering voluntarily to resign, they did not apply to him – the President was at large to agree to his demands. Third, he abided the decision of the Court as to the lawfulness of the settlement agreement, but was not prepared to say when the realisation of potential unlawfulness came to him.
As in the case of the President, the inference that Mr Nxasana knew that he was acting without lawful foundation is strong; but, as in the case of the President, for the reason there articulated, we prefer to conclude that he was reckless as to whether his demand was lawful.
In our view, given then the conduct of these two main protagonists and the considerations to which we have alluded, it is not just and equitable, in the context of vindicating the Constitution and the independence of the prosecutorial authority, to reinstate Mr Nxasana.”

[102] It does not appear from the record that the decision of this Court in Steenkamp was brought to the attention of the High Court. Being bound by Steenkamp, it is doubtful that the High Court could have reached the same conclusion if it was aware of this decision. But more importantly, the order issued by the High Court did not prevent Mr Nxasana from resuming office.

Strictly speaking and on the authority of Steenkamp, he could have reported for duty after the High Court had delivered its judgment because the order did not preclude him from going back to work. All that was said by the High Court was that it was not just and equitable to reinstate him. But now we know that reinstatement was not competent in his case. Therefore, what was stated by the High Court was irrelevant.

Mhlope

[103] The question that arises is whether the decision of this Court in Mhlope alters the legal position in Steenkamp. I think not. Mhlope is not authority for the proposition that an employee whose dismissal has been declared unlawful cannot resume his or her duties. That case dealt with a wholly different situation.[104] In Mhlope the Electoral Commission had failed to comply with a statutory injunction, emanating from a provision that was held to be valid. The issue that arose for determination was the consequential effect of the order that declared unlawful the Electoral Commission’s non-compliance with a valid statute. Declaring the Commission’s failure to comply with a statute to be invalid there could put at risk the entire municipal elections which were scheduled to take place in August 2016.[105] To avoid this Mogoeng CJ opted for suspending the declaration of invalidity. The Chief Justice said:

“[t]he invalidation of the unlawful conduct, which is essentially the production of the national common voters’ roll that does not comply with section 16(3) of the Electoral Act, has to be suspended. That suspension will allow the IEC to proceed with the August 2016 elections and correct the defective voters’ roll. The suspension of the declaration of invalidity of the IEC’s unlawful conduct has the effect of suspending the duty imposed by section 16(3) on the IEC which, if carried out, there would have been no invalidity. The non-compliance with section 16(3) is in terms of our just and equitable remedial powers condoned and the duty imposed by section 16(3) is itself suspended for purposes of the August 2016 elections.”

[106] It is true that the order that was issued in Mhlope suspended the operation of a valid statute. But this was linked to the suspension of the declaration of invalidity. This much is clear from the statement cited above. It is usual for this Court to declare an Act of Parliament to be invalid and suspend the declaration for a fixed period so as to avoid serious disruptions in the administration of government. The effect of the suspension is that an invalid Act continues to operate as if it is valid.[107] However, the need to suspend the operation of the declaration of invalidity arises where its immediate coming into effect would result in serious dislocation or disruption in the administration of government. It is the interests of justice and good government which may justify an order that allows an invalid law or conduct to continue to operate for a fixed period of time.[108] That this Court has the power to direct that an unconstitutional law will continue to have force and effect is beyond question. But that power may be exercised where there are compelling reasons to allow an invalid law or conduct to continue to operate. In Ferreira this Court held:

“The provisions of section 98(5) and (6), which permit the Court to control the result of a declaration of invalidity, may give temporary validity to the law and require it to be obeyed and persons who ignore statutes that are inconsistent with the Constitution may not always be able to do so with impunity.”

[109] In the present matter, unlike in Mhlope, the declaration of invalidity pertaining to the termination of Mr Nxasana’s appointment is not suspended. Its operation is immediate. Nor are the requirements of section 12 of the NPA Act suspended. The reasons that compelled this Court in Mhlope to suspend section 16(3) of the Electoral Act do not exist here. In fact, no interests of good government have been put forward which warrant the suspension of section 12 of the NPA Act. It is doubtful that such suspension may be granted without suspending the declaration of invalidity on the termination of the appointment and also condoning the unlawful termination as was done in Mhlope.[110] But more importantly, the suspended operation of the relevant statutory provision in Mhlope did not adversely affect the rights of anybody. On the contrary, that suspension enabled millions of voters to exercise their right to vote. The suspension of section 12 of the NPA Act here will hugely prejudice Mr Nxasana by depriving him of the protections that the section affords, in circumstances where there are no reasons compelling suspension of the operation of a valid legislation. Instead, compliance with section 12 will enhance the promotion of the independence of the NPA and the rule of law.[111] In Mhlope the suspension of the relevant statutory provision was justified by the exceptional circumstances of that case which were regarded as crying out “for an exceptional solution or remedy to avoid a constitutional crisis”. Similarly, in Black Sash the emphasis was placed on the extraordinary circumstances of the case and the catastrophic consequences which could likely have ensued if the unconstitutional contract was not allowed to continue to operate. Cautioning that the just and equitable remedial power has limits, Froneman J said:

“It is necessary to be frank about this exercise of our just and equitable remedial power. That power is not limitless and the order we make today pushes at its limits. It is a remedy that must be used with caution and only in exceptional circumstances. But these are exceptional circumstances. Everyone stressed that what has happened has precipitated a national crisis. The order we make imposes constitutional obligations on the parties that they did not in advance agree to. But we are not ordering something that they could not themselves have agreed to under our supervision had an application been brought earlier, either by seeking an extension to the contract that would have expired on 31 March 2017 or by entering into a new one.”

[112] In the present matter there is nothing exceptional or extraordinary that warrants the exercise of remedial power to prevent Mr Nxasana from returning to office. His return will certainly not cause a constitutional crisis or a national crisis. On the contrary, his return would enable the President to follow the law if he wishes to remove him from office and Parliament would play a vital part in that process. And more importantly, preventing Mr Nxasana from returning to office without pronouncing on the validity of his employment contract would not only be unfair to him but would also create considerable uncertainty on the parties’ rights and interests. This would be antithetical to the rule of law which promotes certainty.

Section 12

[113] As the first judgment rightly points out, the purpose of the NPA Act is to protect both the institutional independence of the NPA and the individual independence of its head. The section seeks to achieve this by securing the tenure of office, conditions of service and other benefits. But more importantly, section 12(5) provides that the National Director “shall not be suspended or removed from office except in accordance with the provisions of subsections (6), (7) and (8)”. This is a potent guarantee, deliberately chosen by Parliament to protect the NPA’s independence as required by section 179(4) of the Constitution.[114] Therefore, section 12 of the NPA Act is umbilically linked to the Constitution. Suspending its operation will not only subvert its purpose but will also be antithetical to the Constitution. Such suspension would be in conflict with the principle of separation of powers and a number of provisions in the Constitution. These include: section 1(c) which lists the supremacy of the Constitution and the rule of law; section 2 which underscores the supremacy of the Constitution by declaring that conduct inconsistent with it is invalid; section 165(2) that guarantees the independence of courts “subject to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice”; and section 179(4).[115] Ironically the first judgment impliedly suspends the operation of section 12(5) of the NPA Act in order to uphold the rule of law and secure “the integrity of the office of the NDPP”. I disagree. Suspending the operation of section 12(5) would attain quite the opposite. It would mean that Mr Nxasana’s removal from office is achieved by means other than the procedure prescribed in section 12. In that procedure Parliament plays a crucial part. Barring a voluntary resignation, there can be no removal of a National Director from office without the involvement and approval of Parliament. A suspension of the operation of section 12 will be subversive of this and will deny Parliament the role it had constitutionally given to itself.[116] What is more, this denial will occur in circumstances where the Court would have taken inconsistent positions in relation to the enforcement of section 12. It will be recalled that non-compliance with section 12 was the basis on which the decision that the termination of Mr Nxasana’s appointment and the settlement agreement were invalid, rested. The section could not be enforced and at the same time its operation be suspended. This is another factor that distinguishes the present matter from Mhlope.[117] In terms of section 12(6) and (7), a National Director may be removed from office only if one of the grounds listed in subsection (6)(a) has been established, following an inquiry into the matter. In this case no enquiry was held and no pronouncement on the existence of one or more of the listed grounds has been made. This underlines the inappropriateness of holding that Mr Nxasana should not return to office. Allowing him to return to office, does not mean that he is fit to continue in the office. If his involvement in the conclusion of the settlement agreement renders him unfit, it would be open to the President to invoke section 12(6) and establish an enquiry to determine his fitness to hold office. If found unsuitable, Parliament will be involved in his removal.[118] This approach does not do violence to the will of Parliament and the continuing operation of section 12 of the NPA Act. It is also consonant with the various provisions of the Constitution mentioned earlier. Adhering to the requirements of section 12 will, in addition, be consistent with the jurisprudence of this Court. In Steenkamp Zondo J remarked:

“When a dismissal is held to be unfair, one can speak of a reinstatement but not in the case of an invalid dismissal. This, therefore, means that an order of reinstatement is not competent for an invalid dismissal. An employer against which an order has been made declaring the dismissal of its employees invalid and who does not want to continue or cannot continue the employment relationship with those employees will have to dismiss them again. Otherwise, they remain in its employ and, if they tender their services or are prevented by the employer from performing their duties, will be entitled to payment of their remuneration.”

[119] The instability in the NPA relied in the first judgment for not following section 12 does not constitute a constitutional or national crises referred to in Mhlope and Black Sash. Nor was that instability created by compliance with that section. In fact the section may be employed in manner that would not result in the immediate return to office by Mr Nxasana. The President may suspend him before such return if the requirements of the section are met. And if he is to blame for instability, the enquiry envisaged in the section is the best forum to determine this issue. But significantly, the instability is not the reason advanced for preventing his return to office.[120] Section 16(3) which was considered in Mhlope did not provide a remedy for non compliance. Yet section 12 prescribes in mandatory terms what should be done in order to remove a National Director from office. Therefore there is no need to search for a remedy in section 172(1) of the Constitution.[121] Of course section 12 need not be followed in the case of Advocate Abrahams. This is because the section guarantees the independence of and secures the tenure of a National Director whose appointment was valid. Since Advocate Abrahams’ appointment was invalid, the protections of section 12 are not available to him.

Just and equitable order

[122] I need briefly to address this issue because the conclusion reached in the first judgment is based on it. The concept of a just and equitable order is sourced from section 172(1)(b) of the Constitution. It is an equivalent of section 98 of the interim Constitution mentioned in the statement from Ferreira quoted in paragraph 108. The power to make a just and equitable order does not mean that a court may do whatever it thinks would be just and fair in a given case, even if the order it intends issuing is unlawful or inconsistent with the Constitution. On the contrary, the just and equitable order must be lawful and consistent with the Constitution. This is because when a court makes such order, it exercises judicial power.[123] In terms of section 165(2) of the Constitution courts are entrusted to exercise judicial power subject to the Constitution and the law. Moreover, courts are duty bound to apply the law “impartially and without fear, favour or prejudice”. A court may not evade the obligation to apply a valid statute by simply suspending its operation and do so only for purposes of a particular order in circumstances where that statute was enforced.[124] The just and equitable remedial powers enable a court to regulate consequences flowing from the declaration of invalidity. Section 172(1)(b) of the Constitution mandates courts to preserve temporarily the validity of a law or conduct that is inconsistent with the Constitution. This is usually achieved by suspending the declaration of invalidity. A suspension becomes necessary only if the information placed before the court shows that the interests of justice or good government warrant that the invalid law or conduct should continue to operate, pending the correction of the defect by the competent authority.[125] A just and equitable order must invariably be fair to all persons affected by it. A court that contemplates issuing such order must weigh up the interests of all parties to a litigation and where appropriate, the balancing must also take into account the interests of the public.[126] In the context of employment this Court has outlined the requirements of a just and equitable order in these terms:

“In the context of our Constitution, ‘appropriate relief’ must be construed purposively, and in the light of section 172(1)(b), which empowers the Court, in constitutional matters, to make ‘any order that is just and equitable’. Thus construed, appropriate relief must be fair and just in the circumstances of the particular case. Indeed, it can hardly be said that relief that is unfair or unjust is appropriate. As Ackermann J remarked, in the context of a comparable provision in the interim Constitution, ‘[i]t can hardly be argued, in my view, that relief which was unjust to others could, where other available relief meeting the complainant’s needs did not suffer from this defect, be classified as appropriate’. Appropriateness, therefore, in the context of our Constitution, imports the elements of justice and fairness.
Fairness requires a consideration of the interests of all those who might be affected by the order. In the context of employment, this will require a consideration not only of the interests of the prospective employee but also the interests of the employer. In other cases, the interests of the community may have to be taken into consideration. In the context of unfair discrimination, the interests of the community lie in the recognition of the inherent dignity of every human being and the elimination of all forms of discrimination.”

[127] What emerges from this statement is that the interests of all those who may be affected by the just and equitable order must be considered in the process leading up to issuing the order. Furthermore, an order that is unjust to some must be avoided where the interests of the party seeking relief may be met by an alternative order. In this matter, to require Mr Nxasana to pay back the money in circumstances where he is not allowed to go back to office, cannot be fair to him. This is especially so in light of the fact that the former President was hell-bent to remove him from office at any price and had put Mr Nxasana under intolerable pressure to leave. As the first judgment points out, the former President used stick and on other occasions carrot in an attempt to get rid of him.[128] As mentioned, allowing Mr Nxasana to go back to his job would also meet the objects of the Constitution and the rule of law. If his involvement in the impugned settlement agreement brought his fitness to hold office into question, he may be removed in terms of section 12 of the NPA Act.[129] For all these reasons, I do not support the conclusion that Mr Nxasana ought not to resume office, following the setting aside of the invalid and unlawful termination of his appointment.