President Jacob Zuma has applied for leave to appeal the North Gauteng High Court ruling obliging him to submit his reasons for the March Cabinet reshuffle in which he fired Pravin Gordhan as finance minister.
In a statement released by Presidency on Wednesday night, Zuma outlined 12 grounds, related to rule 35 (12), for appealing the judgment handed down by Judge Bashier Vally.
Zuma was arguing that the court ought to have found that the Democratic Alliance was not entitled to the records because of the nature of the executive decision and that rule 35 does not cover it.
“The High Court erred in finding that Rule 53 must be read to include executive decisions, even though nothing in the language of Rule 53 suggests that it should be interpreted to include executive decisions. Such an approach violates the separation of powers,” the statement read outlining one of the grounds of appeal.
Zuma said that the court held in paragraph 21 that rule 53 had not been amended to cater for the record in respect of executive decisions, therefore the Court erred in holding that as a “purposive interpretation will, nevertheless bring executive decisions under rule 53”.
He said that the court erred to act ex mero motu ammend rule 53 to include the review of executive descisions.
“The High Court ought to have found that decisions of the nature of the impugned decision, do not fall within the ambit of rule 53 at all. It is not sufficient to end the enquiry at whether or not rationality applies. The nature of the executive decision and the remedy sought are important to consider,” Presidency said.
“The court ought to have found that not considering the nature of the executive decision in determining whether or not to furnish the record, would lead to a violation of the separation of powers doctrine, which is part of our constitutional scheme.”
The chairman of the federal executive of the Democratic Alliance, James Selfe, said that Zuma had further filed a notice in terms of Rule 35(12) to request that the DA should provide him with the so-called “intelligence report” which was widely cited by senior members of the African National Congress and the South African Communist Party as having been used by Zuma as grounds for first recalling Gordhan from an investor roadshow in London, and then firing him from Cabinet four days later.
The demand that the DA give him the report was a “bizarre” step, Selfe said.
“We are led to conclude that President Zuma is using this medium as another delaying tactic in avoiding accountability for his disastrous reshuffle that has severe consequences for all people of South Africa.”
But the director of the Centre for Constitutional Rights Phephelaphi Dube told eNCA she saw it as a “master stroke” on Zuma’s part, and noted that he had never publicly relied on the so-called intelligence report.
“I would consider that as a masterstroke … I think that allegations had been made by another members by the (ANC’s) National Executive Council, so the president himself has not in public relied on the intelligence report.”
The reported allegedly claimed that Gordhan was plotting against Zuma but was widely dismissed as fabricated.
Last week, Judge Bashier Vally gave Zuma until the end of this week to provide the court with the record of his reasons for replacing the finance minister and his deputy, Mcebisi Jonas. Vally said while the presidential prerogative to appoint Cabinet members was wide, it was not unfettered in the manner that “the royal prerogative” was in days bygone.
The ruling was condemned by the African National Congress, who urged Zuma to lodge an appeal and accused the judiciary of pandering to opposition parties.
The DA wants the decision to sack Gordhan and Jonas set aside as irrational. But in order to challenge it, it needed Zuma’s reasons for doing so. When he did not supply this readily, the party turned to the court to compel him to do so.
On Wednesday, the Presidency said that the court erred to not consider whether the remedy sought could be obtained.
“The High Court ought to have found that the executive decision in question is the exercise of a constitutional power, and is a decision of the nature that does not call for the production of the record and reasons in terms of rule 53. Alternatively, it ought to have found that the statement of 31 March 2017 from the Presidency is sufficient to meet the test of rationality and therefore no further record was required.”