President Cyril Ramaphosa has defended his right to reverse his predecessor Jacob Zuma’s appointments of five of the most powerful officials in the state prosecution’s body.
Ramaphosa is fighting multiple court challenges to his crusade to restructure the National Prosecution Authority (NPA), which has come under fire over its alleged “capture” by proZuma officials.
Ramaphosa, who is aiming to restore confidence in the country and bring in much needed investment after what he described as SA’s “nine wasted years” is facing a growing fightback campaign by ANC elements linked to Zuma.
Success in defending his decisions is vital to ensure that Shamila Batohi, whom he appointed in February 2018 as national director of public prosecutions, has the necessary support as she pursues cases linked to state capture.
In the same week that
Ramaphosa faced off in court with ousted deputy prosecutions boss Nomgcobo Jiba over what she says was his unlawful decision to fire her, the presidency hit back at a court bid by magistrate Ron Simphiwe Mncwabe to review the president’s decision to reverse his appointment as Northern Cape director of public prosecutions (DPP).
Mncwabe is one of three officials, including former acting head of the controversial Priority Crimes Litigation Unit Torie Pretorius, who are suing Ramaphosa for reversing their appointments. Zuma signed off on the postings just days before he was forced to step down.
But these applications, as well as Jiba’s application to declare her dismissal unlawful, may prove challenging to Ramaphosa’s crusade — which has resulted in senior NPA officials openly accusing him of making unlawful and unilateral decisions.
Presidency director-general Cassius Lubisi argues that while Zuma’s decision to appoint Mncwabe as Northern Cape DPP was recorded in an official presidential minute, this was “never formally communicated to the public” and the president did not inform him privately that he had been appointed.
He has further stated that the presidential minute recording the appointment was “an internal formal record of the president’s decisions and is not ordinarily released into the public domain”, and was sent to Mncwabe via WhatsApp by former prosecutions boss Shaun Abrahams.
The appointment “was never finalised and thus he never assumed the role or acted in the position of DPP Northern Cape”, Lubisi states in court papers filed last week.
Prior to its revocation by Ramaphosa, the possible appointment “remained frozen in time awaiting the further action of the president to elect whether to make it final and to give it legal force and effect”.
Because Ramaphosa did not publicly or privately announce Mncwabe’s appointment, Lubisi contends that the president was entitled to change his mind or “decide not to go ahead with, and give legal effect to, his predecessor’s decision”.
Lubisi also revealed that Ramaphosa had made his decision on Mncwabe, Pretorius and prosecutor Raymond Mathenjwa after seeking legal advice from advocate Wim Trengove.
Senior NPA advocates Bonnie Currie-Gamwo and Malini Govender have also had their appointments to managerial positions by Zuma revoked by Ramaphosa, but neither are challenging it in court.
Pretorius is adamant that Ramaphosa was not legally authorised “to revoke an appointment of a special director unilaterally in the manner which he has done”. Pretorius’s decision to prosecute then finance minister Pravin Gordhan over the early retirement granted to then SA Revenue Service deputy commissioner Ivan Pillay was reversed by Abrahams two weeks after he had made it.
Pretorius wants the high court in Pretoria to rule that he was lawfully appointed by Zuma, and to set aside Ramaphosa’s revocation of his appointment.
Abrahams told Business Day that he intended to file an affidavit “and set the record straight” in the cases brought by Mncwabe, Pretorius and Mathenjwa against Ramaphosa — but was still battling to get state funding for his legal fees in these cases.