Two top National Prosecuting Authority (NPA) officials and a magistrate are taking President Cyril Ramaphosa to court for reversing their appointments to leadership positions that occurred during the Jacob Zuma presidency.
The legal challenges are the first significant pushback against the major restructuring of the NPA by Ramaphosa.
The outcome of these cases will, one way or the other, have significant implications for that process — and for Ramaphosa’s promise to deal with leadership issues in the NPA.
Raymond Mathenjwa and additional magistrate for the Tsakane court Ron Mncwabe, both advocates, have filed applications in the high court in Pretoria aimed at compelling Ramaphosa to reverse his decision to revoke their February 1 2018 appointments as directors of public prosecutions in Mpumalanga and the Northern Cape, respectively.
Advocate Torrie Pretorius, the former acting head of the priority crimes litigation unit, which controversially pursued short-lived fraud charges against then finance minister Pravin Gordhan, has also confirmed to Business Day that he will challenge the revocation of his appointment as special director of the unit.
Zuma signed presidential minutes authorising these appointments, which he stated were made in consultation with then national director of public prosecutions (NDPP) Shaun Abrahams and justice & correctional services minister Michael Masutha, just two weeks before he stepped down from office.
Ramaphosa revoked them, also through presidential minutes, on March 11 2019.
Presidency spokesperson Khusela Diko told Business Day that the presidency would oppose the applications it had received challenging this revocation. “Advocates Mathenjwa and Mncwabe were considered for appointment by former president Zuma before he resigned. The appointments were, however, never effected.”
Mathenjwa, who was part of the panel that advised Abrahams to prosecute Zuma for corruption and unsuccessfully prosecuted former commercial crimes prosecutor Glynnis Breytenbach for allegedly tampering with her NPA laptop,
details in court papers how he battled for a year to have his now disputed appointment by Zuma formally recognised and implemented.
A prosecutor since 1995, Mathenjwa says Abrahams informed him he had briefed Ramaphosa about his appointment when he met the president in March 2018, “and he was well received”. Abrahams was subsequently removed from office after the Constitutional Court ruled his appointment by Zuma was invalid.
Mathenjwa claims he sought clarity about when his promotion would be implemented from Silas Ramaite, Abrahams’s acting replacement, but did not receive any answers.
He then spoke to Pretorius, who he says told him that Ramaite had claimed the reason his and the other Zuma appointments had not been effected was because “Mr Zuma defied the top six of the ANC and made executive appointments against the top six’s instructions”.
“This information irritated me because I realised that I happened to be caught up in the battle of two centres of power, being the president and the mandate issued by the governing political party,” he states, adding that Ramaite subsequently denied making such comments to Pretorius.
Following new NDPP Shamila Batohi’s appointment in February, Mathenjwa said she met with him and informed him that “the executive was of the view that I was not appointed”, and she was dealing with a similar complaint by Mncwabe about his appointment.
He says Batohi told him she had “no answers”, it was not her decision and she recognised that the way the situation had been handled was “unfair”.
After being informed by the presidency that his appointment had been revoked, Mathenjwa says he asked for the reasons for this decision and further pointed out that his “demotion” had occurred without any consultation.
He argues that his effective removal from the position violates the NPA Act and is clearly unlawful an argument echoed by Mncwabe in his application.
According to Mathenjwa, “the president’s conduct in revoking my appointment as [director of public prosecutions] Mpumalanga is in breach of the principle of legality and stands to be reviewed and set aside”.
NPA spokesperson Bulelwa Makeke declined to comment on Batohi’s response to these legal challenges and referred all inquiries to the presidency.