Why exactly did Jacob Zuma replace Pravin Gordhan and Mcebisi Jonas in his latest cabinet reshuffle? Was it because of an alleged plot, cooked up by Messrs Gordhan and Jonas to force Mr Zuma out of office, a plot apparently exposed in a discredited ‘intelligence report’?
Or was it because, as Mr Zuma said during the World Economic Forum on Africa in Durban last week, that he wanted to bring younger people into his cabinet?
Despite what Mr Zuma and his faction in the ANC might want to assert, the executive authority conferred on his office by the constitution does not give him the right to run the country by personal fiat. It does not exonerate him from the responsibility to account for his decisions and actions. This is the essence of our democracy: accountability, transparency and acting in the best interests of the country and its people.
The DA has taken Mr Zuma’s decision on review, and in a sidebar to the main event, won a small, but for Mr Zuma, a potentially devastating victory in the North Gauteng High Court on Thursday afternoon. Justice Bashier Vally ruled that in order for the decision to be taken on judicial review, the respondent – Mr Zuma – must furnish the applicant – the DA – with a record of decision that supports his cabinet reshuffle, in particular, the replacement of Messrs Gordhan and Jonas.
The red herring advanced by the presidency’s counsel, advocate Ishmael Semenya, was simply this: requiring a tangible record for every decision taken by the president would hamstring his office to the extent that the executive would not be able to function.
Nonetheless, Justice Vally handed down his interlocutory ruling, ordering Mr Zuma to furnish the DA with said record of decision in whatever form it may exist, within five business days. That Justice Vally is aware of the legal precedent this ruling sets, is axiomatic, and it should strike fear into the hearts of this, and any future executive.
No longer will the executive be able to embark upon a course of action, without being able to give reasons for that course of action that are rational, because it is the rationality test that is at the heart of this judicial review process.
The appointment of Berning Ntlemeza as head of the Hawks was recently set aside by the North Gauteng High Court on the grounds that it was irrational and therefore unlawful, which legally winds the clock back to one day before his appointment. In other words, it is as if he were never appointed.
If the DA can present evidence that Mr Zuma’s decision to replace Messrs Gordhan and Jonas was irrational and therefore unlawful, then in theory Malusi Gigaba and Sfiso Buthelezi are out, and Messrs Gordhan and Jonas are back in the saddle. That Mr Gordhan has made it quite clear that he would not accept the job of finance minister again is beside the point: it is the impact of such a ruling that is at issue.
But what evidence would constitute proof that the decision was irrational and therefore unlawful?
The discredited intelligence report is the smoking gun, and although Mr Zuma has long since abandoned any pretence at citing said report as good reason for his decision, the likes of Deputy President Cyril Ramaphosa and ANC treasurer general Zweli Mkhize, both members of the ANC Top Six, are on public record that Mr Zuma did base his decision on that report.
While the court cannot rely on the substance of any press report in order to arrive at a decision in this matter, there is no impediment to the court issuing subpoenas to the likes of Messrs Zuma, Ramaphosa and Mkhize, in order to get to the bottom of this matter.
What is the likelihood that, once on the stand, Messrs Ramaphosa and Mkhize would recant? How else would they have come to know about this report, unless it had been discussed in an NEC meeting, which would have been attended by Mr Zuma?
How likely is it that Mr Zuma will deny that the report had any bearing on his decision to replace Messrs Gordhan and Jonas? He’s had ample opportunity to do so thus far, particularly considering the decision by state security minister David Mahlobo, which he announced at the press briefing following widespread anti-Zuma protests around the country on Friday April 7, to ask his “people to look at the intelligence report that is said to be floating around”.
But even if Mr Zuma does manage to dodge that particular bullet, his subsequent ‘justification’, to bring young people into his cabinet, hardly withstands the rationality test either. Where is the rationality in replacing highly competent members of his cabinet – Messrs Gordhan and Jonas – while retaining the services of manifest incompetents like Faith Muthambi and Bathabile Dlamini?
Even if Messrs Zuma, Ramaphosa and Mkhize are hauled into court to give testimony, the court will tread carefully, because of the ever-present separation of powers doctrine, and it may well come to pass, that Mr Zuma will not have to reverse his decision, and all he will get, is a judicial slap on the wrist.
Nonetheless, however this matter plays out, another nail will be hammered into the coffin of Mr Zuma’s presidency, furnishing his opponents in the ANC with the ammunition they need to oust him, and to ensure that his apparently anointed successor does not ascend the throne.