On Friday the Gauteng High Court set aside the appointment of the most unbusy attorney in the country, National Prosecuting Authority (NPA) head, Shaun “Meh” Abrahams, adding that President Jacob Zuma couldn’t appoint his successor because he is conflicted over the 783 counts of money laundering, fraud, corruption and racketeering he potentially faces.
In a trice, both Mr Zuma and the NPA had given notice they would appeal the decision, which of course, doesn’t surprise anybody, but what are they actually appealing?
Not the removal of Mr Abrahams from office, because there is precedent.
Menzi Simelane, Mr Zuma’s first NPA head, was finally removed from office when in October 2012, the Constitutional Court upheld two lower court rulings that Mr Zuma had erred in Mr Simelane’s appointment.
What they are appealing is the court’s decision that Deputy President, Cyril Ramphosa, and not Mr Zuma, may appoint the new NPA head.
And considering what happened on Monday, it makes sense.
Shaun Abrahams annouced that whereas Mr Zuma had missed the November 30 deadline to make representation in respect of the 783 charges, he was granting an extention until January 19, citing potential prejudice against Mr Zuma, the fair and equitable administration of justice, and the public interest.
Had Mr Ramaphosa been able to act on the court ruling – he can’t because of the appeal process – what are the chances his appointee would have been as generous?
But this all relates to another, as yet unheard, matter before the courts – former public protector Thuli Madonsela’s remedial action in her State of Capture report, that since Mr Zuma is directly implicated in state capture, he cannot appoint the retired judge who must head the judicial commission of inquiry needed to investigate state capture, nor can he determine the commission’s mandate or terms of reference. That job is assigned to Chief Justice Mogoeng Mogoeng.
And this is where it get’s interesting.
Gauteng High Court Judge President Dunstan Mlambo is not known for writing anything but bulletproof judgments, and in this instance he girded his loins by fielding a full bench, even though he did not need to do so. Clearly he anticipated the challenges that have emerged – remarkably and uncharacteristically quickly too – in this instance.
Even if he does grant leave to appeal – unlikely – that appeal is likely to fail.
The next port of call is the Supreme Court of Appeals (SCA), which will hear the matter – expeditiously we hope – and probably uphold the judgment of the court aquo.
Inevitably the matter will come before the Constitutional Court, because this is very much a constitutional matter, and so to will the matter of Ms Madonsela’s remedial action in the State of Capture report.
Whichever of the two matters comes before the Constitutional Court first, the judgment handed down will indicate what the likely outcome of the other case might be.
If both matters find their way onto the Constutional Court roll more or less at the same time, the court may well choose to hear both matters simultaneously, since they both deal with the same issue – whether or not the president’s conflict of interests in both matters should disqualify him from making these vitally important appoitnments.
How the court is likely to rule is in the realms of conjecture, but suffice it to say, it will be a watershed ruling in our constitutional jurisprudence.