Monday, June 27, 2022

Ramaphosa caught up in legal battle to keep executive decisions secret

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President Cyril Ramaphosa is embroiled in a legal battle to ensure that he is not forced to provide reasons for all executive decisions he takes while in office – including Cabinet reshuffles.

In written submissions filed at the Constitutional Court by Ramaphosa’s legal counsel, Ishmael Semenya, Muzi Sikhakhane and Mahlape Sello on October 15, the advocates say the Constitution gives their client power to appoint and dismiss members of his executive.
The appellant (Ramaphosa) contends, however, that in his judgment, Judge Bashier Vally set out the legal basis for such order, which basis is not limited to the order itself, but extends to all executive decisions. It is common cause that the impugned decision is an executive decision,” read the advocates’ submissions.

President Cyril Ramaphosa

They argue that Judge Vally’s judgment raised discrete legal issues of public and legal importance that would affect a class of decisions in the future on which the apex court would have to pronounce.

Ramaphosa’s lawyers insist that the Constitution confers on him the power to appoint and dismiss cabinet ministers and that Judge Vally’s judgment, which is being appealed, is not only confined to Cabinet reshuffles, but will affect every instance that he exercises his constitutional powers.

“During his term of office, the appellant (Ramaphosa) is most likely to change the constitution of his Cabinet, either by reallocating ministers to different departments, or dismissing them and appointing others in their stead,” states the submission.

The DA brought its North Gauteng High Court application after former president Jacob Zuma axed his finance minister, Pravin Gordhan, and his deputy, Mcebisi Jonas, in March last year and replaced them with Malusi Gigaba and Sfiso Buthelezi respectively.

In May last year, Judge Vally ordered Zuma to provide the DA with reasons, and all the documents and electronic records he relied on to fire Gordhan and Jonas.

Judge Vally granted the DA’s application in terms of Rule 53 of the ­Uniform Rules of Court, which deals with reviews, a move it intended to launch after accessing all the documents and electronic records used to dismiss Gordhan and Jonas.

He found that Zuma had not ­complied with Rule 53.

“The question of law therefore (whether the provisions of Rule 53 apply mutatis mutandis [necessary changes must be made] to a review and set aside of an executive order or decision, as held by Judge Vally) is not confined to the reshuffle decision that was sought to be reviewed. It will arise in every instance that the appellant (Ramaphosa) exercises his constitutional power,” the advocates explain.

Ramaphosa has previously told the Constitutional Court that Judge Vally’s decision was an encroachment into Parliament’s functions.

The president wants Judge Vally’s judgment, the orders of the Supreme Court of Appeal, which dismissed the appeal in May, and the high court to be set aside, his appeal upheld and the DA ordered to pay the costs.

Source: The Star

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