Zuma puts Ramaphosa in a bind with courts
• Ruling that decision-making needs to be transparent could have significant implications for the Presidency
President Cyril Ramaphosa has seemingly tried his best to treat the courts in a very different way from his predecessor, Jacob Zuma, by repeatedly choosing to bow out of politically contentious and potentially unwinnable cases and frequently leaving courts to decide the best way forward.
Ramaphosa is trying, it appears, to develop a litigation style that is the antithesis of the Stalingrad strategy that defined the Zuma presidency. So when he indicates that he is considering an appeal to a ruling, it is worth interrogating.
At first glance, the response of Ramaphosa’s office to a ruling by the Supreme Court of Appeal last week — it dismissed his challenge to an order that the record of Zuma’s decision to fire former finance minister Pravin Gordhan must be handed over to the DA — seems misplaced.
The DA has abandoned its challenge to Gordhan’s removal and is therefore no longer seeking the “fake intelligence report” with which Zuma reportedly justified that ill-fated decision.
Even though this ruling focuses on a case that is essentially dead, it could have significant implications for Ramaphosa and future attacks on his decision-making.
The president’s spokeswoman, Khusela Diko, stresses that the ruling is precedentsetting as it may be used to compel Ramaphosa to produce a record of his executive decision-making if and when these decisions are challenged in court.
“We are still considering our options in terms of a possible appeal to the Constitutional Court,” Diko says.
“We understand and appreciate that all decisions taken by the president must be legal and rational,” she says, “but we are seeking clarity on what is legally required from the president in terms of providing a record of those decisions, bearing in mind that certain decisions are made on [the] basis of value judgments and political considerations.
“In such cases, where there is not necessarily documentation, what consequences are there for the president? That’s what we need certainty on.”
There is a clear legal precedent for the record of presidential decisions to be provided, under rule 53 of the uniform rules of court, to parties seeking to legally challenge the rationality of these decisions.
This happened when the DA successfully challenged Zuma’s decision to appoint Menzi Simelane as head of the National Prosecuting Authority (NPA) despite findings of dishonesty made against him in the Ginwala inquiry. As part of that case, the Presidency handed over the record of Zuma’s decision to appoint Simelane — including his CV, which was littered with spelling errors, such as the misspelling of the word “curriculum”.
PAPER TRAIL
The DA used the document to argue that Simelane was inexperienced and unqualified to lead the NPA and had made no effort when compiling his CV as he knew he was “certain to get the job”.
Ramaphosa’s office has handed over the record of the decision made by former president Thabo Mbeki and the state attorney’s office to fund the costs attached to Zuma’s corruption prosecution.
“It was easy for us to provide the record on the fees matter,” Diko says, “because there was a paper trail.
“Our concern relates to decisions where there may not be a paper trail,” she says.
One such choice may be Ramaphosa’s recent controversial decision to move former spy boss Arthur Fraser, who is at the centre of allegations of corruption and unlawful espionage, to a senior position at the Department of Correctional Services.
The DA has sought urgent access to the Constitutional Court, where it hopes to argue that the decision to move Fraser was irrational and unlawful.
As part of that challenge, the DA is seeking the record of Ramaphosa’s decision — the documents and other material that were before him when he made that choice. Ramaphosa is yet to file that record, which was due earlier this week.
Problematically for the president, the inspector-general of intelligence, Setlhomamaru Dintwe, made sworn statements implicating Fraser in serious wrongdoing shortly before Ramaphosa decided to move the spy boss. Should he acknowledge that he saw these statements, Ramaphosa will face tough questions — just like Zuma did in the Simelane case — about why he ignored them.
Should Ramaphosa claim not to have been aware of these allegations, he faces a potential backlash of public incredulity and judicial disbelief.
And that’s why Zuma’s reported strange and paranoid claims that Gordhan was linked to a treasonous plot to undermine the economy, based on an alleged dodgy intelligence report, are haunting Ramaphosa. By making a decision that was clearly based on massively questionable information, Zuma again highlighted why absolute and unquestioned executive power is so dangerous.
Now, as Ramaphosa ponders how his decisions can be interrogated by the courts, he has been left the legacy of a leader whose conduct eroded both public and judicial trust.
If he wants to change that legacy, Ramaphosa needs to make decisions that withstand legal interrogation — and, arguably, he needs to be prepared to explain himself.