Zuma and Ramaphosa lock horns in court

WHILE the ANC top brass sat to discuss pressing matters facing the country, President Jacob Zuma and Deputy President Cyril Ramaphosa squared up in court over who should appoint the head of the National Prosecuting Authority.

It emerged yesterday that Ramaphosa has filed a notice to the Constitutional Court that he was available to help the court when dealing with Zuma’s appeal that he as the deputy president could not appoint a national director of public prosecutions.

The next NDPP will have powers to decide whether or not to reinstate Zuma’s 783 charges. And the senior prosecutor will also be driving the Asset Forfeiture Unit’s hunt for the R50 billion looted by entities linked to the Guptas.

In a brief submission to the apex court, Ramaphosa said: “Kindly take notice that the eighth respondent, the deputy president of the republic of South Africa, will abide by the decision of the Honourable Court.”

He added: “The eighth respondent (Ramaphosa) may make submissions to the assist the Honourable Court to the extent necessary.”

On Thursday, Zuma filed papers in the Constitutional Court, arguing that the North Gauteng High Court had erred in law by saying he was unable to perform his role of appointing an NDPP head because he was conflicted in the matter.

This was after Corruption Watch, Freedom Under Law and the Council for the Advancement of the South African Constitution approached the apex court to seek confirmation of the high court ruling which gave Ramaphosa presidential powers.

In his appeal papers, Zuma has argued that by delegating the responsibilities to Ramaphosa, the court was making it permissible to have two presidents in the country, which he said was not authorised by the constitution.

Last month, the North Gau- teng High Court set aside current national director of public prosecutions Shaun Abrahams’ appointment and declared the removal and the R17 million handshake given to his predecessor Mxolisi Nxasana by Zuma was unlawful.

The court further ruled that Zuma was too conflicted to appoint a new NDPP due to his implication in corruption allegations – a matter Zuma has now appealed – and tasked Ramaphosa to appoint a new prosecutions head within 60 days.

“It is declared that, as long as the incumbent president is in office, the deputy president is responsible for decisions relating to the appointment, suspension or removal of the national director of public prosecutions or, in terms of section 11 (2) (b) of the National Prosecuting Authority Act, someone in an acting capacity as such,” the court ruled.

The Zuma and Ramaphosa’s battle over who should appoint the NDPP was one of the first examples of the two centres of power argument that ANC lead- ers have been engaged in since the party’s elective conference in December.

Yesterday it remained unclear whether the debate on the two centres of power was on the agenda of the party’s national executive committee (NEC) meeting in Irene.

Yesterday Abrahams and the National Prosecuting Authority also appealed the ruling that declared his appointment invalid, accusing the high court of being speculative about his appointment by Zuma.

“It is submitted that the court erred in speculating that if Abrahams were to remain in office, it would entail the president (Zuma) achieving through unlawful means the objective he had pursued from the start – notwithstanding the absence of any allegation on the applicant’s papers that president entered the impugned settlement agreement with Nxasana with a mind of installing Abrahams as NDPP, motivated by the belief that the latter would be less likely to prefer charges against the president than Nxasana would be,” the NPA said in its papers.

Constitutional law expert Phephelaphi Dube disagreed with Zuma’s assertions, saying the constitution made provision for the deputy president, when the president was otherwise unable to fulfil the duties of president, including the appointment of the NDPP.

“Since the president has a direct interest in the prosecution process bearing in mind the pending 783 counts of corruption, this means that he is obviously conflicted and as a result of the conflict cannot appoint someone who will decide whether the charges should be reinstated,” Dube said.

She said in order for Zuma to convince the ConCourt to grant him leave to appeal, he would need to show that there was no conflict of interest on his part and that he was legally entitled to appoint a NDPP.

“On the face of it, the president will have a difficult time trying to convince the court that there is no conflict. This alone would make it difficult for the court to grant the president the appeal,” Dube insisted.

Accountability Now’s advocate Paul Hoffman concurred that Section 90 of the constitution envisaged a situation in which the deputy president and indeed others might act in place of the president when he was unable to do so.

“Section 96 prohibits the executive, including the president, from incurring the risk of a conflict of interest between official duties and private interests.

“There is an obvious and very present risk of this kind in relation to allegations of state capture as the president is at the centre of them. Shaun Abrahams is a captured NDPP who was handpicked by JZ to replace the independent-minded Nxasana who was corruptly paid to relinquish his post,” Hoffman said.

He said Zuma was unable to act both in relation to replacing the NDPP and in the appointment of a commission of inquiry into state capture due to the presence of the risk of conflict of interests in both instances.