The Gauteng High Court in Pretoria dismissed applications brought by two senior advocates, who were challenging President Cyril Ramaphosa’s decision to reverse their appointments at the National Prosecuting Authority (NPA).
Judge DS Fourie said Ramaphosa’s decision was “lawful, rational and consistent with the Constitution”.
Advocates Ron Simphiwe Mncwabe and Khulekani Raymond Mathenjwa were purportedly promoted days before former president Jacob Zuma’s tenure ended.
They were informed by the former national director of public prosecutions, Shaun Abrahams, about their new jobs.
And although Zuma’s decision to appoint the officials was recorded in official presidential minutes, it was never formally communicated to the public.
Zuma had taken steps to appoint five senior members in various offices of the NPA.
When Ramaphosa assumed office, he decided to withdraw these appointments.
Three of the appointees launched separate applications to challenge Ramaphosa’s decision.
Mncwabe was appointed as the director of public prosecutions in the Northern Cape Division of the High Court, while Mathenjwa was appointed as director of public prosecutions in the Mpumalanga Division of the High Court.
They wanted the president’s decision reviewed and set aside.
Advocate Jacobus Pretorius, however, withdrew his application in March 2020.
The court had to consider whether Ramaphosa was entitled to reverse Zuma’s initial decision.
“It was contended on behalf of the applicants that President Ramaphosa was functus officio (he was not entitled to reconsider the decision which had already been made) and could therefore not set aside the decision of former president Zuma,” reads the judgment.
“It was further submitted that Presidential Minutes no 10 and 18 in terms thereof the applicants were appointed by former president Zuma are both final and valid documents…”
In his ruling, Fourie said the appointment of a director of public prosecutions by the president should not be made in secret, behind closed doors or unobtrusive.
The judge added: “This is not a private affair. It is not a daily occurrence. This is a necessary and important public appointment provided by statute. The right of the public to be informed is implicit in the constitutional ordering, so that the public may know who to hold accountable.
“Public notification is, therefore, in my view a necessary requirement and forms part of the appointment process. Without that, the decision to appoint would be incomplete and, therefore, not final.”
“There seems to be no dispute that the appointment of the applicants had never been announced in the public domain. According to Abrahams, he was requested to hold off on the internal announcement as the then minster [of justice] had agreed with the then president that he would make the necessary media announcement.
“Former president Jacob Zuma never reached the stage where he decided that the decision be published. There is no written instruction or evidence regarding a delegation of authority empowering Abrahams or any other person, other than the president himself, to publish the decision and thereby make it final and irrevocable.
“Abrahams does not state that he was instructed or authorised by the president or the presidency to publish and thereby finalise the appointments. All he says is that he exercised his powers as the erstwhile head of the NPA to inform the purported appointees.
“There is no indication in the constitution or the NPA that the head of the NPA is empowered to finalise a decision for and on behalf of the president.”
Fourie said Ramaphosa was, therefore, at liberty to decide whether or not to give effect to those purported appointments by announcing it in public, or not to proceed and finalise the purported appointments.
“Put differently, the president was entitled not to finalise the purported appointments as those appointments, decided by former president Zuma, had never become a final decision. The revocation by the president is just another way of saying that the president has decided not to finalise and give effect to the purported appointments.”
Fourie said it appeared that Ramaphosa properly applied his mind to these proposed appointments.
“I agree with counsel for the president that the reversal of the preliminary decision for the proposed appointments, being in the president’s discretion was rational, and was exercised for the legitimate purpose of ensuring the constitutionally protected functioning and integrity of the National Prosecuting Authority.
“For all these reasons, I am of the view that, when the president exercised his discretion not to finalise the appointment of the applicants, he did so lawfully, rationally and in a manner consistent with the Constitution.”
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