Judge’s reasoning on Zuma’s decision to reshuffle was political, says ANC

2017-05-09 19:11
ANC national spokesperson Zizi Kodwa. (Jabu Kumalo, City Press)

ANC national spokesperson Zizi Kodwa. (Jabu Kumalo, City Press)

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Johannesburg - Judge Bashier Vally's reason for ruling in favour of the DA's application that President Jacob Zuma furnish them with reasons why he reshuffled his Cabinet was politically motivated, the African National Congress said on Tuesday.

"The Constitution of the Republic says the President must appoint ministers and deputy ministers and assign them roles. That decision, as well as the decision to dismiss a minister, is political," national spokesperson Zizi Kodwa told News24.

"The judge's ruling [and] reasoning is political. This is a judge who has taken a particular political posture.

"It is not only judicial overreach, but undermines the judiciary itself."

Kodwa said the party would encourage Zuma to appeal Vally's judgment or have it reviewed.

The Presidency was not immediately available for comment.

READ: Rules of court support DA's application to review Cabinet reshuffle decision

Reasons

Earlier, Vally handed down a written judgment explaining that his decision to rule in favour of the Democratic Alliance was because of a rule governing high courts which related to reviews of decisions.

Rule 53 of the Uniform Rules of Court, which governs High Court proceedings, was established to regulate on a national basis the procedure to be followed in cases of all types of review, whether based on statutory or common law.

Vally said for the last five decades, courts had been able to perform their judicial functions because of rule 53.

He explained in the South Gauteng High Court in Johannesburg the reasons for his ruling last Thursday in the North Gauteng High Court in Pretoria that Zuma should hand over all records he used to justify reshuffling his Cabinet.

However, most of the cases where rule 53 was applied involved a decision or proceedings of an inferior court, a tribunal, a board, or an officer performing judicial, quasi-judicial or administrative functions, and not an executive decision.

Zuma had relied on this to contend that the provisions of rule 53 did not apply to an application to review his executive decision to reshuffle his Cabinet.

The weakness in Zuma's case was that he had relied on the literal interpretation of the rule, Vally said.

"Rule 53 was promulgated at a time when executive decisions were not subject to review. Subsequently, with the enactment of the Constitution and the development of common law since its enactment, these decisions, as the president acknowledges, are subject to review."

Executive order

He said it was true that rule 53 had not been amended to cater for this, but to decide on its applicability to review executive decisions, it was necessary to subject the rule to a purposive interpretation.

"Relying on the purposive interpretation, there is no logical reason not to utilise it in an application to review and set aside an executive decision."

The rule could thus be applied to a bid to review and set aside an executive order or decision, Vally said.

In court papers, Zuma had said that the DA's urgent application to have reasons for the recent Cabinet reshuffle divulged was misconceived and without merit.

The DA filed an urgent application with the court on April 24, to force Zuma to disclose his reasons for reshuffling his Cabinet on March 30.

Having succeeded, the DA's next step would be to ask the court to review and set aside his decision to sack Pravin Gordhan as finance minister, and his deputy Mcebisi Jonas.

Zuma described it as an abuse of court processes and argued he was exercising his powers in terms of section 91 (2) of the Constitution. He said it was an executive decision that deserved protection from disclosure.

Records

Zuma was given five days to furnish the DA or the court's registrar with all records containing reasons why he reshuffled the Cabinet.

However, Vally said it was not immediately clear which records Zuma would be submitting and which of the requested records he objected to submitting, including an intelligence report which several reports have reclaimed was the basis of Gordhan and Jonas' axing specifically.

"The President has not dealt with the existence or non-existence of this report. In the same vein, the President has not indicated what documents or electronic records exist and which of those he objects to disclosing on the ground that their disclosure would be unlawful for one reason or another," Vally said.

Because Zuma was yet to furnish the court with these records, the order that he do so still stood, Vally said.

Read more on:    anc  |  zizi kodwa  |  jacob zuma  |  johannesburg  |  politics

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