President faces additional court challenge by legal eagle over revoked appointment
President Cyril Ramaphosa cannot make excuses that he could not find time to file his court papers, while in the same period he was involved in Public Enterprises Minister Pravin Gordhan’s legal cases, and even made time to defend himself against adverse findings by the Public Protector.
This is according to a replying affidavit, filed on Wednesday by Ron Mncwabe, a senior prosecutor at the National Prosecuting Authority.
In it, he opposes Ramaphosa’s application for condonation for his late filing of an answering affidavit.
It was filed “93 days” after he served a notice of intention to oppose.
Mncwabe said Ramaphosa’s mistake was to “pick and choose” which matters he will deal with first.
He is challenging the president’s decision to revoke his appointment as head of prosecutions in the Northern Cape, which former president Jacob Zuma signed on the eve of his axing in February 2018.
He said Ramaphosa’s legal activities with regard to Public Protector Busisiwe Mkhwebane’s reports against Gordhan were initiated long after his application, made in April, adding that Ramaphosa had “elected to join as an interested party and support [Gordhan]”.
“I verily confirm and place it on record that the three above mentioned applications were initiated from May 2019, well after this review application by myself was initiated in April 2019, yet these three applications have since received first preference … while this application of mine has been relegated as a matter of secondary importance”.
In the application for condonation filed last month, the presidency’s director-general, Cassius Lubisi – whose locus standi (right to bring an action to court) Mncwabe has also disputed – said delays in filing the answering affidavit were because of “the complexity and sensitivity of the issues involved”, and therefore “it took some time to arrange for consultation with counsel”.
Other reasons included preparations for the May 8 elections and consultations with Justice Minister Ronald Lamola, as well as similar applications by two other prosecutors whom Zuma had appointed at the same time as Mncwabe.
The other revoked appointments that were being challenged were those of the director of public prosecutions for Mpumalanga, Advocate Raymond Mathenjwa, and the special director of public prosecutions for the priority crimes litigation unit, Advocate Jacobus Pretorius.
However, advocates Malini Govender and Bonnie Currie-Gamwo were not challenging the reversal of their appointments as director of public prosecutions for the Free State, and special director of public prosecutions for the sexual offences and community affairs unit, respectively.
In last week’s papers, Mncwabe said the fact that Ramaphosa prioritised campaigning in the elections to be appointed as president showed “clear contempt and disregard of the court’s rules and practice directives with regard to time limits … and such cannot be condoned as doing so, without a doubt will be a firm foundation of a wrong precedence”.
He said there was also “still no explanation as to why [Ramaphosa], in his personal capacity, cannot or could not depose to the answering affidavit himself”, instead of being represented by Lubisi.
Mncwabe said the constitutional provisions which Ramaphosa claimed to have used to revoke his appointment could not be delegated to Lubisi.
“Accordingly, I strongly submit that, with there being no explanation whatsoever as to why [Ramaphosa], acting as such, has failed and/or neglected to depose to the answering affidavit himself, [Lubisi] lacks the necessary and requisite locus standi to depose to the answering affidavit on behalf of [Ramaphosa]”.
He said that if the court agreed with him, it would follow that “there is no answering affidavit” before court and his matter should proceed on an unopposed basis.
Mncwabe said some of the claims Lubisi put before court in defence of Ramaphosa’s case were not supported by confirmatory affidavits and thus stood to be dismissed.
The High Court is yet to rule on the matter.