Our legal challenge to have Ministers Gigaba and Dlamini fired will be heard in March next year

5 November 2018

When Cyril Ramaphosa was elected President of the Republic of South Africa in February of this year, he made a commitment to break with the status quo ushered in by his predecessor, Jacob Zuma, by cleaning up government and ensuring the best, most suitable individuals are appointed to serve the people of our country. The DA holds the view that anyone who serves his/her country in high office ought to be above reproach and a servant of the people.

264 days later, and President Ramaphosa’s promise remains pending. Cabinet is still packed with compromised people who have been shown to have time and again failed in their mandates and responsibilities. It appears Ramaphosa is using his Cabinet to build unity within the ANC and reward loyalty – this at the expense of clean, efficient and transparent governance that grows the economy, creates work, and delivers services to our people.

In his one and only cabinet reshuffle on 26 February this year, President Ramaphosa exercised his executive power in terms of Section 91(3) of the Constitution, and reappointed Ministers Malusi Gigaba and Bathabile Dlamini to his Cabinet. It is vital to underscore that this reappointment constitutes an exercise of executive power by the President – a decision that is subject to certain basic tenets of the law.

It is common cause that both Malusi Gigaba and Bathabile Dlamini have been found to have lied under oath in court cases relating to government work. These are not mere allegations - they are the unanimous findings of the North Gauteng High Court and the Constitutional Court respectively.

We are of the view that the decision by the President to reappoint these two ministers in February this year fails the legal test of rationality, and as such we are seeking an order declaring the President’s decisions to retain both the Dlamini and Gigaba in his Cabinet to be unlawful, unconstitutional and invalid. The DA also seeks an order reviewing the decisions and setting them aside.

Furthermore, as much as it is irrational to appoint manifestly unsuitable persons to the Cabinet, it is equally irrational to retain such persons in Cabinet, especially when the Constitutional Court and the North Gauteng High Court have made the pronouncements that they have. We contend that both are therefore unfit to hold executive office and must be removed.

Our legal team has approached the North Gauteng High Court on 23 October 2018, and we can confirm that the matter is set down for 11 March 2019.

As it pertains to costs, we are asking the court to direct the first respondent – the President - to pay the costs of this application, jointly and severally with any other respondent who opposes this application. This is to ensure that if either Malusi Gigaba or Bathabile Dlamini choose to adopt Zuma-esque delay tactics in opposing this application, they are to pay out of their own pockets. South Africans will not bear the cost of millions of rands for errant ministers attempts to “clear their names”.

In relation to Mr Gigaba, it is submitted that the President’s failure to discharge him from office is irrational and unlawful. In the matter of Fireblade Aviation (Pty) Ltd v Minister of Home Affairs, Judge Neil Tuchten of the North Gauteng High Court found that Gigaba, as Home Affairs Minister, “deliberately told untruths under oath” and that “he committed a breach of the constitution so serious that I could characterise it as a violation”.

The DA has already laid criminal charges of perjury against Mr Gigaba, and we urge the President to publicly support these charges.

In addition to this, just last week the Public Protector found Gigaba to have violated the Constitution and the Executive Ethics Code following a complaint by the Democratic Alliance in relation to the Fireblade matter. The Public Protector made recommendations that President Cyril Ramaphosa take disciplinary action against Gigaba. Mr Gigaba has since indicated that he intends on challenging this finding.

Therefore, our legal team will today write to the Office of the State Attorney, formally asking that Mr Gigaba’s request for the State to pay for his legal fees in this matter be rejected. The South African public cannot be expected to pay millions of rands in legal fees on behalf of ministers who do not belong in Cabinet.

Tomorrow, the DA will be in court in the Jacob Zuma legal fees saga, fighting to ensure Mr Zuma pays back every cent of legal fees he racked up - which were paid for by the State. This is a clear example of such delay tactics, as the DA has been fighting for close to a decade to ensure this money is recouped. We expect the figure to be close on R50 million. This trend must stop, and we thus implore the State Attorney to put a halt to it at once.

In relation to Ms Dlamini, it is submitted that the President’s failure to discharge her from office is irrational and unlawful. Bathabile Dlamini has failed in her job, having been directly responsible for the social grants crisis. Dlamini was determined to deliberately derail the entire process of SASSA procuring an alternative service provider, all in a bid to ensure that the CPS contract could be extended over and over again.

The Constitutional Court found Bathabile Dlamini to have “used her position as Minister of the Department to place herself between constitutionally enshrined rights and those entitled to them” and “(…) at best for her, her conduct was reckless and grossly negligent.” Ultimately, the court found that “the Minister misled the Court to protect herself from the consequences of her behaviour.”

Minister Dlamini has proven that she is incapable of governing a government department and has continuously failed in delivering on her mandate of protecting the most vulnerable in our society. It is obvious that Dlamini is not fit for office.

The fact that Gigaba and Dlamini remain in high office – with multi-million rand salaries, VIP protection, and numerous perks all paid for by ordinary South Africans – is an indictment on President Ramaphosa and his ability to lead our country forward.

The truth is that under the ANC, our country is headed in the wrong direction. Corruption is rife and there is a lack of respect for the law and the requirements of high office. We cannot sit back and watch the ANC continue to undermine our nation and its people.

The DA will never stop fighting to build One South Africa For All, where those in government are committed to serving the people, not themselves and their friends.

Issued by Mmusi Maimane, Leader of the Democratic Alliance, 5 November 2018