DA files papers to force President Zuma to disclose Cabinet Reshuffle record of decision

25 April 2017

The Democratic Alliance (DA) has filed an urgent application with the North Gauteng High Court seeking to force President Jacob Zuma to supply reasons for his executive decision to reshuffle Cabinet just after midnight on 31 March 2017, including the firing of Pravin Gordhan and Mcebisi Jonas.

This latest urgent application is necessary to force the President to disclose the reasons for and the record of his decision to reshuffle his cabinet so that our earlier application to review the rationality of his decision can proceed.

In our founding papers for this urgent application to compel, the DA requests the court to order President Zuma to provide a written record of decision and reasons for the reshuffle, yet disingenuously the President’s reply to our papers claims that South Africa is not entitled to know why he acted as he did because he was exercising his executive power.

In a letter from the State Attorney, he stated that “the decision to reshuffle cabinet as he did was informed by his political judgement that the reshuffle will best deliver on the mandate of the African National Congress”. This does not in any way justify the President’s decision being beyond scrutiny.

Every exercise of public power must be subject to the principles of legality and rationality, especially the exercise of all of the President’s powers, which include decisions to appoint or dismiss Ministers and Deputy Ministers. It has also been established in law that all constitutional powers are subject to constitutional constraints. In particular, it is a requirement of our law that a decision must be rationally related to the purpose for which the power was conferred.

It follows that the President’s decisions to dismiss Ministers or Deputy Ministers must pass the standards of rationality. In the absence of a rational explanation, the President’s decision to reshuffle his cabinet would be unlawful.

The President has himself conceded this fact under oath in an affidavit submitted to the Constitutional Court in the matter of United Democratic Movement v Speaker of the National Assembly (CCT 89/2107) in which he states that “public office requires the exercise of public power to be within constitutional constraints, least of which is rationality”.

It seems that the President is glaringly contradicting himself in these two cases.

It is, therefore, critical that the President make known the reasons for and record of his decision so that its rationally can be tested.

In our papers we argue that the President’s assertion that the DA, and indeed South Africa, is not entitled to the record and reasons for his cabinet reshuffle is incorrect in law and because the President’s reshuffle amounts to the exercise of executive powers granted to the President in terms of Sections 91 and 93 of the Constitution, on the President’s own admission, it is subject to the principle of legality and the principle of rationality.

Moreover, the President’s decision to dismiss or appoint a Minister of Finance requires an additional bar of rationality, because of:

1. The effect that a wrong choice can have on investor confidence, investment, job-creation and ultimately the levels of poverty in South Africa;

2. The Minister of Finance (and his or her Deputy) is at the heart of decisions to allocate and manage the revenue that is designed to achieve constitutional objectives and obligations; and

3. The Minister of Finance is the only Cabinet member who has defined Constitutional obligations and responsibilities, where the Constitution expressly contemplates that a Cabinet member will be responsible for national financial matters [Section 73(2) and Section 224(2)] and that only he or she can introduce money bills [Section 73(2)(a)].

While the DA does believe the President made the decision, especially the axing of Pravin Gordhan and Mcebisi Jonas, based on political considerations to put himself above the people of South Africa, this makes it all the more important that he provides an explanation.

The effect of his decision on South Africa is plain for all to see and led directly to two international rating agencies downgrading our country to junk status. Our currency also went into free-fall and will, in all likelihood, lead to job losses which we can ill-afford given that a staggering 8.9 million South Africans cannot find work.

President Zuma ought to have known that this would likely be the result of his rash action in firing Gordhan and Jonas, since the decision to drop Nhlanhla Nene from the finance ministry in 2015 had similar consequences for the economy.

It is well-known that for some time President Zuma has been trying to have more direct control over the National Treasury, so as to advance his insiders, and the reshuffle needs to be seen in that light, and that is why it is of paramount importance that the public know the real reasons why Pravin Gordhan and Mcebisi Jonas were replaced.

Given the DA assertion that the President’s cabinet reshuffle decision is reviewable under the principle of rationality, it follows that in order to determine whether the decision was rational or not, the President must make available the record and reasons for the decision.

We, therefore, argue that the President is required by law to furnish the DA, and the people of South Africa, with the record and the reasons.

The DA will continue to ensure that the recklessness of President Zuma is held to account in terms of the law.

Issued by James Selfe, Federal Executive Chairperson, 25 April 2017