President Cyril Ramaphosa is being taken to task for reversing the promotion of senior prosecutors who were given new jobs in the dying days of former president Jacob Zuma’s tenure.
In a move that is seen as being driven by political considerations, Ramaphosa revoked the appointments of five top National Prosecuting Authority (NPA) officials whose elevation had been recommended by former national director of public prosecutions (NDPP) Shaun Abrahams and signed off by Zuma in February last year.
Ramaphosa claims the appointments were not “finalised” and could therefore be revoked.
Now one of the prosecutors is spearheading a court challenge against Ramaphosa.
Advocate Ron Mncwabe, who was due to start his new job as Northern Cape director of public prosecutions on February 12 last year, says he finds it “insulting” that, after 22 years of experience in the legal profession, his career progression has been frustrated by factional battles in the ANC.
He also contests that the legislative provision Ramaphosa relied on to execute the reversal granted him those powers.
ZUMA WRANGLING STALLS OCCUPATION
Mncwabe, who is currently working as an additional magistrate at the Tsakane Magistrate’s Court on the East Rand, states in court papers that, despite getting the nod to become the head of prosecutions in the Northern Cape, he didn’t start the job because the “political climate” was uncertain.MNCWABE’S 13-MONTH WAIT FOR CONFIRMATION OF THE STARTING DATE OF HIS NEW JOB IN KIMBERLEY ENDED IN DISAPPOINTMENT IN MARCH
Other appointments affected were that of director of public prosecutions for Mpumalanga (Advocate Raymond Mathenjwa), director of public prosecutions for the Free State (Advocate Malini Govender), special director of public prosecutions for the priority crimes litigation unit (Advocate Jacobus Pretorius) and special director of public prosecutions for the sexual offences and community affairs unit (Advocate Bonnie Currie-Gamwo).
Govender and Currie-Gamwo are not challenging the reversal of their appointments, and Mathenjwa and Pretorius have lodged separate challenges against the decision.
Mncwabe’s 13-month wait for confirmation of the starting date of his new job in Kimberley ended in disappointment in March, when the presidency informed him that Ramaphosa had a different view.
Mncwabe stated that Abrahams, after receiving Zuma’s confirmation of the appointment, called to congratulate him and sent him a copy of the decision via WhatsApp.
Abrahams subsequently sent a hard copy of Zuma’s Presidential Minute to him by hand delivery through his personal assistant.
“I immediately accepted the appointment over the phone as well as by email as I saw no reason not to – this was a formal consultation by Abrahams as the head of the NPA, and this was a call for me to continue serving our people at another level,” he said.
On February 7 last year, he had a conference call with Abrahams and colleague Advocate Sibongile Mzinyathi, during which “both again congratulated me on my then recent appointment”.
However, due to Zuma’s resignation, the implementation of the decision, among many others, was put on hold until there was certainty in the country.
What followed was 13 frustrating months of trying to get answers.
I AM INSULTED
Mncwabe, who describes himself as open-minded, told City Press on Thursday that the answer to the puzzle of his delayed confirmation emerged when a news story last week lumped him in with a faction that propped up Zuma and is apparently now opposed to Ramaphosa’s anticorruption crusade.
He said being described as a lackey for any politician was “an insult”.I FIND IT INSULTING TO BE LABELLED A ZUMA PERSON BECAUSE I AM JUST A JURIST PRACTISING LAW IN SOUTH AFRICAMncwabe
He added that the allegation that he was “captured by Zuma cannot be supported”, and there was “no evidence that I ever acted in my career in a manner showing that I was captured by any individual. I wish that President Ramaphosa had sat down with me and had a discussion. He would then have known that I have never gone to court and made any decision in support of or against anyone when it is unjustifiable to do so.”
FROM PILLAR TO POST
According to email records, 10 days after Zuma resigned as head of state and Ramaphosa took the reins, Mncwabe wrote to Abrahams to ask when he would start his new job.
After months of no answers, he escalated the query to former justice and constitutional development minister Michael Masutha, and eventually to Ramaphosa in March.
He said he was expected to officially start his new job on February 12 last year, but learnt about two hours after the conference call with Abrahams and Mzinyathi that, in light of the political uncertainty in the country at that time, it would be best to let the dust settle before “formal implementation”.
In an email to Masutha in October last year, he said he and his colleagues “have been waiting since then”.
“For obvious reasons, we continued to enquire about this long delay, communicating with the office of the former NDPP, and continuing to enquire to the acting NDPP,” he wrote.MY OFFICE AS WELL AS MY FAMILY ARE ALWAYS ASKING ME FOR ANSWERS, WHICH I DO NOT HAVEMncwabe
He then decided to approach Ramaphosa’s office for intervention.
He later learnt that, on March 11 this year, Ramaphosa was revoking his appointment.
This instruction was communicated two days later to current NDPP Shamila Batohi for implementation.
According to Business Day, the nonfinalisation of Pretorius’ appointment may have had to do with his role in the decision to prosecute then finance minister Pravin Gordhan over the early retirement granted to then SA Revenue Service deputy commissioner Ivan Pillay.
That decision was reversed by Abrahams two weeks after he had made it.
‘APPOINTMENT NOT FINALISED’
In his Presidential Minute 69, dated March 11 2019, Ramaphosa cites section 13(1)a and section 101 of the Constitution as the legal instruments he relied on when making the decision to revoke Mncwabe’s appointment.
Section 13(1)a of the NPA act deals specifically with the appointment of directors and acting directors of prosecutions and, according to Mncwabe, makes no provision as a legal instrument to reverse his appointment.
Section 101 of the Constitution regulates executive decisions, providing that “a decision made by the president must be in writing if it (a) is taken in terms of legislation or (b) has legal consequences”.
In replying court papers, Presidency Director-General Cassius Lubisi said the fact that there were no formal records available of Zuma’s decision being processed to Masutha for implementation, and that the decision was not communicated privately or publicly to the appointees, means the appointment was not final.
He says this means the appointment did not satisfy section 101 of the Constitution and was therefore not finalised.
But Mncwabe contests that the Presidential Minute in itself constituted a formal written record and therefore satisfied the requirements of section 101.
‘THE EMAILS STOPPED WORKING’
Explaining the possible reasons behind the matter not being finalised at the time, Lubisi said that “in or about early February 2018, the emails of the presidency stopped working.
As such, there is no record of the Presidential Minute having been emailed back to the department.
“It is possible that hard copies were collected by officials in the justice department, however, there is no formal record in the presidency showing how [if at all] the minutes may have been transmitted to the department.”
He said Abrahams informally passed Zuma’s decision on to Mncwabe because “it is highly unusual for appointees of the president to be furnished with the Presidential Minute, which is an internal formal record of the president’s decisions. It is not ordinarily released into the public domain,” he said.
Lubisi added that, while Zuma’s decisions to make the “appointments” were duly minuted, signed and countersigned when he left office, “news of Zuma’s decisions might have leaked [as] neither he nor the presidency ever officially informed the appointees of their appointment, whether by private notice or public announcement”.
LAMOLA JOINS RAMAPHOSA
According to his office, Justice and Correctional Services Minister Ronald Lamola has also filed a notice of opposition, and “the state attorney is in the process of acquiring legal counsel”.
“This application concerns an administrative action in the presidency … The minister’s decision to oppose stems from the fact that the NPA needs to be equipped to be effective and operational.”
The NPA referred to “papers filed in court”.
However, the president, Lamola and the NPA have some hurdles to jump over.
First, Ramaphosa will have to tell the court why he filed opposing papers almost five months late – when he filed the papers, the matter had already been enrolled on the unopposed court roll and was scheduled to be heard on January 20.
His reasons include the preparations for the May 8 general elections and consultations with Lamola as the new minister of justice. Lamola will also have to explain his late filing.
By next month, the court is expected to decide whether Ramaphosa’s reasons for the condonation of delayed filing of papers were valid.
However, the application would no longer be listed on the unopposed court roll and a new date for the hearing would have to be determined.
Mncwabe hopes this matter will be treated as urgent.