President Cyril Ramaphosa is not obliged to produce records on the appointment of National Prosecuting Authority (NPA) head Andy Mothibi in the litigation which seeks to overturn his decision, the state argued before the high court in Pretoria on Wednesday.
The state legal representative, advocate Dikeledi Chabedi, made the argument in the case initiated by lawyer Barnabas Xulu’s law firm wanting Mothibi’s appointment declared unlawful and set aside.
The law firm, in court papers, asked for the president and the advisory panel that conducted interviews for the position of national director of public prosecutions (NDPP) to disclose all documents and records relating to the interviews and Mothibi’s appointment.
Chabedi, representing the president and minister Mmamoloko Kubayi, wants the court to dismiss the case, contending Xulu failed to bring a solid case engaging the court’s jurisdiction to review the president’s decision or even disclose the documents.
The president and minister have not individually filed affidavits answering on the merits of the case. They filed an affidavit raising questions of law and reserved the right to file an answering affidavit.
The state argues no case has been made out warranting disclosure of the record by the president.
Rule 53 is not applicable to the decisions of the president, and therefore a record is not compellable. Alternatively, the applicant [Xulu’s firm] has failed to make out a case for his entitlement to a record in terms of section 173 of the constitution at this stage of the proceedings
— Dikeledi Chabedi, state's legal representative
Chabedi argues the law firm, in wanting the president’s record, cited a court rule which is not applicable to the president.
“Rule 53 is not applicable to the decisions of the president, and therefore a record is not compellable. Alternatively, the applicant [Xulu’s firm] has failed to make out a case for his entitlement to a record in terms of section 173 of the constitution at this stage of the proceedings,” Chabedi contends.
Rule 53 calls upon the magistrate, presiding officer, chairperson or officer to disclose records of litigated proceedings to the court.
She argues the law firm also failed to pin its litigation to a breach of a specific law in arguing the president’s decision should be set aside, adding that it has not presented a case engaging the court’s jurisdiction.
Xulu challenged Mothibi’s appointment while not disputing the president’s powers to appoint the NDPP nor impugning Mothibi’s suitability for the position of NDPP.
“We still persist with the allegation that the entire process of appointing the NDPP that culminated in the appointment of advocate Mothibi is unlawful,” Xulu’s court papers read.
It is the law firm’s case that Mothibi’s appointment was a procedural irregularity because he was not subjected to the interviews but received “preferential treatment”.
“The applicant was obliged to state in his founding affidavit that the president’s power in section 179(1)(a) of the Constitution required him, as a matter of law and the Constitution, to subject Adv Mothibi to the process whose irregularities the applicant is complaining about,” Chabedi maintains.
She argues where jurisdiction is challenged, until it has been established, there is no entitlement to the president’s record.
“Even if jurisdiction of the high court is established, it is submitted that the president is, in the circumstances of this particular review, not obliged to produce the record.”
Initially Xulu’s litigation was to prevent Ramaphosa from appointing a national director of public prosecutions, taking over from Shamila Batohi, based on recommendations of the advisory panel, which interviewed candidates.
The full record is essential for the court to properly assess the fairness and rationality of the process. The respondents’ attempt to shield the record from disclosure is inimical to the values of transparency and accountability that underpin our constitutional order
— Barnabas Xulu
Xulu’s main gripe was that his firm submitted an objection to the candidature of former investigating directorate head Hermione Cronje to the panel. He argued the process was flawed and irregular because Cronje was not given the objection on time to respond in detail to the panel. Cronje, however, did address the objection before the panel.
The litigation had been withdrawn twice before the firm initiated a fresh application last month with amended prayers challenging Mothibi’s appointment.
Xulu maintained the process was flawed, despite the president not appointing any of the candidates interviewed by the panel.
In the rebuttal against the state’s response, Xulu argues the president and the minister are not entitled to later file answering affidavits in the case if the points of law are dismissed.
The firm further submits if the court finds technical non-compliance in its pleadings for the record, the court can still rule for the disclosure.
“The full record is essential for the court to properly assess the fairness and rationality of the process. The respondents’ attempt to shield the record from disclosure is inimical to the values of transparency and accountability that underpin our constitutional order,” the law firm maintains.
The court reserved judgement.
Xulu’s issue with Cronje stems from the time his firm worked for the departments of agriculture, forestry and fisheries and of environmental affairs, forestry and fisheries and the NPA’s asset forfeiture unit in the Western Cape.
In 2021 Xulu’s firm was ordered to pay R20m the firm received pursuant to writs of execution and notices of attachment in litigation with the departments.
Business Day
Would you like to comment on this article?
Sign up (it's quick and free) or sign in now.
Please read our Comment Policy before commenting.