The high court in Pretoria on Thursday gave President Jacob Zuma one week to say why he fired his finance and deputy finance minsters in late March – and so gave Zuma an unenviable choice: admit he used an irregular (and possibly illegal) “intelligence report” in making that decision, or admit he lied to alliance partners about his reasons.
Zuma had five days to provide the Democratic Alliance with his reasons for firing Pravin Gordhan and Mcebisi Jonas, Judge Bashier Vally ordered. Zuma must also hand over “record of all documents and electronic records, including correspondence, contracts, memoranda, advices, recommendations, evaluations and reports that related to the making of the decision”.
Zuma’s legal team had argued, with logic sometimes very difficult to follow, that making Zuma turn over such records would make it impossible for him to make any future decisions without keeping a written record.
Advocate Ishmael Semenya also held that Zuma’s legal team had, in fact, already provided the DA with his reasons for the reshuffle, by way of a letter that vaguely referred to the ANC’s mandate derived from voters.
But the courts would not be able to properly consider an upcoming application by the DA to review the firings without records, the party’s advocate Steven Budlender said, relying heavily on the precedent set in the spy tapes matter.
It took Vally just 25 minutes to come to a decision, although he said he would provide his reasoning only on Tuesday.
The DA believes the decision is not open to appeal, although snap legal opinion on that was divided and Zuma has every motivation to find ways to appeal.
In the chaotic aftermath of the reshuffle many top leaders in the ANC and its alliance said Zuma had told them his decision was based, in part, on an “intelligence report”, a copy of which Gordhan at point brandished in public. The amateurish document held that Gordhan and Jonas were conspiring with international financiers to topple Zuma, providing no evidence for the assertion. It was derided by Zuma’s deputy, Cyril Ramaphosa, the ANC’s chief whip in Parliament Jackson Mthembu, and the SA Communist Party (SACP). All claimed first-hand knowledge of it.
Intelligence Minister David Mahlobo subsequently distanced himself – and the country’s intelligence agencies – from the report.
Should Zuma provide the intelligence report in terms of Vally’s order he will be open himself to all manner of trouble. In 2016, for instance, the Hawks took a very aggressive interest in Gordhan when he was alleged to have breached the National Strategic Intelligence Act by overseeing the creation of an intelligence-gathering operation at the SA Revenue Service.
And in 2015 the ANC laid a criminal complaint against Western Cape Premier Helen Zille for what it said was the outrageous appointment of a private company “to conduct covert operations which is a national competency”.
On the other hand, if Zuma denies that he used the report, that would strongly suggest that he separately lied to at least the ANC and the SACP about his reasons for the Cabinet reshuffle.
A third option, claiming that the report must be secret in the national interest, would be both absurd because it is already in the public domain and would suggest that he breached national security by disclosing its existence to his party and allies.