President Jacob Zuma has applied for leave to appeal against a ruling by a full bench of the High Court in Pretoria that his deputy must appoint the national director of public prosecutions (NDPP) for as long as Zuma remained in office.
The court last week set aside the appointment of Shaun Abrahams as NDPP as unlawful; and ruled that Zuma was conflicted because of the criminal charges he faced and that Deputy President Cyril Ramaphosa must, therefore, appoint a new NDPP within 30 days.
The court also set aside Zuma’s decision to get rid of Mxolisi Nxasana as NDPP and ordered Nxasana to pay back his R17.3 million golden handshake – but said it would not be just and equitable to reinstate Nxasana or to retain Abrahams in the position.
The judges said it would be naive to ignore Zuma’s pattern of conduct in litigation, defending the indefensible and banking on any advantage that the passage of time could bring. Zuma’s appeal against the order taking away his powers to appoint an NDPP resulted in the suspension of the court order.
In his notice of appeal, granted in favour of Corruption Watch, Freedom Under Law and the Council for the Advancement of the South African Constitution, Zuma maintained the decision resulted in the country having “two presidents at the same time”.
His grounds of appeal included that the court had erred in holding that he was conflicted and was “unable” to perform his powers as president in relation to the appointment of the NDPP, yet able to perform his other functions .
He maintained this position was not authorised by the constitution. He submitted the court had erred in law in holding that it was constitutionally permissible to have two presidents at the same time and both exercising presidential powers.
In addition, Zuma alleged the court had interpreted the law incorrectly and that the order was not just within the meaning of the constitution.
The ruling formed part of a series of devastating legal blows to Zuma, who was on Wednesday ordered to personally pay the wasted costs of his abortive attempts to stop former public protector Thuli Madonsela’s State of Capture report.
However, Wits legal expert Professor James Grant said the chances of Zuma being successful are “extremely slim”.
“We need to distinguish what he has already submitted and what he needs to submit. He simply gave notice to the high court that he intends to appeal,” said Grant.
That, however, does not mean his application would be successful. Based on Zuma’s grounds where he points to “two presidents”, there was “exceedingly very little chance of any prospects”.
“What he is saying is it’s not possible for two presidents in the country by virtue that in respect by one function he is conflicted,” Grant said. “But the constitution says that where the president is unable to act, the deputy president must exercise that function.”
Grant, therefore, said this ground was “utter nonsense”. “It’s disingenuous and another waste of time.”
– Additional reporting by Yadhana Jadoo