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The decision by the North Gauteng High Court that the "resignation" of former National Prosecuting Authority (NPA) head Mxolisi Nxasana and the subsequent appointment of Shaun Abrahams to the position were unlawful has pushed our embattled president into the spotlight regarding his considerations when making those key appointments.
It is not the first time that President Jacob Zuma has found himself on the wrong side of the courts in exercising his powers as the head of the executive. Zuma is gathering a bad record as a president who has blundered consistently when it comes to appointing the head of the NPA.
Back in 2012, the Constitutional Court ruled that Zuma's appointment of Menzi Simelane as the head of the NPA was invalid. Last week's High Court decision went further, as the judges also decided that Deputy President Cyril Ramaphosa should be the one entrusted to appoint the new NPA head. This proposal by the court shows that there is no hope that Zuma could get it right when it comes to properly appointing a credible NPA boss.
It is not too often that a president makes three consecutive mistakes on a single issue: the president could not properly handle the last three appointments of the head of the NPA.
What is even more disturbing is that in addition, the president has also been unable to follow proper procedure when it comes to firing people from the position. The High Court poured cold water on Zuma's suggestions that Nxasana freely resigned from the NPA and took a golden handshake; a whopping R17.3 million.
While Zuma was chastised by the court, Ramaphosa came out as a possible avenue for the ANC to get out of its unwinnable confrontation with the judiciary. By removing executive powers to appoint the head of NPA from Zuma and conferring those powers on Ramaphosa, the court has given the ANC a glimpse of how the future would look if the party elects a president who does not have a personal squabble with the judiciary and the courts in general.
If Ramaphosa were to become the president, he would certainly have to bring to an end the frivolous litigation that government, particularly Zuma's executive, has embarked on. Quite often, the decision by government to appeal decisions of the court is not based on the genuine lack of clarity regarding what is morally defensible and what ought to be done. It has, for example, already indicated that it intends to appeal the court's decision on Nxasana and Abrahams.
Court appeals are acceptable avenues to bring dispute to finality where parties to the dispute feel they still have a case to make and they believe the course of appeal would truly lead to justice. Where government decides to appeal a matter, consideration should also be given to the moral appropriateness of appealing and how that would enhance the public interests, including how it enhances furthers public policy.
When government decides to appeal a court decision, it would not use the same motivation as a private citizen. Government cannot appeal out of pride; or to teach the opposing party a lesson. There has to be a broader moral justification for government to engage in a legal battle with some of its citizens because government has a wider obligation towards harmonious resolution of conflict, as opposed to always following the court arbitration.
President Zuma's willingness to go all the way with court processes raises suspicion as to whether the president is allowing his personal conditions – i.e. personal legal fights relating to corruption charges – to cloud his judgment regarding the leadership of the prosecuting authority.
The court has curtailed Zuma's power to appoint or fire the head of the NPA for the moment, and has appointed Ramaphosa as a temporary custodian of those powers. Of course, Ramaphosa won't be appointing the head of the NPA soon because his government is appealing the court's decision.
While we wait for the appeal process that will end up in the Constitutional Court, ANC members who will be voting for the next party president at the conference are confronted with a clear choice. They can choose long drawn and often fruitless confrontation in the courts, or opt to elect a leader who will spare them the court route and return to consensus and negotiations as a way to implement policy.
There is, however, a strong anti-establishment sentiment within the ANC, which naturally makes it difficult for anyone who is seen as mainstream or part of the establishment to ascend to leadership within the party.
By being seen as endorsed by the court, Ramaphosa will increasingly be a target of this anti-establishment narrative as the conference nears. It's now a war of narratives, and narratives are an afterthought within the ANC.
- Ralph Mathekga is a Fellow at the SARChI Chair: African Diplomacy and Foreign Policy at the University of Johannesburg and author of When Zuma Goes.
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