Johannesburg - President Jacob Zuma will be off the hook if he tells the court he fired former finance minister Pravin Gordhan for political reasons and not because of an intelligence report.
This is according to constitutional law expert Professor Pierre de Vos, who was reacting to a high court decision in Pretoria that Zuma should disclose reasons for his axing of Gordhan and his deputy Mcebisi Jonas.
De Vos said the judiciary was not encroaching on the powers of the executive by forcing Zuma to explain the rationale behind his decision.
“Actually, this ruling is basically based on a precedent set by the Constitutional Court in 1996, that every exercise of public power can be reviewed by the courts on the basis of rationality.
“This is not controversial,” he said on Thursday night.
De Vos said the courts would “never set aside a reshuffle, unless there is clear evidence of bad faith or if the President relied on false information”.
ANC secretary-general Gwede Mantashe and Deputy President Cyril Ramaphosa have revealed that Zuma had used an intelligence report in addition to other reasons to dismiss Gordhan and Jonas.
The report alleged that Jonas and Gordhan were using a recent investor roadshow to mobilise the markets against Zuma.
On Thursday, Zuma said during a discussion on youth participation at the World Economic Forum Africa in Durban that he reshuffled partly to bring more young leaders into the government.
The ANC had said they had accepted that he changed his cabinet after his relationship with Gordhan broke down.
“If I was the president’s lawyer, I would avoid giving the intelligence report as the reason for the reshuffle in court. If the president says the reshuffle was for political reasons, that’s the end of the story, because he has a right to reshuffle his cabinet for political reasons. People are overreacting to the judgment,” De Vos said.
“The implication is only that every decision must be rational, it cannot be done in bad faith. But you have political discretion. If you do it for political reasons, that’s the end of the story,” he added.
His comments came after the DA had won the first round in its battle against Zuma, ordering that he disclose his reasons for the reshuffle within five working days.
He must also provide the DA with all the documents he used in coming to his decision to reshuffle his cabinet, especially in firing Gordhan and Jonas.
The documents he has to hand over – by the latest next Friday – include all electronic records, correspondence, contracts, memoranda, advice, recommendations, evaluations and reports on which he had relied.
These documents will have to include the so-called state intelligence report, if it was used.
Zuma was also slapped with the legal costs for yesterday, which will, however, be footed by the taxpayers.
Judge Bashier Vally said in the high court in Pretoria that he would deliver the reasons for his order in Joburg on Tuesday.
The DA, on an urgent basis, approached the court yesterday as it said it desperately needed these reports and Zuma’s reasons for axing Gordhan and Jonas.
This is in light of the main application launched, in which they would ask the court to review and set aside Zuma’s decision to fire Gordhan and his deputy. The DA hoped this application would be heard before next month.
Advocate Steven Budlender for the DA argued that it needed to see what Zuma had based his decision on so that it could attack the rationality of his controversial midnight reshuffle of the cabinet.
Meanwhile, James Selfe of the DA said that if Zuma relied on the so-called intelligence report in coming to his decision to fire Gordhan, the DA expected that this report had to form part of the documents the president had to hand over.
Selfe said that if Zuma said his decision to reshuffle his cabinet was purely political, this would be tested during the review application.
Advocate Ishmael Semenya SC, acting for Zuma, during argument accused the DA of being on a “fishing expedition”.