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  • Zuma Application Leave To Appeal

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    Kiri Rupiah
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    The president was only doing what the Constitutional Court said he should do, says his application for leave to appeal

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    Zuma application leave to appeal

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    The president was only doing what the Constitutional Court said he should do, says his application for leave to appeal

    Direitos autorais:

    © All Rights Reserved
    Baixe no formato PDF ou leia online no Scribd
    Sinalizar o conteúdo como inadequado
    7K visualizações11 páginas

    Zuma Application Leave To Appeal

    Enviado por

    Kiri Rupiah
    The president was only doing what the Constitutional Court said he should do, says his application for leave to appeal

    Direitos autorais:

    © All Rights Reserved
    Baixe no formato PDF ou leia online no Scribd
    Sinalizar o conteúdo como inadequado
    de 11
    IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA In the matter between: PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA And ‘THE OFFICE OF THE PUBLIC PROTECTOR THE PUBLIC PROTECTOR ECONOMIC FREEDOM FIGHTERS ‘THE UNITED DEMOCRATIC MOVEMENT ‘THE CONGRESS OF THE PEOPLE ‘THE DEMOCRATIC ALLIANCE MABEL PETRONELLA MENTOR COUNCIL FOR THE ADVANCEMENT OF THE SOUTH AFRICAN CONSTITUTION CASE NO: 91139/16 Applicant First Respondent Second Respondent ‘Third Respondent Fourth Respondent Fifth Respondent Sixth Respondent Seventh Respondent Eighth Respondent APPLICANT’S APPLICATION FOR LEAVE TO APPEAL (APPLICANT IN THE COURT A QUO) I Page BE PLEASED TO TAKE NOTICE THAT the applicant hereby gives notice of his intention to move an application for leave to appeal the whole judgment and order of the Court (Mlambo JP, Boruchowitz J Ret, Hughes ]), delivered on 13 December 2017. TAKE NOTICE FURTHER that the grounds upon which such leave to appeal is sought are the following: GROUNDS FOR LEAVE TO APPEAL 1 Whereas the Constitutional Court! held “the President should have decided whether to comply with the Public Protector’s remedial action or not. If not, then neuch more than bis mere contentment with the correctness of bis own report was called for. A branch of government vested with the authority to resolve disputes by the application of law should have been approached. And that is the judiciany?” 2. In enquiring into the correctness of the remedial action in the review, the Court erred in law in holding that, “the President was ill-advised and reckless in Launching the challenge against the remedial action of the Public Protector’. " Beonomic Freedom Fighters v Speaker of the National Assembly and Others 2016 (3) SA $80 (CC) 2 Supea at para 81 3 Judgment para 189 Whereas the Constitutional Court’, in considering whether anybody must be personally mulcted in costs, “Ye office holder ultimately responsible for the crisis and the events that led to it, is the person who holds executive political offic. It is the Minister who is required in terms of the Constitution to account to Parliament. That is the Minister, and the Minister alone.” ‘The Constitutional Court held at para 75 of the judgment that “all these aspects require further sorutiny, but that can only be done after the potentially affected parties are joined to the proceedings in their personal capacities and given an opportunity to explain their conduct in relation to each of these issues.” ‘The Court erred in law in ordering the President to pay the costs of the application when he was not cited in his personal capacity or given an opportunity to explain his conduct and to do so on a punitive scale. Whereas, in bringing the review application, the President sought to approach the Court, as a branch of government, to resolve the application of the doctrine of separation of powers, specific to this case, as spelt out in section 34 of the Constitution of the Republic of South Africa, 1996 (“the Constitution”) read with the EFF judgment, the Court erred, in law, that in doing so the President, as he is constitutionally required to do, was reckless, unreasonable and ill-advised. \ Black Sash Trust v Minster of Social Development 2017 (3) SA 335 (CC) at para 74 3|Page 5. Whereas neither the Public Protector Act, 1994 (“the Public Protector Act”) nor the Constitution empower the Public Protector to confer powers vesting in the office of the Public Protector, to a commission of inquiry, the Court erred in holding that she can 6. Whereas the Public Protector Act vests various powers on the Public Protector, the Court erred in law in holding that the Public Protector can confer on the commission of inquiry ‘powers of evidence of collection that are no less than that of the Public Protector”. This i: s legislating and offends the separation of powers doctrine. 7. Whereas the Constitution confers only on the President the power to appoint a commission of inquiry (684(2)(B), the Court erred in holding that this is a power exercised with the Chief Justice. This also offends the separation of powers doctrine. 8 Whereas the Constitutional Court’, held that section 84(2)(f) of the Constitution does not impose a constitutional obligation on the President but * Paragraph 42 © Daniel v The President of the RSA 2013 (11) BCLR 1241 (CC) at para 11-12 * 10. 11. a power, the Court erred in holding that section 84(2)(6) of the Constitution imposes a duty. Whereas the remedial action is a dictation to the extent that the President is obliged to appoint a commission of inquiry, the Court erred in holding that “The President's power to appoint a commission of inguiry will necessarily be curtailed where his ability to conduct himself without constraint brings bins into conflict with bis obligations under the Constitution. ”° Whereas Parliament has placed the power to investigate breaches of the Executive Members Ethics Act, 1998 (‘The Ethics Act”) read with the Executive Ethics Code on the Public Protector, the Court erred in holding that the remedial action can competently direct that that be done by a commission of inquiry. Whereas the Constitution under section 182(1) gives the Public Protector to investigate any conduct in the specified areas; report on that conduct; and to take appropriate remedial action, the Court erred in holding that “rhe taking of remedial action by the Public Protector is not contingent upon a finding of impropriety or Judgment para 71 5|P prejudice” The Court further etted in finding that “there is nothing in the wording [af section 182 (1) of the Constitution} that links the remedial action to a finding of improper conduct.” 12. Whereas a report of the Public Protector must in terms of section 8 of the Public Protector Act, record ‘findings and recommendations” the Court erred in Jaw in holding that the Public Protector can take a remedial action on prima facie evidence. 13. Whereas in her report the Public Protector has made no factual findings, the Court erred in law in finding that she did" and in particular impermissibly elevating untested suspicions as fact. 14. Whereas “appropriate remedial action means nothing less than the provision of an affective, suitable, proper or fitting remedy to redress the prejudice, impropriety, unlanful enrichment and comniption that may have occurred in a particular case”, the Court erred in holding that there is nothing in the wording of section 182(1) of the Constitution “Yhat links the remedial action to a finding of improper conduct?” * Judgment para 100 * judgment para 101 Judgment para 7 "Judgment para 115 Judgment para 101 15. In holding that ‘bere is nothing in ether the Public Protector Actor the Ethics Act that probibits the Public Protector from instructing another organ of state 10 conduct a further investigation”, the Coutt etted in failing to determine: 15.1. what in law authorises the Public Protector (as an organ of state) or affords her the power to do so; and 15.2. whether or not a commis ion of inquiry is an organ of state and can be regarded as a “person” within the meaning of section 7(3) of the Public Protector Act. 16. Whereas any person or institution to whom or which the Public Protector has delegated an investigation is to report to her, a commission of inquiry is not such a person of institution. In not finding so, the Court erred in law. 17. In appointing a commission of inquiry, the President does not determine the issues that are 10 be probed (as regards the outcome of such investigations 2 Judgment para 91 7[Pa 18, 19. and findings), the Court erred in law in holding that the principle of recusal applies in such a process, Despite the press statement by the Presidency stating that “the President is of the view that sonve of the remedial actions directed by the Public Protector are irregular, untanyful and unconstitutional, Legal advice obtained pointed at the fact that the remedial action on the appointment of a commission of inquiry undermines the separation of powers doctrine. The Constitution gives the power to appoint a commission of inquiry to the President, which she| be must excercise when the President holds the view that a matter of public concern requires such a process.” In the “state of capture report the President is not only directed to appoint a commission of inguiry, but be is also directed as to what kind of commission be should appoint and the process that must be followed in appointing it. This contravenes section 84(2)(f) of the Constitution which leaves it open for the President to choose what bppe af Commission of inguiry should be established, whether it shoud be a judicial commission of inguiry or any other commission, The remedial action has made that choice for the President, which is impermissible in law...” The Court erted io law in holding that the President has perempted his right to take the remedial action on review Whereas in his address to Parliament on 22 June 2017, the President stated “Former Public Protector investigated and that means something has been done. Some of the aspects of the report have been taken to review, so there bas never been quietness and it can't oe correct to say while role(sic) is burning then the people are just sitting.” ‘The Court erred in law that he had perempted that very right referenced in the quotation above. 20. To the extent that the common law principle of peremption seeks to limit a fundamental right it does not do so in line with the requirernents of section 36 of the Constitution. 21. Costs of this application for leave to appeal to be costs in the appeal. DATED at PRETORIA on this the 22D day of DECEMBER 2017. ‘ATE ATTORNEYS Applicant's Attorney Attention: Mr Chowe 316 SALU Building Francis Bard and ‘Thabo Sehume Street (Bntrance at Thabo Sehume) Private Bag X91 Pretoria Ref: 7313/2016/275 Email ichowe(@justice.gov.za Tel: 012 309 1562 Fax: 086 507 2194 AND TO: THE REGISTRAR OF THE ABOVE HONOURABLE COURT PRETORIA AND TO: ATTORNEYS FOR THE FIRST & SECOND RESPONDENTS MESSRS ADAMS & ADAMS ANDREW MOLVER LYNNWOOD BRIDGE OFFIC! 4 DAVENTRY ROAD LYNNWOOD MANOR PRETORIA ‘TEL: [012] 432 6000 FAX: [012] 432 6599 ail: Andrew.molver@adamsadams.com REF: ANM/gkd/LT3340 = PARK AND TO:ATTORNEY FOR THE THIRD RESPONDENTS MESSRS IAN LEVITT ATTORNEYS 19"! FLOOR, SANDTON OFFICE TOWERS NDTON CITY O11] 784 33310 Email: angelike@inalevitnco.za C/O MESSRS FRIEDLAND HART SALOMON NICOLSON 79 STEENBOOK AVENUE PRETORIA "TEL: [012] 424 0200 AND TO:ATTORNEYS FOR THE FOURTH & FIFTH RESPONDENTS MABUZA ATTORNEYS BUILDING 1, 38° FLOOR CNR OF FRICKER AND HARRI ILLOVO ‘TEL: (011] 750 1500 Email: cric(mabuzas.co.za C/O MESSRS NKOMO INCORPORATED SUITE 204, SECOND FLOOR HATFIELD FORUM EAST 107 ARCADIA STREET ARCADIA PRETORIA TEL: [012] 342 6009 ROAD 10|Pape AND TO:ATTORNEYS FOR SIX RESPONDENTS MESSRS MINDE SHAPIRO SMITH INC ELZANNE JONKER ‘TYGER VALLEY OFFICE PARK BUILDING NUMBER 2 CNR WILLIE VNA BELVIL Email:

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