Cyril Ramaphosa. Picture: GCIS
Cyril Ramaphosa. Picture: GCIS

The presidency says it did not give instruction for the filing of a notice to oppose the DA’s application to have the reappointment of Malusi Gigaba and Bathabile Dlamini as cabinet ministers declared irrational, unconstitutional and unlawful.

Presidency spokesperson Khusela Diko said on Tuesday that the state attorney filed a notice to oppose, but that President Cyril Ramaphosa was still applying his mind to the matter.

“The presidency did not give instruction for the filing of the notice to oppose,” she said. “The president is still applying his mind to the approach he would take and remains committed to meeting the court due date of November 13 to respond.”

The DA wants the high court in Pretoria to set aside the reappointment of Gigaba and Dlamini.

During a reshuffle of the cabinet Ramaphosa had inherited from former president Jacob Zuma in February, the president retained the two controversial ministers, which shocked many.

He moved Gigaba from the finance portfolio back to the ministry of home affairs and removed Dlamini from the ministry of social development to minister of women in the presidency.

Both ministers have had adverse findings against them in the courts.

Gigaba has been found by the courts to have lied under oath in the matter of the decision to grant the Oppenheimers permission for Fireblade Aviation to operate a private terminal at OR Tambo International Airport. He also facilitated the granting of citizenship to members of the Gupta family.

Public protector Busisiwe Mkhwebane has called on Ramaphosa to take disciplinary action against Gigaba for his telling lies under oath in breach of the constitution and the code of ethics for the executive. Dlamini was found by the Constitutional Court to have been personally responsible for the crisis over the payment of social grants and the delay in replacing Cash Paymaster Services as the distributor of social grants.

The apex court has directed that the national director of public prosecutions make a call on whether Dlamini should be prosecuted and charged for perjury for lying under oath.​

It is not clear if Ramaphosa is opposing the DA’s application in a bid to save Gigaba and Dlamini.

The court outcome the DA is looking for could have implications for the president’s executive decision-making powers. In terms of section 91 of the constitution, the president appoints the deputy president and ministers, assigns their powers and functions and may dismiss them. This power is vested in the president as head of the executive.

This is similar to the case where Ramaphosa continued to fight a matter where the DA was insisting that it wanted the record of decision-making when Zuma had fired, among others, former finance minister Pravin Gordhan and his deputy, Mcebisi Jonas.

The DA dropped the matter after Zuma resigned from office, but the presidency still opposed it on the matter of principle.

In June, the Supreme Court of Appeal said it would not to weigh in on a precedent-setting high-court judgment that records of decisions be made available when executive decisions were taken on review.

At the time, Diko said the presidency was considering its options, including an appeal to the Constitutional Court, because it was “a precedent-setting judgment and it can’t be correct that the executive decisions that are taken by the president will be brought for review in the manner the DA sought to do".

CORRECTION: November 6 2018

An earlier version of this story stated that President Cyril Ramaphosa would oppose the DA’s application.