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DA’s Court Bid to Set Aside Malusi Gigaba, Bathabile Dlamini appointments to be heard in March


The DA will be asking the courts to review President Cyril Ramaphosa’s appointment of Malusi Gigaba and Bathabile Dlamini – both who have been found to have lied under oath – to his Cabinet.

The matter will be heard in the North Gauteng High Court in Pretoria on March 11, 2019, DA leader Mmusi Maimane said on Monday morning.

Last week, the Constitutional Court dismissed Home Affairs Minister Gigaba’s application for leave to appeal a ruling that he had lied under oath.

In 2017, the North Gauteng High Court in Pretoria ruled that Gigaba had lied under oath and that he had violated the Constitution.

The judgment followed a court battle which Fireblade Aviation, owned by the wealthy Oppenheimer family, lodged in November 2016 against the Department of Home Affairs and others.

Gigaba’s initial appeal against the judgment was dismissed in the Supreme Court of Appeal, with costs, earlier this year.

Last week, Public Protector Busisiwe Mkhwebane also recommended that Ramaphosa act against Gigaba, after she announced that her investigation had found that Gigaba violated the Constitution, the Executive Ethics Code and the Code of Ethical Conduct and Disclosure of Members’ Interests for Assembly and Permanent Council Members.

Ramaphosa indicated that he “will apply his mind” to the matter.

‘Lied under oath’

In September, the Constitutional Court ruled in a unanimous decision that Minister of Women in the Presidency Dlamini, previously minister of social development, had withheld information from the court, and that the National Prosecuting Authority should determine whether she should be prosecuted for perjury.

“In his one and only Cabinet reshuffle on 26 February this year, President Ramaphosa exercised his executive power in terms of Section 91(3) of the Constitution, and reappointed Ministers Malusi Gigaba and Bathabile Dlamini to his Cabinet. It is vital to underscore that this reappointment constitutes an exercise of executive power by the President – a decision that is subject to certain basic tenets of the law,” said Maimane.

“It is common cause that both Malusi Gigaba and Bathabile Dlamini have been found to have lied under oath in court cases relating to government work. These are not mere allegations – they are the unanimous findings of the North Gauteng High Court and the Constitutional Court respectively,” the DA leader said.

Last year, the High Court found that constitutional decisions must be rational, including the appointment of ministers, in relation to former president Jacob Zuma’s firing of Pravin Gordhan as finance minister.

“We are of the view that the decision by the president to reappoint these two ministers in February this year fails the legal test of rationality, and as such we are seeking an order declaring the President’s decisions to retain both Dlamini and Gigaba in his Cabinet to be unlawful, unconstitutional and invalid. The DA also seeks an order reviewing the decisions and setting them aside,” Maimane said.

‘An indictment on President Ramaphosa’

The DA is asking the court to direct the first respondent – the president – to pay the costs of this application, jointly and severally with any other respondent who opposes this application.

“This is to ensure that, if either Malusi Gigaba or Bathabile Dlamini choose to adopt Zuma-esque delay tactics in opposing this application, they are to pay out of their own pockets. South Africans will not bear the cost of millions of rands for errant ministers’ attempts to ‘clear their names’,” said Maimane.

“Therefore, our legal team will today write to the Office of the State Attorney, formally asking that Mr Gigaba’s request for the State to pay for his legal fees in this matter be rejected. The South African public cannot be expected to pay millions of rands in legal fees on behalf of ministers who do not belong in Cabinet.

“The fact that Gigaba and Dlamini remain in high office – with multimillion-rand salaries, VIP protection, and numerous perks all paid for by ordinary South Africans – is an indictment on President Ramaphosa and his ability to lead our country forward,” he said.

On Tuesday, the DA will also be in court, in their case to ensure that Zuma pays back the money for his legal fees.

The DA has also previously laid criminal charges of perjury against Gigaba and Dlamini.

In February, shortly before Ramaphosa’s Cabinet shake-up, Mkhwebane found that former ministers Lynne Brown and Des van Rooyen had lied to Parliament. Neither made it into Ramaphosa’s Cabinet. At that stage, the High Court’s ruling that Gigaba had lied was already in the public domain.

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