The Democratic Alliance (DA) is in a catch-22 situation, and what is at stake is no less than the public finally finding out why President Jacob Zuma fired his finance minister, plunging the country into a political and economic mess, a little more than a week ago.
It wants to challenge Zuma's decision in court to do so, but it cannot do this without evidence that the president acted irrationally when he made his decision. But Zuma has not given anyone reasons why he reshuffled his Cabinet, leaving the DA's case thin on evidence and thick on hearsay.
First, the DA tried to stop the swearing in ceremony for the newly-appointed cabinet ministers in a failed bid in the High Court in the Western Cape last Friday. Now the DA wants the High Court in Pretoria to find that firing finance minister, Pravin Gordhan and his deputy, Mcebisi Jonas was irrational, unconstitutional, and should be set aside.
But the DA failed to interdict the ceremony because, said Judge Owen Rogers, their case was thin on facts. The DA had indicated that it was considering going to court to try to have the Cabinet reshuffle overturned, and it seemed as if the interdict was a precursor to this.
In that first application, the DA had failed to prove a case backed by facts, Rogers said. The judge emphasised that this did not vindicate Zuma's decision, but merely indicated that the court was not persuaded that irreparable harm would be done if the swearing in ceremony was stopped.
He cautioned that, while this was not what he was asked to decide, the threshold for judicial intervention in Zuma's decision to reshuffle his Cabinet would be high.
Now the DA is asking the high court in Pretoria to intervene. This time, the party is focusing on the decision to remove the finance minister and deputy finance minister.
The threshold is high because, as Rogers noted, the prerogative to fire ministers is Zuma's prerogative. But the DA argues that while this is true, all public power is subject to legal challenge and must be exercised rationally and for the public good.
So, even if Zuma is allowed to fire his ministers at random, he must do this rationally.
To make the case that Zuma has acted irrationally, the DA has given the court evidence which consists mainly of media reports.
Even if the DA does not succeed, it may give the country much-sought after reasons as to why Zuma fired Gordhan, and if he fired him based on the intelligence report.
In the absence of an on-the-record reason for the decision by Zuma, the DA relies heavily on media reports. They've asked for the media reports to be admitted as evidence, even if it is "technically" hearsay which the DA is quick to say, it does not concede.
Specifically, the DA relies on reports that Zuma relied on an "intelligence report" to drop charges against Zuma. The report, quoted in court papers, alleged that Gordhan and Jonas were about to engage in "Operation Check Mate", which involved lobbying international bankers to side with them against Zuma and the Guptas.
"Assuming that this is the text of the report... it is an utterly shoddy and amateurish piece of work. It is difficult to understand how anyone could have taken it seriously, still less relied on it... yet it appears that the President relied on this report for his decision. This ... is the very height of irrationality."
The DA "invites" Zuma to tell the court whether or not he relied on the report when making his decision. If he does not, the DA is asking the court to infer that he did rely on the report.
The DA is in a catch-22 situation, here, because it must provide the court with evidence as to why Zuma's decision should be overturned. But it cannot do this, because Zuma himself has not given any reasons for firing Gordhan and Jonas.
The DA is therefore hoping that the court will accept its media reports as evidence and no cast them aside as hearsay.
At the very least, the DA can hope that the court will allow media reports as evidence, and entertain its case. Zuma will then have to tell the court, and therefore the public, if he relied on the intelligence report to fire Gordhan and Jonas.Suggest a correction