Can President Jacob Zuma wiggle out of Judge Bashier Vally's ruling to produce his record of decision for firing former Finance Minister Pravin Gordhan and his deputy, Mcebisi Jonas?
Legal expert James Grant unpacked the president's not so surprising move to apply for leave to appeal the ruling and further ask the Democratic Alliance to provide the controversial 'intelligence report' before he can respond.
Vally's order, which is an interlocutory ruling, doesn't decide the main dispute and is only a procedural step along the way.
Grant said, normally, these cannot be appealed because litigation would be endless if every ruling were appealable and everything was appealed. But our law does provide for it in exceptional circumstances.
"Ultimately the test will be what is in the interests of justice, and some of the considerations are whether a significant portion of the dispute has been decided, would irreparable harm be done and is the ruling truly final," Grant said.
"Arguably, given the importance of the matter, Zuma may succeed in persuading a court that this ruling perhaps goes sufficiently deep into to the issue, would be irreparable if observed and, if final on this issue, would cause irreparable harm, and it cannot be altered."
So, Zuma may be able to overcome the hurdle.
"That does not mean Zuma will be granted leave to appeal. That is another hurdle and the ordinary rules apply there, especially that there must be reasonable prospects of success. And yes, if Zuma is denied leave by the Pretoria High Court, he may apply to the SCA – and so it goes," Grant said.
According to Grant, one of four things could happen today.
"The bottom line is Vally's order that the record is due today remains in effect despite the application for leave to appeal. The president is under a court order to provide his record of reasons today," Grant said.
- Zuma hands in his record of decision.
- Zuma is held in contempt of court if he chooses not to.
- Zuma could apply for condonation and get an extension.
- Zuma could persuade the court that it must recognise his right for the DA to produce the intelligence report and, until they do, he cannot respond. But Grant does not think that will fly in the court room.
"Even if Zuma is successful in persuading the High Court to grant him leave to appeal and to suspend the ruling that he must disclose the record, that order is suspended and he must still provide the record. The order of suspension will be suspended, until the appeal is decided," Grant said.