Democratic Alliance v President of the Republic of South Africa

• Jurisdiction: South Africa
• Judge: Vally J
• Judgment Date: 09 May 2017
• Citation: 2017 (4) SA 253 (GP)
• Docket Number: 23496/2017
• Hearing Date: 04 May 2017
• Counsel: S Budlender (with M Mbikwa and L Zikalala) for the applicant.I Semenya SC (with M Sikhahane SC) for the respondent.
• Court: Gauteng Division, Pretoria

Democratic Alliance v President of the Republic of South Africa
2017 (4) SA 253 (GP)

2017 (4) SA p253

Citation	2017 (4) SA 253 (GP)
Case No	23496/2017
Court	Gauteng Division, Pretoria
Judge	Vally J
Heard	May 4, 2017
Judgment	May 9, 2017
Counsel	S Budlender (with M Mbikwa and L Zikalala) for the applicant.; I Semenya SC (with M Sikhahane SC) for the respondent.

Flynote : Sleutelwoorde E

Constitutional law — State President — Prerogatives — Appointment and dismissal of ministers — Review — Whether President obliged to furnish record F of and reasons for decisions called for under Uniform Rule 53(1)(b) — Constitution, s 91(2).

Review — Procedure — Furnishing of record of and reasons for decision in terms of rule 53(1)(b) of Uniform Rules — Applicable mutatis mutandis to review of executive decisions — Applicant for review of President's decisions G to dismiss and replace ministers therefore entitled to utilise rule 53(1)(b) to obtain reasons for and record of such decisions.

Headnote : Kopnota

The President's decisions to dismiss and replace a minister and a deputy minister formed the subject-matter of urgent review proceedings launched by the H applicant, a political party (the DA), to have the said decisions declared unconstitutional and invalid and set aside. The present case concerned the DA's application for an interlocutory order that the President furnish the record and reasons for his decision called for under Uniform Rule 53(1)(b) in the main review proceedings.

Rule 53(1)(b), quoted in full at [6], provides that an applicant for review of a I 'decision or proceedings of any inferior court and of any tribunal, board or officer performing judicial, quasi-judicial or administrative functions', may call upon 'the magistrate, presiding officer, chairperson or officer, as the case may be', to within 15 days file the reasons and record sought to be reviewed with the registrar and either furnish it to the applicant or inform the applicant that it has been filed with the registrar. J

2017 (4) SA p254

It A was not disputed that the impugned executive decisions were subject to judicial review of their rationality, but the President contended that rule 53(1)(b) could not be used as a procedural device in such a review because the subrule did not mention, and therefore did not apply to, executive decisions. He accordingly challenged the DA's use of s 53(1)(b) to obtain the reasons for his decisions or the record that formed the basis of those B decisions, conceding only that the DA was entitled to reasons for the decisions by virtue of the doctrine of legality.

Held

Rule 53 was promulgated at a time when executive decisions were not subject to review. Subsequently, with the enactment of the Constitution and the C development of the common law since its enactment, these decisions, as the President acknowledged, were subject to review. It was so that rule 53 had not been amended to cater for this, but to decide on its applicability to a review of executive decisions it was necessary to subject it to a purposive interpretation. And the purpose of rule 53 was to facilitate applications for review. A rule 53 record was of significant value to a court — it was, as the D Constitutional Court had stated, 'an invaluable tool in the review process'. There was no logical reason not to utilise the subrule in an application to review and set aside an executive decision. The judicial exercise undertaken by the court in such a review was no different from the one undertaken in review applications of an 'inferior court, a tribunal, a board or an officer performing judicial, quasi-judicial or administrative functions'. Accordingly, E rule 53(1) should be applied, mutatis mutandis, to applications for reviewing and setting aside executive decisions (unless it can be shown that its application in a particular case would result in a failure of justice, which was not the case here). The consequence of utilising rule 53 in the main application was that the applicant was entitled to call for the President to furnish the reasons for his decisions as well as the relevant part of the record F that formed the basis upon which the decisions were taken. (Paragraphs [18] – [19], [21], [23], [30] – [31] and [33]).

Cases cited

Albutt v Centre for the Study of Violence and Reconciliation, and Others 2010 (3) SA 293 (CC) (2010 (5) BCLR 391; [2010] ZACC 4): dictum G in para [49] applied

Cape Town City v South African National Roads Authority and Others 2015 (3) SA 386 (SCA) ([2015] ZASCA 58): dictum in para [36] applied

Democratic Alliance and Others v Acting National Director of Public Prosecutions and Others H 2012 (3) SA 486 (SCA) ([2012] 2 All SA 345; 2012 (6) BCLR 613; [2012] ZASCA 15): dictum in para [37] applied

Democratic Alliance v Ethekwini Municipality 2012 (2) SA 151 (SCA) ([2011] ZASCA 221): dictum in para [21] applied

Helen Suzman Foundation v Judicial Service Commission 2017 (1) SA 367 (SCA) ([2016] ZASCA 161): dictum in para [13] applied

Jockey I Club of South Africa v Forbes 1993 (1) SA 649 (A): dictum at 660D – F applied

Minister of Defence and Military Veterans v Motau and Others 2014 (5) SA 69 (CC) (2014 (8) BCLR 930; [2014] ZACC 18): dictum in para [69] applied

Safcor Forwarding (Johannesburg) (Pty) Ltd v National Transport Commission J 1982 (3) SA 654 (A): dictum at 667F – 670A applied

2017 (4) SA p255

Turnbull-Jackson v Hibiscus Coast Municipality and Others 2014 (6) SA 592 (CC) A (2014 (11) BCLR 1310; [2014] ZACC 24): dictum in para [37] applied

United Building Society v Barkhuizen 1959 (4) SA 295 (O): dictum at 299D applied.

Legislation cited B

The Constitution, 1996, s 91(2): see Juta's Statutes of South Africa 2015/16 vol 5 at 1-960.

Rules of court cited

Uniform Rules of Court, rule 53(1)(b): see The Superior Courts Act and the Magistrates' Courts Act and Rules (2016) at 79. C

Case Information

S Budlender (with M Mbikwa and L Zikalala) for the applicant.

I Semenya SC (with M Sikhahane SC) for the respondent.

Reasons for granting an interlocutory order compelling compliance with Uniform Rule 53(1) in main application for review of an executive decision. The order is at [1]. D

Judgment

Vally J:

Introduction

[1] On 4 May 2017 sitting in the urgent court I handed down an order and indicated that reasons would follow in due course. The order was in E the following terms:

'The following order is made:

1.

The matter is heard as one of urgency in terms of Rule 6(12) of the Uniform Rules of Court, and the forms and service provided for in the Rules are dispensed with.

2.

The first respondent is to dispatch to the applicant's attorneys F within five calendar days of the date of this order —

2.1

the record of all documents and electronic records (including correspondence, contracts, memoranda, advices, recommendations, evaluations and reports) that relate to the making of the decisions which are sought to be reviewed G and set aside;

2.2

the reasons for the decisions which are sought to be reviewed and set aside;

3.

The respondent is to pay the costs of this application which costs are to include those occasioned by the employment of two counsel.'

[2] These are the reasons. H

Background facts

[3] Soon after the stroke of midnight, while most residents of the country had retired for the night, the respondent (the President) announced to the populace what the applicant calls radical changes to the national executive (the Cabinet). The announcement was in the following terms: I

'I have decided to make changes to the National Executive in order to improve efficiency and effectiveness. The changes bring some younger MPs and women into the National Executive in order to benefit from their energy, experience and expertise. I have directed the new Ministers and Deputy Ministers to work tirelessly with their colleagues to bring about radical socio-economic transformation and to ensure that J

2017 (4) SA p256

Vally J

the A promise of a better life for the poor and the working class becomes a reality. The new members are the following:

Ministers

1.

Minister of Energy, Ms Mmamoloko ''Nkensani'' Kubayi;

2.

Minister of Transport, Mr Joe Maswanganyi;

3.

Minister of Finance, Mr Malusi Gigaba;

4.

B Minister of Police, Mr Fikile Mbalula;

5.

Minister of Public Works, Mr Nathi Nhleko;

6.

Minister of Sports and Recreation, Mr Thembelani Nxesi;

7.

Minister of Tourism, Ms Tokozile Xasa;

8.

Minister of Public Service and Administration, Ms Faith Muthambi;

9.

C Minister of Home Affairs, Prof Hlengiwe Mkhize;

10.

Minister of Communications, Ms Ayanda Dlodlo.

Deputy Ministers

1.

Deputy Minister of Public Service and Administration, Ms Dipuo Letsatsi-Duba;

2.

Deputy Minister of Finance, Mr Sifiso Buthelezi;

3.

D Deputy Minister of Public Enterprises, Mr Ben Martins;

4.

Deputy Minister of Arts and Culture, Ms Maggie Sotyu;

5.

Deputy Minister of Trade and Industry, Mr Gratitude Magwanishe;

6.

Deputy Minister of Communications, Ms Thandi Mahambehlala;

7.

Deputy Minister of Tourism, Ms Elizabeth Thabethe;

8.

E Deputy Minister of Police, Mr Bongani Mkongi;

9.

Deputy Minister of Telecommunications and Postal Services, Ms Stella Ndabeni-Abrahams;

10.

Deputy Minister of Small Business Development, Ms Nomathemba November.

I wish to extend my gratitude to the outgoing Ministers and Deputy F Ministers for their service to the country. I also wish the new Ministers and Deputy Ministers the best in their new responsibilities.'

[4] The announcement essentially revealed that the President had taken decisions to, with immediate effect, dismiss some ministers and deputy ministers and replace them with...