Mncwabe v President of the Republic of South Africa and others

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Zondo CJ, Kollapen J, Madlanga J, Majiedt J, Makgoka AJ, Mathopo J, Potterill AJ, Rogers J and Theron J
• Judgment Date: 24 August 2023
• Citation: 2023 JDR 3058 (CC)
• Hearing Date: 07 February 2023
• Docket Number: CCT 102/22
• Court: Constitutional Court

Majiedt J (Kollapen J, Mathopo J, Rogers J, Theron J and Potterill AJ concurring):

Introduction

[1]

This Court has repeatedly emphasised the important role occupied by the National Prosecuting Authority in the administration of justice in our young democracy. [1] Axiomatically, the leadership of the National Prosecuting Authority at both national and provincial level is crucial in fulfilling this important role. The two cases, which were heard together, concern the appointment of two provincial Directors of Public Prosecutions (DPPs). The cases have the same legal issues, similar factual matrices and were also heard together in the High Court of South Africa, Gauteng Division, Pretoria, where substantially the same relief was sought by both applicants. This judgment relates to both cases. Leave to appeal is sought against the decisions of the High Court as well as the Supreme Court of Appeal dismissing the applicants’

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Majiedt J (Kollapen J, Mathopo J, Rogers J, Theron J and Potterill AJ concurring)

review applications. [2] In addition, there are also applications for direct access to review and set aside President Ramaphosa’s decisions to fill the vacancies in the National Prosecuting Authority implicated by the two cases.

Parties

[2]

The applicants are Mr Ron Simphiwe Mncwabe, an admitted advocate, employed as an Additional Magistrate at Tsakane Magistrate’s Court, Ekurhuleni, and Mr Khulekani Raymond Mathenjwa, an admitted advocate and the Senior Deputy Director of Public Prosecutions in the National Prosecuting Authority, Gauteng Local Division.

[3]

The common respondents are the President of the Republic of South Africa, the former Minister of Justice and Correctional Services and the National Director of Public Prosecutions (NDPP). They are the first, second and third respondents respectively.

[4]

In the Mncwabe application, the fourth respondent is Mr Livingstone Mzukisi Sakata, the current DPP of the Northern Cape. Mr Sakata was appointed to that position by President Ramaphosa, with effect from 1 April 2022.

[5]

In the Mathenjwa application, the fourth respondent is Mr Shaun Abrahams, a former NDPP. The fifth respondent is the National Prosecuting Authority. The sixth respondent is Ms Nkebe Rebecca Kanyane, the current DPP of Mpumalanga. Ms Kanyane was appointed to that position by President Ramaphosa, also with effect from 1 April 2022.

Background

[6]

During the early part of 2018, prior to his resignation from office, former President Zuma took steps to appoint five senior National Prosecuting Authority

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members as either DPPs or Special DPPs in various National Prosecuting Authority offices. [3] The appointments were recorded in official Presidential Minutes, all dated 1 February 2018. The news appears to have reached certain appointees, but, as will be discussed in detail later, not directly through former President Zuma or his office. The appointments were not announced to the public. On 14 February 2018, former President Zuma resigned from office and President Ramaphosa assumed office. Soon after taking office, President Ramaphosa directed his attention to these appointments.

[7]

The applicants’ appointments were recorded in the similarly worded Presidential Minutes 10 of 2018 (regarding Mr Mathenjwa) and 18 of 2018 (regarding Mr Mncwabe). During March 2019, in Presidential Minutes 67 and 69 of 2019 respectively, both dated 11 March 2019, President Ramaphosa decided to revoke, [4] amongst others, these two appointments. Aggrieved, the applicants separately approached the High Court to review and set aside President Ramaphosa’s decision. As stated, the matters were heard together in the High Court.

[8]

The central issue before the High Court was whether President Ramaphosa was entitled to reverse the initial decision of former President Zuma to appoint the applicants. That question entailed the functus officio principle. [5] It required a determination of two main issues: first, whether section 13(1)(a) of the National Prosecuting Authority Act [6] (NPA Act) was complied with prior to the notification of the appointments. Second, it required a determination whether personal notification, on its own, was sufficient or whether, in addition to personal notification, there had to be public notification.

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[9]

The High Court dismissed the review application. In holding that the functus officio principle does not apply, the High Court relied on SARFU III, [7] where it was held that the appointment of a commission of inquiry only takes place when the President’s decision is translated into an overt act, through public notification. The High Court held that, absent public notification, the decision to appoint was not final and therefore President Zuma was not functus officio and he (or his successor) still had the right to change his mind regarding the appointment. In light of its conclusion on this score, the Court turned to the applicants’ additional challenges.

[10]

After analysing the arguments advanced, the High Court ruled against the applicants in respect of their further challenges against the impugned decision. These challenges were based on President Ramaphosa’s alleged non-adherence to the audi alteram partem (hear the other side) principle and the alleged irrationality of the decision.

[11]

The High Court further dismissed the applications for leave to appeal by both applicants as it took the view that there were no reasonable prospects that another court would come to a different conclusion.

[12]

The Supreme Court of Appeal dismissed the applicants’ leave to appeal applications on a similar ground and held that there was no further reason why an appeal should be heard. Their applications for reconsideration to the President of that Court in terms of section 17(2)(f) of the Superior Courts Act [8] met the same fate.

Factual matrix

[13]

Further elucidation of the facts is required for a proper understanding of the central issues. During mid-2017, Mr Mncwabe received an unsolicited call from the personal assistant of Mr Shaun Abrahams, the then NDPP, requesting Mr Mncwabe’s

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curriculum vitae (CV). Mr Mncwabe complied with the request and promptly furnished his CV. Eight months after sending his CV, during or about February 2018, Mr Abrahams notified Mr Mncwabe, via a telephone call and WhatsApp message, that he had been appointed as the DPP for the Northern Cape. Mr Mncwabe was furnished with a copy of Presidential Minute 18 of 2018, which confirmed his appointment. A soft copy of the Minute was sent on the day of notification via WhatsApp and a hard copy was sent sometime in November 2018. The Minute reads:

“Under section 13(1)(a), read with sections 6(2) and 9(1) of the National Prosecuting Authority Act, 1998 (Act No. 32 of 1998), I, Jacob Gedleyihlekisa Zuma, after consulting with the Minister for Justice and Correctional Services and the National Director of Public Prosecutions, hereby appoint Adv Ron Simphiwe Mncwabe as Director of Public Prosecutions: Northern Cape Division of the High Court, Kimberley, with effect from 1 February 2018. Given under my Hand at Pretoria on this 01 day of February Two Thousand and Eighteen.”

[14]

Mr Mncwabe was thus notified of his appointment during the same month that former President Zuma resigned from office. Following the notification received from the then NDPP, Mr Mncwabe’s appointment was never publicly announced. On 13 August 2018, this Court in Nxasana [9] confirmed, among other things, a declaration that Mr Abrahams’ appointment as NDPP was invalid without affecting the validity of past decisions and acts by Mr Abrahams in his official capacity. On 1 February 2019, Ms Shamila Batohi assumed office as the new NDPP. On 18 March 2019, Ms Batohi’s office conveyed to Mr Mncwabe that his appointment had been revoked by President Ramaphosa.

[15]

Mr Mncwabe took issue with this decision and approached the High Court for relief (Mncwabe application).

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[16]

Mr Mathenjwa’s narrative mirrors that of Mr Mncwabe. During June 2017, Mr Abrahams requested Mr Mathenjwa to furnish him with a copy of his CV. On 5 February 2018, Mr Abrahams informed Mr Mathenjwa that he had been promoted and elevated by former President Zuma to the office of DPP for Mpumalanga and that there was a Presidential Minute to confirm this appointment. Mr Mathenjwa’s appointment was recorded in Presidential Minute 10 of 2018. Like Mr Mncwabe, Mr Mathenjwa’s appointment was never publicly announced following the notification received from Mr Abrahams. On 12 March 2019, Mr Mathenjwa had a meeting with Ms Batohi, who advised him that the executive was of the view that his appointment was never finalised. On 19 March 2019, Mr Mathenjwa was informed by the then Minister of Justice that President Ramaphosa had revoked his appointment. This was done by Presidential Minute 67 of 2019. It reads the same as Presidential Minute 69 of 2019. Mr Mathenjwa also turned to the High Court seeking the relief adumbrated earlier (Mathenjwa application).

[17]

In the High Court, Mr Abrahams filed an explanatory affidavit as the fourth respondent in the Mathenjwa application. He was not joined as a respondent in the Mncwabe application but, by informal agreement between the parties, that affidavit formed part of the papers in both the Mncwabe and Mathenjwa applications. The President’s affidavit in answer to Mr Abrahams’ explanatory affidavit was filed in the Mathenjwa...