President of the Republic of South Africa v Democratic Alliance and Others

• Jurisdiction: South Africa
• Judge: Mogoeng CJ, Cameron J, Froneman J, Jafta J, Khampepe J, Ledwaba AJ, Madlanga J, Mhlantla J, Nicholls AJ and Theron J
• Judgment Date: 18 September 2019
• Hearing Date: 18 September 2019
• Docket Number: CCT 159/18 [2019] ZACC 35
• Citation: 2020 (1) SA 428 (CC)
• Court: Constitutional Court
• Counsel: IAM Semenya SC (with A Stein) for the applicant. S Budlender (with L Zikalala) for the first respondent.

Mogoeng CJ (Cameron J, Froneman J, Khampepe J, Ledwaba AJ, Madlanga J, Mhlantla J and Theron J concurring):

Introduction

[1] Can the decision of the President of the Republic of South Africa to appoint and dismiss a minister and his deputy be reviewed and set aside? Is the President under a rule 53 of the Uniform Rules of Court [1] obligation to disclose the reasons for relieving cabinet ministers and their deputies of their duties or should the arguably raw political character of that decision perhaps exempt her from doing so?

[2] The first question would have been answered fully, but was not, because the application that would have created the platform for doing so was withdrawn. The second was, in a way, answered affirmatively in an interlocutory application, the outcome of which is sought to be challenged before this court. But, no regard was had to the distinctly political nature of those appointments or dismissals.

[3] We thus have to grapple with the question of whether it is in the interests of justice to grant leave to appeal against that order directing the President to disclose the reasons, as well as the relevant part of the record that forms the basis, for the decision to relieve a minister and a deputy of their constitutional responsibilities notwithstanding the mootness of the matter.

Background

[4] On 30 March 2017 President Jacob Zuma announced changes to his cabinet. Several ministers and deputy ministers, including the then Minister of Finance, Pravin Gordhan, and his Deputy, Mcebisi Jonas, were relieved of their ministerial duties. In came Minister Malusi Gigaba and Deputy Minister Sifiso Buthelezi. On the same day, the Presidency issued a statement which stated the reasons for the reshuffle.

Mogoeng CJ (Cameron J, Froneman J, Khampepe J, Ledwaba AJ, Madlanga J, Mhlantla J and Theron J concurring)

[5] Four days later, the Democratic Alliance launched an urgent review application to set aside the President's decision in the High Court of South Africa, Gauteng Division, Pretoria. The grounds, therefore, were that his decision was unlawful, unconstitutional and invalid. But, irrationality was the overarching basis. And, that application was brought in terms of rule 53.

[6] The record of the proceedings that presumably culminated in the impugned decision and the reasons for the decision were required within certain time frames, set by the Democratic Alliance's legal team. When several attempts to have the reasons and record filed in terms of the truncated rule 53 time frames failed, the Democratic Alliance brought an interlocutory application to have the President compelled to deliver them.

[7] The President opposed the application. While conceding that the President's decision to reshuffle the cabinet is required to be rational, it was, however, contended that rule 53 does not apply to that executive decision and as a result the relief sought by the Democratic Alliance was not competent. His contention was that legality is the correct basis on which to review that decision. But the order was granted on the basis that rule 53, purposively interpreted, applies to executive decisions and since the appointment or removal of ministers and deputy ministers in terms of ss 91(2) and 93(1) of the Constitution constitutes an executive function, it too fell within the scope of that rule. The order reads in relevant part as follows:

'2.

The [President] is to dispatch to the [Democratic Alliance's] attorneys within five court 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 and set aside;

2.2

the reasons for these decisions which are sought to be reviewed and set aside.' [2]

[8] Aggrieved by this decision, the President applied for and was granted leave to appeal to the Supreme Court of Appeal. While the appeal was pending, President Jacob Zuma resigned and was replaced with President Cyril Ramaphosa. And Minister Gigaba and Deputy Minister Buthelezi were removed from the finance portfolio. Mr Pravin Gordhan was appointed to the Public Enterprises Portfolio, all of which inferentially seemed to address the source of the Democratic Alliance's dissatisfaction. As a result, the parties withdrew the review application by agreement.

[9] The Supreme Court of Appeal was informed of that development. It then enquired of the parties whether the appeal against the interlocutory order should still be proceeded with, seeing that the review

Mogoeng CJ (Cameron J, Froneman J, Khampepe J, Ledwaba AJ, Madlanga J, Mhlantla J and Theron J concurring)

application, which is foundational to the very existence of that order, had ceased to exist.

[10] The Democratic Alliance said it was not necessary to proceed with the appeal by reason of its mootness whereas the President, while conceding mootness, held a different view. He contended that in breach of the doctrine of separation of powers, the High Court has extended the scope of rule 53 to executive actions, which amounts to a usurpation of the powers of the Rules Board.

[11] In response to the President's contention, the Supreme Court of Appeal held that —

'(t)he correct approach is that the task of developing the rules is best left to the Rules Board. This court has pronounced on this position.' [3]

[12] After quoting quite generously from Absa Bank [4] the court went on to say:

'There is thus no compelling reason why this court should exercise its discretion, absent objective facts, to conclusively determine the ambit of rule 53 when the Rules Board is mandated to do so. Interesting as the debate may be, this court should not be tempted to decide an issue that may be of academic interest and the decision sought will have no practical effect or result.

. . .

To sum up, the question of the High Court having established a precedent is not supported by authority. The decision in Van Zyl [5] has put paid to that argument. Similarly, defining the ambit or scope of the applicability of rule 53 to executive functions and/or decisions, falls, as correctly argued by the [President], within the terrain of the Rules Board. I therefore conclude that for reasons stated, the relief sought by the appellant will not have any practical effect or result. The appeal must therefore be dismissed.' [6]

[13] The President was just as unhappy with this outcome. As a result, he has approached this court with an application for leave to appeal.

Mootness

[14] The appropriate starting point in dealing with mootness is s 16(2)(a)(i) of the Superior Courts Act. [7] It provides:

'When at the hearing of an appeal the issues are of such a nature that the decision sought will have no practical effect or result, the appeal may be dismissed on this ground alone.'

Mogoeng CJ (Cameron J, Froneman J, Khampepe J, Ledwaba AJ, Madlanga J, Mhlantla J and Theron J concurring)

[15] The President has 'concede[d] that in light of the withdrawal of the main proceedings, the order of Vally J no longer has any practical effect between the parties and has become academic'. The Democratic Alliance agrees that the effect of the withdrawal of the review application is that the interlocutory order 'cannot be enforced and ceases to have any effect'.

[16] These positions not only accord with the mootness provisions of the Superior Courts Act but are also informed by our jurisprudence. For, even this court has previously said that where issues are of such a nature that the decisions sought will have no practical effect or result, the appeal may be dismissed on this ground alone.

[17] This would ordinarily put an end to this application. But, this court has the discretionary power to entertain even admittedly moot issues. In Langeberg we said that we have —

'a discretion to decide issues on appeal even if they no longer present existing or live controversies. That discretion must be exercised according to what the interests of justice require.' [8]

[18] And in Shuttleworth we said —

'to the extent that it may be argued that this dispute is moot . . . this court has a discretion whether to hear the matter. Mootness does not, in and of itself, bar this court from hearing this dispute. Instead, it is the interests of justice that dictate whether we should hear the matter.' [9]

[19] It is only when the constitutional threshold requirement for entertaining moot applications is met, that the President's application would be allowed. And that is the interests of justice standard. [10] The question then arises whether it is in the interests of justice for this court, in the exercise of its discretion, to entertain the appeal against the admittedly moot interlocutory order.

Interests of justice

[20] Several bases have surfaced for possibly breaking through the veil of mootness to decide the appeal.

[21] The President still contends that —

(a)

extending the scope of rule 53 to executive functions is an impermissible encroachment into the executive domain, more specifically the exclusive terrain of the Rules Board;

(b)

it is a ground-breaking development or a novelty; and

(c)

there is a need for certainty in relation to the obligation to disclose reasons for future cabinet reshuffles and the relevant part of

Mogoeng CJ (Cameron J, Froneman J, Khampepe J, Ledwaba AJ, Madlanga J, Mhlantla J and Theron J concurring)

the record that formed the basis upon which such decisions were taken.

[22] In opposition, the Democratic Alliance argues that —

(a)

rule 53 applies to all executive actions;

(b)

this court would have to pronounce on the merits to decide the issue before us;

(c)

this being an application for leave to appeal against an interlocutory order, it would be most...