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

• Jurisdiction: South Africa

President of the Republic of South Africa v Democratic Alliance and Others
2020 (1) SA 428 (CC)

2020 (1) SA p428

Citation	2020 (1) SA 428 (CC)
Case No	CCT 159/18; [2019] ZACC 35
Court	Constitutional Court
Judge	Mogoeng CJ, Cameron J, Froneman J, Jafta J, Khampepe J, Ledwaba AJ, Madlanga J, Mhlantla J, Nicholls AJ and Theron J
Heard	September 18, 2019
Judgment	September 18, 2019
Counsel	IAM Semenya SC (with A Stein) for the applicant.; S Budlender (with L Zikalala) for the first respondent.

Flynote : Sleutelwoorde

Appeal — To Constitutional Court — Discretion of court to decide moot issue arising from interlocutory order — Interests of justice — Main application withdrawn and its merits essential for proper determination of issues — Court declining to entertain appeal.

President — Powers — To appoint and dismiss cabinet ministers — Review — Applicability of rule 53 of Uniform Rules — Issue moot and interlocutory — Constitutional Court refusing to exercise discretion to entertain it on appeal — Semble: While executive decisions generally reviewable under principle of legality and rule 53, applicability of rule 53 to cabinet appointments requiring detailed consideration — Constitution, ss 91(2) and 93(1); Uniform Rules of Court, rule 53.

Headnote : Kopnota

The March 2017 decision of former President Zuma to use his powers under ss 91(2) and 93(1) of the Constitution to reshuffle his cabinet led to a High Court application by the respondent political party (the DA) to have the decision declared unconstitutional and invalid. During the course of proceedings the DA applied for an interlocutory order requiring the President to furnish the record and reasons for his decision under rule 53(1)(b) of the Uniform Rules of Court. The High Court granted the interlocutory application on the basis that executive functions like the appointment and removal of ministers fell within the scope of rule 53. [*] The President was granted leave to appeal the High Court's interlocutory ruling to the Supreme Court of Appeal, but while the appeal was pending the President resigned and was replaced with the current President. The DA then withdrew its main application. The presidency however persisted with the appeal against the interlocutory ruling on the ground that the High Court's alleged extension of the scope of rule 53 breached the doctrine of separation of powers. The SCA dismissed the appeal on the ground that the withdrawal of the main application meant that there was no reason for it to determine the ambit of rule 53: the matter was moot. [†] The presidency, arguing that the applicability of rule 53 would nevertheless have a bearing on future decisions to appoint or dismiss cabinet members, applied for leave to appeal to the Constitutional Court.

Held per Mogoeng CJ for the majority

The court had an established discretion to entertain moot issues if it was in the interests of justice, but it was not in the interests of justice this time because (i) the court was dealing with an appeal against an interlocutory order; and (ii) the merits of the withdrawn application were essential for the proper

2020 (1) SA p429

determination of the issue of the applicability of rule 53 (see [17] – [19], [27] – [28], [36] – [37]). While it could be assumed that executive decisions were, in general, reviewable either under the principle of legality or rule 53, in the present case the lack of prospects of the court exercising its discretion in the President's favour meant that the rule 53 issue — which required detailed consideration — was best left for another day. (See [26], [28], [34] – [39].) Appeal dismissed.

Held per Jafta J for the minority

The appeal should be upheld (see [88]). While the matter between President and the DA was indeed moot, it was nevertheless in the interests of justice to interpret rule 53 for guidance in future cases (see [42]). The proposition that the President should wait for a similar review in the future and then raise the issue of the applicability of rule 53 was unacceptable since it would put the President at odds with his duty to uphold the Constitution and all law (see [64]).

Properly construed, rule 53 applied to bodies like inferior courts, boards and tribunals, not to the review of decisions to appoint or dismiss cabinet members. The question whether those decisions were subject to review did not arise at present and had to be left for determination in appropriate proceedings (see [83], [86]).

Cases cited

AAA Investments (Pty) Ltd v Micro Finance Regulatory Council and Another 2007 (1) SA 343 (CC) (2006 (11) BCLR 1255; [2006] ZACC 9): referred to

Absa Bank Ltd v Van Rensburg and Another 2014 (4) SA 626 (SCA) ([2014] ZASCA 34): referred to

Association of Regional Magistrates of Southern Africa v President of the Republic of South Africa and Others 2013 (7) BCLR 762 (CC) ([2013] ZACC 13): distinguished

Bertie van Zyl (Pty) Ltd and Another v Minister for Safety and Security and Others 2010 (2) SA 181 (CC) (2009 (10) BCLR 978; [2009] ZACC 11): referred to

CA Focus CC v Village Freezer t/a Ashmel Spar 2013 (6) SA 549 (SCA) ([2013] ZASCA 136): referred to

Cool Ideas 1186 CC v Hubbard and Another 2014 (4) SA 474 (CC) (2014 (8) BCLR 869; [2014] ZACC 16): referred to

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

Democratic Alliance v Speaker, National Assembly and Others 2016 (3) SA 487 (CC) (2016 (5) BCLR 577; [2016] ZACC 8): referred to

Department of Land Affairs and Others v Goedgelegen Tropical Fruits (Pty) Ltd 2007 (6) SA 199 (CC) (2007 (10) BCLR 1027; [2007] ZACC 12): referred to

Director-General Department of Home Affairs and Another v Mukhamadiva 2014 (3) BCLR 306 (CC) ([2013] ZACC 47): referred to

Independent Electoral Commission v Langeberg Municipality 2001 (3) SA 925 (CC) (2001 (9) BCLR 883; [2001] ZACC 23): dictum in para [11] applied

Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors (Pty) Ltd and Others: In re Hyundai Motor Distributors (Pty) Ltd and Others v Smit NO and Others 2001 (1) SA 545 (CC) (2000 (2) SACR 349; 2000 (10) BCLR 1079; [2000] ZACC 12): referred to

2020 (1) SA p430

Kruger and Another v Minister of Correctional Services 1995 (2) SA 803 (T): referred to

Kubyana v Standard Bank of South Africa Ltd 2014 (3) SA 56 (CC) (2014 (4) BCLR 400; [2014] ZACC 1): referred to

Legal Aid South Africa v Magidiwana and Others 2015 (2) SA 568 (SCA) ([2014] 4 All SA 570; [2014] ZASCA 141): dictum in para [31] applied

Makate v Vodacom (Pty) Ltd 2016 (4) SA 121 (CC) (2016 (6) BCLR 709; [2016] ZACC 13): referred to

Mathale v Linda and Another 2016 (2) SA 461 (CC) (2016 (2) BCLR 226; [2015] ZACC 38): dictum in para [25] applied

MEC for Education, KwaZulu-Natal, and Others v Pillay 2008 (1) SA 474 (CC) (2008 (2) BCLR 99; [2007] ZACC 21): referred to

Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) ([2012] 2 All SA 262; [2012] ZASCA 13): referred to

Natal Rugby Union v Gould 1999 (1) SA 432 (SCA) ([1998] 4 All SA 258; [1998] ZASCA 62): referred to

National Treasury and Others v Opposition to Urban Tolling Alliance and Others 2012 (6) SA 223 (CC) (2012 (11) BCLR 1148; [2012] ZACC 18): distinguished

Phumelela Gaming and Leisure Ltd v Gründlingh and Others 2007 (6) SA 350 (CC) (2006 (8) BCLR 883; [2006] ZACC 6): referred to

POPCRU v SACOSWU and Others 2019 (1) SA 73 (CC) (2018 (11) BCLR 1411; [2018] ZACC 24): referred to

Port Elizabeth Municipality v Smit 2002 (4) SA 241 (SCA) ([2002] ZASCA 10): referred to

President of the Republic of South Africa v Democratic Alliance [2018] ZASCA 79: confirmed on appeal

Provincial Minister for Local Government, Western Cape v Oudtshoorn Municipal Council and Others 2015 (6) SA 115 (CC) (2015 (10) BCLR 1187; [2015] ZACC 24): referred to

Rapholo v State President and Others 1993 (1) SA 680 (T): referred to

S v Zuma and Others 1995 (2) SA 642 (CC) (1995 (1) SACR 568; 1995 (4) BCLR 401; [1995] ZACC 1): referred to

Smith v Minister of Justice and Another 1991 (3) SA 336 (T): referred to

South African Reserve Bank and Another v Shuttleworth and Another 2015 (5) SA 146 (CC) (2015 (8) BCLR 959; [2015] ZACC 17): dictum in para [27] applied

Van Zyl and Others v Government of the Republic of South Africa and Others 2008 (3) SA 294 (SCA) ([2007] ZASCA 109): referred to.

Legislation cited

The Constitution, 1996, s 91(2) and s 93(1): see Juta's Statutes of South Africa 2018/19 vol 5 at 1-35.

Rules of court cited

The Uniform Rules of Court, rule 53(3): see The Superior Courts Act and the Magistrates' Courts Act and Rules (Juta 2019) at 82.

Case Information

IAM Semenya SC (with A Stein) for the applicant.

S Budlender (with L Zikalala) for the first respondent.

An application for leave to appeal against the decision of the Supreme Court of Appeal in President of the Republic of South Africa v Democratic Alliance [2018] ZASCA 79.

2020 (1) SA p431

Order

1.

Leave to appeal is granted.

2.

The appeal is dismissed.

3.

The President of the Republic of South Africa is ordered to pay costs of this application, including the costs of two counsel.

Judgment

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...