ZACC 35
Date of Hearing: 14 February 2019
Judgement Date: 28 September 2019
Post Judgment Media Summary
The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.
On Wednesday, 18 September 2019 at 10h00 the Constitutional Court handed down a judgment on appeal from the Supreme Court of Appeal, concerning whether the President of the Republic of South Africa is under a legal obligation to disclose reasons for, and the record of the proceedings relating to, the dismissal of Ministers and Deputy Ministers.
On 30 March 2017 President Jacob Zuma announced changes to his Cabinet, in terms of which several Ministers and Deputy Ministers, including the then Minister of Finance, Pravin Gordhan, and his Deputy, Mcebisi Jonas, were relieved of their ministerial duties. On 4 April 2017, the Democratic Alliance (DA) launched an urgent application in the High Court of South Africa, Gauteng Division, Pretoria (High Court) seeking to review and set aside this decision and in terms of rule 53 of the Uniform Rules of Court, seeking the President’s reasons for and the record relating to the dismissals. When the President failed to make the record available to them, the DA applied for an interlocutory order compelling the President to do so.
The High Court granted the order directing the President to provide the DA with the record and reasons for the dismissals. The President then applied for and was granted leave to appeal to the Supreme Court of Appeal (SCA). While the appeal was pending, President Jacob Zuma resigned and was replaced by President Cyril Ramaphosa. The review application to challenge the dismissals was subsequently withdrawn by both parties, rendering the pending application for leave to appeal moot. Before the SCA, the DA argued that it was not necessary to proceed with the appeal by reason of its mootness, whereas the President contended that the High Court had extended the scope of rule 53 to executive actions which amounted to a usurpation of the powers of the Rules Board. The appeal was dismissed by the SCA on the basis that the relief sought would have no practical effect. The President then approached the Constitutional Court to provide clarity on the law regarding the applicability of rule 53 on executive decisions.
In a majority judgment penned by Mogoeng CJ (with Cameron J, Froneman J, Khampepe J, Ledwaba AJ, Madlanga J, Mhlantla J, Nicholls AJ and Theron J concurring), the Constitutional Court held that it is not in the interests of justice to grant leave to appeal, not only because the issue is moot, but also because the order sought to be appealed against is interlocutory in character. The majority judgment concluded that it is ordinarily not in the interests of justice to entertain an appeal against an interlocutory order. In the result, the application for leave to appeal was dismissed.
The second judgment penned by, Jafta J agrees with the majority judgment that the matter between the President and the DA is moot, but finds that it is in the interests of justice to interpret rule 53 for guidance of future cases. In finding that it is in the interests of justice to hear this matter, the second judgment holds that a judgment of this Court would have a practical effect on the President and any other party who wishes to review an executive decision. The second judgment further holds that incorrect statements of law in the High Court judgment also favour the adjudication of this matter. The second judgment further holds that this matter is of great importance to the public not only because it involves a challenge to the appointment or dismissal from Cabinet that governs the country, but also for the need to clarify procedural rights of a party who wishes to impugn these types of decisions.
On the merits, the second judgment holds that the interpretation of rule 53 requires a look at the language of the rule; the context in which the rule appears; its purpose; and material known to the Chief Justice in 1965 when the rules were made.
The second judgment concludes that rule 53 does not apply to the review of decisions to appoint or dismiss Ministers from Cabinet. The second judgment would grant leave to appeal and uphold the appeal.
The Full judgment here