Chief Justice Mogoeng Mogoeng dismissed the President’s appeal on Wednesday against having to provide reasons and the record of proceedings when executive decisions such as Cabinet reshuffles are taken on review.

The case went to the Constitutional Court after the DA took former president Jacob Zuma’s March 2017 Cabinet reshuffle, which saw then finance minister Pravin Gordhan and his deputy Mcebisi Jonas fired, on review. As a precursor to its review application, the DA won an interlocutory order in the Pretoria High Court that said Zuma must explain why and how he decided to reshuffle his Cabinet.

Zuma, ever the believer in presidential prerogative, appealed the ruling in the Supreme Court of Appeal (SCA) but by the time the matter was heard Zuma had been replaced by Ramaphosa. The DA withdrew its application to review Zuma’s reshuffle and the SCA upheld the high court decision, largely because the review case was not proceeding and the issue had become moot.

Mogoeng penned the majority judgment and said on Wednesday that the Constitutional Court normally does not favour appeals on interlocutory orders.

“We hold that it is not in the interests of justice to grant leave, not only because the issue is moot but also because the order sought to be appealed against is interlocutory in nature and it is ordinarily not in the interests of justice to entertain an appeal against an interlocutory order,” said the chief justice.

After assuming the Presidency, Ramaphosa continued to appeal the High Court and SCA judgments because the Presidency believed they could broaden the application of rule 53, which requires tribunals, boards and other judicial and administrative bodies to provide reasons for its decisions and records of proceedings when its actions are taken on review.

The presidency argued that the High Court and SCA judgments extended rule 53 to the Presidency and infringed on the powers of the executive and Rules Board for Courts of Law.

“The withdrawal of the review application which would address the review-ability of the President’s constitutional power to appoint or dismiss ministers and deputy ministers renders it highly undesirable and it is not in the interests of justice to entertain the application,” said Mogoeng.

“This matter involves issues that are highly political in character. The nature of these issues demand a proper ventilation of facts attendant to them to do justice to those issues, much more than a mere reflection on how to construe rule 53 of the uniform rules is required,” he continued.

The SCA dismissed the Presidency’s claims that judgments from the lower courts would set a precedent, citing multiple cases where the executive has been ordered to provide its records of proceedings in decision making during a review case.

The Constitutional Court’s Justice Chris Jafta penned a minority judgment that said the court should hear the appeal because the case could have a practical effect on the President and parties who want to review executive decisions in the future.

Jafta argued that if the High Court judgment stood, the President would be faced with a difficult decision as he would be obliged to submit a record of proceedings when review applications are made in the future.

The court granted Ramaphosa leave to appeal but dismissed the appeal and ordered the Presidency to pay the cost of its opponent’s lawyers. DM