Opinionista Professor Balthazar 19 September 2019

Courts vs The Executive: Constitutional Court fails to provide judiciary with certainty

One must accept that the dispute regarding the firing by former president Jacob Zuma of his finance minister Pravin Gordhan and deputy finance minister Mcebisi Jonas was no longer a live dispute and that the merits of the Zuma decision were not decided by the High Court. However, on the face of it, the High Court judgment appears to be a significant case of judicial overreach, trenching as it does on the domain of the executive powers.

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. Zuma replaced them with minister Malusi Gigaba and deputy minister Sifiso Buthelezi. On the same day, the Presidency issued a statement which declared the reasons for the reshuffle.

Four days later, the Democratic Alliance launched an urgent review application to set aside the president’s decision in the High Court. The grounds on which the application was based were that Zuma’s decision was unlawful, unconstitutional and invalid.

But, irrationality was the overarching basis. And, that application was brought in terms of rule 53 of the High Court rules which provides for making available the record of proceedings in a case of a review.

Of relevance is Rule 53(1) which to the extent relevant reads:

All proceedings to bring under review the decision or proceedings of any inferior court and of any tribunal, board or officer performing judicial, quasi-judicial or administrative functions shall be by way of notice of motion directed and delivered by the party seeking to review such decision or proceedings to the magistrate, presiding officer or chairman of the court, tribunal or board or to the officer, as the case may be, and to all other parties affected (a) calling upon such persons to show cause why such decision or proceedings should not be reviewed and corrected or set aside.

When several attempts to have the reasons and record filed in terms of the stipulated rule 53 time frames failed, the Democratic Alliance brought an interlocutory application to have the president compelled to deliver them.

President Zuma opposed the application. The High Court upheld the application and granted the following order:

The [president] is to dispatch to the [Democratic Alliance’s] attorneys within five court days of the date of this order:

    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. The reasons for these decisions which are sought to be reviewed and set aside.”

President Ramaphosa considered that the decision of the High Court raised an important point of principle and appealed unsuccessfully to the Supreme Court of Appeal which found that the case was moot in that there were no longer any legal implications, given that a new government under Ramaphosa had been installed.

Not deterred, the president approached the Constitutional Court. Much of the basis of the decision of the majority of the Constitutional Court which dismissed the appeal turned again on mootness and the fact that the High Court had not made a final decision. However, as the President argued and Judge Chris Jafta found in his minority judgment, the decision holds major public importance in that the reasoning of the High Court appears to find that, the wording of Rule 53 notwithstanding, a decision by the president to dismiss Cabinet ministers is the subject of judicial review.

To this, Chief Justice Mogoeng said in his majority judgment:

Whether one agrees or disagrees with Vally J’s approach to the applicability of rule 53 to executive decisions of the kind involved here, he did not seek to make or amend rule 53. He sought to embark on what he referred to as a purposive interpretation of that rule. And courts are entitled to interpret laws, including rules of court. It follows that the President’s concern about separation of powers in that context is misplaced.”

The Chief Justice continued:

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 sections 91(2) and 93(1) of the Constitution constitutes an executive function, it too fell within the scope of that rule.”

One must accept that the dispute regarding the firing of minister Gordhan and deputy minister Jonas was no longer a live dispute and that the merits of the Zuma decision were not decided by the High Court. However, on the face of it, the High Court judgment appears to be a significant case of judicial overreach, trenching as it does on the domain of the executive powers.

It is for this reason that Judge Jafta had a point when he wrote:

It must be assumed, without deciding whether the principle applies to this matter, that executive decisions are generally reviewable under the principle of legality or rule 53. And the real basis for considering possible interference with the interlocutory order is therefore the need to provide guidance for future appointments or dismissals of ministers and deputies, members of the executive council and members of mayoral councils.”

The judgment of the High Court thus stands; it may be of limited persuasive authority going forward, save that the dicta cited in this column from the Chief Justice appear to be sympathetic to the approach adopted by the High Court.

It might have been hoped that the Constitutional Court would have developed a framework by which to guide the rest of the judiciary as to when the boundary of judicial supervision is overstepped in order to provide much-needed legal certainty to an increasingly fraught area of Courts vs The Executive. DM

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