Executive decisions considered: Interests of justice

“Rule 53 of the Uniform Rules of Court — application to compel — Executive decisions to appoint/remove Cabinet Ministers — mootness — interests of justice”

Note: Footnotes omitted and emphasis added

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 (rule 53) 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have been answered fully, but was not, because the application that would have created the platform for doing so was withdrawn.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 for 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 (Minister Gigaba) and Deputy Minister Sifiso Buthelezi (Deputy Minister Buthelezi). On the same day, the Presidency issued a statement which stated the reasons for the reshuffle.

[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 (High Court).

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 timeframes, 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 timeframes 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 sections 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.”

[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 by 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 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.”

[12] After quoting quite generously from Absa Bank, 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 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.”

[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 section 16(2)(a)(i) of the Superior Courts Act. 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.”

[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.”

[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.”

[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. 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 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 inappropriate to decide the merits; and
• (d) entertaining this matter would require this Court to interfere with the discretion exercised by the Supreme Court of Appeal in relation to entertaining most of these questions.

[23] 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.

[24] The Democratic Alliance’s assertion relating to the applicability of rule 53 to all executive functions requires some special attention. An indication was, as the Democratic Alliance contends, indeed given in OUTA that in an application believed to be “in the heartland of executive-government function and domain” concerning “policy-laden and polycentric decision-making” a record would have to be produced in terms of rule 53.

And only in a footnote did Moseneke DCJ say:

“Rule 53 of the Uniform Rules of Court provides that in all applications for review an applicant should call upon the decision-maker to show cause why a decision or proceedings should not be reviewed and corrected or set aside, and to despatch the record of the proceedings sought to be reviewed together with its reasons. Once such a record is made available to the applicant he may make copies and within ten days bring an application to amend, add to or vary the terms of his review application and supplement the supporting affidavit.”

[25] It must be noted that the applicability of rule 53 is alluded to in a footnote precisely because we were not called upon to decide whether every executive decision, including those that are seemingly mired in hard-core politics, fall within the ambit of rule 53. The issue was not even debated.

To conclude, as does the Democratic Alliance, that OUTA, particularly the footnote, is dispositive of the question whether rule 53 applies to all executive decisions, would arguably be to read much more into the footnote than is justifiable. And it bears repetition that the Court was not called upon to decide whether rule 53 applies, hence the relegation of the rule 53 issue to a footnote. The same caution probably extends to the reliance sought to be placed on ARMSA and Van Zyl.

[26] That said, 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.

[27] To begin with, this is an application for leave to appeal against an interlocutory order and

“generally, it is not in the interests of justice for interlocutory relief to be subject to appeal as this would defeat the very purpose of that relief”.

This requires a clarificatory context. What the President has applied for is leave to appeal against an interlocutory order. That order directed him to furnish reasons for and the record of the proceedings that preceded the decision to dismiss certain Ministers.

The question to be answered is whether he may be granted leave in spite of mootness. Mootness does not have the magical effect of somehow rendering irrelevant, factors that would ordinarily have been considered in an application for leave to appeal against an interlocutory order. Mootness does not lessen the burden for the applicant, it compounds it.

[28] The odds are all the more stacked against entertaining the appeal here because, unlike in almost all other matters where leave to appeal against an interlocutory order was sought, the main application that gave birth to this interlocutory order has been withdrawn by agreement between both participating parties. The reasons and the record whose disclosure that order was supposed to facilitate are no longer necessary.

And, as correctly conceded by both parties, the order is of no use or effect to any of them. In sum, the interlocutory nature of the order sought to be appealed against and its mootness combine to create a force that is fatal to the prospects of exercising our discretion in the President’s favour.

[29] Additionally, to determine whether the kind of executive decisions to which rule 53 applies or might apply include the appointment and removal of Cabinet Members or Deputy Ministers, is an exercise that is inextricably interwoven with the merits. Remember, the decision initially sought to be reviewed and set aside, in terms of rule 53, was the President’s dismissal of Minister Pravin Gordhan and Deputy Minister Mcebisi Jonas.

The request for reasons and the associated record owes its appropriateness or relevance, in any court including this one, to that original challenge. The guidance the President needs for future appointments or dismissals cannot therefore be provided without proper regard to the merits and the likely political dynamics at play in decisions of that kind. The irrationality on which the main application hinged could only have been properly tested with the aid of a range of factual considerations, which are just as important to resolve the question whether rule 53 applies to Ministerial appointments or dismissals. The reach of the rationality review in relation to executive decisions located within the heartland of the Executive was not properly ventilated before us.

[30] It is my understanding that, properly contextualised, the President’s thirst for clarity and certainty would not be quenched by a judgment that merely resolves the question whether rule 53 is wide enough to apply to executive decisions. It is not a legal technical knockout that he needs – but an assurance that he has the latitude or space to exercise his powers freely. He strikes me as desiring a decision that resolves the question whether he is under any circumstances obliged to disclose the reasons for appointing or dismissing Ministers and Deputy Ministers regardless of a legal instrument that might be sought to be used to cause him to do so – rule 53 or legality.

[31] This may be inferred from some of the statements made on his behalf, in particular this one:

“As will be evidenced in the answering affidavit of the President, in his response to your application to compel the delivery of the records, the decision to reshuffle the Cabinet as he did was informed by his political judgement that the reshuffle will best deliver on the mandate the African National Congress received from the majority of the electorate in the last general elections.” (Emphasis added.)

[32] This seems to suggest that this application relates to an executive decision of the kind this Court has not grappled with before. That this Court might have readily accepted, in a footnote, the reviewability of apparently all executive decisions on the basis of rationality may not necessarily serve as authority for the contention that rule 53 applies to all executive actions.

The non-binding concession by the President that the decision to reshuffle Cabinet has to be rational and is therefore reviewable under legality is not dispositive of this complex legal issue.

This Court must satisfy itself that our adoption of that concession as law, is in sync with the jurisprudential trajectory we ought to follow. A proper ventilation of the issues that would inform the decision to extend the applicability of rule 53 or a shade of rationality even to this particular executive decision appears to be necessary.

[33] It thus seems to be inescapable that the merits would have to be traversed to do justice to issues relating to the guidance for future cases that the President yearns for. The nature and complexity of the kind of decision initially sought to be challenged by way of review must first be closely examined. We would probably have to dig deeper into the political character of sections 91(2) and 93(1) decisions to address the President’s concern properly. And potentially serious separation of powers issues might also have to be wrestled with.

[34] What then is in the interests of justice here – to grant or refuse leave? Again, interlocutory orders are ordinarily not appealable even in circumstances where the main application has not been withdrawn. Here, the main application to which the interlocutory order owes its life has been withdrawn. And it is in the main application that the reviewability of the President’s decision and the merits of the application would have been decided.

The merits do not merely relate to a matter that is “in the heartland of executive-government function and domain” in connection with “policy-laden and polycentric decision-making”, they also seem to relate to a constitutionally-ordained political decision. OUTA was about an executive decision to introduce e-tolls. On the contrary, this matter relates to the appointment and removal of Cabinet Members. There is a yawning gap between the true nature or character of each of these decisions. We would probably derive a lot of benefit from a thorough-going and discrete engagement with counsel on this specific issue before a conclusion is reached that legality or rule 53 applies to sections 91(2) and 93(1) decisions.

[35] This Court cannot decide the merits that the High Court and the Supreme Court of Appeal did not decide. The President himself says

“the order of Vally J no longer has any practical effect between the parties and has become academic”.

This Court is thus being asked to advise or guide the President. That is the only real purpose to be served by entertaining this appeal. And courts should be loath to fulfil an advisory role, particularly for the benefit of those who have dependable advice abundantly available to them and in circumstances where no actual purpose would be served by that decision, now. Entertaining this application requires that we expend judicial resources that are already in short supply especially at this level. Frugality is therefore called for here.

Conclusion

[36] When the President’s decision to appoint or dismiss is impugned in the future and she is asked for information that is similar to that asked for in this matter, it would then be open to her to confront that challenge squarely. Only then may we, if the matter ultimately gets to us, traverse the merits that would allow us to provide the guidance now asked for. This is not a case where the interests of justice require that we exercise our discretion to decide a moot issue. As indicated, this is so because the order is interlocutory; the interests of justice are ordinarily against entertaining appeals against interlocutory orders; the main application has been withdrawn and the merits of that withdrawn application are essential for the proper determination of the issues in relation to which the President requires guidance.

[37] It can thus be rightly said that this is an application that―

“raises no discrete legal point which does not involve detailed consideration of facts and no similar cases exist or are anticipated, so that the issue will most likely need to be resolved in the near future.”

[38] There is no discrete issue raised here. Detailed factual considerations would have to be traversed to do justice to this matter. And the President stands to suffer no harm should the determination of the issue be left to a future challenge to the appointments or dismissals of Cabinet Members. A refusal to exercise our discretion to address a moot interlocutory question would thus not be a lost opportunity, necessary to address foreseeably imminent challenges. This is not one of those challenges to presidential power that are likely to arise as frequently as is apparently feared. It didn’t for the past 25 years of our constitutional democracy and is most unlikely to arise any time soon.

[39] But, even if the request for reasons for the appointment or dismissal is reasonably anticipated, that would then present the President with an appropriate opportunity to mount a proper challenge to the applicability of rule 53 to the exercise of the constitutional power to appoint or dismiss Members of Cabinet. The issue is thus best left to be resolved on another day.

[40] In the result, the application for leave to appeal is dismissed with costs.

Order

[41] In the result, the following order is made:

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.