Functus officio doctrine: Explained and applied

Note: Footnotes omitted, emphasis added and certain personal details redacted to comply with law.

MAJIEDT J (Kollapen J, Mathopo J, Rogers J, Theron J and Potterill AJ concurring):

Introduction

[1] This Court has repeatedly emphasised the important role occupied by the National Prosecuting Authority in the administration of justice in our young democracy. Axiomatically, the leadership of the National Prosecuting Authority at both national and provincial level is crucial in fulfilling this important role. The two cases, which were heard together, concern the appointment of two provincial Directors of Public Prosecutions (DPPs). The cases have the same legal issues, similar factual matrices and were also heard together in the High Court of South Africa, Gauteng Division, Pretoria, where substantially the same relief was sought by both applicants. This judgment relates to both cases. Leave to appeal is sought against the decisions of the High Court as well as the Supreme Court of Appeal dismissing the applicants’ review applications. In addition, there are also applications for direct access to review and set aside President Ramaphosa’s decisions to fill the vacancies in the National Prosecuting Authority implicated by the two cases.

Parties

[2] The applicants are Mr Ron Simphiwe Mncwabe, an admitted advocate, employed as an Additional Magistrate at Tsakane Magistrate’s Court, Ekurhuleni, and Mr Khulekani Raymond Mathenjwa, an admitted advocate and the Senior Deputy Director of Public Prosecutions in the National Prosecuting Authority, Gauteng Local Division.

[3] The common respondents are the President of the Republic of South Africa, the former Minister of Justice and Correctional Services and the National Director of Public Prosecutions (NDPP). They are the first, second and third respondents respectively.

[4] In the Mncwabe application, the fourth respondent is Mr Livingstone Mzukisi Sakata, the current DPP of the Northern Cape. Mr Sakata was appointed to that position by President Ramaphosa, with effect from 1 April 2022.

[5] In the Mathenjwa application, the fourth respondent is Mr Shaun Abrahams, a former NDPP. The fifth respondent is the National Prosecuting Authority. The sixth respondent is Ms Nkebe Rebecca Kanyane, the current DPP of Mpumalanga. Ms Kanyane was appointed to that position by President Ramaphosa, also with effect from 1 April 2022.

Background

[6] During the early part of 2018, prior to his resignation from office, former President Zuma took steps to appoint five senior National Prosecuting Authority members as either DPPs or Special DPPs in various National Prosecuting Authority offices. The appointments were recorded in official Presidential Minutes, all dated 1 February 2018. The news appears to have reached certain appointees, but, as will be discussed in detail later, not directly through former President Zuma or his office. The appointments were not announced to the public. On 14 February 2018, former President Zuma resigned from office and President Ramaphosa assumed office. Soon after taking office, President Ramaphosa directed his attention to these appointments.

[7] The applicants’ appointments were recorded in the similarly worded Presidential Minutes 10 of 2018 (regarding Mr Mathenjwa) and 18 of 2018 (regarding Mr Mncwabe). During March 2019, in Presidential Minutes 67 and 69 of 2019 respectively, both dated 11 March 2019, President Ramaphosa decided to revoke, amongst others, these two appointments. Aggrieved, the applicants separately approached the High Court to review and set aside President Ramaphosa’s decision. As stated, the matters were heard together in the High Court.

[8] The central issue before the High Court was whether President Ramaphosa was entitled to reverse the initial decision of former President Zuma to appoint the applicants. That question entailed the functus officio principle. It required a determination of two main issues: first, whether section 13(1)(a) of the National Prosecuting Authority Act (NPA Act) was complied with prior to the notification of the appointments. Second, it required a determination whether personal notification, on its own, was sufficient or whether, in addition to personal notification, there had to be public notification.

[9] The High Court dismissed the review application. In holding that the functus officio principle does not apply, the High Court relied on SARFU III, where it was held that the appointment of a commission of inquiry only takes place when the President’s decision is translated into an overt act, through public notification. The High Court held that, absent public notification, the decision to appoint was not final and therefore President Zuma was not functus officio and he (or his successor) still had the right to change his mind regarding the appointment. In light of its conclusion on this score, the Court turned to the applicants’ additional challenges.

[10] After analysing the arguments advanced, the High Court ruled against the applicants in respect of their further challenges against the impugned decision. These challenges were based on President Ramaphosa’s alleged non-adherence to the audi alteram partem (hear the other side) principle and the alleged irrationality of the decision.

[11] The High Court further dismissed the applications for leave to appeal by both applicants as it took the view that there were no reasonable prospects that another court would come to a different conclusion.

[12] The Supreme Court of Appeal dismissed the applicants’ leave to appeal applications on a similar ground and held that there was no further reason why an appeal should be heard. Their applications for reconsideration to the President of that Court in terms of section 17(2)(f) of the Superior Courts Act met the same fate.

Factual matrix

[13] Further elucidation of the facts is required for a proper understanding of the central issues. During mid-2017, Mr Mncwabe received an unsolicited call from the personal assistant of Mr Shaun Abrahams, the then NDPP, requesting Mr Mncwabe’s curriculum vitae (CV). Mr Mncwabe complied with the request and promptly furnished his CV. Eight months after sending his CV, during or about February 2018, Mr Abrahams notified Mr Mncwabe, via a telephone call and WhatsApp message, that he had been appointed as the DPP for the Northern Cape. Mr Mncwabe was furnished with a copy of Presidential Minute 18 of 2018, which confirmed his appointment. A soft copy of the Minute was sent on the day of notification via WhatsApp and a hard copy was sent sometime in November 2018.

The Minute reads:

“Under section 13(1)(a), read with sections 6(2) and 9(1) of the National Prosecuting Authority Act, 1998 (Act No. 32 of 1998), I, Jacob Gedleyihlekisa Zuma, after consulting with the Minister for Justice and Correctional Services and the National Director of Public Prosecutions, hereby appoint Adv Ron Simphiwe Mncwabe as Director of Public Prosecutions: Northern Cape Division of the High Court, Kimberley, with effect from 1 February 2018. Given under my Hand at Pretoria on this 01 day of February Two Thousand and Eighteen.”

[14] Mr Mncwabe was thus notified of his appointment during the same month that former President Zuma resigned from office. Following the notification received from the then NDPP, Mr Mncwabe’s appointment was never publicly announced. On 13 August 2018, this Court in Nxasana confirmed, among other things, a declaration that Mr Abrahams’ appointment as NDPP was invalid without affecting the validity of past decisions and acts by Mr Abrahams in his official capacity. On 1 February 2019, Ms Shamila Batohi assumed office as the new NDPP. On 18 March 2019, Ms Batohi’s office conveyed to Mr Mncwabe that his appointment had been revoked by President Ramaphosa.

[15] Mr Mncwabe took issue with this decision and approached the High Court for relief (Mncwabe application).

[16] Mr Mathenjwa’s narrative mirrors that of Mr Mncwabe. During June 2017, Mr Abrahams requested Mr Mathenjwa to furnish him with a copy of his CV. On 5 February 2018, Mr Abrahams informed Mr Mathenjwa that he had been promoted and elevated by former President Zuma to the office of DPP for Mpumalanga and that there was a Presidential Minute to confirm this appointment. Mr Mathenjwa’s appointment was recorded in Presidential Minute 10 of 2018.

Like Mr Mncwabe, Mr Mathenjwa’s appointment was never publicly announced following the notification received from Mr Abrahams. On 12 March 2019, Mr Mathenjwa had a meeting with Ms Batohi, who advised him that the executive was of the view that his appointment was never finalised. On 19 March 2019, Mr Mathenjwa was informed by the then Minister of Justice that President Ramaphosa had revoked his appointment. This was done by Presidential Minute 67 of 2019. It reads the same as Presidential Minute 69 of 2019. Mr Mathenjwa also turned to the High Court seeking the relief adumbrated earlier (Mathenjwa application).

[17] In the High Court, Mr Abrahams filed an explanatory affidavit as the fourth respondent in the Mathenjwa application. He was not joined as a respondent in the Mncwabe application but, by informal agreement between the parties, that affidavit formed part of the papers in both the Mncwabe and Mathenjwa applications. The President’s affidavit in answer to Mr Abrahams’ explanatory affidavit was filed in the Mathenjwa application, but not in the Mncwabe application. Its admission in the latter application was opposed. After hearing argument, the High Court ruled that the President’s affidavit would be part of the papers in both matters. The explanatory affidavit and the response thereto are of considerable importance in this matter.

Applicants’ submissions in this Court

[18] It is convenient to summarise the applicants’ submissions together, given their commonality. Where necessary, their submissions will be separately enunciated. In sum, the applicants’ submissions on jurisdiction are that this Court’s constitutional jurisdiction is engaged as the case concerns the executive powers of the President under the Constitution, namely sections 85(2)(e) and 101. In addition, the applicants contend that the case raises an important point of law of general public importance because it deals with the interpretation and application of section 13(1)(a) of the NPA Act.

[19] The direct access applications concern the President’s appointment of Mr Sakata and Ms Kanyane to the posts of DPP for the Northern Cape and Mpumalanga respectively, after the revocation of the appointments of Mr Mncwabe and Mr Mathenjwa to those posts. The applicants submit that they have made out a case for direct access to be granted.

They argue that the applications concern only questions of law and that no evidence is required. Moreover, direct access is intertwined with the leave to appeal applications as a successful appeal would, in their submission, automatically render the later appointments irrational. In his submissions, Mr Mncwabe adds that this Court should consider his direct access application even though it might have been rendered moot after the appointment of Mr Sakata as Northern Cape DPP.

It bears mention that this submission is not altogether correct because although the interdict initially sought may have been rendered moot, that is not the case with the question of whether Mr Sakata’s appointment should be set aside. The latter remains a live issue.

[20] On the merits, the applicants submit that their appointments in Presidential Minutes 10 and 18 respectively became final when the decisions were communicated to them. Contrary to what the High Court held, public notification is not a requirement for finality: not under the tenets of the functus officio doctrine, the NPA Act, or the Constitution.

In respect of functus officio, the applicants submit that a decision becomes final when “it is published, announced or otherwise conveyed to those affected by such decision”. The applicants further argue that section 13(1)(a) of the NPA Act does not impose a requirement of public notification in the case of the appointment of a DPP.

Yet, so the argument goes, the NPA Act notably does so for the appointment of Special Directors under section 13(1)(c), which must be proclaimed in the Government Gazette. According to the applicants, the Legislature therefore did not envision public notification in the case of DPPs.

[21] The applicants also contend that the public notification requirement cannot be derived from the Constitution. They argue that sections 101 and 179 of the Constitution only require the decision to be in writing and countersigned, and the appointee to be qualified, yet remain silent on publication requirements. In the applicants’ submission, the High Court has ignored this choice by the Legislature and impermissibly read a public notification requirement into section 13(1)(a) of the NPA Act, thus crossing the divide between interpretation and legislation.

The High Court went astray on the public notification requirement as a result of its mistaken reliance on SARFU III, contend the applicants. That case, according to the applicants, is plainly distinguishable.

[22] The applicants contend that it was sufficient that they were notified personally. Such personal notification was validly attained when Mr Abrahams, as the then NDPP, communicated the appointments to them. A formal delegation from the President as the decision-maker to Mr Abrahams was not required for this personal notification as Mr Abrahams did not exercise any authority or discretion. He merely informed the applicants of former President Zuma’s decision, having received the Presidential Minutes from the Department of Justice.

This, they say, was in line with practice at the National Prosecuting Authority at the time and how Presidential Minutes were usually processed – namely through Mr Abrahams as the then NDPP. As a consequence, the doctrine of functus officio applied and barred the President from revoking the appointments at his discretion. Mr Mncwabe points out that, in addition to the two applicants, five other appointments had been made by the former President, two of whom are still in office. Hence, if the present two appointments were successfully challenged, a similar finding should be made regarding the other incumbent office holders.

[23] Further, Mr Mncwabe invoked principles of company law and labour law. It was argued that the Turquand rule finds application. It was pointed out that in terms of that rule, the recipient of a message does not have to verify whether “the legal entity’s internal requirements have been met”.

Under labour law, a written contract or letter of appointment is not required. Instead, offers of employment can be communicated, for example, via text message. Further, it is not necessary that the employee actually assumes his position.

Lastly, Mr Mncwabe had a legitimate expectation that a contract had been concluded. During the oral hearing, however, Counsel for Mr Mncwabe expressly disavowed reliance on all these submissions.

[24] In the alternative, the applicants argue that, even if the President was not functus officio, the decision to revoke their appointments, as recorded in Presidential Minutes 67 and 69 respectively, must be set aside on grounds of legality, rationality and constitutionality.

In brief, it is contended,

• • first, that the President relied on the wrong provision of the NPA Act, namely section 13(1)(a), while in reality the removal of a DPP is regulated by section 14(3) read with section 12 of the NPA Act. This alone, according to the applicants, renders the decision illegal and invalid. Moreover, the appropriate statutory requirements for the removal of a DPP were not met, especially since the present NDPP was not consulted.

[25] Second, the applicants argue that executive action – contrary to the High Court’s view – is subject to procedural fairness, namely the audi alteram partem rule, as well as administrative review in terms of the Promotion of Administrative Justice Act (PAJA). They submit that executive decisions must at least be rational and the revocation decision was not. It was irrational in process, because the President did not give the applicants a chance to be heard, as is required by the audi alteram partem rule.

[26] Lastly, in respect of their direct access application, the applicants argue that, if this Court finds the revocation decision to be flawed, it must follow that the appointments of the present incumbents to the Northern Cape and Mpumalanga DPP offices stand to be declared constitutionally invalid. This is because an appointment is ipso facto (automatically) invalid if it is made to an office that was not validly vacated. The applicants rely on this Court’s decision in Nxasana. The equitable order that ought to be made is that the current incumbents vacate their offices and that the applicants be retroactively appointed.

[27] In respect of costs, the applicants argue that they should not have been mulcted with costs, because they enjoy Biowatch protection.

President Ramaphosa’s submissions in this Court

[28] The only respondent that participated in these proceedings is the first respondent, President Ramaphosa. The third respondent, Ms Shamila Batohi, filed a notice to oppose and an answering affidavit the day before the hearing in this Court. She sought condonation for the late filing of the notice to oppose and answering affidavit. The notice and the affidavit were almost two months late. The explanation proffered for the lateness was inadequate. Due to the degree of lateness and the inadequate explanation, condonation for the late filing is refused.

[29] The President does not dispute this Court’s jurisdiction to hear this matter. However, he does oppose the applications for direct access to set aside the appointments of Ms Kanyane and Mr Sakata. He contends that absent exceptional circumstances, direct access is not warranted and is not in the interests of justice. In particular, the President contends that if there is any review of these appointments, it should be by the High Court in the first place, and not by this Court as a court of first and last instance. The President submits that the relief sought by the applicants will effectively install DPPs “who were not selected after careful deliberation by the current NDPP”. This, he submits, would be prejudicial, not only to the National Prosecuting Authority itself, but to the wider criminal justice system.

[30] On the merits, the President argues that he was not functus officio when he came into office, since the disputed appointments were never finalised by his predecessor. Finalisation, he submits, is contingent on both public and personal notification. The argument on public notification was, however, expressly abandoned in the course of the hearing before us. It was submitted that, if this Court finds that personal notification is a sufficient condition to finalise the appointments, Mr Abrahams had no authority to notify the applicants. Therefore, the decision remained inchoate, and President Ramaphosa was at liberty to reverse it.

[31] Before proceeding to the analysis of jurisdiction and the merits, it is necessary to deal with two preliminary issues:

• • the first issue is the length of the President’s written submissions and the
  • second is the issue of condonation of the late filing of the submissions.

[32] When these matters were set down, the parties were directed to file written submissions on a date set out in the directions. The respondents, including President Ramaphosa, were directed to file their written submissions on 13 December 2022. According to Practice Direction 4 in the Practice Directions made in terms of rule 32(2) of the rules of this Court, written submissions filed in this Court may not exceed 50 pages except with leave of the Court.

Leave, according to the directions, can be sought by way of letter, but must be sought before filing the submissions. On 8 December 2022, President Ramaphosa addressed a letter to the Court seeking leave to file submissions exceeding the maximum page length. On 20 December 2022, President Ramaphosa filed his submissions which were in excess of the page limit by approximately six pages.

[33] This Court, albeit in a different context, has repeatedly held that condonation will be granted if, regard being had to several factors, it is in the interests of justice to do so. In this case, the relevant factors include: the extent to which the submissions are in excess of the usual limit; the reason or cause thereof; the effect on the administration of justice and other litigants; the importance of the issue to be decided in the matter; and the presence or absence of opposition.

[34] As indicated above, the extent of non-compliance is only six pages. This is minor. I think the administration of justice would be stymied if the submissions were rejected. This is particularly so, in this matter, because:

• • (a) there is no opposition,
  • (b) the issues for determination in this matter are of significant importance,
  • (c) the issues are nuanced,
  • (d) the Court would benefit greatly from full arguments from both sides, and
  • (e) there is no prejudice to the parties.

Should leave be refused, President Ramaphosa would suffer grave prejudice. In the premises, I think that it is in the interests of justice to grant President Ramaphosa leave to file submissions in excess of the page limit.

[35] On the issue of the late filing of the submissions, I am of the view that condonation should be granted. This is so because the submissions were late by no more than three days and the delay was caused by a combination of the conduct of the applicants and President Ramaphosa. Furthermore, neither of the applicants opposed the application nor did either of them suffer or allege any prejudice as a result of the three-day delay.

Jurisdiction and leave to appeal

[36] In order for this Court to entertain a matter it must meet two requirements.

• • First, it must engage this Court’s jurisdiction. For a matter to engage this Court’s jurisdiction, it must raise a constitutional issue or an arguable point of law of general public importance, which ought to be considered by this Court.
  • The second requirement is that the interests of justice must warrant that leave to appeal be granted.

[37] These applications plainly engage this Court’s constitutional and extended jurisdiction. In the first instance, this matter engages this Court’s constitutional jurisdiction because it concerns the interpretation and application of section 13(1) of the NPA Act which deals with the exercise of the presidential power to appoint DPPs.

In Lufil Packaging, this Court held that

“the interpretation and application of legislation which is specially mandated by the Constitution will inevitably be a constitutional matter”.

As the NPA Act is legislation envisaged by the Constitution, this matter concerns the exercise of public power, which engages this Court’s constitutional jurisdiction.

[38] Furthermore, the question whether the appointment of a DPP must be announced by way of public notification before it becomes final, and the requirements for valid personal notification, are unquestionably arguable points of law of general public importance that this Court ought to consider.

[39] In deciding whether it is in the interests of justice to grant leave to appeal, this Court generally considers, amongst others, prospects of success, the importance of the issues raised and public interest in the issues raised.

[40] To my mind, the issues in this case are arguable and the interpretations of section 13(1) of the NPA Act advanced by both sides are, on their face, meritorious and there are reasonable prospects of success. As regards the importance of the issues and the public interest in them, it is clear that the issues in this matter are of considerable importance, not only to the parties, but also to the general public. A DPP fulfils a very important role in our Republic’s criminal justice system and in ensuring the well being of our democracy. It is therefore in the interests of justice to grant leave to appeal.

[41] On the understanding that the direct access applications are contingent upon the applicants’ success in their main applications, this Court should entertain them for the reasons that follow.

In Bruce, this Court held that in granting an application for direct access, the interests of justice requirement will ordinarily be met only where exceptional circumstances exist. For the existence of exceptional circumstances, there must, in addition to other factors, be sufficient urgency or public importance and proof of prejudice to the public interest or the ends of justice and good government, to justify such a procedure.

In the present matter, I think that the two applications are sufficiently linked to justify a departure from the normal procedure. A decision on the first will inevitably affect the second. In addition, both matters concern decisions made in terms of section 13(1) of the NPA Act. As regards urgency, importance and prejudice to the public interest, I take the view that it is necessary to hear the applications for direct access, because a decision on both applications will bring finality to the matter and certainty and stability to the offices of the DPP in Mpumalanga and the Northern Cape. In the premises, I hold that, in the event that we do get there, direct access should be granted.

Merits

Functus officio

[42] As stated, this doctrine entails that once something is done, it cannot be undone, reversed or otherwise altered by the decision-maker. This is because the decision-maker would have exhausted her authority and relinquished her jurisdiction over the matter by taking a final decision. The finality of a decision is central to the doctrine’s operation. The doctrine promotes certainty and stability and it ameliorates prejudice and injustice occasioned to those who would rely on otherwise wavering decisions. The doctrine’s relationship to the Oudekraal rule is evident from this Court’s judgment in Kirland.

[43] In Retail Motor Industry Organisation, the Supreme Court of Appeal held with regard to the doctrine—

• • “first, the principle applies only to final decisions;
  • secondly, it usually applies where rights or benefits have been granted – and thus when it would be unfair to deprive a person of an entitlement that has already vested;
  • thirdly, an administrative decision maker may vary or revoke even such a decision if the empowering legislation authorises him or her to do so (although such a decision would be subject to procedural fairness having been observed and any other conditions);
  • fourthly, the functus officio principle does not apply to the amendment or repeal of subordinate legislation.”

[44] A useful exposition of the doctrine is advanced by Pretorius:

“The functus officio doctrine is one of the mechanisms by means of which the law gives expression to the principle of finality. According to this doctrine, a person who is vested with adjudicative or decision-making powers may, as a general rule, exercise those powers only once in relation to the same matter. This rule applies with particular force, but not only, in circumstances where the exercise of such adjudicative or decision-making powers has the effect of determining a person’s legal rights or of conferring rights or benefits of a legally cognisable nature on a person. The result is that once such a decision has been given, it is (subject to any right of appeal to a superior body or functionary) final and conclusive. Such a decision cannot be revoked or varied by the decision-maker.”

[45] The parties accept the well-established legal principle that, save in special circumstances or where there is a provision in law to the contrary, a final decision can only be altered by way of appeal or review to the competent authority, even if that decision is illegal.

It is common cause that, if the incumbent President as the decision maker at the time was functus officio, his successor could not undo the decisions taken (except through the proper procedure).

The contentious issue is whether the decision-maker (President Zuma) became functus officio, binding his successor.

This issue,

• • in the first instance, compels us to enquire into the requirements of the doctrine and,
  • in the second instance, the facts of the matter.

For this, we must determine at which specific point in time a decision is considered final, and therefore, irreversible.

[46] Hoexter and Penfold posit:

“[f]inality is a point arrived at when the decision is published, announced or otherwise conveyed to those affected by it”.

Finality plays an important role in this case as far as the functus officio principle is concerned. That is the topic that next bears consideration.

Finality

[47] Plainly the appointment decision lacked finality until it was properly communicated by or on behalf of the decision maker, either to the world at large (public notification) or to the applicants (personal notification). It was only when such communication occurred that a party affected by a decision would acquire rights and benefits arising from it.

[48] There is sound logic to that position: a decision-maker who has not communicated a decision is entitled to have a change of view and reverse the decision taken. There can be no prejudice to any other party as the decision has not been communicated. Thus, no one could be said to have acquired any rights or benefits from an uncommunicated decision or placed reliance on it. In this case, it means that if the appointment decision had been properly communicated, the point of finality would have been reached. If not, it was not final and therefore capable of being revisited.

[49] The facts and decision in Kirland are instructive.

There, the Superintendent General and head of the Eastern Cape Province’s Department of Health had taken a decision to refuse Kirland’s applications to build private hospitals in the province. However, the Superintendent-General went on sick leave before signing the letter of refusal or communicating the decision to Kirland. On his return to work, the Superintendent-General discovered that (in his absence) the acting head of the department had approved the applications and communicated her decision to Kirland. The Superintendent-General withdrew the approval.

Relying on SARFU III, the Supreme Court of Appeal held that the initial refusal decision could be reversed by the acting head of the department because it had not yet been communicated. It held that the Superintendent-General had not been functus officio when he went on sick leave, because a decision is revocable before it is published or announced or otherwise conveyed to the affected person.

This Court held that the refusal “was never signed off or communicated to Kirland”; only the approval was. Accordingly, as the approval was communicated to Kirland it was

“a decision taken by the incumbent of the office empowered to take it, and remained effectual until properly set aside. It could not be ignored or withdrawn by internal administrative fiat”.

[50] Equally edifying is Mohamed, a decision of the Full Court in the Western Cape. An asylum seeker’s application for asylum was rejected by a Refugee Status Determination Officer on the basis that the application was manifestly unfounded. The applicant was informed of the Officer’s rejection and advised that he could make further submissions, which he did.

During this time, the Standing Committee of Refugee Affairs reviewed the Officer’s rejection and upheld it on 28 October 2011. The Standing Committee immediately informed the Officer. However, the applicant was only informed of the Standing Committee’s decision on 4 February 2013. The Standing Committee declined to consider the applicant’s further submissions which had been made on legal advice.

[51] A single Judge held that the Standing Committee was functus officio after it had upheld the Officer’s decision and therefore correctly declined to entertain the applicant’s submissions. On appeal, the Full Court reversed that decision.

With reference to the position in South African, English and Australian law, the Full Court held that “the flexibility to alter a decision remains until the decision has been communicated to the affected person”. Accordingly, the Standing Committee was not functus officio because the Officer had failed to inform the applicant about the decision before the applicant’s late written submissions were delivered.

[52] As Mohamed demonstrates, the legal position here is the same in England and Australia. In respect of the status of a decision by a tribunal, Wade and Forsyth explain it thus—

“[i]n the absence of special circumstances the tribunal’s decision is irrevocable as soon as it has been communicated to the parties, even though orally and even though the reasons for it remain to be given later.” (Emphasis added.)

[53] The law is therefore clear that communication of a decision to an affected party is central to the finality of that decision. But is there a requirement for public notification as well?

Public notification

[54] I deal with this aspect rather perfunctorily, given the jettisoning of this point by Counsel for the President at the hearing.

Generally, the requirement of public notification for the appointment of public officials must be sourced in the Constitution, legislation or the common law. As a general proposition, the issue of publication, be it public or private, is closely linked to the importance of the post concerned, particularly in a constitutional setting. This was also one of the main bases for the High Court holding that public notification is required.

That Court based its holding:

• • (a) on the fact that only the President may appoint a DPP;
  • (b) the significance of the DPPs’ responsibilities and the statutory requirements for their qualification;
  • (c) the importance of the DPP in South African society; and
  • (d) the public interest in their appointment.

Importantly, the President, as the sole repository of power in terms of the NPA Act, is an essential part of the final decision to appoint a DPP. Such an appointment, in the view of the High Court, only takes place when the President’s decision is translated into an overt act, through public notification.

[55] I have explicated the public importance of these posts. I can do no better than to cite this Court’s dictum in Nxasana, in addressing the raison d’être underpinning the constitutional guarantee of the independence of the National Prosecuting Authority:

“The reason why this guarantee of independence exists is not far to seek. The NPA plays a pivotal role in the administration of criminal justice. With a malleable, corrupt or dysfunctional prosecuting authority, many criminals – especially those holding positions of influence – will rarely, if ever, answer for their criminal deeds. Equally, functionaries within that prosecuting authority may – as CASAC submitted – ‘be pressured . . . into pursuing prosecutions to advance a political agenda’. All this is antithetical to the rule of law, a founding value of the Republic.

Also, malleability, corruption and dysfunctionality are at odds with the constitutional injunction of prosecuting without fear, favour or prejudice. They are thus at variance with the constitutional requirement of the independence of the NPA’. At the centre of any functioning constitutional democracy is a well-functioning criminal justice system. . . . If you subvert the criminal justice system, you subvert the rule of law and constitutional democracy itself.”

[56] But the importance of a public post in and of itself does not establish a public notification requirement. Our law has no requirement of universal application obliging functionaries to communicate decisions to the public at large in order to finalise them. The Constitution only requires that decisions of the President that have legal consequence or are taken in terms of legislation, be in writing and accessible to the public. It does not impose a public notification requirement.

[57] On behalf of the President, much reliance was initially placed on SARFU III in seeking to buttress the contention that public notification of the appointments was an essential requirement in this instance.

That reliance is misconceived, as was the High Court’s reliance on the case for its holding that these appointments had to be announced publicly for them to take effect. SARFU III must be understood within the factual setting of the establishment of a commission of inquiry. The case related to the appointment of a commission of inquiry by former President Mandela into the administration of rugby in South Africa. The South African Rugby and Football Union (SARFU) applied to the Transvaal High Court for an order against the President setting aside the notice to appoint the inquiry. The matter made its way to this Court.

[58] One of the challenges levelled against the President by SARFU, which was upheld in the High Court, was that the President had abdicated his power to appoint the commission to the Minister of Sport at a meeting in August 1997. Additionally, this abdication of power rendered the appointment of the commission a nullity. This is because the appointment of commissions of inquiry is the exclusive prerogative of the President, pursuant to section 84(2)(f) of the Constitution.

[59] As was held by this Court in Hugo, the President’s exercise of public power in terms of section 84(2) of the Constitution rests on the President as head of state where he is the sole repository of the power. Consequently, had SARFU proven that the President had abdicated his power in the appointment of the commission of inquiry, the commission would have been void ab initio.

[60] Plainly, in SARFU III, this Court was concerned with conditions attaching to appointments of commissions of inquiry and limited itself accordingly. SARFU III is no authority for a more general proposition that public notification is a requirement for a functionary to be functus officio. Self-evidently, a commission, once established, wields wide-ranging powers affecting the general public and its very establishment is usually for the investigation of matters concerning and affecting the general public. Thus, publication in the Government Gazette, proclaiming that the extensive powers set out in the Commissions Act would apply to the commission, is understandable.

But neither the Constitution nor that Act requires public notification of the commission’s establishment. The establishment of a commission of inquiry does not purport to confer benefits or rights to anyone. It thus makes sense that the only way of communicating the decision in a way that gives rise to finality is by public communication. This Court said that the method “usually employed” to publicly communicate the establishment of a commission is by way of promulgation in the Government Gazette. One must assume that there was evidence before the Court of this practice, or that the Court took judicial notice of it. For all these reasons, SARFU III is distinguishable.

[61] Lastly, under this rubric, it is necessary to dispel two misconceptions regarding public notification in the Government Gazette. The first is the role that the Commissions Act plays in relation to commissions of inquiry. That Act does not, as was argued, require that its establishment be proclaimed in the Government Gazette. Instead, all it says is that if the powers set out in that Act are to apply to a particular commission, that fact must be proclaimed in the Government Gazette.

[62] The second misconception concerns section 13(1)(c) of the NPA Act. That section reads:

“The President, after consultation with the Minister and the National Director—
. . .
(c) may appoint one or more Directors of Public Prosecutions (hereinafter referred to as Special Directors) to exercise certain powers, carry out certain duties and perform certain functions conferred or imposed on or assigned to him or her by the President by proclamation in the Gazette.”

[63] The requirement in section 13(1)(c) is not that the appointment of a Special DPP must be published in the Government Gazette, as was submitted on behalf of the applicants in seeking to distinguish the appointment of a Special DPP from that of an ordinary DPP. This distinction was aimed at buttressing the contention that a public notification requirement is expressly excluded in the case of an ordinary DPP’s appointment through the application of the inclusio unius est exclusio alterius (inclusion of one excludes the other) principle. The submission is fallacious.

What must be proclaimed in the Government Gazette is not the appointment itself, but the specific powers of a Special DPP, since she is appointed for a special function, with special powers to fulfil that function.

Personal notification

[64] What bears consideration next is the important issue of personal notification. It must be repeated that a DPP unquestionably occupies a very important position within the NPA which, in turn, fulfils a very important role in South Africa’s constitutional democracy. It is of no trifling significance that section 13(1) vests the power of appointment in the President, a fact eloquently elucidated by this Court in EFF:

“The President is the Head of State and Head of the national Executive. His is indeed the highest calling to the highest office in the land. He is the first citizen of this country and occupies a position indispensable for the effective governance of our democratic country. . . . [A]lmost all the key role players in the realisation of our constitutional vision and the aspirations of all our people are appointed and may ultimately be removed by him.” (Emphasis added.)

[65] Apart from section 101 of the Constitution – read together with section 12 of the NPA Act – there are no express rules regulating the procedural aspects of DPP appointments.

[66] Having regard to the purpose of the functus officio doctrine, the law is plain that personal notification to the appointed person is necessary for a decision to attain the status of finality.

That aspect has already been considered above. Personal notification will most often be sufficient, as it realises a primary goal of the functus officio doctrine: to enable those affected by the decision to gain certainty and to plan their affairs accordingly. The signing of the Presidential Minutes – in accordance with section 101 of the Constitution – could not, in and of itself, be sufficient to finalise the appointments; there had to be personal notification to those affected by the decision. Even though the Presidential Minute is an indispensable step in the decision-making process, it does not on its own constitute a final decision. Therefore, the mere fact that the former President’s decision was reduced to writing by way of Presidential Minutes does not necessarily render President Ramaphosa functus officio.

[67] The proposition that, at the very least, an appointee must personally receive notification of the appointment for it to be effective, appears to be uncontentious. The applicants appear not to take issue with this concept and their argument followed suit. It appears to me to have become common cause that communication of the appointments must have been “authorised” in some form. Since the communication by Mr Abrahams itself is undisputed, and since he was the only person who ever communicated the appointments to the applicants, the outcome of the application depends entirely on the question of whether this communication met the requirement of “authorisation”.

In any event, insofar as it may still be in issue, I hold that for the reasons advanced, in this instance personal notification was required before these appointments could take effect. That notification could be in writing or oral. The crucial issue as to whether Mr Abrahams had the requisite authority to notify the applicants, is what I next consider.

Did Mr Abrahams have the requisite authority to notify the applicants?

[68] On behalf of the President, it is argued that absent an official direction from the Justice Ministry, or the Presidency itself, Mr Abrahams took the initial, unauthorised step of contacting the applicants in a bid to finalise President Zuma’s appointments prematurely. The central question is who, if anyone, authorised Mr Abrahams to communicate with the applicants?

It appears useful in this case to explain and draw a distinction between original power and conferred authority to notify. The former would refer to any power that Mr Abrahams had as the NDPP at that time and which is sourced in his office as such. The latter would refer to any power that Mr Abrahams did not have himself, but could have been conferred by President Zuma through authorisation. For the announcement to be valid, Mr Abrahams needed either one of the two kinds of authority.

Original power to notify as NDPP

[69] The obvious person, then, who can state where the power or authorisation came from is Mr Abrahams himself. His affidavit, however, is somewhat short on details:

“As head of the National Prosecuting Authority, and having authority over the exercising of all my powers, and the performance of all my duties and functions conferred or imposed on or assigned to any member of the prosecuting authority by the Constitution, the NPA Act or any other law, I immediately informed each candidate of their respective appointments and congratulated them.”

[70] This statement is no more than a bare assertion on the part of Mr Abrahams. He does not cite a specific legislative provision, nor could he, as there is nothing in the Constitution or the NPA Act to lend legitimacy to his claim. Even more revealing is his blanket invocation of “any other law” as justification for his actions. Mr Abrahams’ affidavit does not explain what law he is referring to.

[71] It appears equally dubious that the power to notify could be an implied power of the office of the NDPP.

In AmaBhungane, this Court explicated the content of implied powers:

“A distinction must be drawn between an implied primary power and an ancillary implied power. I consider it necessary to draw this distinction because quite often discussions of implied powers entail ancillary implied powers, and not primary implied powers. The distinction will be better understood if I first discuss the well known concept, the ancillary implied power. An ancillary implied power arises where a primary power – whether express or implied – conferred by an Act cannot be exercised if the ancillary implied power does not also exist. . . .

What I refer to as an ancillary power arises in the context of one power being necessary in order for an unquestionably existing power to be exercised. . . . Coming to an implied primary power, an antecedent question is: what do I mean by a primary power? A primary power is a power to do something required to be done in terms of an Act and which does not owe its existence to, or whose existence is not pegged on, some other power; it exists all on its own. That is what makes it primary, and not ancillary. If it owed its existence to another primary power, then it would be an ancillary power. A primary power may be express or implied. It is express if it is specifically provided for . . . . The primary power is implied if it is not expressly provided for. It is implied from a reading of the Act and a consideration of all that must be factored in the interpretative exercise. It owes its existence to provisions of the Act and everything that is relevant to the interpretative exercise. The fact that provisions of the Act, including provisions conferring other primary powers, may shed light on whether an implied primary power exists does not mean the implied primary power derives its existence from these provisions. These provisions and all that must be factored in determining whether a primary implied power exists serve as interpretative tools that point to its existence. As we now know, the Constitution plays a crucial role in that interpretative exercise. . . . So, the interpretative exercise is not confined to the four corners of a statute. The answer to the question whether an implied primary power exists is yielded by the usual interpretative exercise that seeks to establish what a statute or a provision in it means. There is nothing unusual about this.”

[72] Implied powers are the exception, not the rule. These powers only come into existence when they are reasonably necessary to give practical effect to the express powers laid down in legislation. Axiomatically, an implied power must draw from an enabling legislative provision. An implied power is ordinarily less likely to be found where the legislation is aimed at certainty. When one compares the implied powers recognised in Masetlha to those now asserted by Mr Abrahams, plainly in that case the President relied on an express legislative provision, section 209(2) of the Constitution, which conferred the appointment power. Mr Abrahams can make no such claim, since the statutory power to appoint DPPs vests exclusively in the President – not the NDPP. The President may have an obligation to consult with Mr Abrahams, but this is hardly a basis to assert an implied right for the NDPP to finalise the appointments. It may well be practical for Mr Abrahams to notify the successful candidates. But practicality is not the legal standard. The decisive factor for the existence of an implied power is necessity.

[73] I accept, though, that the President’s express power to make the appointment is coupled with the implied power to communicate it. I also accept that we are not dealing here with an implied power vesting directly in either the Minister or the NDPP. What we are concerned with is whether, factually, President Zuma released the minutes on the basis that the decisions were to be communicated to the appointees forthwith. That being the case, he was simply allowing the Minister, or someone delegated by the Minister, to perform the mechanical act of communication on behalf of the President.

[74] If President Zuma desired the communication of the appointments, I can see no legal objection to that happening through a conduit. In these circumstances, Mr Abrahams would be a messenger, not a decision-maker. It is hardly necessary for Mr Abrahams to be the one to communicate the final appointment to the applicants – even though it may be convenient. This power remains with the President. Without an instruction to make the notification on the President’s behalf, Mr Abrahams had no authority to finalise the appointments, nor can he assert implied authority.

[75] Save as set out, as a mere messenger or conduit, it follows that the former NDPP had no statutory authority or implied power to inform the applicants. The averments in his affidavit outlined earlier can be understood to arrogate such a power to himself “as head of the National Prosecuting Authority”. However, the original power to notify, for the reasons enunciated, plainly lay with the President. The question of authorisation must ultimately be determined by possible conferred authority through authorisation and the form that such authorisation must take.

Conferred authority to notify

[76] There then remain only two bases upon which Mr Abrahams could have acted. The first is direct authorisation from the President, either expressly or tacitly, to perform the mechanical act of communication. This would ordinarily take the form of an instruction. The second is if the President left it to the Minister to notify the appointees, and if the Minister, in turn, gave the Minutes to Mr Abrahams to carry out the mechanical act. They will be addressed presently.

[77] The first issue for consideration is which form of authorisation was necessary and whether the communication was merely a mechanical act by Mr Abrahams. An ancillary aspect is whether there was, on the facts, an instruction by someone in authority for Mr Abrahams to communicate to the applicants their appointment to the vacant posts. There is self-evidently a distinction between delegation and an instruction. Delegation connotes the transfer of power from one person to another. The delegatee stands in the shoes of the delegator and has real autonomy and discretion about whether and how to exercise the delegated power – just as the delegator would had she not delegated the power. On the other hand, someone who is asked to communicate a decision has no real autonomy or discretion about whether and how to communicate the decision – it is a mechanical task. The person thus instructed must comply fully with the instructions about how, when and to whom communication of the decision must be made. As I see it, the form of authorisation can then be express (written or oral) or tacit. The latter could include authorisation through a standing practice.

[78] Neither Mr Abrahams nor the applicants lay claim to an express instruction from President Zuma. There is also no evidence of any such express instruction. Express authorisation appears, to me, not to have come from the President or his office. It is of no assistance at all for the applicants to aver that President Ramaphosa did not object when he discovered that the appointment decisions had been communicated to the applicants. Mr Abrahams claims in his affidavit that former President Zuma and Minister Masutha did not object or take issue with his communication of the appointments. The only reasonable inference from this statement is that they did not authorise him to do so. This falls far short of the requirements of tacit authorisation. Moreover, President Ramaphosa is adamant in the answering affidavit filed in this Court that no authorisation or instructions were given to Mr Abrahams. And, as will become clear later, Mr Abrahams’ claim that President Ramaphosa did not react is contested.

[79] In the present instance, absent a reliance by Mr Abrahams on either express or tacitly direct or delegated (including sub-delegated) authorisation, the only possible outcome is that Mr Abrahams had to have been instructed to communicate the appointments to the applicants. But by whom was he so instructed? Mr Abrahams does not tell us this. It is conceivable that President Zuma could have delegated to the then Minister, Minister Masutha, the task of communicating the decision to the applicants. Minister Masutha could in turn have instructed Mr Abrahams, as head of the National Prosecuting Authority at the time and the applicants’ ultimate supervisor, to communicate that decision. There was no legal impediment to that scenario. Counsel for President Ramaphosa, in oral argument correctly conceded that the President could instruct someone to communicate the decision. Moreover, President Ramaphosa caused the impugned revocation decisions to be communicated in a similar way, by expressly instructing the current NDPP, Ms Batohi, to convey the revocation decisions to the applicants. But, on the facts, that is not what happened in respect of the appointments. There is no evidence, at all, of a delegation from former President Zuma to Minister Masutha and an instruction from the latter to Mr Abrahams.

[80] Mr Abrahams does, however, explain how he came into possession of the Minutes:

“These signed Presidential Minutes, were subsequently handed to me by the Ministry of Justice during early February 2018, whilst I was in Cape Town on official business so as to enable me to communicate to the individuals concerned, which I duly did upon my return from Cape Town, providing them each with copies of the Presidential Minutes, confirming the then President’s acquiescence to the vacating of their respective offices, to them. The signed Presidential Minutes were contained in their original customary red folders in which they were initially submitted to the Ministry, and subsequently, the Presidency, together with the respective signed Memoranda.” (Emphasis added.)

[81] This passage must be understood in its proper context. In this and the preceding paragraph, Mr Abrahams refers to the Minutes recording the decision to allow Ms Xolisile Khanyile and Ms Thoko Majokweni to vacate their positions as DPP Free State and Special DPP SOCA respectively (vacating Minutes). Ms Khanyile was to be appointed as the Director of the Financial Intelligence Centre and Ms Majokweni as South Africa’s ambassador to Eritrea. Their positions would thus become vacant after the then President granted official approval that they may vacate their offices. Therefore, in the paragraph quoted above, Mr Abrahams is alluding to President Zuma’s “acquiescence to the vacating of [Ms Khanyile and Ms Majokweni’s] respective offices”.

[82] The next paragraph in Mr Abrahams’ affidavit then deals with the five further Minutes containing the decision to appoint five new DPPs/Special DPPs (appointing Minutes). Mr Abrahams does not say that the appointing Minutes were handed to him to enable him to communicate the appointments as the second judgment appears to hold. Mr Abrahams deals first with the two vacating Minutes in stating that he was to communicate to Ms Khanyile and Ms Majokweni the fact that they had to vacate their positions. Mr Abrahams proceeds to deal separately with the five appointing Minutes, but importantly does not allege that they had been given to him to enable him to communicate the appointment decisions.

[83] The passage quoted above cannot be invoked, as the applicants sought to do, as support for the proposition that Mr Abrahams had the requisite authority to communicate the appointment decisions. On Mr Abrahams’ own version, the five appointing Minutes were not handed to him by the Ministry as some or other token of his authority to communicate the appointment decision to, amongst others, the applicants. A careful reading of these paragraphs in his affidavit reveals that Mr Abrahams, at the most, held the view (mistakenly, as I see it) that, in the ordinary course of events and by virtue of his position as NDPP, he had the requisite authority to communicate to the applicants their appointment by President Zuma.

[84] In the oral proceedings, Counsel for the applicants contended that this passage from Mr Abrahams’ affidavit is evidence of an instruction from the Ministry for Mr Abrahams to finalise the appointments. I disagree. When read in context and holistically with other relevant extracts from that affidavit, the only possible interpretation is the one I incline to. Thus, for example, in paragraphs 56 and 57, the following appears:

“I am advised that, ordinarily, once the President has signed the Presidential Minute and Proclamation, [the] same is submitted to the Ministry concerned, in this instance the Ministry of Justice for the administrative processing of the Presidential Minutes and/or publication of the Proclamations.

As head of the National Prosecuting Authority and having authority over the exercising of all my powers, and the performance of all my duties and functions conferred or imposed on or assigned to any member of the prosecuting by the Constitution, the NPA Act or any other law, I immediately informed each candidate of their respective appointments and congratulated them.”

[85] These facts cannot sustain the applicants’ case that Mr Abrahams was tacitly authorised to inform the applicants of their appointments and to hand over the Presidential Minutes to communicate their appointments in writing.

[86] Even though tacit authorisation through a standing practice is sufficient, the applicants have not demonstrated that such a practice did indeed exist. The applicants merely allege such a practice, but do not describe it in detail or adduce evidence as to its existence. They cite the example of a letter sent to Adv M I Thenga, the present DPP for Limpopo. That analogy is misconceived. Adv Thenga was transferred from DPP Northern Cape to DPP Limpopo and she was informed of this decision by Mr Abrahams. The analogy, therefore, goes nowhere in assisting the applicants’ case. The second judgment, authored by the Chief Justice, finds this analogy apposite. It is not. As stated, Adv Thenga’s matter entailed a transfer from the head of one provincial DPP office (Northern Cape) to another (Limpopo), not a new appointment as is the case here. In any event, the letter the applicants rely on is a mere draft. This draft is not even dated. In other words, there is no indication whatsoever that this letter ever left Mr Abrahams’ office, even less that it made its way to the intended recipient, Adv Thenga. Accordingly, this single letter (undated, unsigned and still in draft format) cannot, by itself, serve as evidence of a long-standing practice in the National Prosecuting Authority.

[87] Can an instruction then be inferred? On these facts, I think not.

The argument that an instruction must be inferred from the averments that the signed Presidential Minutes were handed to Mr Abrahams by “the Ministry of Justice” during early February 2018 in Cape Town so as to enable him “to communicate to the individuals concerned” is fallacious. Mr Abrahams’ emphasis that the “signed Presidential Minutes were contained in their original customary red folders in which they were initially submitted to the Ministry, and subsequently, the Presidency, together with the respective signed Memoranda” is neither here nor there. As I have explained, he does not say that they were handed to him as authority to communicate the appointments. In these circumstances, I do not see how an instruction can be inferred. And, crucially, there is no evidence at all, not even any hint or suggestion, as to how the “Ministry” came to be seized with the power from the decision-maker, President Zuma, to instruct Mr Abrahams to communicate the decision. For these reasons, I find that there was no such express or tacit instruction from President Zuma to Minister Masutha and by the latter to Mr Abrahams.

[88] The second judgment places substantial store in what Dr Lubisi says in his affidavit. But what must not be lost sight of, is that Dr Lubisi also categorically declares that “there is no formal record in the Presidency showing how (if at all) the minutes [signed by President Zuma] may have been transmitted to the Department”. This statement must be understood in light of Dr Lubisi’s averment that it is highly unusual for appointees to be given a Presidential Minute: “The minute is an internal formal record of the President’s decisions and is not ordinarily released into the public domain”. (Emphasis added.)

[89] On behalf of Mr Mathenjwa, Jeewa was invoked as a basis for the contention that Mr Abrahams was vested with the requisite authority to finalise the appointments. That reliance is misplaced. Jeewa is distinguishable – it concerned a purely administrative function that was capable of being delegated. The decision to appoint a DPP is plainly an executive decision entrusted to the President after consultation with the Minister and the NDPP.

That distinction was made clear in Jeewa where the Appellate Division held:

“It is clear that the power conferred by sec. 22 of the Act is conferred upon the Minister himself and cannot be delegated, and that the act of deeming by which a person is deemed to be an undesirable inhabitant of the Union must be the Minister’s own act and not the act of any other person.” (Emphasis added.)

[90] The second judgment lays much emphasis on the starkly different versions of events adduced by Mr Abrahams on the one hand and President Ramaphosa and Dr Lubisi on the other. The irreconcilable differences and inconsistencies in these versions are a fact. The second judgment appears to endorse Mr Abrahams’ account in its entirety, without reference to the other account advanced by the President. Much reliance is placed in the second judgment on what is termed a “courtesy meeting” between Presidents Zuma and Ramaphosa. However, viewing the evidence holistically, it is not at all clear whether this meeting happened. President Ramaphosa, in categorical terms, says he has “no knowledge” of any meeting, courtesy or otherwise, where President Zuma supposedly informed him about the appointments:

“I have no knowledge of the briefings referred to in these paragraphs. I have never held a meeting with Adv Abrahams and the former President at which I was advised of these ‘appointments’ ‘as a matter of courtesy’, or a briefing where the former President informed me that these ‘appointments’ within the NPA had been made. Despite Adv Abrahams’ allegation that the former President undertook that he would announce these ‘appointments’ and facilitate the proclamation of the relevant appointments, this was not in fact done.”

[91] The only indication that the meeting was planned is to be found in Mr Abrahams’ hearsay statement:

“In conversation with the then President during the course of the same week, the then President took it upon himself to inform me of the briefing to Mr Ramaphosa, the new President of the ANC, on the appointments he had made in the NPA on 1 February 2018.”

[92] In light of these inconsistencies, the correct approach is to tread lightly with respect to Mr Abrahams’ evidence, and not to uncritically endorse it.

[93] It is necessary to deal with the startling proposition advanced by Counsel for Mr Mncwabe that notification to Mr Abrahams would be adequate since he is “an affected person”. This appears to be a last resort clutching at straws point and can be given short shrift. Mr Abrahams was patently not an “affected person” within the meaning of the functus officio doctrine. The doctrine should be understood to refer only to persons affected in law and not to persons who are affected merely factually. A person is affected in law if the decision gives rise to rights or obligations for that person. On the other hand, a person is merely factually affected if the decision does not confer rights or obligations or otherwise changes the legal status of the person and only the practical implementation of the decision would affect them. A useful analogy is Mohamed to which I have alluded.

[94] Although reliance on the applicability of the Turquand rule was expressly abandoned at the hearing, it is necessary to say something in brief about an analogous principle, the possible applicability of the maxim omnia praesumuntur rite esse acta (it is generally presumed that acts or events which occur regularly or routinely have followed a regular or routine course).

That is because the burden of proof has gained significant importance here, due to the troubling dearth of evidence from both sides. In this regard, the second judgment places great emphasis on the lack of evidence from the respondents’ side and they are criticised for it. That criticism loses sight of the issue of the burden of proof, an important issue if not the deciding issue in this matter. The onus is on the applicants, as the alleging parties, to establish a prima facie case for the respondents to answer. The key question is whether there is sufficient evidence adduced to establish a prima facie case that their claims are correct. If at the conclusion of the case, their evidence is inconclusive or the probabilities are evenly balanced, the applicants cannot succeed with their claims, as they would not have discharged the onus resting on them.

[95] As stated, there is a disturbing lack of evidence from both parties. The second judgment holds this fact to be adverse to the respondents’ case. It bears repetition that this approach is unsound because it does not take into account that the burden of proof is on the applicants.

In applying the Plascon-Evans approach, absent a basis to reject the President’s allegations or denials as palpably false, far-fetched, or clearly untenable, the applicants are only entitled to a final order if the facts averred in their affidavits which have been admitted by the President, together with the facts alleged by him, justify such an order. That is not the case here. The only instance where Mr Abrahams asserts an instruction to transmit the Presidential Minutes is in the passage I have quoted earlier. And yet as stated, Mr Abrahams only had instructions in respect of Minutes 6 and 7. At no point does he assert an instruction to transmit Minutes 10 and 18, which form the basis of the applicants’ appointments here.

[96] Much is also made in the second judgment of the failure of Minister Masutha, as then Minister, to file an affidavit contradicting Mr Abrahams’ claims. But this applies to both sides – if the President could have called for these affidavits, so could the applicants. And since they bear the onus, the criticism is more warranted in their case.

In Elgin Fireclays, Watermeyer CJ stated:

“With regard to this request, it is true that if a party fails to place the evidence of a witness, who is available and able to elucidate the facts, before the trial Court, this failure leads naturally to the inference that he fears that such evidence will expose facts unfavourable to him. . . . But the inference is only a proper one if the evidence is available and if it would elucidate the facts.”

[97] Of course, the principle enunciated in Elgin Fireclays is not an inflexible one and whether such an inference is to be drawn will depend on the facts peculiar to the case in which the question arises. At best for the applicants, this is a neutral factor, not one to be held against the respondents as the second judgment seeks to do. As the parties on whom the onus rests, it is rather a factor that ought to redound to the detriment of the applicants. Since the onus to make out a prima facie case rests on the applicants, President Ramaphosa had no obligation to put up affidavits from President Zuma and Minister Masutha, and no adverse inference can be drawn against him on this issue.

[98] The same, however, cannot be said for the applicants, who had to prove their case on a balance of probabilities. The applicants do not explain why they did not seek affidavits from former President Zuma and Minister Masutha. They were material witnesses for the applicants’ version of events, having played central roles. Only they could explain whether they had instructed Mr Abrahams to communicate the Presidential Minutes. Further, former President Zuma, who signed the Minutes, had a direct and substantial interest in his instructions being executed, since at the relevant time he was the sole depository of the statutory power to appoint DPPs. The same applies to Minister Masutha, who would be able to say which functionary from “the Ministry” gave Mr Abrahams the Minutes.

[99] The applicants have not adduced any evidence that Mr Abrahams received express or implied authorisation from the President and no evidence that there was indeed a practice as described.

President Ramaphosa, on the other hand, also has no explanation for how Mr Abrahams received the information on the appointments and the related Minutes. Apart from the bare contention in President Ramaphosa’s written submissions that Mr Abrahams took an “unauthorised step”, there is only a denial that Mr Abrahams was instructed to communicate with the candidates. There is even less evidence regarding the allegation that the information at Mr Abrahams’ disposal was leaked. In summary, neither of the parties has made out a clear case.

This Court does not know what exactly transpired. It must either speculate and decide the case on circumstantial evidence or accept that the case is unclear and must be decided on the basis of the burden of proof. In the latter instance, the omnia praesumuntur maxim becomes relevant, since it could shift the burden of proof from the applicants to the respondents or at least impose a duty to rebut onto the respondents.

[100] The maxim is described by Van der Merwe thus:

“There is a general presumption that acts or events which occur regularly or routinely have followed a regular or routine course: omnia praesumuntur rite esse acta. It is based upon the statistical probability of regularity in an organised community. The presumption is usually one of fact, though in certain manifestations it appears to have hardened into one of law. There are too many varieties for a complete classification, but obviously it will only operate in circumstances where regularity is normally encountered.

One of the most fertile fields of application is that of official acts. It is presumed that any condition precedent to the validity of an official act has been complied with and, more particularly, that the official (or body of officials) was qualified to perform the act in question and complied with the necessary formalities. This presumption does not, however, go so far as to permit the broad assumption that whatever any official does is lawful.” (Emphasis added.)

[101] In Byers, the Appellate Division explained the maxim with reference to the following passage from Wigmore on Evidence 4ed:

“The general experience that a rule of official duty, or a requirement of legal conditions, is fulfilled by those upon whom it is incumbent, has given rise occasionally to a presumption of due performance. This presumption is more often mentioned than enforced; and its scope as a real presumption is indefinite and hardly capable of reduction to rules. It may be said that most of the instances of its application are found attended by several conditions:

• • first, that the matter is more or less in the past, and incapable of easily procured evidence;
  • secondly, that it involves a mere formality, or detail of required procedure, in the routine of a litigation or a public officer’s action;
  • next, that it involves to some extent the security of apparently vested rights, so that the presumption will serve to prevent an unwholesome uncertainty; and,
  • finally, that the circumstances of the particular case add some element of probability.”

[102] The exact nature of the maxim is not clear. One ambiguity in particular concerns the question whether the maxim amounts to a rebuttable presumption of law or only one of fact. A presumption of law will shift the onus or give rise to a duty to rebut. A presumption of fact only allows the court to make the inference that what usually happens has probably also happened in the case before it.

[103] Schwikkard explains that three different effects of the maxim can be observed:

‘The presumption of regularity is based on the maxim omnia praesumuntur rite esse acta. Zeffertt, Paizes & Skeen, noting that the presumption is ill-defined, describe it in the following terms:

“In some cases it appears to be no more than an ordinary inference, based upon the assumption that what regularly happens is likely to have happened again. In other cases it is treated as a presumption of law, sometimes placing an onus upon the opposing party and sometimes creating only a duty to adduce contrary evidence. It has been applied in a wide variety of cases which are impossible to catalogue exhaustively.”’ (Emphasis added.)

[104] The difference between a mere inference or presumption of fact and a presumption of law is also explained by Schwikkard:

“A distinction must be drawn between three different kinds of ‘presumption’. There is a so-called ‘presumption of fact’ which is merely an inference drawn from evidence. There are also so-called ‘irrebuttable presumptions of law’ which are really rules of substantive law [irrelevant for our case]. The only true presumption is the rebuttable presumption of law in terms of which an assumption which is demanded by law, must be accepted in the absence of evidence or proof to the contrary.”

[105] The difference between a presumption of law that places an onus on the opposing party and one that only creates a duty to adduce contrary evidence appears to be the following: in the former case (placing an onus), the opposing party always needs to disprove the presumption, lest the applicants succeed. If the presumption leads only to a duty to adduce contrary evidence, the case likely is not yet conclusive, but only made prima facie. In this situation, the court could, regarding “all the circumstances”, disregard the prima facie case, even if the opposing party does not adduce contrary evidence.

[106] In Byers, the Appellate Division appears to have regarded the maxim as a presumption of law—

“[t]hus, as the burden of rebutting the presumption was on the respondents, on the evidence in the record they have not, in my judgment, discharged it.”

[107] The Appellate Division did not consider whether to draw an inference or not, but assumed a burden on the respondents. However, the principles from Wigmore, cited in Byers, also require that there must be “some element of probability” in “the circumstances of the particular case”. This points to a presumption of fact since presumptions of law are usually independent of the individual facts and circumstances of the case.

[108] Five years later, however, in Cape Coast Exploration, the Appellate Division said:

“Absolute proof is well nigh impossible where the frail recollection of men is a factor, and [this is especially] the case when we have to deal with the recollection of officials who almost automatically do much of their routine work. Hence the importance of the maxim omnia praesumuntur rite esse acta. See Byers v Chinn (1928 AD at p 332). We must presume that an official will carry out the ordinary routine work of his office, for in our experience this is what usually occurs.
. . .
It is here, and on all the facts of this case that the maxim omnia praesumuntur rite esse acta assists us. The maxim itself rests upon probabilities, and obviously it could never be legitimately applied in a case where, viewing the question in issue from a reasonable standpoint, the probabilities did not, to some extent, support the presumption.” (Emphasis added.)

[109] Again, this points strongly towards a presumption of fact, rather than law.

Schmidt and Rademeyer also see the maxim primarily as a presumption of fact:

“The rule omnia praesumuntur rite esse acta, like the presumption of continuance, has a wide field of application. Where its use has, through precedent, become compulsory in certain factual situations, it operates as a presumption of law, but for the rest it is often used as a presumption of fact in the sense that a court draws an inference on the basis of accepting that matters have taken their regular course.
. . .
It has often been emphasised that the presumption [especially with regard to the validity of official acts] relates to formalities and procedure rather than to material requirements (the second condition), and also that there must be an element of probability. The latter condition indicates that the presumption is a presumption of fact, because, as already indicated, a presumption of law must be applied despite the probability in the particular case, while a presumption of fact by its very nature depends on probability.
. . .
There is as yet no unanimity on where the burden of proof rests when the presumption of regularity comes into operation. Some decisions place the burden of proof on the party opposing the presumption; others, especially those relating to postal articles, require only evidence in rebuttal – mainly because the presumption is usually applied as a presumption of fact. The latter view is preferable.” (Emphasis added.)

[110] Likewise, Pretorius, commenting on the Supreme Court of Appeal’s referral to the maxim in Oudekraal, explains:

[T]he presumption is only applicable where there is general evidence of acts having been legally and regularly done. It cannot be applied where, viewed reasonably, the probabilities (in the sense of what is known usually to occur) do not support the presumption. As such, the maxim gives expression to a factual presumption, not a legal rule; it is a mere inference of probability which a court may draw if, on all the evidence, it appears to be appropriate. Where it is not applicable because the abovementioned preconditions are absent, direct evidence must be adduced to prove that the relevant statutory requirements were satisfied.” (Emphasis added.)

[111] As stated, the exact nature of the maxim remains unclear and courts have sometimes described it in words that make it appear as a rebuttable presumption of law (as in Byers). As demonstrated, there is a significant body of jurisprudence with compelling reasoning that treats the maxim as a mere presumption of fact. For the reasons that follow, I am of the opinion that the better view is that the maxim is a rebuttable presumption of fact.

[112] The nature of the maxim should be determined with regard to its character and purpose.

The question is this:

Does it only give expression to a statistical probability that officials usually act diligently? Or does it also have a normative aspect to it, protecting the validity of state action and citizens’ trust in it?

With regard to this, Zeffertt et al state:

“Ultimately, it is submitted, the scope of the presumption depends on considerations of fairness and public policy as to how much a party seeking to uphold official action should be required to prove.

The effect of the presumption is also unclear. For instance, it has been said by some authorities that it places an “onus” or “a burden of rebuttal”, but other authorities seem to indicate that it merely imposes an evidentiary burden which strengthens the case of the party bearing the onus. But why should it not be seen as creating a prima facie case that imposes an evidential burden which, in the absence of rebuttal, becomes proof?” (Emphasis added.)

[113] Thus, Zeffertt et al argue that the maxim should be seen as a presumption of law because “considerations of fairness and public policy” would demand that “a party seeking to uphold official action” should not be required to fully prove it. According to them, there are good reasons for this stance. From the viewpoint of the state, a presumption of law will often help uphold important and consequential public decisions which might otherwise fail based on minor procedural or formal issues. From the viewpoint of a citizen, they might have justified trust in an official decision affecting them, which a presumption of law would protect.

[114] In sum then, there is an argument that can be made that the maxim is merely a presumption of fact or inference because its role is only to decide unclear cases based on experience and probability. Thus, “there is a ‘statistical probability of regularity’”. On the other hand, it is said that the maxim is a presumption of law because its purpose is one of fairness and protecting a citizen’s trust in state decisions. Dictates of fairness and preferences of policy are underlying considerations of the legal concept of presumptions.

[115] It seems to me on the authorities cited and given the character and purpose of the maxim that it is a rebuttable presumption of fact and not law. This means that in this instance there is no reversal of the burden of proof to the detriment of the respondents. Instead, we are at liberty to draw a factual inference if there is a basis to do so. An important consideration here is that the appointment of a DPP is not a routine affair, but an exceptional one that occurs rather infrequently. There is no evidence before us that would evince routine or regular proceedings. Since the maxim at its core is a factual presumption of regularity, it does not apply because there is no regularity here. The statistical probabilities necessary to make a factual inference are not present.

[116] To summarise: there is nothing in Mr Abrahams’ affidavit that suggests that he was authorised to communicate the decision and that he did not simply take it upon himself to do so because he believed it was his duty. It appears that it may have been the latter consideration that moved him to inform the applicants of the Presidential Minutes and the decision. If he was authorised then he would simply have said so – he does not. That leaves the assertion that he did so because he believed it was his duty to do so. This was an incorrect belief. Mr Abrahams was not responsible for the appointment – he may have been a part of the process leading up to it, but the decision was not his by any measure. That being the case, there is nothing before us that points in the direction of Mr Abrahams having the authority to do what he did.

[117] Mr Abrahams’ coming into possession of the Presidential Minutes, and his subsequent intimation to Mr Zuma that he informed the applicants, do not and cannot support any conclusion that at the time he informed the applicants he had the authority to do so.

If that is the case, then there was no lawful communication of the decision, and the decision was thus incomplete and open to revisiting. To hold otherwise would mean that the unauthorised communication of any decision that is still internal would render the decision a final one. That would have a chilling effect on the efficacy of government. Mr Abrahams’ proximity to the process cannot translate into him being an authorised person in the absence of any evidence to that effect.

In this regard, we are compelled to rely on what Mr Abrahams says, and on his version, he had no authority. He does not even dare suggest that he was authorised to do so. That is fatal to the applicants’ case.

[118] On the facts and in applying the applicable law then, there was no official notification of the appointment to the applicants by the decision-maker, the President, or by his duly authorised delegatee. The decision to appoint made by the previous President was preliminary only, thus subject to reconsideration (the notion of a “revocation” is misguided but not fatal in the present instance) and the principle of functus officio finds no application here. The last aspects for consideration are the alternative legality, rationality and constitutionality grounds.

Was the President’s decision to “revoke” the appointments constitutionally and legally sound?

[119] It will be recalled that the applicants contended that if this Court finds that the President was not functus officio, executive action – contrary to the High Court’s view – is subject to procedural fairness, as reflected in the audi alteram partem rule, as well as administrative review in terms of PAJA. It must be said that the submission was made rather faintly in oral argument, although extensive argument was set out in the written submissions. The argument is unsustainable in law.

[120] In Motau, this Court outlined four factors to determine whether a decision constitutes executive or administrative action.

They are:

• • (a) the nature of the function, as opposed to the position of the functionary;
  • (b) the source of the power being exercised;
  • (c) the degree of discretion afforded to the functionary; and
  • (d) the degree of scrutiny that is appropriate to apply to the decision through judicial review (that is, whether the court should apply the more exacting standards of PAJA, or the more lenient standards of legality).

[121] Measured against these four factors, the President’s decision was clearly executive and not administrative in nature.

The decision relating to the appointment of a DPP is not the mere “conduct of the bureaucracy . . . carrying out the daily functions of the state”, but an obvious policy choice, one that speaks directly to the composition of the National Prosecuting Authority and the wider administration of the criminal justice system in the country.

[122] Second, the source of this power is derived from the Constitution and the NPA Act, both of which confer on the President exclusive discretion to make the appointments.

[123] Third, the power is restrained only by the doctrine of legality and the rule of law.

The President does not have to satisfy “a list of jurisdictional requirements” to make a DPP appointment. He simply has to appoint. He may need to “consult” with the Justice Minister, but even so, the final decision remains his own.

[124] Since this decision:

• • (a) concerns a clear policy objective (the proper administration of criminal justice);
  • (b) concerns an exceptional power entrusted exclusively to the President; and\
  • (c) affords the sole repository of that power wide discretion,
  • it is clear that the exacting standards of PAJA are inappropriate for judicial review in this context.

And, if PAJA does not apply, neither do its standards of reasonableness and procedural fairness. The question then becomes what legality would require under the circumstances.

[125] Legality applies to all exercises of public power. It requires that the exercise of public power be lawful and rational.

This Court’s decision in Masetlha confirmed that “procedural fairness is not a requirement of legality” ; but the rationality of the process is.

This Court held that the power to dismiss—

“[being a corollary of the power to appoint] is similarly executive action that does not constitute administrative action, particularly in this special category of appointments. It would not be appropriate to constrain executive power to requirements of procedural fairness, which is a cardinal feature in reviewing administrative action. These powers to appoint and to dismiss are conferred specially upon the President for the effective business of government and, in this particular case, for the effective pursuit of national security.”

[126] Masetlha sets a high threshold for judicial interference with the President’s exclusive appointment powers. Since the NPA Act confers a wide discretion on the President to appoint and dismiss, there was no requirement for him to obtain the views of the applicants when reversing the inchoate decision of his predecessor, President Zuma.

[127] The decisions to appoint the applicants and to revoke those appointments – given that they were purportedly communicated, even if the communication is being impugned – are in their impact sufficiently final and ripe for review. The decisions exist in fact – even if potentially not in law – and have legal consequences.

[128] Since President Zuma’s appointments were not final decisions, President Ramaphosa was not obliged to treat them as having any legal effect at all. If President Zuma was not functus officio, it was as if no decision at all had been taken. President Ramaphosa had to act rationally in appointing the people he did to the position of DPP, but there was no obligation on him to explain why he did not give preference to the persons whom his predecessor wanted to appoint.

Conclusion

[129] As stated, leave to appeal must be granted. However, for the reasons advanced, the appeal falls to be dismissed. That has the effect of rendering the direct access applications academic. The applicants asserted their constitutional rights and are therefore entitled to Biowatch protection in respect of costs. That was also the case in the High Court and the costs order made there ought to be set aside.

Order

[130] The following order is made in respect of both applications:

1. Leave to appeal is granted.
2. The appeal is dismissed.
3. The costs order of the High Court is set aside.

 

Flynote:

National Prosecuting Authority Act 32 of 1998 — sections 12, 13(1) and 14(3) — Appointments in National Prosecuting Authority — Functus officio doctrine

Summary:

On 18 August 2023, the Constitutional Court handed down judgment in two applications for direct leave to appeal against a judgment of the High Court of South Africa, Gauteng Division, Johannesburg. The applications were heard together, in accordance with directions issued by the Chief Justice on 18 August 2022.

The applications were brought separately by two litigants: Mr Ron Simphiwe Mncwabe, an admitted advocate, employed as an Additional Magistrate at Tsakane Magistrates’ Court, Ekurhuleni (Mncwabe application), and Mr Khulekani Raymond Mathenjwa, an admitted advocate and the Senior Deputy Director of Public Prosecutions in the NPA, Gauteng Local Division (Mathenjwa application). The common respondents were: the President of the Republic of South Africa, the former Minister of Justice and Correctional Services and the National Director of Public Prosecutions (NDPP). In the Mncwabe application, the fourth respondent is Mr Livingstone Mzukisi Sakata, current DPP of the Northern Cape. In the Mathenjwa application, the fourth respondent is Mr Shaun Abrahams, a former NDPP. The fifth respondent is the NPA. The sixth respondent is Ms Nkebe Rebecca Kanyane, the current DPP of Mpumalanga.

Both applications concerned President Ramaphosa’s decision to reverse the appointment of five DPPs. These appointments were recorded in a series of Presidential Minutes, duly signed by former President Zuma in the final months of his tenure. The central question in both matters was this: was President Ramaphosa entitled to “reverse” former President Zuma’s decision, even after this decision was communicated to the appointees? Put differently, was President Ramaphosa functus officio? The High Court answered the question in the negative, finding that the appointments were not finalised, and therefore, President Ramaphosa was at liberty to reverse them. The first judgment, for significantly different reasons, took the same view. The first judgment, which held the majority, was prepared by Majiedt J (Mathopo J, Kollapen J, Potterill AJ, Rogers J and Theron J concurring). It held that the Court hasjurisdiction to entertain the matter and that it is in the interests of justice to hear the application.

Majority judgment

The first judgment views the issues as follows.

• • The first issue concerned the finality of the appointment of a DPP. Related to this issue, was the correctness of the High Court’s finding that “public notification” is a prerequisite for all DPP appointments.
  • The second issue concerns President Ramaphosa’s decision to revoke the appointments reflected in the Minutes signed by former President Zuma. Here, the Court needed to determine whether these appointments were final in law, and consequently, whether President Ramaphosa was barred from reversing them.
  • The third issue was whether President Ramaphosa’s decision constituted administrative action, reviewable under the Promotion of Administrative Justice Act 3 of 2000 (PAJA).
  • The final issue concerned costs.

On the first issue, the first judgment emphasised the importance of the functus officio doctrine in upholding the integrity and reliability of official decisions. This doctrine provides that once a decision is made, it cannot be reversed or otherwise altered by the decision-maker. The first judgment found that the principle was misapplied by the High Court, which erroneously concluded that the appointment of a DPP must be announced in the “public domain” before it has legal effect.

Instead, private notification is sufficient, as the importance of a position does not “in and of itself […] establish a public notification requirement.” On this score, the first judgment found that private notification (to the appointee) would render the appointment final and bind the decision-maker to their decision.

With this general principle established, the first judgment turned to the second issue before it: were the applicants (privately) notified about their appointments? Here, it recognised that it was common cause that Mr Abrahams had informed the applicants of their appointments without any specific instruction to do so. Accordingly, the finality of the appointments would depend on whether Mr Abrahams had the requisite authority to notify the candidates. The first judgment drew a distinction between “original power and conferred authority to notify”. Original power would refer to powers Mr Abrahams possessed naturally, as a result of his office as NDPP. These would include the implied powers required for the ordinary execution of his duties. Conferred authority, the first judgment explains, refers to powers Mr Abrahams could not exercise himself, but would need to have been granted to him by former President Zuma.

The first judgment found that Mr Abrahams had no original power to inform the applicants. Instead, it found that Mr Abrahams, at best, held the mistaken view that, as NDPP, he was authorised to finalise the appointment. The first judgment also highlighted a number of key omissions in Mr Abrahams’ affidavit, in particular, his failure to assert any instruction to transmit news of the appointments to the appointees. In addition, the first judgment emphasised the “irreconcilable differences and inconsistencies” between Mr Abrahams’ affidavit and the affidavits deposed by the Director-General on behalf of the President.

Faced with these inconsistencies, the first judgment relied on the maxim omnia praesumuntur rite esse acta (it is generally presumed that acts or events which occur regularly or routinely have followed a regular or routine course). It found that the maxim cannot apply to the impugned appointments, as there was insufficient evidence for the Court to rely on. In light of the dearth of evidence, the first judgment applied the Plascon-Evans approach to find that absent a basis to reject the President’s version of events “as palpably false, far-fetched, or clearly untenable”, the applicants failed to discharge their burden of proof, and therefore, justify an order in their favour. It noted that the second judgment comes to a different view on this issue, but found that the second judgment “uncritically” endorsed Mr Abrahams’ account of events, and as a result, errs in its evaluation of the burden of proof.

On the third issue, the applicability of PAJA, the first judgment found the applicants’ arguments untenable in law. It reasoned that a President’s decision to appoint a DPP is a clear case of executive action “that speaks directly to the […] wider administration of the criminal justice system in the country.”

Accordingly, President Ramaphosa’s decision was not subject to review under PAJA.

However, the first judgment noted that the President’s conduct must still meet the standards of legality and rationality.

It found that President Ramaphosa still had to act rationally when he appointed Ms Kanyane and Mr Sakata as DPPs, but was under no obligation to prioritise or seek the views of President Zuma’s preferred appointees when making this decision. The first judgment found that on the evidence, President Ramaphosa’s decisions did pass the tests of legality and rationality.

Lastly, on the question of costs, the first judgment set aside the High Court’s cost order, since the litigants were pursuing their constitutional rights, and were entitled to Biowatch protection.

Minority judgment

In the second judgment, the Chief Justice referred to the affidavit of Dr Lubisi who was the Director-General in the Presidency at the time when Mr Mathenjwa and Mr Mncwabe were appointed by former President Zuma. The Chief Justice pointed out that Dr Lubisi set out in his affidavit the procedure for the implementation of a President’s decision that has been entered in a Presidential Minute. The Chief Justice drew attention to the fact that Dr Lubisi said that in terms of that implementation procedure, “once the President has signed the Presidential Minute, the Presidential Minute is routed back to [the Legal and Executive Services] which will send it back to the line function Department for the implementation of the President’s decision by public announcement and/or appointment letter.” The Chief Justice said that this is what happened with the Presidential Minutes which contained former President Zuma’s decisions appointing Mr Mncwabe and Mr Mathenjwa. The Chief Justice pointed out that the line function Department in this context would be the NPA. Mr Mathenjwa’s and Mr Mncwabe’s evidence was to the same effect. The first judgment did not dispute this.

In the light of Dr Lubisi’s evidence, the Chief Justice concluded that the implementation procedure for Presidential decisions contained in Presidential Minutes required or authorised the NPA to implement former President Zuma’s decisions to appoint Mr Mathenjwa and Mr Mncwabe and this entailed that the NPA should inform them of their appointment. He held that, as the Head of the NPA, Mr Abrahams was, therefore, authorised and obliged by the implementation procedure to inform Mr Mncwabe and Mr Mathenjwa of their appointments and that made their appointments final.

Zondo CJ points out in his judgment that the first judgment did not deal with the meaning of the implementation procedure of Presidential decisions contained in Presidential Minutes, nor did it suggest a different meaning for implementation procedure. Zondo CJ concluded that the first respondent, accordingly, had no power to withdraw or revoke the appointments and his decisions to withdraw or revoke the appointments was unlawful and invalid. The Chief Justice would have upheld the appeal and set aside the first respondent’s decisions to revoke the appointments. He held that the first respondent had no power to appoint Mr Sakata and Ms Kanyane in Mr Mncwabe’s and Mr Mathenjwa’s posts because these were not vacant. In the result, the Chief Justice would have ordered that Mr Mathenjwa and Mr Mncwabe be allowed to take up their respective positions in the Mpumalanga Province and the Northern Cape Province. He would have ordered the first respondent to pay the applicants’ costs.