President of the Republic of SA v Democratic Alliance and Others (24396/2017) [2017] ZAGPJHC 168 (2 June 2017)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG PROVINCIAL DIVISION, PRETORIA

Case number: 24396/2017

REPORTABLE

OF INTEREST TO OTHER JUDGES

REVISED.

In the matter between:

President of the Republic of S A Applicant

and

Democratic Alliance First Respondent

Pravin Jamnadas Gordhan Second Respondent

Mcebisi Hubert Jonas Third Respondent

Malusi Nkanyezi Gigaba Fourth Respondent

Sifiso Norbert Buthelezi Fifth Respondent

Judgment: Leave to Appeal

Introduction

[1] The applicant, the President[1], is aggrieved at an order I issued on 4 May 2017. The parts of the order relevant to this proceeding read as follows:

“2. The respondent is to dispatch to the applicant’s attorneys within five calendar days of the date of this order:

2.1 the record of all documents and electronic records (including correspondence, contracts, memoranda, advices, recommendations,

evaluations and reports) that relate to the making of the decisions which are sought to be reviewed and set aside;

2.2 the reasons for the decisions which are sought to be reviewed and set aside.

3. The respondent is to pay the costs of this application, which costs are to include those occasioned by the employment of two counsel.”

[2] I gave the reasons which formed the basis for the order a few days later. The applicant, the President, in this matter was the respondent in that matter. The present first respondent, the Democratic Alliance, was the applicant in that matter. For ease of

reference and to avoid confusion with that judgment I will in this matter refer to the present applicant as the President and the first respondent as the DA.

[3] The President maintains that the issuance of the order was a misdirection which should be forwarded to a higher court for correction. The President asks that he be granted leave to take the matter to a higher court for that purpose. The DA opposes the application. It maintains that the order is legally unassailable, especially given the concessions made by the President’s counsel at the hearing. The concessions resulted in this Court having to adjudicate on a single issue only. It is the outcome of that issue that causes grief to the President. To understand the President’s grievance it is necessary to have regard to this single issue, but this can only be done in the context of the other issues that were brought to the Court by the DA and which were conceded by the President. They are fairly simple and straightforward. Succinctly captured they are:

[3.1] Section 84 of the Constitution of the Republic Act, 108 of 1996 (the Constitution) confers certain powers upon the office of the President. These powers allow the President to take certain actions and/or to make certain decisions. They are referred to as the executive powers of the President. Acting in terms of these powers the President made a number of decisions, two of which concerned the dismissals of the second and third respondents and their replacements by the fourth and fifth respondents respectively. The President agreed.

[3.2] The Constitution prohibits the President from acting irrationally or making irrational decisions even when acting or making decisions in terms of the executive powers conferred upon his office by s 84 of the Constitution. The President agreed.

[3.3] Should the President act irrationally or take an irrational decision these could be impugned. The President agreed.

[3.4] The Constitution has entrusted the power to determine the rationality of the executive actions taken, or executive decisions made, to the courts. In other words, the question of the rationality of the executive actions or decisions is brought within the reach of the courts. The President agreed.

[3.5] In order to determine the rationality of the executive decision the party impugning the decision as well as the court determining the issue require the reasons for the decision. The President agreed.

[3.6] The determination of the rationality of the decision can only be made by having regard to the record of the documents that were taken into account to make the decision. The President disagreed.

[4] The DA has brought an application in this Court to have the two executive decisions referred to in [3.1] above reviewed and set aside for being irrational. The President agreed that the DA is entitled to request this Court to determine this question.

[5] Rule 53 of the Uniform Rules of Court (the Rules) was used as the launching pad for the application. Relying on the provisions of this rule it called on the President to furnish the record on which the impugned decisions were based (the record) as well as the reasons for the impugned decisions (the decisions). The President refused to furnish the record, but said nothing of the reasons even though he conceded that it had to be provided.

[6] The application was brought in terms of rule 53 and on an urgent basis. In the alternative the DA requested this Court to exercise its inherent power, conferred in terms of s 173 of the Constitution, to compel the President to furnish the record as well as the reasons. The President agreed that the application met the requirements of urgency but denied that the DA was entitled to the record.

[7] I found that the provisions of rule 53 were applicable to the application and on that basis made the order in sub-paragraphs 2.1

and 2.2 of the order. The President takes issue with the order in sub-paragraph 2.1 only. While the order in sub-paragraph 2.2 is not strictly speaking appealed against, it is closely linked to the order in sub-paragraph 2.1. In fact, the DA urged that that the two orders be treated as inseparable for purposes of this application.

Is the order in sub-paragraph 2.1 appealable?

[8] In my judgment the order in sub-paragraph 2.1 is final and definitive of the issue that was before this Court. That order cannot be varied or revoked by this Court.[2] It is functus officio on this issue as “the final word in th(is) suit has been spoken on th(is) point.[3] The rights of the parties on this issue are determined in a manner no different from that of a final judgment even though the issue

presented in the form of an interlocutory application. The President can only comply or ask another court to relieve him of the burden to do so. The court that can assist the President in this regard would be one that in the hierarchy of courts is higher than this one. The order, in my judgment, is clearly appealable.

The grounds upon which the application for leave to appeal is sought

[9] The President contends that the order trespasses onto the exclusive terrain of Parliament by finding that the provisions of rule 53 are applicable to an application that impugns any executive action or decision for being irrational. The President’s case is that Parliament had enacted the Rules and had deliberately excluded any reference to executive actions or decisions from the provisions of rule 53. The exclusion cannot be ignored. This Court by subjecting the provisions to a purposive interpretation had not only effectively ignored the exclusion, but had gone a step further and “amended rule 53”, something that remains the sole preserve of Parliament.

[10] This is a fresh point. It was not canvassed at the hearing. At the hearing the President focussed on the exclusive terrain of executive powers as a basis for resisting the demand for the record as well as the underlying reasons for the decisions. In that hearing the President invoked the right to make executive decisions without any interference from the courts. Such interference, contended the President, violated the separation of powers doctrine. The contention is difficult to fathom in the light of the President’s

concessions, especially the one referred to in [3.4] above. Further, in the judgment I pointed out that the decisions could be impugned for non-compliance with s 83 of the Constitution.[4] Now the President claims the order requiring him to furnish the record constitutes an interference with the powers of Parliament.

[11] However, the fact that it is a new point does not mean that the President is not entitled to raise it. In any event, it is really the same point with a slightly different slant. The separation of powers doctrine, however, does not immunise unlawful and unconstitutional decisions whether taken by Parliament or by the Executive. This issue has been eloquently been put to bed by that jurist’s jurist, Chief Justice Ismail Mahomed:

“This enquiry must crucially rest on the Constitution of the Republic of South Africa Act 108 of 1996. It is Supreme - not Parliament. It is the ultimate source of all lawful authority in the country. No Parliament, however bona fide or eminent its membership, no President, however formidable be his reputation or scholarship, and no official, however efficient or well-meaning, can make any law or perform any act which is not sanctioned by the Constitution. Section 2 of the Constitution

expressly provides that law or conduct inconsistent with the Constitution is invalid and the obligations imposed by it must be

fulfilled. It follows that any citizen adversely affected by any decree, order or action of any official or body, which is not

properly authorised by the Constitution is entitled to the protection of the Courts. No Parliament, no official and no institution is immune from Judicial scrutiny in such circumstances.”[5]

[12] Furthermore, in my view, I did not “amend rule 53”, but extended its application to a species of actions and decisions (executive ones) that have since the enactment of the Constitution been brought within the reach of the judicial arm of the state for scrutiny for constitutional compliance. I came to this conclusion by subjecting the provisions of rule 53 to a purposive interpretation and by applying the stare decisis (stand by your earlier decision) principle. I believe I am correct. The Supreme Court of Appeal (SCA) has, in my reading of its

judgments, clearly indicated that the provisions of rule 53 apply to an application for the review of an executive decision.[6] The President is particularly aggrieved at the application of the purposive approach to interpretation, but the learning on this issue is so extensive that it has now achieved the status of a trite principle. No purpose would be served by burdening this judgment with the citations of that learning. Moreover, it bears reminding that it is trite that the rules exist for the court and not the court for the rules.[7] This Court has introduced practice directives that go directly against some of the provisions in the rules.[8]

[13] The DA contended that even if I was wrong to make the provisions of rule 53 applicable to the main application, the President, nevertheless,

has no prospect of succeeding on appeal as this Court exercising its inherent powers in terms of s 173 of the Constitution could still have issued sub-paragraph 2.1 of the order. The difficulty I have with this contention is that since I did not invoke the inherent powers of the Court to issue sub-paragraph 2.1, the issue remains open. The President is entitled to continue the challenge he brought to this Court, which is that the provisions of s 173 of the Constitution do not assist the DA in its claim for the record. The application for leave to appeal must be determined on the findings made by this Court not on the possible findings this Court could have made.

[14] One of the complaints by the President is that this Court “erred in not considering whether the remedy sought in the review can ever be obtained.” The complaint is repeated in another paragraph in the application for leave to appeal, which states that this Court “ought to have found that the statement of 31 March 2017 from the Presidency is sufficient to meet the test of rationality and therefore no further record was required.” (emphasis added). The complaint, in my view, misconceives the issue that was before this Court. This Court was not asked to determine whether the relief sought in the main application was competent or not. That issue is correctly reserved for the court that will consider the main application, which should take place once all procedural hurdles have been surmounted. The hearing before this Court concentrated on overcoming one of the procedural hurdles: that was the only issue that was brought to this Court. In any event, the President conceded that the relief sought in the main application is legally competent. In this regard see [3.2] to [3.4] above. Whether the DA will succeed in securing the relief is another matter. That issue is the preserve of the Court adjudicating the main application. This Court could certainly not make any decision on whether the President had succeeded in showing that the decisions were rational. This Court could only consider what material should be given to the DA and placed before the court that considers the issue as to whether those decisions pass the rationality test. The task of this Court was very limited.

The test for leave

[15] The applicant for leave to appeal has to satisfy the Court that “the appeal would have a reasonable prospect of success or that there are some other compelling reasons”[9] to grant leave. This test is slightly different from the one that prevails in the Constitutional Court. In that Court the test is whether it is in the interests of justice to grant leave to appeal.

Should leave be granted?

[16] Based on what I have said above in [9] – [12] and [14] I have come to the conclusion that there is no reasonable prospect that another court would come to a different conclusion. However, it is a notorious fact that the public interest in this case post the issuance of my judgment has been wide, deep and intense. I am entitled to take judicial notice of this fact. Furthermore, the President contends that the order expressed in sub-paragraph 2.1 in particular is far reaching and has implications beyond this case. The President’s contention is not without merit. The President contends further that the order fundamentally impacts on the manner in which the office of the Presidency operates. The DA was not able to dispel or discredit these claims. In these circumstances this matter should be brought to the attention of a higher Court. It is one of those very rare cases where the public interest in the matter is so high and the order has significant impact on the operations of the Presidency that it is necessary that a higher court be required to look into the matter afresh.

[17] In its papers, the DA vigorously contended that application for leave to appeal merely delays the hearing of the main application, which serves the interests of the President for it ensures that as long as the case remains mired in the legal process without any progress being made on the substantive issues, the impugned decisions remain in place. The delay suits the President for it prevents as long as possible the moment when decisions can be carefully scrutinised. Should they be found to be unconstitutional the President would have succeeded in allowing his unconstitutional actions to prevail until the decision is made. The status quo is that the decisions remain in place while the case takes its course and that, according to the DA, is what the President seeks. This contention must be understood in the context of the claims in the main application which are to the effect that the President had deliberately stalled the process by “persistently refus(ing) to provide the records and the reasons”. If the DA is correct that the President is deliberately delaying the finalisation of the main application that, in my view, would be a case of unconscionable procrastination and it would be a weighty factor against the grant of leave.

[18] The aspect of the President’ “persistent refusal to provide the records and the reasons” has been noted in my judgment and taken care of by the extremely limited time periods imposed on the President to furnish the record as well as the reasons for the decisions. Beyond that a Court can do very little. It is axiomatic that the appeal, once leave is granted, will further delay the finalisation of the main application which was brought on an extremely urgent basis. That unfortunately is one of the consequences of adhering to the rule of law principle. It is not very different from the situation where by dint of an incorrect decision a Court can cause a losing party immense harm. On this issue the Appellate Division (as it then was) pointed out more than sixty years ago that “parties always have to pay for a mistake on the part of the Court. It is a case of vae victis; but there is no other alternative”.[10]

[19] On the facts before me it is not possible to hold that the President merely seeks to appeal the order expressed in sub-paragraph

2.1 to delay the matter further and avoid having to furnish the record for as long as the appeal process allows. This is particularly

so when regard is had to the fact that the President’s claim that the order has far-reaching implications and therefore

warrants the attention of a higher court is not without merit.

[20] In any event, the President has conceded that the application before this Court meets the requirement of urgency as laid down in the common law. The urgency does not evaporate should leave to appeal to the SCA be granted. The door remains open to the President and the DA to approach that Court for an expedited hearing. The papers in this matter are far from voluminous. They can be arranged in terms of the rules of that Court with minimum effort and loss of time. The rest of the arrangements necessary to make the matter hearing-ready are best left to that Court.

Order

[21] The following order is made:

1. Leave to appeal paragraphs 2 and 3 of the order to the Supreme Court of Appeal is granted.

2. Costs shall follow the result of the appeal

_____________________

VALLY J

Counsel for applicant:

Adv S Budlender assisted by Adv L Zikalala

Instructed by

Minde Shapiro Smith Inc

Counsel for respondent

Adv I Semenya SC assisted by Adv M Sikhahane SC and Adv M Sello

Instructed by

State Attorney, Pretoria

Date of hearing

2 June 2017

Date of judgment

2 June 2017

[1] I have in the time available to me not been able to draft the judgment in a manner that avoids referring to the President through the pronouns he, him or his. I have at times been forced to do so purely for grammatical purposes. I mean no disrespect to the President or the office of the Presidency for so doing and hope that my usage of these pronouns is excused.

[2] See: Pretoria Garrison Institutes v Danish Variety Products (Pty) Ltd 1948 (1) SA 839 (A).

[3] Blaauwbosch Diamonds Ltd v Union Government (Minister of Finance) 1915 AD 599 at 601. See also Steytler N.O.v Fitzgerald 1911 AD 295.

[4] Compare: Laker Airways Ltd v Department of Trade [1977] 2 All ER 182 (CA) at 193a.

[5] The Speaker of the National Assembly v Patricia De Lille and Others 1999 (4) SA 863 (SCA) at [14], authorities cited therein have been omitted.

[6] Apart from the cases cited in that judgment of mine see, Van Zyl and Others v Government of the Republic of South Africa and Others 2008 (3) SA 294 (SCA) at [36] and [54].

[7] Republikeinse Publikasies (Edms) Bpk v Afrikaanse Pers Publikasies (Edms) Bpk 1972 (1) SA 773 (A) at 783B-D

[8] See Absa v Lekuku [2014] ZAGPJHC 274

[9] Section 17 of the Superior Courts Act, 10 of 2013

[10] Pretoria Garrison Institutes, n2, at 864.