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[2017] ZAWCHC 34
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Democratic Alliance v President of the Republic of South Africa and Another (5950/2017) [2017] ZAWCHC 34 (31 March 2017)
THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE
DIVISION, CAPE TOWN)
In
the matter between
Case
No: 5950/2017
THE
DEMOCRATIC ALLIANCE
APPLICANT
and
PRESIDENT
OF THE REPUBLIC OF SOUTH AFRICA
1
st
RESPONDENT
SPEAKER
OF THE NATIONAL ASSEMBLY
2
nd
RESPONDENT
Coram
:
ROGERS J & WILLE AJ
Heard:
31 MARCH 2017
Delivered:
31 MARCH 2017
EX TEMPORE JUDGMENT
ROGERS J (WILLE AJ
concurring)
[1]
This is an urgent application by the
Democratic Alliance (‘DA’) for interim relief pending a
proposed application for
judicial review which the DA undertakes to
institute by no later than Monday 3 April 2017. The interim relief
which the DA seeks
concerns the so-called cabinet reshuffle which was
announced in the early hours of this morning, Friday 31 March 2017.
[2]
The interim relief which the DA
claims is an interdict to prevent the swearing in ceremony of
the newly appointed cabinet ministers
and deputy ministers scheduled
to take place at six ‘o clock this evening, ie in about 50
minutes’ time, and to interdict
the reshuffle and to order that
the cabinet, as it existed immediately prior to the
announcement of the reshuffle, remain
in place pending the judicial
review, alternatively pending a vote of no-confidence in the
President to be moved in the National
Assembly.
[3]
In regard to the vote of
no-confidence, there is a prayer directing the President,
alternatively the Speaker, to summon the National
Assembly to an
extraordinary sitting with a view to considering and voting on the
DA’s motion of no-confidence. Mr Katz SC,
who appeared for the
DA leading Mr Mayosi, did not press for this latter relief.
[4]
The President’s power to select
ministers to his cabinet is to be found in s 91(3) of the
Constitution. His power to
appoint deputy ministers is sourced in
s 93(1) of the Constitution. The power to de-select (dismiss)
ministers and deputy
ministers is not expressly conferred by the
Constitution but is inherent in the power of selection (cf
Masethla
v President Of the Republic of South Africa & Another
[2007] ZACC 20
;
2008
(1) SA 566
(CC) para 68).
[5]
In the proposed review, which is to
be instituted by Monday, the DA will be contending that the President
has exercised his constitutional
powers of selection and dismissal in
a manner which is unlawful. The present application foreshadows that
this contention will
be based on allegations that the President’s
decisions are irrational and were taken in bad faith.
[6]
We need not decide today whether the
President’s decisions under the provisions I have mentioned are
susceptible to judicial
review. I am not aware of any decision of our
higher courts holding that certain classes of acts performed in the
exercise of public
power are altogether beyond the reach of judicial
scrutiny. It may well be that, as an exercise of public power, the
President’s
decision to appoint or dismiss a minister or deputy
minister is subject to legality review inter alia on the ground of
irrationality,
having due regard to the purposes for which the powers
in question have been conferred (the oath or solemn affirmation which
the
President and his ministers must make, as set out in Schedule 2
of the Constitution, shed significant light on these purposes).
But
the threshold at which a court will intervene must be sensitive to
the nature of the power.
[7]
It is difficult to imagine a power
closer to the heartland of the President’s personal preferences
than the power to appoint
and dismiss ministers and deputy ministers;
it is by its nature highly discretionary. It may well be that the
exercise of these
powers can be impeached on the ground of
irrationality but the threshold for judicial interference is likely
to be very high. Of
course, if bad faith could be properly proved by
satisfactory evidence, interference might follow more readily. In
general, though,
I think it can be said that the primary consequence
of decisions to appoint and fire cabinet ministers which the public
or sectors
of it regard as bad decisions, is political rather than
legal.
[8]
The interim relief which the DA seeks
presupposes that the applicant enjoys reasonable prospects of success
in the proposed review.
That is the essence of the DA’s alleged
prima facie
case or
prima facie
right. I have indicated that the evidence required for interference
on the basis of irrationality is likely to be at a high threshold
though
mala fides
may stand on a different basis. But whatever the precise test for
interference, it would need to be supported by facts properly
established.
[9]
Because of the (perhaps
understandable) haste with which this application has been brought,
the founding papers consist essentially
of conclusions rather than
facts when it comes to matters such as irrationality and bad faith.
Ordinary observers of South African
public life over the last 15
months may have their own views about the quality of the President’s
decisions but any conclusion
we reach as a court must be based on
facts before us rather than on public perceptions or our own private
opinions. Here the factual
foundation for the
prima
facie
case
underlying the interim relief sought is not in our view to be found
within the four corners of the affidavits before us.
[10]
Apart from having to prove a
prima
facie
case, the
applicant must also establish that the balance of convenience favours
the granting of interim relief and that, in the
absence of such
interim relief, irreparable harm is likely to be suffered. The
relatively short founding affidavit concentrates
on the harm flowing
from the cabinet reshuffle rather than on facts showing it to be an
impeachable decision. The consequences
are largely financial in
nature, concerned with a rapid weakening in the South African
currency and the risk of a sovereign credit
downgrade. These
phenomena are not to be underestimated: if South Africa is downgraded
to sub-investment (junk) status, the cost
of our borrowings, which
are already very high, will increase and that will undoubtedly
compromise the country’s ability
to tackle a large number of
social and economic challenges which have to be met to alleviate
poverty and advance the quality of
life of all our citizens.
[11]
Insofar as the financial consequences
are concerned, they are really tied up with the decision concerning
the occupants of the positions
of finance minister and deputy finance
minister rather than the other elements of the cabinet reshuffle. The
application does not
in fact set out what the reshuffle comprises but
I think we may accept that the decisions concerning the finance
minister and deputy
finance minister represent a significant subtext
in this application. Now, insofar as irreparable harm is concerned in
respect
of those specific two positions, I think Mr Jamie SC, who
together with Mr Studti appeared for the President, is correct in
submitting
that the decision has already been made and that nothing
that happens by way of the swearing-in ceremony in less than an
hour’s
time is going to change this.
[12]
The reason for this is that a
swearing-in is only required if a person is joining the cabinet. I
think we may take judicial notice
of the fact that the person who has
been appointed to occupy the post of finance minister is a serving
cabinet minister who has
hitherto occupied the position of Minister
of Home Affairs. He will continue to serve in the cabinet and
will not have to
be sworn in. Accordingly, stopping the swearing-in
ceremony is not going to have any effect on that particular
appointment.
[13]
It is true that the application also
seeks generally to preserve the status quo which prevailed prior to
the announcement of the
cabinet reshuffle. If the review in due
course succeeds, one may well revert to that position but at the
present time the effect
of granting interim relief would be to
reinstate into the cabinet a finance minister who has already been
dismissed from it and
to displace a person who has already been
deployed to that position and in respect of whom no further
procedural requirements,
such as swearing-in, are needed in order for
him to fulfil the functions of the finance minister.
[14]
Another aspect which has weighed with
us in assessing the element of irreparable harm is the extent to
which the irreparable harm
can truly be said to be a consequence of
the assumption of office by the newly appointed ministers,
particularly through the process
of swearing-in. It is not our place
to comment in a political sense on whether the reshuffle decision is
good or bad. But if the
cabinet reshuffle has already caused harm,
and if that harm deepens in the days ahead, it is our view that that
principal cause
of the harm is the public perception, here and
abroad, concerning the quality of the decisions made by our President
and what it
says about his plans for the future. We do not think the
question as to whether particular appointees are sworn in and start
performing
their functions is the source of the harm; it is the
perceived quality of the President’s decisions.
[15]
The leading Constitutional Court
cases make it clear that when courts are asked to intervene, in
advance of review proceedings on
an interim basis to restrain the
exercise of statutory powers, there is an additional qualification
over and above the conventional
test for the granting of interim
relief. That additional test is whether the circumstances are
exceptional and the case for intervention
strong and clear (
National
Treasury & Others v Opposition to Urban Tolling Alliance &
Others
2012 (6) 223
(CC) paras 41-47;
City
of Tshwane Metropolitan Municipality v Afriforum & Another
2016
(6) SA 182
(CC) para 43). This is to prevent the danger of courts
being drawn in to political matters, in potential violation of the
separation
of powers, in circumstances where the case for judicial
interference is not clearly made out. We do not think that the
standard
of a proper and strong case has been met here. That is
because of what we have said concerning the absence of facts
currently on
the record in support of the
prima
facie
case and
concerning the facts advanced in support of the contention of
irreparable harm and balance of convenience.
[16]
The fact that we have come to these
conclusions does not imply that the courts should shirk from their
duty to uphold the Constitution.
But the rule of law is not
necessarily advanced by overhasty intervention. The rule of law may
have to tolerate a period of turmoil
and discomfort so that the
Constitution can be vindicated in accordance with principles of
justice by which facts are properly
established and parties have
adequate opportunity to advance their arguments. That has not been
possible in this case and we do
not feel impelled, by the strength of
what has been put before us, to intervene.
[17]
Finally, we must emphasise that our
decision in this matter is not about the wrongs and rights of the
President’s decision.
Nobody, and certainly not the President,
would be entitled to point to our decision as in any way vindicating
his decision to make
the cabinet reshuffle. We simply say that, at
this stage and on the limited facts now before us, it would not be
right for us to
intervene.
[18]
As to the order to be made, we do not
see any purpose in keeping this particular application alive. The DA
will be entitled to launch
its review on Monday or any other day of
its choosing and in accordance with whatever timetable it considers
appropriate in the
circumstances. In regard to costs, we are
reluctant now to make an order. The DA was no doubt acting in what it
believed to be
the best interests of the country. We have not really
heard proper argument on costs. We therefore intend to direct that
the costs
of this application will be reserved for decision in the
review to be instituted, on the basis that if that review is not
instituted
or prosecuted with reasonable expedition, one or both of
the respondents may set this application down for a decision on
costs,
subject to reasonable notice being given to the applicant.
[19]
We therefore make the following
order:
(i) The application
is dismissed.
(ii) The costs of
the application are reserved for decision in the review to be
instituted by the applicant. If the said review
is not instituted
within a reasonable period of time or is not thereafter prosecuted
with reasonable expedition, one or both of
the respondents may set
the matter down for a decision on costs, subject to reasonable
written notice being given to the applicant.
______________________
ROGERS J
______________________
WILLE AJ
APPEARANCES
For
Applicant
Mr
A Katz SC & Mr T Mayosi
Instructed
by
Minde
Schapiro & Smith Inc
Tyger
Valley Office Park
Building
No 2
Cnr
Willie van Schoor & Old Oak Roads
Bellville
For
First Respondent
Mr
I Jamie SC and Mr B Studti
State
Attorney
22
Long Street
Cape
Town
For
Second Respondent
Mr
D Potgieter SC
Instructed
by
State
Attorney
22
Long Street
Cape
Town