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[2021] ZAGPPHC 305
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Advocate Mncwabe v President of the Republic of South Africa Hon. Ramaphosa and Others (22356/2019; 31464/2019) [2021] ZAGPPHC 305 (19 April 2021)
I
N
THE
H
I
GH
COURT
OF
SOUTH
AFRICA
(GAUTENG
DIVISION,
PRETORIA)
CASE
NO: 22356/2019
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
ADVOCATE
RON
SIMPHIWE
MNCWABE
Applicant
and
PRES
I
DENT
OF THE
REPUBLIC
OF SOUTH AFRICA:
HO
N
.
CYR
I
L
M
RAMAPHOSA
First Respondent
M
I
N
I
STER
OF
JUSTICE
AND
CORRECTIONAL
SERV
I
CES
Second Respondent
NAT
I
ONAL
D
I
RECTOR
OF
PUBLIC
PROSECUTIONS:
ADV.
SHAMILA
BATOHI
N.O.
Third
Respondent
and
C
A
SE
N
O:
31464/2019
I
n
the
matter
between:
KHULEKANIRAYMOND
MATHEN
J
WA
Appl
i
cant
and
PRES
I
DENT
OF THE
REPUBLIC
OF SOUTH AFRICA
(THE
HONOURABLE
CYRIL M.
RAMAPHOSA N.O.)
First Respondent
M
I
N
I
STER
OF
J
U
STICE
AND CORRECTIONAL SERVICES
(
THE
HONOURABLE
T
M
MASUTHA
N
.
O.)
Second Respondent
NATIONAL
DIRECTOR
OF
PUBLIC
PROSECUTIONS
(ADV.
SHAM
I
LA
BATOHI
N
.
O.)
Third
Respondent
ADV.
SHAUN
ABRAHAMS
Fourth Respondent
NAT
I
ONAL
PROSECUTING AUTHOR
I
TY
OF
SOUTH
AFRICA
F
i
fth
Respondent
JUDGMENT
D
S
FOURIE,
J:
[
1
]
The
two
appl
i
ca
n
ts
each
launched
a
separate
appl
i
cation
against
the
respondents in
which
they apply
for
substantially
the
same relief.
Both
seek an
order
that
the
first
r
espondent's
decision
to
withdraw
their
appointment
as Director
of
Public
Prosecutions:
Northern
Cape
Division
of
the
High
Court
("Mncwabe
appl
i
cation")
and
Director
of
Public
Prosecutions: Mpumalanga Division
of
the
H
i
gh
Court
("Mathenjwa
appl
i
cation"),
should
be
reviewed
and
set
aside
.
The
two
applications
are
substantially
the
same
and
as
there
i
s
a considerable
overlap between
them,
i
t
was decided by
the
Acting
Deputy Judge President of this D
i
vision
that both appl
i
cations
should be heard
together
by
the
same
Court.
[2]
Advocate Shaun
Abrahams, the
former
National
Director of
Publ
i
c
Prosecutions, has filed an explanatory affidavit as the fourth
respondent in
the
Mathenjwa
application.
He was
not
joined as a
respondent
in the
Mncwabe
application
,
but it
seems that
the
parties
have
i
nformally
agreed
that
his affidavit should
also
form
part
of
the
papers
in
both
the
Mncwabe
and
Mathenjwa applications.
[3]
The
President's
affidavit
in
answer
to
the
fourth
respondent's
explanatory
affidavit was filed
in
the
Mathenjwa
application, but
not
in
the
Mncwabe
application.
To
rect
i
fy
this
mistake the
President
filed
an
i
nterlocutory
application
in terms
whereof
he
appl
i
ed
for
condonation
for
the
late filing
of
his
answer to
the
fourth respondent's explanatory
affidavit and
that
his
answer
should
be
considered
appl
i
cable
i
n
both
the
Mncwabe
and
Mathenjwa applications. Th
i
s
application was opposed
by
only Mr Mncwabe.
[4]
During
argument
and
after
having
heard
submissions
in this
regard,
an
order
as
prayed for
was
granted.
The
main
reason for
having
granted
such
an
order is
because
Abrahams raised
i
n
his
affidavit
i
ssues
relevant
to
both
the
Mncwabe
and
Mathenjwa
applications and
i
t would
therefore
be
i
n the
i
nterest of
justice to
allow
the
first
respondent
'
s
answer
to
also
form
part
of
the
papers
in
the
Mncwabe
appl
i
cation.
I
t
was
ordered
that
costs
of
the
i
nterlocutory
application
shall
be costs
i
n
the
main
appl
i
cation.
BACKGROU
ND
[5]
Prior
to
h
i
s
re
s
ignation,
former President
Zuma
took
certain
steps
to
appoint
five
senior
members
as
either
Directors
or
Special
D
i
rectors
of
Pub
l
i
c
Prosecutions in various
offices
of the
Nat
i
onal
Prosecuting Authority
(NPA).
I
t
is in dispute
whether
these
appoint
m
ents
have
been
made
final.
Following
President
Zuma's resignation, President
Ramaphosa
assumed
office
and
decided
not
to announce
the
appointments and to withdraw these
appoi
n
tments.
[6]
Three
of
the
five
purported
appointees,
Dr
Pretor
i
us,
Mr
Mncwabe
and Mr Mathenjwa,
l
aunched
separate
appl
i
cations
before
this
Court seeking
to
review
and
set
aside
the
decision
of
President
Ramaphosa
to
withdraw
their
purported
appointments
and
to
seek
to
enforce
former
President
Zuma's
decision
.
The application by
Dr Pretorius
(Case
No
:
60640/2019)
was
withd
r
awn
on 9 March 2020.
Mr Mncwabe
and
Mr
Mathenjwa's
appl
i
cations
remain pending and are the subjects of
the current proceedings.
[7]
The
main
i
ssue to
be considered
in both the
applications
is whether
the applica
n
ts
'
appointments
as
a
Di
r
ector
of
Publ
i
c
Prosecutions
(OPP)
were
final and
had full
l
egal force
and
effect.
This
issue
also
raises
other questions,
such as, for
i
nstance
,
whether
President Ramaphosa was
functus
officio
and
whether his decision
to
withdraw
their
appointments was
i
nvalid,
unlawful
and
unconstitutional?
THE
M
NCWABE
APPLICATION
[8]
During or about July 2017 Mr Mncwabe
received a call from the personal assistant of the former
National Director of Publ
i
c
Prosecutions (Adv. Abrahams) who
asked
him for
a
detailed
curriculum vitae
on the apparent
request or
i
nstruction
of
former
Pr
esident
Zuma
,
which
Mr
Mncwabe
furnished
soon thereafter.
[9]
Mr Mncwabe then gives the follow
i
ng
explanation:
"
From
then
onwards
and
for
a period
of
not
less
than
eight
(8) months I never heard anything
from the office of the then NDPP
,
until on
7
February
2018
,
when I was both
telephonically
as well
as
electronically
(via
Whatsapp)
advised
and
notified
about
my appointment as
the
Director
of
Public
Prosecutions: Northern Cape
Division
of
the High
Court
,
Kimberley,
Northern
Cape,
as
confirmed
by
the
attached
and
self-explanatory
President's Minute
No
18 of
2018
...
which
I received
on
the same
date
via
W
hatsapp
and
later
around November 2018
on
hard
copy
.
I
immediately, telephonically and via
email, accepted the appointment
...
"
.
[1
0]
I
t
is further
explained
by
Mr
Mncwabe
that
"due
to
the political
climate"
and
former
President
Zuma
eventually
resigning
as
President,
Abrahams
then
advised
him
telephonically
"that
the issue pertaining
to myself
.
commencing
with
my
duties and
the logistics
related
thereto
shall be
communicated
to
myself
by the Office of the incoming
President
who
will announce my appointment together with the former NDPP and the
second respondent".
[11]
A period of approximately eight months
then
l
apsed
without
Mr
Mncwabe hearing
anything
from
e
i
ther
of
the
respondents.
I
t
is
common
cause
that
he never
assumed
office
as
OPP
or
acted
i
n
the
pos
i
tion
of
OPP.
On
18
March 2019
a
communication
was
received
from
the
office
of
the
NOPP
to which was
attached
"the
first
respondent's
minute,
President's
Minute
69
of
2019,
which amongst
others
states
that
my
appointment
by
the
former
President
is
hereby revoked".
[12]
Various
"legal
grounds fo
r._
the applicatio
n
"
are
then pleaded
i
n
t
he
founding
affidavit,
i
ncluding
allegations such as the
i
mpugned
decision
and
accompanying
conduct
were
taken
without
affording
Mr Mncwabe the
right
to
a
hearing,
violate
his
constitutional
rig
h
ts,
are
i
rrational
and
against
admin
i
strative
l
aws and
should therefore
be
reviewed and set aside.
THE
MATHENJWA
APPLICATION
[13]
In June 2017 Abrahams
requested
Mr
Mathenjwa to
provide
him
with a
copy
of
his
curriculum vitae.
On
5
February
2018,
during
a
discussion
with
Abrahams
concerning
certain matters related to
Mr Mathenjwa's
involvement
as
a
member
of
the
prosecution
team
advising
on
the
prosecution of former
President Zuma
,
and whether
the charges
against him ought to
be withdrawn
or
not
(based
on
the
representations
which
had
been
made)
,
Abrahams
informed
Mr
Mathenjwa
that
he
had
been
promoted
and
e
l
evated
by
former
Presiclent Zuma
to
the
Office
of
Director
of
Public
Prosecutions:
Mpumalanga
and
that
there was a presidential minute to
confirm his appointment as such
.
[14]
On
1
2
February
2018, with a view to
discuss
the
l
ogistics
around implementing
his appointment
,
Mr Mathenjwa
was
informed
that
Abrahams
had
received
a
call from the then
Justice
Minister Masutha
'
s
office
i
n
forming
him that the
Pres
i
dent
had
requested
that
Abrahams
"
hold
off
on
announcing my
and other
appointments
until
the
President
had
publicly
announced
same
."
Shortly
thereafter,
on
14
February
2018
President
Zuma
resigned
as
President
of
the
RSA
'
'prior
to him having announced my appointment publicly'
'
.
[15]
Mr Mathenjwa then gives the following explanation:
"
Due
to
the
change
in
administration
,
I
did
not
insist on
the immediate
implementation of
my
appointment
as
I
believed
it prudent
and collegial
to allow the new President
of the Republic of
South
Africa
to
settle into office before
implementing
my
position
as
DDP
Mpumalanga
.
"
[16]
On
12
March
2019
Mr
Mathenjwa
had
a
meeting with
Adv.
Batohi, the
National
Director
of
Public
Prosecutions.
Batohi
advised
him
that
the
executive
was
of the view that
Mr
Mathenjwa was
not
appointed and that she
"was
dealing
with
a
similar
matter in the case of Adv.
Mncwabe
who was also
.
enquiring
about his appointment as Director
of
Public
Prosecutions in the
Northern
Cape".
[
1
7]
On
19 March
2019
Mr
Mathenjwa was
i
n
formed
by the third
respondent (then Minister of Justice)
that
"the
first respondent
had
revoked my
appointment
as the OPP
Mpumalanga
.
"
I
t is
then concluded by
Mr Matherljwa that the decision to
revoke his appointment was unlawful and
should
be
reviewed and set
aside.
THE
EXPLANATORY AFFIDAV
I
T
BY
ABRAHAMS
[18]
In his explanatory
affidavit
Abrahams
indicates
that
"I
do not oppose
this
application
and
instead
'W
ould
abide
by
the
decision
of
this
honourable
Court
"
and that
"
/
deemed it prudent
to depose and file this affidavit
for the assistance of this honourable
Court".
[19]
Dur
i
ng
February
2018,
whilst
be
i
ng
in
Cape
Town
on
official
business, Abrahams was given
several
signed Presidential
Minutes
·
by
the
"Ministry
of Justice
"
to
enable
him
to
communicate
with
the
individua
l
s
concerned
.
These Pres
i
dential
Min
u
tes
were
contained
"in
their
original
customary
red
folders
in which
they
were initially
submitted
to
the
Ministry
"
together
with
certain
signed
memorand
a
.
This included the follow
ng:
(a)
Signed Presidential
Minute
No
10,
dated
1
February
2018,
i
n
which
the
then
President
appointed
Mr
Mathenjwa
as the
OPP:
Mpumalanga
Division of the
High Court;
(b)
Signed Presidential
Minute
No
18,
dated 1
February
2018,
in
which
the
then
President
appointed
Mr
Mncwabe
as
the
OPP:
Northern Cape Division of the High
Court.
[20]
Abrahams
then
states the following:
“
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."
[21]
Before
requesting
his
spokesperson
to
prepare
an
i
nternal
commun
i
cation
to announce the
n
ew
appointments
i
nternally
within
the
NPA, Abrahams contacted
the
Ministry
to
establish
whether
the
Ministry,
the
then
President
or
Abrahams
would
make a media statement. He also
pointed
out to
the
Ministry
that
he
had
already
informed
all
the
appointees of
their
appointments.
He
gives the following explanation:
"Notwithstanding
the Ministries position,
I advised Mr Moleme
to discuss
the
issue
of publicly
announcing
the appointments
with the then
Minister
and
the
Presidency
to
seek
clarification.
As
a
result
I
held
back
on
issuing
an
NPA
internal communication
announcing
the February
appointments made
by the
then President."
[22]
Abrahams was
then requested
"to
hold
off
on
the
internal
announcement"
as
the then
M
i
nister
had agreed
with
the then
Pres
i
dent
that
he
would make
the
necessary
media
announcement.
He
was advised
by
the
Minister that
h
e had
spoken to the
then
President
and that the
l
atter
had requested that they attend a meeting
with him and the
newly
elected President of
the
African
National
Congress,
Mr
Ramaphosa,
"
as
the
then
President,
as
a matter of courtesy
,
wanted to brief
the new
President
of the ANG
on
the recent resignations
from the NPA,
along with the new appointments
that he had affec
t
ed
in the NPA on
1
February
2018
."
[23]
I
t
is finally
concluded
by
A
b
r
ahams
that
once
a decision was
made
by
the
then
President
to
appoint
Mr
Mncwabe
and
M
r
M
athenjwa,
and
same
was
communicated by him to those
affected
by
the decision, that the decision was
no
l
onger
susceptible
to
revocation
without
resorting
to
the
Courts,
"
as
th
a
t
would infringe the principle of
legalit
y
"
.
T
H
E
P
R
ES
I
DE
N
TI
AL
MINUTE
S
[24]
The Presidential Minutes No 10
and
18
with
regard to
the
appointment of
Messrs
Mathenjwa and
Mncwabe
are
both
dated
1
February
2018. The
wording
thereof
(save for their names and
t
he
Div
i
sion of
the High Court concerned)
is
the same.
I
t
reads
as
follows:
"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
...
as
Director of
Public Prosecutions of
the
...
Division of
the
High Court
..
.
with
effect
from 1
February 2018
.
"
[25]
On
11 March
2019 Pres
i
dent
Ramaphosa
i
ssued
Pres
i
dential
Minutes No
67
and
69.
In terms
thereof
he
revoked the
appointment
of
both
Messrs
Mathenjwa
and
Mncwab
e
.
Both
these
minutes
are
the
same,
,save
for
the
names
of the
i
ndividuals
concerned and the
D
i
vision
of
the High
Court applicable.
I
t
reads as
follow
s
:
"Whereas
...
was
appointed,
as
Director
of Public
Prosecutions
.
.
.
in terms
of
President's Minute
No
...
of 1
February
2018.
Under
section
13(1)(a)
of
the
National
Prosecuting
Authority
Act
>,
1998
(Act
32
of
1998)
"
read
with section
101
of the Constitution of the
Republic of
South
Africa
,
1996 and
after
consulting
with
the
Minister
of
Justice
and Correctional Service and
the
National
Director
of Public
Prosecutions, I
hereby
revoke
the
appointment of
...
and
the
said
President's
Minute
No
...
of
1
February
2018."
THE
FIRST RESPONDENT'S
ANSWER
[26]
An
answering
affidavit
deposed
to
by
the
Director-General
in the
Pres
i
dency
and Secretary
of
the Cabinet
was
filed
i
n
both appl
i
cations.
I
n answer
to the fourth
respondent's
explanatory
affidavit
an
affidavit
by
President
Ramaphosa was also filed.
[27]
By
the
end of January 2018
(in
his capacity
as
the
newly
elected
President
of the African National Congress and
Deputy President of the
country)
President
Ramaphosa was
informed
by
former
Minister
Masutha of
the
i
n
tention
to
make a
number
of
appointments
of
Directors
and
Special
Directors
of
Publ
i
c
Prosecutions
i
n
the
NPA
across
the
country.
I
t
was
also
explained
to
him
that former
President
Zuma had
i
n
tended
to
make
these appointments,
but
they
had
not been finalised and no public announcement
had been made.
[28]
Following
his
appointment
as
President,
a
series
of
briefing
ses
s
i
ons
took
place
with
various organs
of
State,
i
ncluding
the
NPA.
During
a
br
i
efing
session
with
Abrahams
on
or about
27
February
2018,
the
President
enquired
from
Abrahams
whether
these
appointments
.
had
been
fast-tracked
and,
if
so, what
were
the
reasons therefore.
He was
given
the
assurance
that
the appointments
had not been fast-tracked
and Abrahams
was
then
i
nformed
that the President needed t
o
a
pply his mind to
the
proposed appointees.
[29]
In
August
2018
the
Constitutional
Court
delivered its
judgment
i
n
the
Nxasana
matter
and
decided
that
the
purported
appointment
of
Abrahams
as
NDPP was
unlawful and that
he had to vacate that office.
The appointment
of a
new
NDPP was
of
critical
i
mportance
and
took
priority.
Once a new
NDPP was appointed,
the
President
turned
to
consider
the
other
issues
facing
the
l
eadersh
i
p
of the NPA including the appointments which are the subject
matter of these
proceedings.
[30]
At the request of the
President,
a
l
egal
opin
i
on was
sought and obtained on the status of
those
proposed
appointments
.
The
essence
of
the
opinion was
that
the
proposed
appointments
were
not
final
and
as
a
result
they
could
be
revoked
in
the
discretion
of
the
President.
The
President
gives
the
following
explanation:
"I
was
thus
at
liberty
to
decide
whether
or
not
to
give
effect
to
those purported
appointments
by ratifying and announcing them
in public,
and,
to
the
extent
necessary
,
to
retract
or
amend
the
purported
appointments."
[31]
Pursuant to the advice received the
President then exercised his
discretion
and
decided
not
to
proceed
with
giving
effect
to
-
and
publicly
announcing -
the
purported
appointments
by
former
President
Zuma. The
following
explanation
is
given
by
the
P
r
esident:
"I
was not satisfied
that
the pe
r
sons
purportedly
appointed
by the former
President,
on the recommendation
of Adv Abrahams
,
would necessarily
best
serve
the
int
erests
o
f
a
highly
effective
NDPP
or
be
in
the
best
interests
of
the
restructuring
and
revitalisation
of
the
NDPP,
as
a
vital
organ in the
justice
system
.
I determined
that the appointment
of
suitable
persons
to
those
positions
should
rather
be
considered
afresh by the new NDPP
,
Adv.
Batohi
,
who could then make
recommendations
in
due course to me as President for appointmen
t
.
That
process
awaits
the outcome of the
present litigation.
"
[32]
The
President then exercised
his discre
t
ion
not to finalise
the
appointment of
the selected
individuals.
This was
reflected
in Presidential
Minutes 67 and 69 referred to above
.
THE
LEGISLATIVE FRAMEWORK
[33]
Section
1
79(1)
of the
Constitution, 1996
provides
that
there
is
a
sing
l
e
National
Prosecuting
Authority
consisting
of
a
National
Director
of
Publ
i
c
Prosecutions,
Directors
of
Public
Prosecutions
and
Prosecutors
as
determined
by an Act
of
Parl
i
ament.
Subsection
(3)
stipulates that
nat
i
onal
l
egislation
must ensure that the
Directors of
Public
Prosecutions
are
appropriately
qualified
and
are
responsible
f
o
r
prosecutions in
specific
jurisdi
c
t
ions
.
Subsection
(4) stipulates
that nat
i
onal
legislation must
ensure
that
the
Prosecuting
Authority
exercises
i
ts
functions without fear
,
favour
or
prejudice.
[34]
Executive
decisions
are
dealt
with in
section 101
of
the
Constitution
.
Subsection
(1) provides
that
a
decision
by
the
President
must
be
in writing if
i
t
is taken
in
terms
of
l
egislation,
or
has
l
egal
consequences. Subsection
(2) stipulates
that
a
written
decision
by
the
President
must
be
counter-signed by
another
Cabinet
Member
if
that
decision
concerns
a
function
assigned
to
that
other
Cabinet
Member.
Section
85(2)(e)
i
s
also
relevant.
I
t
p
r
ovides
that
the
Pres
i
dent
exercises the
executive
authority, together
with the
other
members
of
the
Cabin
e
t,
by performing any other executive
function provided for
i
n
the Constitution
or
i
n
national
l
egislation.
[35]
I
n
terms
of the
Nationa
l
Prosecuting
Authority Act
No 32 of
1998 (
"
NPA
Act
"
),
wh
i
ch
i
s the
l
egislation
giving
effect
to the
constitutional
directive conta
i
ned
in
section
1
79
,
the
single
National
Prosecuting
Authority
i
s
structured
with
an
office
of
the
National
Director
of
Publ
i
c
Prosecutions
and
offices
of
the
Prosecuting
Authority
at
each
Division
of
the
High
Court.
These
offices
are
established
under section 6(1) of the NPA Act and
headed either by a Director of
Publ
i
c
Prosecutions or a Deputy Director of Publ
i
c
Prosecutions appointed to the seat of each Division of the High
Court.
[36]
The
appointment
of
Directors
of
Public
Prosecutions
i
s
prescribed
i
n section
1
3(1) of
the NPA
Act.
I
t
provides
as
follows:
"
(1)
The President
,
after
consultation
with
the Minister
and
the
National
Director
-
(a)
may,
subject
to
section 6(2)
appoint
a
Director
of
Public Prosecutions
in
respect of an
office of
the
Prosecuting Authority established
by section 6(
1
)
;
(aA)
…
(b)
…
(c)
may
appoint
one or more
Directors
of Public
Prosecutions
(herein referred
to as
'
Special
Directors}
to exercise
c
e
rtain
powers,
carry out certain duties and
perform certain functions
conferred
or
imp9sed
on
or
assigned
to
them
or her
by
the
President by
proclamation in the Gazette."
[37]
Section
1
4(3)
provides
t
hat
section 12(3),
(4)
,
(
6)
,
'(
7), -(8)
and
(9)
,
i
n respect
of
the
vacation of
office
and
discharge of
the
National
Director
,
shall
apply
,
w
i
th
the necessary
change
s
,
with regard
to
the
vacation of
office
and
discharge of a Director.
D
I
SCUSSION
[38]
The
main
issue to
be
considered
i
s
whether
President
Ramaphosa
was entitled
to
reverse
the
initial
decision
of
former
President
Zuma
regarding
the
appointments of the applicants.
Put differently, was
he not precluded from doing
so
in
view
of the
fact
that
the
appl
i
cants
had
by
then
already
been
i
nformed
by Abrahams about their appointments?
[39]
I
t was
contended on behalf of the applicants that Presiden Ramaphosa was
functus
officio
(he was
not entitled to
reconsider the decision which
had
already
been made) and could therefore
not
set aside the decision
of
former
President
Zuma.
I
t
was further submitted
that Presidential
Minutes
No
10
and
1
8
i
n
terms whereof the appl
i
cants
were appointed by former President Zuma are both
final
and
valid
documents,
ful
l
y
compl
i
ant
with
the
provisions
of section 13(
1
)(a)
of the NPA Act read together with section 101(1) and (2) of the
Constitution.
[40]
Counsel for the
President
accepted
that
section
101
of the
Constitution
has
been
compl
i
ed
with,
but
submitted
that
compl
i
ance
cannot
alone
determine the issue.
I
t
was
further
co
n
tended
that a
decision only becomes
final
and
binding once
i
t
has
been
i
mplemented
by an
overt
external
act
oy
the
decision-
maker. Until then,
and
despite
the
completion
of
certain
procedural
steps,
the
decision originally made
i
s
merely prel
i
minary
and
therefore,
so
i
t
was contended,
the decision-maker
may
reverse
or
amend
his
or
her
preliminary
decision.
[41]
The
functus
officio
doctrine states,
generally speaking
,
that
once
a
decision-maker has
rendered
a
final
decision,
he
becomes
functus
officio
and
cannot
reconsider
the
decision
made
(Retail
Motor
Industry
Organisation
and Another
v
Minister of
Water
and Environmental
Affairs
and
Another
2014
(3)
SA
251 (SCA) par 23).
This principle
was
appl
i
ed
in
Milnerton
Lagoon
Mouth
Development
(Pty) Ltd
v
The
Municipality
of
George
&
Others
2004
JDR
0258
(C)
par 12 where
the
High
Court held as follows:
"The
applicant submits, however, that
the decision in Hopf v
Pretoria
·City
Council is no longer good law on the
grounds that the Constitution and the statutory duties
imposed
on a municipality militate
against the rule
that
a
public authority
may
rescind
its
own
decision.
The
short
answer
to this
submission,
in
my
view,
is
that
it
loses
sight
of
the
distinction between a
preliminary decision and
a
final
decision.
A
public authority
is
regarded
as
being
functus
officio
only
once
a
final
decision has been
made. The authority
may
at
any
time
revoke
a
decision
before
the
actual exercise
Q/
a
power in terms of an empowering
law. This
principle
has
been
followed
by
the
Constitutional
Court in
President
of the Republic
of
South
Africa
and
Others
v
South
African Rugby
Football Union and Others."
[42]
The
principle
referred
to
in the
Milnerton
Lagoon
case
has
been
explained by the Constitutional Court
i
n
President of the Republic
-
of South Africa
and
Others
v
South
African
Rugby
Football
Union
and
Others
2000 (1) SA
1
(CC)
par 44 as follows:
"In
law
,
the
appointment of
a
commission
only
takes
place
when
the
President's
decision
is
translated
into
an
overt
act
,
through public
notification
.
.
.
section 84(2)(f) does
not
prescribe
the
mode of
public
notification
in
the
case
of
the
appointment
of
a
commission
of
enquiry but
the method
usually
employed,
as
in
the present
case,
is
by
way
of promulgation in
the
Government
Gazette.
The
President
would
have been entitled to change his
mind at any time prior
to
the promulgation
of
the
notice
and
nothing
which
he
might
have
said
to
the
Minister
could have
deprived
him
of
that power
.
Consequently,
the
question
whether
such
appointment
is
valid,
is
to be adjudicated
as
at
the
time
when the act takes place, namely
at the time of promulgation."
[43]
Taking i
n
to
account the
dicta
referred to above,
i
t is clear
that the
functus officio
doctrine
appl
i
es
only to final decisions. As the
Constitutional Court
i
nd
i
cated
in
President of the Republic of South
Africa
and
Others v South African Rugby
Football
Union
and Others
,
supra
,
the appointment of a commission only
takes
place
when the
President's
decision
is
t
r
anslated
into an overt act, through
public
notification
-
meaning
that
the
President
would
have
been
entitled
"
to
change his mind at any time prior
to the
promulgation
of the notice".
[44]
However, it
was submitted
on behalf of
the
applicants, and also by
counsel
for
Abrahams,
that
an
overt
act
through
publ
i
c
not
i
fication
i
s
not necessarily appl
i
cable
in all cases
-
-also
not in this
one -
more
particularly when
there
is
no
statutory
requ
i
rement
for
publication
i
n the
Government
Gazette
or
otherwise.
Taking
into
account
that
the
decision
to
appoi
n
t
the
-
appl
i
cants
was conveyed
to them
by
Abrahams,
i
t
was
contended
that
a
point of finality
is also arrived
at
when
the
decision
is
"announced
or
otherwise conveyed to
those affected
by
it".
In
support
of
this
submission, I was referred
to
the
following
statement by Prof Hoexter
,
Administrative Law in South
Africa, 2nd Ed, p 278:
"In
general,
the
functus officio doctrine applies only to final decisions, so that
a
decision
is
revocable
before
it
becomes
final.
Finality
is
a point arrived
at
when
the
decision
is
published,
announced
or
otherwise
conveyed to those
affected by it."
(my emphasis)
[45]
I think
there
may
be
some
merit,
generally
speaking,
in the
submission
that
i
n
some
cases
final
i
ty
is a point
arrived
at
when
the
decision
is
conveyed
to
those
affected
by
i
t,
without
a
public
announcement.
This
raises the
question
whether
i
n
this case
the
decision
taken by
former President
Zuma,
and
the
not
i
fication
thereof
by
Abrahams
to
both the appl
i
cants,
are sufficient to
meet
the
requirement
of
final
i
ty.
[46]
Counsel
for
the
President
pointed
out
the
importance
of
the
role
of
the
Director
of Publ
i
c
Prosecutions.
In
terms
of
the NPA
Act
there
is
a
single National
Prosecuting Authority
structured
with
an
office
of
the
National
Director
of
Public Prosecutions
and
offices
of the
Prosecuting
Authority
at each
D
i
vision
of the High Court
.
The offices of the Prosecuting Authority
are established under
section
6(1)
of
the
NPA
Act
and
headed
either
by
a
Director
of
Public
Prosecutions
or
a
Deputy-Director
o
f
Public
Prosecutions
appointed
to
the
seat of each
D
i
vision
of the
High
Court.
I
think there
is
mer
i
t
i
n
this argument.
[47]
The
i
mportance
of
the role
of
the
Director of Public Prosecutions is underscored
and
amplified
by the fact that
i
n sec
t
ion
1
3(1
)(
a)
o
f t
he NPA
Act the President appoints the
Director
of
Public
Prosecutions.
The
significance
of this
cannot
be
understated.
The
President
is
the
Head
of
State
and
Head
of
the
Nat
i
onal
Executive. His
i
s
indee
d t
he
h
i
ghest
call
i
ng
to the
h
i
ghest
office
i
n
the country
(Economi
c
Fr
e
edom
Fight
e
r
v
S
p
e
a
ker
o
f
t
h
e
National
Ass
e
mbly
2016
(3) SA 580 (CC) at 20).
The decision of the President to appoint
a Director of
Publ
i
c
Prosecutions is
therefore
not the same, and also not on the same
l
evel,
as a decision, for example, of a
functionary to grant or refuse a
licence.
I
n
such a
case
i
t
may
be
sufficient
i
f
the
appl
i
cant
i
s formally
notified
.
of
the
decision without
i
t having
been passed
i
nto
the
publ
i
c
domain
(cf
Raje v Zeerust
Town
C
ouncil
1938
TPD 283 at 290 as well as
MEC
for
Health,
Eastern
Cape,
and
Another v
Kirland
Investments (Pty)
Ltd
2014
(3)
SA
219
(SCA)
where a subsequent
decision to
grant
a
l
i
cence
to
operate
a
hospital
was
only
communicated
to
the
applicant).
[48]
I was
also
referred
to
the
decision
of
the
Supreme
Court
of
Appeal
i
n
Plover's
Nest
Investment
v
De
Haan
[2015] ZASCA
(193) where
the
issue
was whether conditions imposed on
owners of
un
i
mproved
erven,
wh
i
ch
were not communicated
to the
m
,
and
not
registered
against
the title
deeds
of
the
respective
properties,
\ifere
binding
on the
owner.
Mhlantla
JA
held,
with
reference
to
SARFU
(President
of
the
Republic
of
South
Africa
and Others
v South
African Rugby
Football
Union
and
Others,
supra)
referred
to
above,
as follows
(in par 24):
"
SARFU
Ill
related
to
the
exercise
of
presidential
executive
powers to
appoint
a
commission
of enquiry in terms of s 84(2)(f)
of the Constitution. The question
before
the
Court
was
whether
the
exercise
of
the power conferred
on
the
President
constituted
administrative
action.
The Constitutional Court
held
that
the
decision was
executive
rather
than
administrative action.
But
Plover's
Nest
argued that
SARFU Ill
was authority
for the
proposition
that
a
decision
takes effect only
when communicated.
The
Court
said (par
a
44)
that
the
appointment of
a
commission of enquiry
'
only
takes pla
c
e
when the Pr
e
sident's
decision is
translated
into
an
overt
act
,
through
public
notification
'.
The argument
loses
sight
of the
fact
that
the
President
was
the
repository
of
power
in
terms
of
the
Constitution
:
only
he
could
take
such
a
decision
and he
was
required
to
make
it
public.
In
this
matter
Gever
was
not
the
repository
of power. Geyer simply
miscommunicated
its
decision
.
"
(my emphasis)
[49]
It was
submitted
by counsel for the
President that
an essential
part of a
final
decision
,
when
exerc
i
sing
this
type
of
execut
i
ve
power
,
is
some
fo
r
m
of publ
i
cation
through
an
overt
act
of the decisio
n
,
wh
i
ch
announcement
i
s made
in
the
publ
i
c
domain
.
That
i
s
because
i
t
i
s an
executive
act
i
on
,
wh
i
ch
affects the wider publ
i
c.
I
agree
w
i
th this
submission
.
[50]
I
n
the present case the Pres
i
dent
is
the
repos
i
tory
of the power
i
n
terms of the NPA Act.
He
i
s
the only one who
has
the power to appo
i
nt
Directors of Public Prosecutions
in
terms of s 13
(
1
)
of the NPA Act.
I
n
terms of s
1
79(3)
of the Constitution they sllould be appropriately qualified and are
responsible for
prosecutions in
specific
jurisdictions
.
The
y
,
as
part
of
the
Prosecut
i
ng
Authorit
y
,
should exercise their funct
i
ons
w
i
thout
fear, favour or prejudice. No doubt
,
the
publ
i
c has
a direct
i
n
teres
t
i
n not
o
nly
the appointment,
but
also the
identity
of the person
or persons appointed
as D
i
rectors
of Pub
l
i
c
Prosecutions
.
Therefor
e
,
taking
i
n
t
o
account the
executive power
of only
the
Presiden
t
to
appoi
n
t
Directors
of
Pub
l
i
c
Prosecutions
,
the
statutory
requireme
n
ts
regarding
their responsibi
l
i
ties
,
the
i
mportance
of their role
i
n
society and the public interest with
regard to their appointment, such an appointment only takes place
,
in my view,
when
the
President's
decision
i
s
translated
into
an
overt
act
,
through
publ
i
c
not
i
fication
(President of the Republic of South
Africa
and
Others v South African
Rugby
Football
Union
and O
thers, supra,
par
44).
[51]
In short,
and
put
somewhat
differently,
the
appointment of
a
Director
of
Publ
i
c
Prosecutions by
the
President should not be
made
i
n
secret, beh
i
nd
closed doors or unobtrusive, for obvious reasons.
This
i
s
not a pr
i
vate
affair.
I
t
is also not
a
daily
occurrence. This
i
s
a
necessary
and
i
mportant
publ
i
c
appointment
provided
by statute.
The
r
i
ght
of the public to
be
i
nformed
i
s
i
mpl
i
c
i
t
i
n
the
constitutional
ordering
so
that
the
public
may
know
who
to
hold
accountable. Publ
i
c
not
i
fication
i
s
therefore,
in
my view, a necessary
requirement and
forms
part
of the
appointment
process. Without
that the
decision
to
appoi
n
t
would
be
incomplete and therefore
not
final.
.
[52]
There
seems
to be no dispute that the appointment of the appl
i
ca
n
ts
had never
been
announced
i
n
the
publ
i
c
domain.
According to
Abrahams he was requested
"to
hold
off
on
the
internal
announcement'
as
the
then
Minister
had
agreed
with the then
President
that
he
would
make
the
necessary
media
announcement.
Former
President
Zuma
never
reached
the
stage
where
he
decided
that the
decisions be
published.
There
is
no
written
i
nstruction
or evidence
regarding
a delegation of authority empowering
Abrahams or any other
person,
other
than
the
President
himself,
to
publish
the
decision
and
thereby
make it
final and
i
rrevocable.
Abrahams
does
not state that
he was
i
nstructed
or authorised
by
the
President
or the Presidency to
publish and thereby
finalise the
appointments.
All
he
says
is
that
he
exercised
his
powers as the erstwhile
Head
of
the
NPA
to
inform
the
purported
appointees.
There
i
s
no
i
ndication
in the Constitution or the NPA Act that
the
Head of
the NPA
is
empowered
to
finalise
a
decision for
and
on
beha
l
f
of the
President.
On the contrary,
i
t
had
been
made clea
r
to
Abrahams that
the
then
President
would
make
the
necessary media
announcement.
That was
never done.
President
Ramaphosa was
therefore
at
l
i
berty
to decide whether
or
not to give effect to those purported appointments
by announcing
them
in
public
or
not
to
proceed
and
finalise
the
purported
appointments. Put
differently, the
President
was entitled not
to
finalise
the
purported
appointments as
those
appointments,
decided
by
former President
Zuma,
had
never
become
a
final
decision.
The
"revocation"
by the
President
i
s
just
another way
of saying that
the
President has decided
not to finalise and give
effect to the purported appointments.
[53]
I
t
was
also
suggested
on
behalf
9f
the
applicants
that
Pres
i
dent
Ramaphosa
shou
l
d
have approached
the
Courts to review and
set aside former President Zuma's
decisions.
Counsel
for
the
President
pointed out that
we are
not
here
dealing
with
a
Q
administrative
decision,
but an
executive
decision.
I
agree with this submission. This case
is
not
about an inval
i
d
decision,
it
is about whether
the
decision by former
President
Zuma was final,
and
i
f
i
t
was, whether it was
subject
to
the
functus
officio
princip
l
e.
I
have
already
conclu
d
ed
that
the
decision
by
former
President
Zuma was
not
final and therefore the
functus
officio
principle
i
s
not appl
i
cable.
[54]
I
t was
further
contended
on behalf of
the
appl
i
cants
that the
i
mpugned
dec
i
sion
taken
by
President
Ramaphosa
should
be
reviewed
and
set
aside
,
because the decision was taken without
affording the applicants
the
right
to be
heard
.
I
n
answer
thereto,
counsel
f
o
r
the Pres
i
den
t
argued that the Pres
i
dent
had acted in
terms
of his executive -
not
administrative
-
powers and therefore
the procedural requirement of
audi alteram partem
(to hear the other side)
is not
appl
i
cable.
[55]
Iwas
referred
to the decision
in
Masetlha
v President
of the Republic
of
South Africa
and Another
2008
(1) SA
566
(CC) where
the
Constitutional
Court
dealt
with
the constitutional validity of
two
decisions by
the
President.
Mr
Masetlha had been appointed as Director-General
of the National Intell
i
gence
Agency
.
He was first suspended
and
l
ater
his employment was terminated. The President did so unilaterally.
[56]
One of the main questions that arose in that case was whether the
power to appoint and the correlative power to dismiss
a head of the
National Intelligence Agency as conferred by section 209(2) of the
Constitution is subject to procedural fairness.
The
complaint was that the President did not afford
Mr
Masethla an opportunity to be heard before
he was dismissed
.
[57]
I
t
was
pointed
out
by
the
Constitutional
Court
that
the
aud-principle,
or the
right to be heard, which
is derived from the tenets of natural
justice,
i
s
part of the
common
l
aw.
I
t
i
s
i
nspired
by the
not
i
on
that
people
should
be
afforded
a
chance
to
participate
in the
decision
that
will
affect
them
(par
75).
However,
it
was
also
pointed out that an
i
mportant
distinguishing
feature
is
that the
power
to dismiss
is
an
executive
function
that derives from
the
Constitution
and
national
l
egislation
(par 75). The Court then held as follows:
"
Section
85(2)(e) of the Constitution,
in
particular,
stipulates
that the
President
ex
e
r
c
ises
e
x
ecutive
authority
by
performing
'any
other e
x
ecut
i
v
e
function provid
e
d
for
in th
e
Constitution
or
in
national
legislation
'.
Furthermore
,
it
is
important
to understand
that
s
1 of
PAJA
e
x
pressly
e
x
cludes
,
from
the purvie
w
of
'
administrative
actio
n
',
executive powers
or
functions
of
the
President
referred
to
in
s
85(2)(e). In
other
words presidential decisions
which
constitute
the exercise
of
e
x
ecutive
powers
and
functions under
s
85(2)(e) are
clearly
not
susceptible
to administrative review under
the tenets of
PAJA
even
if
they otherwise constitute administrative action
.
"
(Par 76
)
[58]
The
Court
found
that
whi
l
e
the
power
in
question
had
to
be
exercised
l
awfull
y
,
rationally and
i
n
a manner consistent with the Constitution
,
procedural
fairness
is
not a
requirement (par 78)
.
I
t was
also
held
that
the
exercise
of
the power
to
dismiss
by
the President
"
is
constrained
.
by
the
principle of
legality,
w
hich
is implicit in our constitutional ordering
."
(Par 81)
[59]
It
therefore
seems
to
me
that
,
generally
speaking
,
execut
i
ve
act
i
on
of this nature is
not
subject
to procedural
fairness
,
i
s not
susceptible
to administrative
review
i
n
terms of
PAJA
and
does not
requ
i
re
the right
to be heard
.
More
i
mportantly,
this
case
is not about
a dismissal as was the
position
i
n
the
Masetlha
matter.
The
appl
i
cants
i
n
this
matter
were not
removed
from office or discharged
as contemplated
i
n
section
1
2(6)
,
read with
section
1
4(3)
,
of the
NPA
Ac
t
,
as
they
n
ever
had
bee
n
finally appointed
or
assumed
office
as
OPP
.
I
n
this case the
Pres
i
dent
exercised
his
executive
powers
by
simply deciding
not
to
final
i
se
and
give
effect
to
the
i
nchoa
t
e
decision
of
former President Zuma
and
the
purported
appointments which had been made by him.
This
is
another
reason
why the a
u
d
i
-principle
should
not
be applicable.
However
,
the authorities
are
clear
that
when the President
i
s
exerc
i
sing
an
executive
function,
the
authority
conferred
must
be
exercised
l
awfully,
rationally
and
i
n
a manner
consistent
with the Constitution.
[60]
I
n this
regard
i
t
is
i
mportant
to point out that
according
to the evidence
of
President
Ramaphosa,
he
exercised
his
discretion
not
to
proceed
and
final
i
se
the appointments made by former
President Zuma,
because he:
"(w)as
not satisfied
that
the persons purportedly
appointed
by the former President, on the recommendation
of Adv. Abrahams,
would necessarily
best
serve
the
interests of
a
highly effective
NDPP
or
be
in
the
best
interests
of
the
restructuring and
revitalisation
of
the
NDPP,
as
a
vital organ in
th
e
justice
s
ystem."
[6
1
]
I
t
i
s
also
clear,
according to
h
i
s
explanation
that
he was
of
the view that the
appointment
of
su
i
table
persons
to
these
pos
i
tions
should
rather
be
considered afresh
by
the new NDPP, who would then
make
recommendations
in
due course to the
President
for
appointment.
He points out that
process
awaits
the
outcome of this l
i
tigation.
[62]
I
t
furthermore appears
that
the
Pres
i
dent
had
concerns that
the
proposed appointments were
hastily
made and therefore
he
enquired from
Abrahams
whether
these
appointments had
been fast-tracked
and,
if
so,
what
were
the
reasons
therefore.
In August
2018
the
Constitutional
Court
delivered
i
ts
judgment
and
decided that the purported appointment
of Abrahams
as NDPP was
unlawful and
that
he
had
to
vacate his
office.
At the request of
the
Pres
i
dent
a
l
egal
opin
i
on was
sought
and
obtained on the status of the
proposed appointments
regarding the
applicants
in
the
present
matter
.
He
then
gives
the
following explanation:
"I
was
thus
at
liberty
to
decide
whether
or
not
to
give
effect
to
those purported
appointments by ratifying and
announcing
them
in public,
and,
to
the
extent
necessary,
to
retract
or
amend
the
purported appointment
s
.
"
[63]
I
t
therefore appears that President Ramaphosa properly applied
his mi
n
d
to
these
proposed
appointments, and
considered
the
finalization
thereof
careful
l
y,
especially
i
f
one takes
i
n
to
account the
concerns
raised in other
cases
i
nvolving
appointments
to
the
National
Prosecuting
Authority
(
cf.
Democratic
Alliance
v
President of
South
Africa and Others
2013 (1)
SA 248 (C'C);
Nxasana
v
Corruption
Watch
NPC
and
Others
2018
(
2)
S
ACR 442
(CC)
and
Jiba
and
Another v
General
Council
of
the
Bar
of
South
Africa
and
Another:
Mrwebi
v General
Council
of the
Bar
of
South
Africa
_
2019
-
(1)
SA
130
SCA)).
The
President
then
states
that
"these
issues,
including
this
batch
of
proposed leadership
appointments,
required
full and
proper
consideration
before
any
further steps could be taken
,
so
as
to achieve stability in the
NP
A
.
.
."
[64]
Taking
i
nto
account
the
facts
and
circumstances
referred
to
above,
I
agree
with
counsel
for
the President
that
the reversal
of
the preliminary decision
for the proposed appointments, being
in
the
President's discretion
,
was rational
,
and was
exercised for the
l
egitimate
purpose
of
ensuring the constitutionally protected functioning and integrity of
the National Prosecuting
Authority.
For all
these
reasons
I
am
of
the
view
that
that
when
the
President
exercised
his
discretion
not to finalise the appointment of
the
appl
i
cants,
he did so
l
awfully,
rationally
and
in
a
manner
consistent
with
the
Constitution.
[65]
In the
result
both appl
i
cations
should
be
dismissed
with
costs
.
In
view
of the
fact that Abrahams
did
not oppose the applications and only filed an affidavit
to assist the court, he shall not be
entitled to any costs.
[66]
I
t should
finally
be
pointed out that the remarks, comments and conclusion
made
in
this
judgment
are
not intended, and should
not
be
i
nterpreted,
to
cast a
negative
ref
l
ection
on the
character,
i
ntegrity
and competence of either of
the
applicants, or that of Abrahams.
That was
not the
purpose of this judgment.
ORDER
In
the result
I
make the following order:
1.
The
appl
i
cation
of
Mr
Mncwabe
as
applicant
i
n
case
number
22356/2019
i
s
dismissed
with
costs,
excluding
the
costs
of
Adv
Abrahams;
2.
The
application
of
Mr
Mathenjwa
as
appl
i
cant
in
.
case
number
31464/2019
i
s
dismissed with
costs,
excluding
the costs of
Adv Abrahams;
3.
Costs
which
have been
i
ncurred
jointly
by
the
two
applicants
and/o
r
costs
i
ncurred
as a
result
of the jo
i
nt
hearing
and/or
costs which
cannot
easily
be
separated
and
assigned
to
a
particular
appl
i
cation,
shall be shared and
paid equally (50/50) by the two
appl
i
cants;
4.
All
costs
referred to
above
shalt
include the costs
of two
counsel where
so employed, excluding the costs of
Adv Abrahams.
D
S FOURIE
JUDGE
OF THE HIGH COURT
PRETORIA
Matter
heard: 11 and 12 March 2021.
Judgment
del
i
vered:
1
9 April
2021.
APPEARANCES:
Counsel
for the applicant (Mr Mncwabe) in case 22356/2019:
Mr
EZ Fakude.
Counsel
for
the
applicant
(Mr Mathenjwa)
in case 31464/2019:
Mr
D Reddy.
Counsel
for
First
respondent (President of
the RSA) and
Third
respondent (National Director of
Publ
i
c
Prosecutions)
in
both applications:
Adv
P Kennedy SC.
Adv
L Zikalala
.
Adv
L
Mokgoroane.
Counsel
for
Fourth
r
espondent
(Adv Abrahams)
in
case 31464/2019:
Adv
IAM
Semenya
SC.
Adv
MP Mahlatsi.