About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2017
>>
[2017] ZAGPPHC 148
|
|
Democratic Alliance v President of the Republic of S A; In re: Democratic Alliance v President of the Republic of S A and Others (9 May 2017) (24396/2017) [2017] ZAGPPHC 148; [2017] 3 All SA 124 (GP); 2017 (4) SA 253 (GP) (9 May 2017)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
PROVINCIAL DIVISION, PRETORIA
Reportable:
Yes
Of
interest to other judges: Yes
REVISED.
Case
number:
23496/2017
In
the matter between:
Democratic
Alliance
Applicant
And
President
of the Republic of S
A
Respondent
In
re the application between:
Democratic
Alliance
Applicant
and
President
of the Republic of S
A
First Respondent
Pravin
Jamnadas
Gordhan
Second Respondent
Mcebisi
Hubert
Jonas
Third Respondent
Malusi
Nkanyezi
Gigaba
Fourth Respondent
Sifiso
Norbert
Buthelezi
Fifth Respondent
JUDGMENT
Introduction
[1]
On 4 May 2017 sitting in the Urgent Court I handed down an order and
indicated that reasons would follow in due course. The
order was in
the following terms:
"The following order
is made:
1. The matter is heard as
one of urgency in terms of Rule 6(12) of the Uniform Rules of Court,
and the forms and service provided
for in the Rules are dispensed
with.
2. The first 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]
These are the reasons.
Backgrounds
facts
[3]
Soon after the stroke of midnight, while most residents of the
country had retired for the night, the respondent (the President)
announced to the populace what the applicant calls radical changes to
the National Executive (the Cabinet). The announcement was
in the
following terms:
"I have decided to
make changes to the National Executive in order to improve efficiency
and effectiveness.
The changes bring some
younger MPs and women into the National Executive in order to benefit
from their energy, experience and expertise.
I have directed the new
Ministers and Deputy Ministers to work tirelessly with their
colleagues to bring about radical socio-economic
transformation and
to ensure that the promise of a better life for the poor and the
working class becomes a reality.
The new members are the
following: Ministers
1.
Minister of Energy, Ms Mmamoloko "Nkensani" Kubayi
2.
Minister of Transport , Mr Joe Maswanganyi
3.
Minister of Finance, Mr Malusi Gigaba
4.
Minister of Police, Mr Fikile Mbalula
5.
Minister of Public Works, Mr Nathi Nhleko
6.
Minister of Sports and Recreation, Mr Thembelani Nxesi
7.
Minister of Tourism , Ms Tokozile Xasa
8.
Minister of Public Service and Administration, Ms Faith Muthambi
9.
Minister of Home Affairs, Prof Hlengiwe Mkhize
10.
Minister of Communications , Ms Ayanda Dlodlo
Deputy Ministers
1.
Deputy Minister of Public Service and Administration, Ms Dipuo
Letsatsi-Duba
2.
Deputy Minister of Finance, Mr Sifiso Buthelezi
3.
Deputy Minister of Public Enterprises, Mr Ben Martins
4.
Deputy Minister of Arts and Culture, Ms Maggie Sotyu
5.
Deputy Minister of Trade and Industry, Mr Gratitude Magwanishe
6.
Deputy Minister of Communications , Ms Thandi Mahambehlala
7.
Deputy Minister of Tourism, Ms Elizabeth Thabethe
8.
Deputy Minister of Police, Mr Bongani Mkongi
9.
Deputy Minister of Telecommunications and Postal Services, Ms Stella
Ndabeni-Abrahams
10. Deputy Minister of
Small Business Development , Ms Nomathemba November
I wish to extend my
gratitude to the outgoing Ministers and Deputy Ministers for their
service to the country. I also wish the new
Ministers and Deputy
Ministers the best in their new responsibilities."
[4]
The announcement essentially revealed that the President had taken
decisions to, with immediate effect, dismiss some Ministers
and
Deputy Ministers and replace them with others. Some of the replacing
Ministers and Deputy Ministers were newly appointed whilst
others
were merely shifted from one portfolio to another. A key aspect of
the announcement was the decisions to dismiss and replace
the
Minister of Finance, the second respondent, and the Deputy Minister
of Finance, the third respondent. They were replaced respectively
by
the fourth respondent and the fifth respondent.
[5]
The announcement caused a great deal of consternation for a
significant proportion of the populace. It is no exaggeration to
say
that it was received with shock, alarm and dismay by many. One reason
for this is that it came on the heels of an extensive
public
complaint that incessant malversation had embedded itself in our
public life and that the country was mired in the quicksand
of
corruption. The Minister of Finance and the Deputy Minister of
Finance perform important functions that, amongst others, involve
the
control of the public purse. It is these dismissal decisions (the
decisions) that have prompted the applicant, a registered
political
party, to approach this Court on an urgent basis to essentially
review the decisions (the main application). The President
is cited
as the first respondent in that application. The main application was
launched on 4 April 2017, within two (2) court days
of the
announcement. The relevant portions of the notice of motion reads:
"1. The matter is
heard as one of urgency in terms of Rule 6(12) of the Uniform Rules
of Court, and the forms and service provided
for in the Rules are
dispensed with to the extent necessary.
2. The decision of the
President on 31 March 2017 to dismiss Mr Pravin Gordhan as Minister
of Finance and replace him with Mr Malusi
Gigaba is reviewed and set
aside, and is declared unconstitutional, unlawful and invalid.
3. The decision of the
President on 31 March 2017 to dismiss Mr Mcebisi Jonas as Deputy
Minister of Finance and replace him with
Mr Sifiso Buthelezi is
reviewed and set aside, and is declared unconstitutional , unlawful
and invalid."
[6]
It being a review application the applicant deemed it appropriate to
bring it in terms of rule 53 of the Uniform Rules of Court
(the
Rules). However, as it claimed that the matter was urgent and brought
it terms of rule 6(12) it chose to truncate the time
periods laid
down in rule 53. The provisions of rule 53 read:
"(1) Save where any
law otherwise provides, all proceedings to bring under review the
decision or proceedings of any inferior
court and of any tribunal,
board or officer performing judicial, quasi-judicial or
administrative functions shall be by way of
notice of motion directed
and delivered by the party seeking to review such decision or
proceedings to the magistrate, presiding
officer or chairperson of
the court, tribunal or board or to the officer , as the case may be,
and to all other parties affected
–
(a) calling upon
such persons to show cause why such decision or proceedings should
not be reviewed and corrected or set aside,
and
(b) calling upon
the magistrate, presiding officer , chairperson or officer, as the
case may be, to despatch, within fifteen
days after receipt of the
notice of motion. to the registrar the record of such proceedings
sought to be corrected or set aside,
together with such reasons as he
or she is by law required or desires to give or make, and to notify
the applicant that he or she
has done so.
(2) The notice of motion
shall set out the decision or proceedings sought to be reviewed and
shall be supported by affidavit setting
out the grounds and the facts
and circumstances upon which applicant relies to have the decision or
proceedings set aside or corrected.
(3) The registrar shall
make available to the applicant the record despatched to him or her
as aforesaid upon such terms as the
registrar thinks appropriate to
ensure its safety, and the applicant shall thereupon cause copies of
such portions of the record
as may be necessary for the purposes of
the review to be made and shall furnish the registrar with two copies
and each of the other
parties with one copy thereof, in each case
certified by the applicant as true copies. The costs of
transcription, if any, shall
be borne by the applicant and shall be
costs in the cause.
(4) The applicant may
within ten days after the registrar has made the record available to
him or her, by delivery of a notice and
accompanying affidavit,
amend, add to or vary the terms of his or her notice of motion and
supplement the supporting affidavit.
(5) Should the presiding
officer, chairperson or officer, as the case may be, or any party
affected desire to oppose the granting
of the order prayed in the
notice of motion, he or she shall –
(a) within fifteen
days after receipt by him or her of the notice of motion or any
amendment thereof deliver notice to the
applicant that he or she
intends so to oppose and shall in such notice appoint an address
within 15 kilometres of the office of
the registrar at which he or
she will accept notice and service of all process in such
proceedings; and
(b) within thirty
days after the expiry of the time referred to in subrule (4) hereof,
deliver any affidavits he may desire
in answer to the allegations
made by the applicant.
(6) The applicant shall
have the rights and obligations in regard to replying affidavits set
out in rule 6.
(7) The provisions of
rule 6 as to set down of applications shall
mutatis mutandis
apply
to the set down of review proceedings."
[7]
Should the time periods allocated to parties in terms of this rule be
applied to the main application the urgency of the matter
would be
lost. For that reason the applicant gave the President five (5)
(instead of the fifteen (15)) days to file a notice of
intention to
oppose, to furnish the reasons relating to the making of the
decisions as well as the record of all documents and
reports that
were considered when making the decisions (the record). Thereafter
the applicant would only take three (3) (instead
of the allowed ten
(10)) days to amend its papers, the respondent was given ten (10)
(instead of thirty (30)) days to file opposing
papers and the
applicant would only take three (3) days to file its replying papers.
Save for filing a notice of opposition the
President has yet to
respond to the main application. The President has ignored the time
periods laid down in the notice of motion.
In the meantime a robust
exchange of communication between the attorney for the applicant and
the state attorney representing the
President took place.
[8]
On 6 April 2017, the state attorney wrote to the applicant stating,
inter alia,
that:
"We have been
instructed to request an indulgence until the
28
th
April 2017
for the delivery of the records.
Kindly consider our
request and revert." (Emphasis in original)
[9]
The applicant's attorney read this statement to mean that the records
would be furnished but only on 28 April. The statement
is certainly
open to that interpretation. On that interpretation the applicant's
attorney responded to the state attorney on the
same day stating:
"Your
client [the President] furnishes no reasons whatsoever for the
extension he seeks.
In the light of the fact
that this is a very urgent matter, we hold instructions to hold your
client to the strict time frames as
stipulated in the Notice of
Motion."
[10]
On 11 April 2017 the state attorney filed a notice of intention to
oppose on behalf of the President. Neither the record relating
to the
making of the decisions nor the reasons for decisions were filed or
furnished. But on the same day the state attorney sent
an letter to
the applicant's attorney advising her:
"Due to the
President's schedule, we have not been able to secure a consultation
with him. It is only after such consultation
with the client that
proper instructions can be obtained. You will understand how crucial
such a consultation is
in order to furnish you and the Court with
a proper Rule 53 record
that you have requested.
Accordingly, we have been
instructed to advise you that the Presidency will ensure that a
consultation with the President is held
as soon as possible.
In light of the above, we
will revert to you on or before the 2151 April 2017."(Emphasis
added).
[11]
Once again, the impression given by this letter is that the record
would eventually be furnished. However, the
dies
referred to
in the notice of motion continued to run with no actual advancement
of the case. Nevertheless, the applicant's attorney
wrote to the
state attorney on the same day, 11 April, informing him that the
applicant was prepared to grant the President an
extension until 18
April to comply with the demand in the notice of motion for the
record as well as the reasons. In the same letter
the applicant's
attorney wrote:
"Whilst we fully
appreciate your client's busy schedule, we point out that the
decision he made and this review challenging
it is a matter of
national importance and is extremely urgent. We draw your attention
to the fact that, subsequent to the launch
of the application, a
further ratings agency - Fitch - has downgraded South Africa to junk
status in respect of both foreign and
local bonds and has
specifically cited your clients' dismissal decision in doing so.
In the circumstances, our
client is reluctantly prepared to accord your client a limited
extension, but only to Tuesday 18 April
2017 . We call upon your
client to file the record and reasons by close of business on that
date, failing which our client’s
right to bring an urgent
compelling application and to seek an appropriate costs order are
strictly reserved."
[12]
The President was clearly put on terms to comply with the demand as
per the provisions of rule 53 albeit with truncated times,
and that
failing such compliance by 18 April the applicant would launch an
interlocutory application compelling him to so comply.
The state
attorney did not reply to this letter until the due date, 18 April.
On that date the state attorney furnished a reply
consisting of two
short paragraphs which read:
"We refer to the
above matter and hereby confirm that we have not been able to consult
our client in connection with your demand
for the record.
In view of the above, we
will revert as soon as we have consulted in relation to the record."
[13]
There are two aspects of this response which for purposes of this
judgment bear recording. Firstly, the reply only makes mention
of the
record. It is silent on the issue of the reasons that form the basis
of the decisions. Secondly, the state attorney remains
non-committal
as to when exactly a firm and definitive response to the demand for
the record and the reasons will be furnished
or filed.
[14]
The patience of the applicant had been exhausted by this time.
Accordingly, on 19 April it filed and served the interlocutory
application it had alerted the state attorney to on 11 April. It is
that application that forms the subject matter of this judgment.
The
present interlocutory application
[15]
The notice of motion indicated that the matter was set down on the
urgent roll of 25 April. The President filed his opposing
papers on
21 April. In those papers it is averred that the promised
consultation with the President only took place late on 20
April. The
applicant filed its replying papers on 25 April. The matter was then
postponed to 2 May.
[16]
The answering affidavit filed on behalf of the President raises two
points only: firstly, the interlocutory as well as the
main
application are not urgent and, secondly :
"the decisions that
the applicant seeks to review and set aside constitute executive
decisions taken in terms of section 91
of the Constitution.
Accordingly, Rule 53 is not applicable."
The
decisions
[17]
The power to take the decisions is vested in the President by s 91(2)
of the Constitution of the Republic of South Africa Act
108 of 1996
(the Constitution). This power, like all other power conferred upon
the President whether by the Constitution or any
statute must be read
with s 83 of the Constitution, which reads:
"The President-
(a) is the Head of
State and head of the national executive ;
(b) must uphold,
defend and respect the Constitution as the supreme law of the
Republic; and
(c) promotes the
unity of the nation and that which will advance the Republic."
[18]
The executive power to appoint and dismiss Ministers and Deputy
Ministers is wide-ranging. But it is not as unfettered as its
predecessor the royal prerogative. The royal prerogative is a relic
of an age past. The executive power conferred upon the office
of the
President by s 91(1) of the Constitution is circumscribed by the
bounds of rationality and by sections 83(b) and (c) of
the
Constitution. The President accepts at the very least that the
exercise of the power has to meet the test of rationality. In
an
affidavit deposed to by the President in a matter before the
Constitutional Court which is still to be considered by that Court
the following is averred:
"30 It stands
therefore to reason that the Constitutional power to appoint and
dismiss Ministers is that of the President,
which power he or she
exercises as head of the Cabinet. I am advised in this regard there
are no constitutional constraints on
the President on how that power
is to be exercised or the process by which the power is to be
exercised,
as long as the exercise of such power is rational.
"
(Emphasis added)
[19]
The President's concession that the present executive decisions have
to be rational and therefore subject to judicial scrutiny
is well
made. It is now settled law that these decisions must comply with the
"doctrine
of legality."
[1]
The
doctrine is fundamental to our constitutional order. Should an
executive decision not comply with this doctrine it would be
unlawful. Thus, if it is to be lawful it must not be irrational or
arbitrary.
[2]
[20]
Given that the decisions can be reviewed and set aside should they
transcend rationality, the question that follows is how
should the
applicant approach the court? Put differently, what procedural
devices should be employed to test the rationality of
the decisions?
The applicant maintains that it is entitled to utilise rule 53. Rule
53, we know, is applied with rule 6.
[3]
The President disagrees. The President maintains that rule 6 should
be utilised on its own. The President's objection to the
applicability
of rule 53 is based on a particular reading of rule
53(1), which reading the President says is the only sensible one. It
is to
this issue that attention will now be focussed .
Do
the provisions of rule 53 apply to an application to review and set
aside
an executive decision?
[21]
The Rules of which rule 53 is a part were promulgated on 12 January
1965. The genealogy of rule 53 is presented in a thoughtful
judgment
by Corbett JA (as he then was) in
Safcor
Forwarding Johannesburg (Pty) Ltd v National Transport Commission.
[4]
The
learning derived from this judgment is: the rule was devised in order
to regulate on a national basis the procedure to be followed
in cases
of all species of review whether statutory or common law based. It
has since been successfully utilised in all those cases.
The court
has for the last five decades been able to perform its judicial
functions because of the provisions of rule 53. However,
most of the
cases where rule 53 was applied involved a
"decision
or proceedings of
(an)
inferior
court',
a
"tribunal'
,
a
"board'
or an
"officer
performing judicial , quasi-judicial or administrative functions"
and not
an executive decision. The President relies on this to contend that
the provisions of rule 53 do not apply to an application
to review an
executive decision. The President's case is that since an
"executive
decision"
is
not listed in sub-rule 53(1) it is excluded from the ambit of rule
53. The President's approach relies on a literal interpretation
of
sub-rule 53(1) and therein lies its weakness. Rule 53 was promulgated
at a time when executive decisions were not subject to
review.
Subsequently, with the enactment of the Constitution and the
development of the common law since its enactment these decisions
,
as the President acknowledges, are subject to review. It is true that
rule 53 has not been amended to cater for this, but to
decide on its
applicability to a review of executive decisions it is necessary to
subject it to a purposive interpretation.
[22]
The purpose of rule 53 is well captured in the following
dicta
of
Kriegler AJA (as he then was):
"Not infrequently
the private citizen is faced with an administrative or quasi-judicial
decision adversely affecting his rights,
but has no access to the
record of the relevant proceedings nor any knowledge of the reasons
founding such decision. Were it not
for Rule 53 he would be obliged
to launch review proceedings in the dark and, depending on the
answering affidavit(s) of the respondent(s),
he could then apply to
amend his notice of motion and to supplement his founding affidavit.
Manifestly the procedure created by
the Rule is to his advantage in
that it obviates the delay and expense of an application to amend and
provides him with access
to the record."
[5]
[23]
Hence, the purpose of rule 53 is
"to
facilitate applications for review''
[6]
and
since its promulgation it has served this purpose well. While
Kreigler AJA draws attention to the manifest benefits of the rule
to
the applicant who launches the review application , more recently two
judgments from the Supreme Court of Appeal draw attention
to the
benefits of the rule for the court as well.
[24]
In the
Democratic
Alliance and Others v Acting National Director of Public Prosecutions
and Others
[7]
Navsa
JA held:
"Without the record
a court cannot perform its constitutionally entrenched review
function , with the result that a litigant's
right in terms of s 34
of the Constitution to have a justiciable dispute decided in a fair
public hearing before a court with all
the issues being ventilated,
would be infringed."
[25]
In
Helen Suzman Foundation v Judicial Service Commission,
the
Deputy-President of the SCA, Maya DP, (as she then was) held:
"[13] The primary
purpose of the rule is to facilitate and regulate applications for
review by granting the aggrieved party
seeking to review a decision
of an inferior court, administrative functionary or state organ,
access to the record of the proceedings
in which the decision was
made, to place the relevant evidential material before court. It is
established in our law that the rule,
which is intended to operate to
the benefit of the applicant, is an important tool in determining
objectively what considerations
were probably operative in the mind
of the decision-maker when he or she made the decision sought to be
reviewed. The applicant
must be given access to the available
information sufficient for it to make its case and to place the
parties on equal footing
in the assessment of the lawfulness and
rationality of such decision.
By
facilitating access to the record of the proceedings under review,
the rule enables the courts to perform their inherent review
function
to scrutinise the exercise of public power for compliance with
constitutional prescripts.
This,
in turn, gives effect to a litigant's right in terms of s 34 of the
Constitution - to have a justiciable dispute decided in
a fair public
hearing before a court with all the issues being properly ventilated.
Needless to say, it is unnecessary to furnish
the whole record
irrespective of whether or not it is relevant to the review. It is
those portions of a record relevant to the
decision in issue that
should be made available. A key enquiry in determining whether the
recording should be furnished is therefore
its relevance to the
decision sought to be reviewed."
[8]
(Emphasis added) .
[26]
The point that it is of significant value to the court is reiterated
in
Turnbull-Jackson v Hibiscus Coast Municipality
where the
following is stated :
"Undeniably, a rule
53 record is an invaluable tool in the review process. It may help:
shed light on what happened and why
; give the lie to unfounded ex
post facto (after the fact) justification of the decision under
review; in the substantiation of
as yet not fully substantiated
grounds of review; in giving support to the decision maker's
stance; and in the performance
of the reviewing court's function."
[9]
[27]
Turnbull-Jackson,
it bears reminding, carries the provenance
of the Constitutional Court.
[28]
The above brief survey of the courts' approach to Rule 53
demonstrates that it is there for
"the
proper and convenient administration
of
justice.
"
[10]
[29]
Relying on the purposive interpretation there is no logical reason
not to utilise it in an application to review and set aside
an
executive decision. The judicial exercise undertaken by the court in
such a review is no different from the one undertaken in
review
applications of an
"inferior court, a tribunal, a board or an
officer performing judicial, quasi-judicial or
administrative
functions."
The tests to be applied may be different but the
process utilised can be the same. Its provisions, in my judgment,
should be applied
unless it can be shown that its application in a
particular case would result in a failure of justice .
[30]
On the basis of the above, I hold that the provisions of rule 53
apply
mutatis mutandis
to an application for the reviewing and
setting aside of an executive order or decision.
[31]
It should therefore be utilised in the main application. After all,
there is no contention by the President that its utilisation
in the
main application would result in a failure of justice.
[32]
Having come to the conclusion that rule 53 applies to the main
application , it becomes superfluous for me to consider whether
it is
necessary to have recourse to the court's inherent power in terms of
s 173 of the Constitution to fashion a different procedural
remedy
for the applicant's right to approach the court in the main
application.
[33]
The consequence of utilising rule 53 in the main application is that
the applicant is entitled to call for the President to
furnish the
reasons for his decisions as well as the relevant part of record that
formed the basis upon which the decisions were
taken. This is catered
for in sub-rule 53(1)(b). The President's stance on this is that the
applicant is not entitled to the record
at all. The President's
contention is that the decisions are subject to the doctrine of
legality and therefore the applicant is
entitled to the reasons for
the decisions, but not to the record. The President's stance was
conveyed in oral submissions, but
not in the answering affidavit
filed in oppos ition to the application. The difficulty with this
submission is that it goes against
the grain of all the authorities
cited above, especially that of
Helen
Suzman Foundation
and
Tumbull-Jackson.
[11]
In my judgment there is no merit in this submission.
[34]
As I have come to the conclusion that the relevant part of the record
must be furnished as per the provisions of sub-rule 53(1)(b)
, the
issue that immediately follows is what this record should consist of,
and it is to that issue that I now turn.
[35]
There is not a soupçon of evidence concerning the record from
the President. The President has elected to remain completely
quiescent on this aspect. The applicant demands that
"all
documents and electronic records (including correspondence,
contracts, memoranda, advices, recommendations, evaluations
and
reports) that relate to the making of the decisions"
be
provided. The President has not raised any issue about their
existence or non-existence. The applicant has raised the issue of
the
existence of a so-called
"Intelligence
Report'
in
its founding papers in the main application. It has repeated its
claim on that issue in this application. The President has not
dealt
with the existence or non-existence of this report. In the same vein,
the President has not indicated what documents or electronic
records
exist and which of those he objects to disclosing on the ground that
their disclosure would be unlawful for one reason
or another. In
these circumstances this Court has no choice but to issue an order
that calls for a record as canvassed in paragraph
2.2 of the notice
of motion in the main application.
[12]
[36]
The President has also not furnished the reasons for the decisions as
required by sub-rule 53(1)(b). In terms of this sub-rule
the
President is to dispatch to the registrar the record together with
the reasons for the decisions. The President has yet to
do so. During
oral submissions it was contended on the President's behalf that
reasons have been furnished to the applicant in
the letter of the
state attorney to the applicant's attorney dated 21 April, which
letter was written after this interlocutory
application was filed and
served. Also, the letter was filed on the same date as the answering
affidavit. In the letter the attorney
acting for the President
states:
"As will be
evidenced in the answering affidavit of the President, in his
response to your application to compel the delivery
of the records,
the decision to reshuffle the cabinet as he did was informed by his
political judgment that the reshuffle will
best deliver on the
mandate the African National Congress received from the majority of
the electorate in the last general elections."
[37]
According to the oral submissions these are the reasons. There are
three fundamental problems with this submission. Firstly,
it is
contained in a letter which is annexed to the answering affidavit and
there is no averment in the answering affidavit that
it constitutes
the reasons. Secondly, it is made by the attorney acting for the
President and not by the President himself. In
the present case,
there is absolutely no affidavit from the President, not even a
confirmatory one. Thirdly, it does not comply
with the provisions of
sub-rule 53(1)(b), which requires the President to file the reasons
with the registrar and either furnish
them to the applicant or inform
the applicant that they have been filed with the registrar.
Accordingly, the applicant is entitled
to an order compelling the
President to furnish the reasons for the decisions.
[13]
Urgency
[38]
The applicant relies on the consequences for the country as a whole
for its claim that the matter warrants the urgent attention
of this
Court as well as the Court entertaining the main application. It is
the applicant's contention that the impugned decisions
are of an
extraordinary nature and that they have far reaching harmful
consequences for the country. For evidence it relies, amongst
others,
on decisions of two ratings agencies to reduce the country's rating
to
"junk”.
This downgrading of the country's rating
was a direct consequence of the impugned decisions. Hence, the
impugned decisions, according
to the applicant, produce disastrous
consequences for the country's economy. One other ratings agency is
yet to make a decision
in this regard. Its decision is expected in
June. Should that ratings agency concur with the two that have
already pronounced their
decisions the harmful consequences will,
according to the applicant, intensify. In any event, the harmful
consequences that have
already commenced taking effect have not
ceased and will continue for some considerable time.
[39]
The answering affidavit filed on behalf of the President acknowledges
the importance of the ratings downgrade but contends
that as the
downgrade has already taken effect the applicant can no longer rely
on it to persuade this Court to entertain it as
an urgent application
in terms of rule 6(12). This contention is misconceived. The reliance
is not on the downgrade but on the
consequences of the downgrade and
those consequences according to the applicant are continuous.
However, at the hearing the President's
counsel recognised that the
urgency of this application is intricately linked to the urgency of
the main application. As the issue
of urgency remains alive in that
case they elected not to pursue the contention in the answering
affidavit that the matter is not
urgent and should therefore be
struck from the roll.
[40]
As the main application is pending and is brought on an urgent basis,
it is necessary for the time-periods referred to in rule
53 for the
filing of all papers to be truncated in order to make the matter
hearing-ready. This explains the tight time periods
referred to in
the order. The President's counsel agreed that granting the President
five calendar days to file and furnish the
record and the reasons is
reasonable.
Costs
[41]
As the applicant has succeeded in this application there is no reason
to deny it its costs. This the President's counsel conceded.
It was
also conceded that it should be the costs of two counsel where two
were employed.
[42]
That concludes the judgment.
____________________
VALLY
J
Counsel
for applicant: Adv S Budlender assisted by Adv M Mbikwa. The heads of
argument were drafted by 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
Instructed
by: State Attorney, Pretoria
Date
of hearing: 4 May 2017
Date
of order: 4 May 2017
Date
of reasons: 9 May 2017
[1]
Albutt
v Centre for the Study of Violence and Reconciliation and Others
2010 (3) SA 293
(CC) at 4];
Minister
of Military Veterans v Motau
2014 (5) SA 69
(CC) at [69]
[2]
Democratic Alliance v Ethekwini Municipality
2012 (2) SA 151
(SCA)
at [21]
[3]
See sub-rules 53(6) and 53(7) quoted in [6] above
[4]
1982 (3) SA 660
(A) at 667F – 670A
[5]
Jockey Club of South Africa v Forbes
[1992] ZASCA 237
;
1993 (1) SA 649
(A) at 660 D-F.
[6]
Cape Town City Council v South African National Roads Authority and
Others
2015 (3) SA 386
(SCA) at [36]
[7]
2012 (3) SA 486
(SCA) at [37]
[8]
2017 (1) SA 367
(SCA) at [13], footnotes omitted
[9]
2014 (6) SA 592
(CC) at [37]
[10]
United Building Society v Barkhuizen
1959 (4) SA 295
(O) at 299D
[11]
See the quotations in [24] – [26] above
[12]
See para 2.2 of the Order quoted in [1] above
[13]
See para 2.1 of the Order quoted in [1] above