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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 2025-092790





LABOUR PARTY OF SOUTH AFRICA Applicant

and

THE PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA First Respondent

THE DEPUTY PRESIDENT OF THE REPUBLIC OF
SOUTH AFRICA Second Respondent

NATIONAL ECONOMIC DEVELOPMENT AND
LABOUR COUNCIL Third Respondent

MINISTER OF FINANCE Fourth Respondent

NATIONAL TREASURY Fifth Respondent

SPEAKER OF THE NATIONAL ASSEMBLY Sixth Respondent

STEVE BIKO FOUNDATION Seventh Respondent

(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO


Date: 17 July 2025

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THABO MBEKI FOUNDATION Eighth Respondent

CHIEF ALBERT LUTHULI FOUNDATION Ninth Respondent

DESMOND AND LEAH TUTU LEGACY FOUNDATION Tenth Respondent

STRATEGIC DIALOGUE GROUP Eleventh Respondent



REASONS
DE VOS AJ
Introduction
[1] The Labour Party seeks an urgent interim interdict to halt the National Dialogue set to
commence on 15 August 2025. 1 The relief is sought pending the review of the
decision2 to establish the National Dialogue.
[2] The state respondents are the first to sixth respondents, being the President, Deputy-
President, NE DLAC, Treasury, the Minister of Finance and the Speaker of the
National Assembly.
[3] The seventh to eleventh respondents were admitted as intervening parties prior to the
hearing. They are Foundations, built on the legacies of freedom fighters that span the

1 The specific relief sought is:
“Pending determination of a review in Part B, the Labour Party seeks an order interdicting and
restraining -
12.1 the operation and implementation of the President’s decision t o convene two National
Conventions and conduct a national dialogue process, including any expenditure related thereto:
and/or
12.2 the Respondents and their representatives from taking any steps or incurring any expenditure
to convene the National Dialogue Conference on 15 August 2025.”
2 There is a dispute as to whether announcing the National Dialogue amounts to a decision and if so whether
the decision was made on 10 June 2025 or in December 2024. The Court will refer to it as a decision for
ease without making a finding in this regard. For reason that will become clear below the Court did not make
a final determination on this issue as it will be the subject of Part B of these proceedings.

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resistance movement in South Africa, including those of Nobel Laureates. The
Foundations are the custodians of the National Dialogue.
[4] The controversy which this Court has to decide is whether the requirements for an
interim interdict have been met, alternatively whether the Labour Party has made out
a case for the Court to exercise its powers in terms of section 172 of the Constitution.
[5] Before addressing these requirements, the Court sets out the announcement and the
progress of the National Dialogue.
Announcing the National Dialogue
[6] The National Dialogue has been announced in stages as it unfolds. Certain events
are significant. First the speech by former President Thabo Mbeki on 30 April 2024.
In that speech President Mbeki highlighted several major challenges facing the
country and urged that the nation come together in a national dialogue to do that
seismic reflection. President Mbeki emphasised that the dialogue should be inclusive
and not limited to politicians. It should be extended to civil society, business, lab our
and “everybody”.
[7] Second, the post -election formation of the Government of National Unity (GNU) in
May 2024. In the published Statement of Intent, the ten political parties to the GNU
pledged to commit to an “all-inclusive National Dialogue process … [that] will seek to
develop a national social compact that enables the country to meet the aspirations of
the National Development Plan”.
[8] Third, a commitment by government to the process , specifically through the
President’s consistent reiteration of government’s support for the National Dialogue .
This can be seen from the President’s inauguration on 19 June 2024, when the
President stated that he would invite all parties, civil society, labour, business and
other formations to a National Dialogue. Again, at the opening of Parliament on 18
July 2024, the President confirmed the National Dialogue would involve extensive and

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inclusive public participation akin to the previous events that charted the way forward
for the country (like the Congress of the People and CODESA).
[9] Then on 16 December 2024, the President announced that “we will hold a National
Dialogue next year”. The President added that “since the announcement I made on
the National Dialogue during my inauguration in June, we have received many
representations [and] [f]urther consultation is underway … on the form and content of
the National Dialogue”.
[10] Most recently, on 10 June 2025, in a televised address, the President confirmed the
date for the first convention as 15 August 2025 and announced the names of the
Eminent Persons Group to assist in advising the President and championing the
National Dialogue.
[11] In making the announcement, the President explained that it was “an initiative that
has been in discussion by a number of leaders in our country and many other people
for some time now”, that the “initiative” had been “gathering support”, and that, in the
wake of “consultations”, there is “broad agreement that given the challenges our
country is facing at the moment, we should convene the National Dialogue”. According
to the announcement, the National Dialogue will be a “participatory process” that is to
be guided by “an Eminent Persons Group”, appointed by the President. Moreover, an
Inter-Ministerial Committee “has been established” under the Chairmanship of the
second respondent (the Deputy President), which will “coordinate government’s
contribution to the National Dialogue”. It was said that a Steering Committee is to be
established, “comprised of representatives of various sectors of society, to set
strategic priorities and coordinate implementation of the National Dialogue process”.
Finally, the Presid ent said that the “Secretariat, which is responsible for day -to-day
management of National Dialogue activities, will be housed at NEDLAC…”.

management of National Dialogue activities, will be housed at NEDLAC…”.
[12] The first National Convention is scheduled for 15 August 2025, and is expected to set
the agenda for the National Dialogue.

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[13] Whilst the announcements have been made by our former President and our current
President, the work and initiative comes from the Foundations.
The work done by the Foundations
[14] The Foundations explained in its papers, the context within which it was doing the
work and the work done to this point.
[15] The Foundations point to some stark facts : the 2024 South African elections saw a
record low voter turnout despite an increase in political parties and independent
candidates, indicating declining public trust in electoral democracy. The elections also
revealed growing societal divides - between rich and poor, urban and rural
communities - alongside failing public services, corruption, and widespread mistrust
in government. Perhaps the most striking indicator of this alienation is that only 40%
of eligible voters chose to cast their ballots. According to data from the Public Affairs
Research Institute (PARI), 70% of non-voters were under the age of 35, raising serious
concerns about the legitimacy of democratic institutions and the mandate of
Parliament.
[16] The Foundations place the National Dialogue in this context. They submit that an
active citizenry should be encouraged in South Africa since we have chosen a
participatory model of democracy. The success and benefits of this model depends
on public participation exercised through civil society organisations, communities, and
ordinary members of the public. The rely on the repeated findings by our that public
participation is a critical aspect of our constitutional order that must be embraced and
jealously guarded.
[17] In their capacity as custodians of the National Dialogue the Foundations convened a
Preparatory Committee, a transitional coordinating structure, to lay the groundwork
for South Africa's upcoming National Dialogue. Pursuant to arrangements made with
representatives of the State, the Preparatory Committee evolved into what is now

representatives of the State, the Preparatory Committee evolved into what is now
known as the National Dialogue Preparatory Task Team (“the PTT”). Comprising over
50 non -governmental organisations representing Foundations, governmental

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organisations, community -based groups, the PTT serves as the operational
mechanism responsible for developing the strategic, procedural, and logistical
foundation necessary for the successful launch and execution of the Dialogue
process.
[18] The Foundations explain that the dialogue will be preceded and informed by an
extensive public consultation process in localities facilitated by various sectors of
society. Mechanisms will be established for citizens to contribute directly to shaping
the agenda and outcomes of the National Dialogue. Bottom-up, community dialogues
will be organised to ensure maximum participation and engagement across all rural and
urban communities. Focused sectoral dialogues will take place covering specific
governance, leadership, social and economic issues including stakeholders and
experts.
[19] The anticipated outcomes include an agreement on the critical challenges facing the
nation, a shared vision of what it means to be a South African and the development
of a new national ethos and common value system, a recommitment by all South
Africans to our democratic order and the active participation of all citizens in the
democratic process and social compact that unites all South Africans, with clear
responsibilities for different stakeholders, government, business, labour, civil society,
communities, and citizens. This will then lay the foundations for the next phase of the
National Development Plan post-2030.
[20] The National Dialogue will be housed by NEDLAC, using the model of the Climate
Change Commission. NEDLAC will thus provide operational and administrative support
to the National Dialogue structures, housing the National Dialogue Secretariat, and as
a conduit for government - allocated funds and contracting of secretariat staff. The
Steering Committee will provide stewardship on the support needed.
[21] Further support for the process could be sought from the National Planning

[21] Further support for the process could be sought from the National Planning
Commission and other formations that may be deemed relevant, for example, the United
Nations Development Programme.

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[22] The Foundations explain why the National Dialogue is structured in this way. They
state that if a National Dialogue in a country like South Africa is controlled by the
government and systematically manipulated to serve the government's own agenda,
several negative consequences can be expected , specifically, a lack of credibility,
exclusion, ineffectiveness; escalation of tensions and public dissatisfaction. People
may perceive it as a mere charade or a tool for propaganda rather than a genuine effort
to address national issues.
[23] The Foundations state that if the National Dialogue can be a unique opportunity to
address long-standing grievances and conflicts, but when controlled by the
government, it becomes a missed opportunity for sustainable peace and
reconciliation.
[24] In this context, the Foundations explain that, to ensure the success and effectiveness
of a National Dialogue, it is crucial for the process to be inclusive, transparent, and
genuinely focused on resolving conflicts and addressing the root causes of
grievances. It should also involve independent facilitators or mediators to maintain
impartiality and credibility. If the government controls the process, it becomes
challenging to achieve these essential elements of a successful National Dialogue.
[25] Having set out the stage of the National Dialogue and some of its features, the Court
considers the Labour Party’s challenge.
The Labour Party’s challenge to the National Dialogue
[26] The Labour Party’s approach to this Court is motivated by constitutional concerns.
The Labour Party asks what power does the President have to establish a National
Dialogue? If its ultimate aim is to ensure public participation, create policy and make
binding decisions – is that not a duplication of the functions of Parliament? And why,
if it is to duplicate functions of existing constitutional mechanisms, would it be lawful
to attach a R 700 million price tag for a part of this endeavour? Whilst the outcome of

to attach a R 700 million price tag for a part of this endeavour? Whilst the outcome of
the National Dialogue may be laudable, absent any oversight or accountability
mechanisms and without any empowering provision that permits the President to

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establish the National Dialogue, the Labour Party argues that it is not lawful or
constitutional. They ask this Court to halt the National Dialogue, pending an
opportunity to review the President’s decision in the normal course.
[27] The Labour Party relies on the Constitutional Court’s assertion in Economic Freedom
Fighters v Speaker of the National Assembly; Democratic Alliance v Speaker of the
National Assembly3 that one of the crucial elements of our constitutional vision is to
“make a decisive break from the unchecked abuse of State power and resources that
was virtually institutionalised during the apartheid era”. To achieve this goal, we
adopted accountabilit y, the rule of law and the supremacy of the Constitution as
values of our constitutional democracy. The Labour Party believes that the President’s
announcement of the National Dialogue is at odds with these principles.
[28] The Labour Party seeks relief in the form of an interim interdict. The Labour Party has
to meet all the requirements for an interim interdict. The first is proving that it has a
prima facie right.
Prima facie right
[29] In evaluating whether the test for the grant of interim relief has been met, this Court
is confined to take a “peek” at the case made out for review to evaluate prospects of
success in due course. It is not entitled to usurp the function of the review cour t. The
Constitutional Court in Gordhan emphasised that the role of the Court in determining
an application for an interim interdict is circumscribed:
“An interim interdict is a temporary order that aims to protect the rights of an applicant,
pending the outcome of a main application or action. It attempts to preserve or restore
the status quo until a final decision relating to the rights of the parties can be made by
the review court in the main application. As a result, it is not a final determination of
the rights of the parties. It bears stressing that the grant of an interim interdict does

the rights of the parties. It bears stressing that the grant of an interim interdict does
not, and should not, affect the review court's decision when making its final decision
and should not have an effect on the determination of the rights in the main

3 2016 (3) SA 580 (CC) (the EFF Judgment) para 1

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application. The purpose of an interdict is to provide an applicant with adequate and
effective temporary relief.”4
[30] Essentially, this Court has to ask whether there a credible review pending, without
making a final determination on the review? This requires a consideration of whether
the President enjoys the power that he has exercised in deciding to hold the National
Dialogue, and in particular, to convene the first National Convention; and whether the
President has exercised those powers in accordance with the dictates of the
Constitution; in particular, having regard to the requirements for legitimate expenditure
of public monies. The complaints from the Labour Party fall into three broad themes:
(i) the power (ii) the price tag and (iii) the process.
[31] Each is considered.
The power
[32] All parties accept, that the President can only act in terms of powers given by law.
The dispute is whether the President has the power to announce a National Dialogue.
The Labour Party submits that the President does not have the power to convene a
National Dialogue. As such, their concern is that the rule of law is threatened.
[33] The state respondents and Foundation point to a cluster of rights which they say
empower the President. Specifically, sections 83(c), 84(1); 85(2) and 85(2)(b). Section
83(c) provides that the President promotes the unity of the nation and that which will
advance the Republic.
[34] The Labour Party accepts that section 83(c) of the Constitution creates a duty – but
denies that inherent in this duty, necessarily, is the power to create a National
Dialogue.

4 Economic Freedom Fighters v Gordhan 2020 (6) SA 325 (CC) at para 47

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[35] The Court weighs the existing authority on section 83(c). The Constitutional Court has
considered section 83(c) in the context of the President’s power to pardon and grant
amnesty in Albutt5 and Azapo.6
[36] In Albutt, concerning the President’s power to pardon in terms of 84(2)(j), the
Constitutional Court held that “[i]ndeed under section 83(c) of the Constitution, the
President has a duty to promote ‘the unity of the nation and that which will advance
the Republic.”7
[37] Froneman J wrote a concurring judgment in Albutt, which held that “[t] his Court has
held that the democracy our Constitution demands is not merely a representative one,
but is also, importantly, a participatory democracy” and that “promoting national unity
is an ongoing process in terms of the Constitution.” Froneman J locates the ongoing
nature of promoting national unity in section 83(c) of the Constitution.
[38] Similarly, in Azapo the Constitutional Court recognised that -
“Generations of children born and yet to be born will suffer the consequences of
poverty, of malnutrition, of homelessness, of illiteracy and disempowerment
generated and sustained by the institutions of apartheid and its manifest effects on
life and living for so many . The country has neither the resources nor the skills to
reverse fully these massive wrongs. It will take many years of strong commitment,
sensitivity and labour to “reconstruct our society” so as to fulfil the legitimate dreams
of new generations exposed to real opportunities for advancement denied to
preceding generations initially by the execution of apartheid its elf and for a long time
after its formal demise, by its relentless consequences. The resources of the state
have to be deployed imaginatively, wisely, efficiently and equitably, to facilitate the
reconstruction process in a manner which best brings relief and hope to the widest
sections of the community, developing for the benefit of t he entire nation the latent

sections of the community, developing for the benefit of t he entire nation the latent
human potential and resources of every person who has directly or indirectly been

5 Albutt v Centre for the Study of Violence and Reconciliation and Others (CCT 54/09) [2010] ZACC 4; 2010
(3) SA 293 (CC) ; 2010 (2) SACR 101 (CC) ; 2010 (5) BCLR 391 (CC) (23 February 2010)
6 Azanian Peoples Organization (AZAPO) and Others v President of the Republic of South Africa and Others
(CCT17/96) [1996] ZACC 16; 1996 (8) BCLR 1015; 1996 (4) SA 672 (25 July 1996)
7 Id para 53

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burdened with the heritage of the shame and the pain of our racist past .”(emphasis
added)8
[39] Our apex Court recognised , in both these cases, that the President is under a
constitutional duty to promote national unity . Albutt and Azapo were decided when
nation building focused on reconciliation. But, even with this immediate focus on
reconciliation twenty years ago, the Constitutional Court knew that this would not be
the end of the work to be done . How could it be? Rather, it would be an ongoing
process. As the legacy burdens new generations, the duty remains and the work is to
be done. The President has been mandated by the Constitution to attend to this work.
It is unclear how this can be done without the power to promote nation building.
[40] The duty of nation building is not a symbolic function. It reflects a substantive
constitutional responsibility to foster cohesion and national purpose. That is clear from
Albutt and Azapo. It is also a duty which falls squarely on the President’s shoulders :
and “unsurprisingly, the nation pins its hopes on him to steer the country in the right
direction and accelerate our journey towards a peaceful, just and prosperous
destination”.9
[41] The text of the Constitution mandates the President to promote national unity and the
jurisprudence of the Constitutional Court has repeatedly asserted this process is
ongoing and that this duty falls to the President. The Court is not, based on the text
of the Constitution and the jurisprudence from the Constitutional Court, persuaded
that the President it acting outside his powers.
[42] The Court is not called on to make a final finding in this regard, and cannot do so for
many reasons, including it does not have the full record and the parties’ submissions
were limited to the interim relief . However, the Court is not persuaded that the

8 Azapo para 43
9 Economic Freedom Fighters v Speaker of the National Assembly; Democratic Alliance v Speaker of the

National Assembly 2016 (3) SA 580 (CC) para 20

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applicant has made out a prima facie case on this basis or that it bears strong
prospects of success in the review on this ground.
The process and price
[43] The state respondents plead that the Labour Party have not laid the necessary factual
foundation. As to the monies, the state respondents plead that the allegation of R 700
million at stake is patently false. As to the process, the state respondents plead ,
factually, that to the extent that the applicant relies on the fact that the First National
Convention will make foundational decisions that will permanently undermine an
inclusive and accountable process, they have failed to adduce any evidence that this
will happen. The overwhelming uncontested evidence is that the first National
Convention will set the agenda and structure for the Dialogue.
[44] The Court considers that t he executive has a wide discretion in selecting the means
to achieve its constitutionally permissible objectives. Courts may not interfere with the
means selected simply because they do not like them, or because there are other
more appropriate means that could have been selected. But, where the decision is
challenged on the grounds of rationality, courts are obliged to examine the means
selected to determine whether they are rationally related to the objective sought to be
achieved.
[45] What must be stressed is that the purpose of the enquiry is to determine not whether
there are other means that could have been used, but whether the means selected
are rationally related to the objective sought to be achieved. And if objectively
speaking they are not, they fall short of the standard demanded by the Constitution.
[46] The Court is not empowered to ask if a National Dialogue is the best way to go about
in promoting national unity. Or if the same people that have been invited to the table
to do the preparatory work are the ones the Court would have chosen. Or even if it

to do the preparatory work are the ones the Court would have chosen. Or even if it
would rather spend money on a National Dialogue or on health care or some other
issue.

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[47] The Court can only ask : are the means objectively linked to the goals sought to
achieve.
[48] The means employed is a National Dialogue consist ing of public participation and
engagement. The goal is the promotion of national unity. There is a rational link
between the National Dialogue, particularly one premised on public participation, and
the promotion of national unity. The link is clear and cogent.
[49] The Labour Party has failed to meet the threshold to show irrationality, in the method
employed in announcing the National Dialogue . The Court is not convinced that the
Labour Party has proven a prima facie right in this regard and is doubtful as to its
prospects of success at the hearing of the final relief.
[50] As to the monies involved, the Court is not empowered to ask if this is the best use of
money. That is the domain of the executive. It also weighs with the Court that the
amount of R 700 million does not seem to be final. The amount was put forth by the
Foundations and th e state respondents indicated that that cost has already been
tapered by suggestions from the President, which include cost-cutting plans such as
holding some engagements on -line or making use of state venues. In addition, the
state respond ents pleaded that money to be spent is subject to a budget and its
approval.
[51] In these circumstances, the Court is not persuaded that the Labour Party has made
out a prima facie case for purposes of an interdict. This Court does not make a final
finding in this regard, but has doubts as to the prospects of success on review, which
has a bearing on balance of convenience.
[52] As the Labour Party has failed to make out a prima facie case, they have failed to
meet the requirements for an interdict and they are not entitled to the relief sought.
However, there are additional reasons to refuse the relief, being that they have not
shown that if the relief is not granted, they will suffer irreparable harm.
Irreparable harm

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[53] The Court considers whether there is irreparable harm under the four themes
presented by the Labour Party.
[54] First the Labour Party contends it will suffer harm as the President is exercising a
power which the Constitution does not give the President. For the same reasons the
Court found that the Labour Party has not made out a prima facie case, the Court
finds there is no harm to be suffered by the Labour Party. As the Labour Party has no
prima facie right, it cannot suffer harm.
[55] But assume for the purposes of considering the Labour Party’s argument that the
President was exercising a power he did not possess. It would be harmful to all, and
a breach of the rule of law. However, it would not be irreparable. The repair lies in
Part B of the Labour Party’s application. If the President has overstepped his
constitutional mandate, that relief can be obtained in Part B. This harm, if it exists, is
not irreparable.
[56] The second theme is that of an exclusionary process. Under this theme the Labour
Party contends that some persons or parties have been included and others not. The
Labour Party further alleges that the first National Convention, scheduled for 15
August 2025, will involve decisions regarding the agenda and structure of the National
Dialogue. It claims that stakeholders, including the Labour Party, will be unable t o
influence or participate in these so -called “foundational decisions”, and that this will
“permanently undermine” an inclusive and accountable process.
[57] The state respondents plead the following facts: t he members of this group have no
legal powers, government functions, or decision -making authority. They have been
appointed solely to advise the President and to assist, “champion” and generate public
interest and momentum around the National Dialogue. Their role is supportive and
symbolic, intended to foster broad engagement. Their appointment does not render

symbolic, intended to foster broad engagement. Their appointment does not render
the outcome of the process as legally binding or susceptible to judicial review.

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[58] The Court is not persuaded that the Labour Party has shown it has been excluded.
The Court considers the planned process of the National Dialogue. Its very purpose
is to promote inclusion within and outside the formal governmental structures.
[59] The Foundation in this regard submits that the very point of the dialogue is to promote
inclusion within and outside the formal governmental structures. The idea of a
dialogue comes from outside of government. The Labour Party is entitled to attend
the dialogue, and make submissions in any form it chooses to the Secretariat of the
planning committee. Factually, the Court concludes that the public participation is yet
to commence and there is no indication that the Labour Party, or anyone for that
matter, has been excluded from the process.
[60] Even if the Labour Party had factually established its exclusion, it is not harm that
constitutes harm cognisable of legal protection.
[61] As for the Labour Party’s exclusion from the preparatory steps. The Labour Party does
not have a right which is harmed in it not being selected in the preparatory group. It
does not have a legal right to have been consulted prior to the selection of the Group
of Imminent Persons. While the Convention may shape the agenda and set out a
framework for the Dialogue, it does not exclude the Labour Party (or any other group
or individual) from participating in the process or seeking to influence its outcomes.
On the contrary, the entire purpose of the National Dialogue is to be inclusive and
participatory, reaching as many South Africans as possible across sectors and
regions. The Foundations state categorically: The Labour Party will have every
opportunity to contribute to the National Dialogue.
[62] The third theme is that the National Dialogue will create a parallel process which
usurps or by -passes Parliament. The Labour Party submits that u ndermining
Parliament's role by side-lining it in favour of a replacement mechanism to receive the

Parliament's role by side-lining it in favour of a replacement mechanism to receive the
voice of the people, potentially setting a precedent for future bypassing of legislative
oversight.

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[63] It would indeed be harmful if another body were given powers to create binding law.
But there are no facts presented to this Court that the National Dialogue will do so. To
assume so at this stage is sophistry. In addition, if such harm eventuates, then it also
will not be irreparable. Again such decisions will be subject to review.
[64] The Court also leans on the authority presented by the state respondents in Esau10
for the proposition that even once the dialogue process results in a policy position
adopted by government (which has certainly not yet occurred in this case), that policy
will not itself be reviewable until government has taken steps to implement it in a
manner that adversely affects rights. If this were not so, the review would be an
academic exercise. If a policy itself is not reviewable, that also should mean that the
initiation and support of a process that may one day lead to the formulation of a policy
is not susceptible to judicial review.
[65] There is nothing on the papers to conclude that the outcomes of the National Dialogue
will be authoritative, or binding . There is no indication, let alone evidence, that the
National Dialogue is intended to produce binding outcomes that bypass constitutional
or legal processes. If any policy proposals or recommendations that emerge from the
Dialogue are to be adopted or im plemented, they would have to follow the ordinary
channels of constitutional authority: through the Cabinet, Parliament, or other
appropriate legal mechanisms.
[66] More fundamentally, argues the Foundations, the Labour Party has not demonstrated
that it has a right to be protected from a public consultation process being perceived
as influential or widely supported. The mere possibility that the National Dialogue
might carry political or public weight does not give rise to an infringement of the
applicant’s rights, let alone an irreparable one.

applicant’s rights, let alone an irreparable one.
[67] In addition, even if the applicant’s allegations were correct any decisions or outcomes
arising from the National Dialogue could be challenged and set aside through judicial

10 Esau v Minister of Co-operative Governance and Traditional Affairs 2021 (3) SA 593 (SCA)

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review at a later stage. If a court were to declare such outcomes invalid, they would
carry no legal force or authority. In that event, the applicant’s concern about the
process being treated as “authoritative” would fall away entirely. This further confirms
that the harm alleged is neither irreparable nor incapable of adequate redress through
ordinary legal remedies.
[68] The Foundations make the following submission, even if any decision are taken by an
unlawful structure – as the Labour Party submits the National Dialogue is – that does
not automatically mean that the decision itself is unlawful. The decision would have
to be scrutinised on its merits. The Foundations rely on the Constitutional Court’s
approach in Democratic Alliance v President of the Republic of South Africa 11 as
authority where the court held that the invalidity of Mr Simelane’s appointment does
not by itself affect the validity of any of the decision taken by him while in office. This
means that all decisions made by him remain challengeable on any ground other than
the circumstance that his appointment was invalid. 12 The Foundations present
examples that the National Dialogue may recommend the reduction of the size of
Cabinet as a measure to reduce the costs of running the government. Or it may
recommend the introduction of a basic income grant to end starvation and hu nger.
The fact that the dialogue was unlawful wouldn’t necessarily mean that the
government may not take these recommendations forward.
[69] The Court concludes, based on the absence of facts and the principled submissions
that, the Labour Party will not suffer irreparable harm in this regard.
[70] The fourth theme of harm is that monies will be spent on an unlawful endeavour. The
Labour Party argues that the spending on this amounts to u nlawful expenditure of
public funds that could otherwise be allocated to pressing needs like housing,

public funds that could otherwise be allocated to pressing needs like housing,

11 Democratic Alliance v President of South Africa and Others (CCT 122/11) [2012] ZACC 24; 2012 (12)
BCLR 1297 (CC); 2013 (1) SA 248 (CC) (5 October 2012)
12 DA v President of RSA para 93

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education, or healthcare . In addition, t he Labour Party is concerned that once the
monies are spent – that cannot be undone.
[71] The Labour Party rejects assurance from the state parties that all monies will be spent
in terms of the PFMA and will be lawful. They rely on authorities that state it is not
enough for the state to say it will do good and for those assurances to be accep ted.
In President of the Republic of South Africa and Others v M & G Media Ltd 13 the
Supreme Court of Appeal (SCA) made the point that, in the South Africa of the past
“courts were regularly confronted with laws that precluded them from going behind
the conclusions and opinions formed by public officials”,14 mainly because the statutes
in question “entrusted to the repository of the power the sole and exclusive function
of determining whether in its opinion the pre -requisite fact, or state of affairs, existed
prior to the exercise of the power”. 15 This is not the case any longer: public officials
cannot assert conclusions in the “expectation that their conclusions put an end to the
matter”.16 It is not a sufficient defence for public officials to state their conclusions
without providing an evidential basis for their assertions, and if assertions seem to
have simply been constructed, they can be “ summarily discounted”.17
[72] The Labour Party is correct. If those monies are spent, they cannot be clawed back.
They will be spent on services rendered – accommodation, travel, catering etc. The
Labour Party is also correct that this case is different to OUTA,18 in OUTA the public
could be comforted that if the final determination was to review the Minister’s decision
they could claim back the monies. That option does not exist in this case. If the money
is being unlawfully spent by government – they will not be recoverable.

13 President of the Republic of South Africa and Others v M & G Media Ltd 2011 (2) SA 1 (SCA)
14 At para 18

14 At para 18
15 At para 18, by reference to South African Defence and Aid Fund and Another v Minister of Justice 1967 (1)
SA 31 (C) at 35A – B)
16 135 At para 19
17 136 At para 46
18 National Treasury v Opposition to Urban Tolling Alliance 2012 (6) SA 223 (CC)

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[73] The difficulty is that monies being spent by the state is not inherently harmful. It is only
when it is being done unlawfully that there is a legall y cognisable harm. There has
been no basis presented to the Court on which it can be contended that there is a
breach of the PFMA or that expenditure breaches any other Treasury Regulation. No
evidence has been presented that the state respondents have spent, or will spend,
public funds unlawfully.
[74] In any event, the state respondents have expressly confirmed facts that make clear
no rights, whether of the applicant or the public, have been infringed as no final budget
has been approved for the National Dialogue, which means that the applicant’s
concerns about proposed figures reported in the media are wholly misplaced and
cannot be relied on for purposes of seeking relief.
[75] The state respondents argue that if a member of the public could claim legal prejudice
simply because a policy initiative had not yet been accompanied by an approved
budget, it would paralyse the functioning of government. On that approach, no policy
or other government process could ever be initiated unless and until a final budget
had already been approved. This would pull the cart before the horse. In reality, it is
precisely because such processes are at an early stage that their announcement and
early planning precede, and inform, budgetary approval if required.
[76] For these reasons the Court has considered the various types of harm pleaded by the
Labour Party. The Court is not persuaded that the Labour Party has proven harm or
that such harm is irreparable.
[77] There is accordingly no well-grounded apprehension of irreparable harm.
[78] This finding is sufficient to dismiss the application, however, the Court is also not
satisfied that the Labour Party has shown the balance of convenience favours the
granting of relief.
Balance of convenience

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[79] The parties disagree as to the application of the principle in OUTA.19 In OUTA the
Constitutional Court held that it is only the clearest of cases that the court can interdict
the exercise of legislative powers.
[80] The Labour Party submits that OUTA only applies when the focus of the review is the
exercise of legislative powers. The state respondents and Foundation accept this, but
argue that the principle must apply even more so when constitutional powers are
being exercised.
[81] The argument is attractive and the Court is persuaded by it. Particularly as this Court
has accepted, for purposes of establishing a prima facie right, that the President is
engaging in an exercise of his powers under the cluster of rights in sections 83- 85.
[82] The Court therefore accepts that the OUTA standard applies and the Court has to
determine whether this is one of the clearest of cases.
[83] The Labour Party submits that t he balance of convenience favours the grant ing of
interim relief, thus halting the National Dialogue temporarily as the harm to the public
interest from potential unlawful executive action outweighs the inconvenience of
pausing the process for judicial review.
[84] The state respondents submit that as the Labour Party has failed to establish a right,
it can have no claim for inconvenience. The inconvenience to be suffered by the state
respondents is what has been termed separation of powers harm – which means the
inability of the executive to comply with its constitutional duties.
[85] The Court then weighs the balance. The Court has found the Labour Party does not
suffer harm and that the state respondents suffer the harm of being able to execute
on its decisions and harm to the separation of powers principle. Added to this scale,
is the Court’s finding that the Labour Party ’s case does not bear strong prospects of
success in the review proceedings.

19 National Treasury v Opposition to Urban Tolling Alliance 2012 (6) SA 223 (CC)

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[86] The Court concludes that the Labour Party has not proven that the balance of
convenience favours the granting of an interim interdict.
No alternative remedy
[87] The Foundations submit that the Labour Party has several alternative remedies. It
can attend the dialogue and raise complaints. It can write to Parliament to raise its
concerns, as an opposition party it has remedies inside Parliament. Third it can write
to the President. As these has not been argued to be unavailable or insufficient, they
are ex facie, available and effective. The state respondents similarly submit there are
alternative remedies available to the Labour Party.
[88] The Court is not persuaded that these alternative remedies are effective for the relief
sought by the Labour Party. However, based on the findings in relation to irreparable
harm and balance of convenience, this finding does not alter the outcome.
Urgency
[89] The respondents dispute that this matter is urgent. They contend that the Labour Party
could obtain substantial redress in due course and that the Labour Party has failed to
plead facts that give rise to urgency. The Labour Party is criticised for waiting until the
June 2025 announcement – when the National Dialogue has been in the news for
years.
[90] The difficulty with this criticism is that t here is no single genesis for the National
Dialogue. It is not a singular event with a clear starting point, but rather a process with
multiple contributing factors and stages involving various sectors of society. It is
intended to unfold in phases, from l ocal consultations to national gatherings. The
announcement by the President on 10 June 2025 was the first moment the inchoate
idea of having a National Dialogue was given any content at all. The criticism that the
Labour Party ought to have approached the Court earlier is rejected. It is also clear ,
when one has regard to the chronology of the filing of papers in this matter that the

when one has regard to the chronology of the filing of papers in this matter that the
Labour Party treated this matter with the commensurate urgency.

[91] In addition, it is not clear w hat relief the Labour Party w ould be able to obtain in due
course. If it w as so that the President w as exercising pow ers he did not have,
duplicating the w ork of Parliamen t and excluding sectors of society, and spending
more than R 700 million on such an unlawful endeavour - there w ould be no recourse
that w ould undo that harm. Wh ilst the Court ultima tely rejected these findings - they
w ere sufficiently to show the Labour Party w ould not be able to obtain redress in due
course. In these circumstances the matter is urgent.
Section 172
[92] There is some dispute on the papers as to w hether the Labour Party has relied on
section 172 in its papers. Assuming such a case has been made, the Court declines
to exercise its section 172 jurisdiction for the reasons the Court held that the Labour
Party's prima facie rights are w eak.
Co sts
[93] The Labour Party asserted constitutional rights. They litigated in the public interest.
The litigation w as not vexatious or frivolous, it w as motivated by a concern of
constitutional compliance. The State Respondents accept that the application
"concerns a matter of significant public importance. It affects a w ide range of
stakeholders and raises issues of national interest". In such circumstances, premised
on the Biowatch principle, there should be no order as to costs.
Order
[94] The Court orders:
1. The application is urgent.
2. The application is dismissed.
3. No order as to costs.
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______________
I de Vos
Acting Judge of the High Court

Delivered: This judgment is handed down electronically by uploading it to the electronic file of this matter
on CaseLines. As a courtesy gesture, it will be e-mailed to the parties/their legal representatives.

The applicant: G Engelbrecht SC
S Abdool Karim
Instructed by: Yusuf Dockrat Attorneys

The first to sixth respondents: K Pillay SC
M Dafel
Instructed by: State Attorney

The seventh to eleventh respondents: T Ngcukaitobi SC
I Kealotswe-Matlou
Instructed by: Cliffe Dekker Hofmeyr Inc

Date of hearing: 9 July 2025
Date of judgment: 17 July 2025