REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number : 23/091427
(1) REPOR TA BLE : YES / N O
(2) OF INT ERES T TO O TH ER JU DGES : YES /NO
(3) RE VISED : YES /NO
25 Septemb er 2025
DATE SIGNATU
In the matter between:
DEMOCRATIC ALLIANCE
SAREL JACOBUS FRANCOIS MARAIS
and
PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA
RETIRED JUSTICE PMD MOJAPELO
LEAH GCABASHE SC
ENVERSURTY
JUDGMENT
First Applicant
Second Applicant
First Respondent
Second Respondent
Third Respondent
Fourth Respondent
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JANSE VAN NIEUWENHUIZEN J:
Introduction
[1] The issue for determination in this application is whether the first respondent,
the President of the Republic of South Africa (“the President”), may appoint a Judge,
in this case, the second respondent, retired Justice Mojapelo (“Justice Mojapelo”) to a
panel of enquiry.
Background
[2] On 6 December 2022, a sanctioned Russian cargo ship, The Lady R, docked
at Simon’s Town Naval Base in Cape Town. The public was not informed of the reason
for the ship’s presence at the Naval Base, or whether any cargo was off-loaded
or on-loaded. Three days later, the Lady R departed from Simon’s Town.
[3] The silence surrounding the incident led to widespread speculation, and a few
months later, the United States ambassador to South Africa, Reuben Brigetry,
accused the country of having supplied arms to Russia during the Lady R’s docking.
[4] This prompted the President to appoint a panel of enquiry to investigate and
report on the incident. The panel consisted of Justice Mojapelo, Leah Gcabashe SC (
the third respondent), and Enver Surty (the fourth respondent). Justice Mojapelo
headed the investigation.
[5] The panel’s terms of reference were not published. It had no powers in law to
compel anyone to provide information, no obligation to conduct the investigation in
public, and its report was, save for a cryptic executive summary, kept secret.
Furthermore, the panel was based in the Presidency, and it had no structural or
functional independence.
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The applicants’ challenge
[6] The first applicant, the Democratic Alliance, a political party and the second
applicant, Sarel Jacobus Francois Marais, a member of the National Assembly elected
as a representative of the Democratic Alliance and the shadow Minister of Defence
and Military Veterans, contend that the President could not have appointed a Judge
to conduct the investigation in question. The reason being that Judges are
independent and not tools of the executive branch. According to the applicants, it is
inherently inconsistent with the separation of powers for the President to appoint, and
for a Judge to accept an appointment to conduct this type of executive investigation.
[7] In the result, the applicants submit that the President’s conduct in appointing
Justice Mojapelo and Justice Mojapelo’s conduct in accepting the appointment are
constitutionally invalid and should be declared as such.
[8] Although the applicants also sought an order, “to the extent necessary”, for the
reviewing and setting aside of the appointment and report, they indicated that they do
not challenge the outcome of the investigation and did not persist with that relief.
Respondents’ response
[9] The respondents contend that it was within the constitutional powers of the
President to appoint Justice Mojapelo to investigate the circumstances surrounding
the docking of the Lady R at Simon’s Town Naval Base in December 2022.
[10] According to the respondents, the court, however, does not have to pronounce
on the issue in dispute because the application is moot.
[11] I propose to deal with the issue of mootness first.
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Mootness
[12] The respondents submit that, in the absence of a challenge to the findings of
the panel, there is no live issue between the parties. Furthermore, the relief sought by
the applicants will lay down a rigid rule that a retired Judge may not be appointed to
an investigative panel, a proposition that directly contradicts the jurisprudence of the
Constitutional Court, which makes it clear that each case must be determined in its
own context.
[13] The respondents are correct that courts will generally decline to entertain
litigation in which there is no live or existing dispute. The rationale being that a
pronouncement on an abstract proposition of law would amount to no more than an
advisory opinion. [See: Normandien Farms (Pty) Ltd v South African Agency for
Promotion of Petroleum Exploration and Exploitation SOC Ltd 2020 (4) SA 409 (CC)
para 47].
[14] Notwithstanding the aforesaid general principle, a court may consider a moot
issue, if certain requirements are met. In Independent Electoral Commission v
Langeberg Municipality 2001 (3) SA 925 (CC), the court as follows at para [11]:
“ [11] This Court has a discretion to decide issues on appeal even if they no
longer present existing or live controversies. That discretion must be exercised
according to what the interests of justice require. A prerequisite for the exercise
of the discretion is that any order which this Court may make will have some
practical effect either on the parties or on others. Other factors that may be
relevant will include the nature and extent of the practical effect that any
possible order might have, the importance of the issue, its complexity and the
fullness or otherwise of the argument advanced . . .”
[15] The applicants submit that the dispute in this case, to wit; the legality of the
exercise of public power, meets the requirements set out above.
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[16] In support of this submission, the applicants relied on Buthelezi v Minister of
Home Affairs 2013 (3) SA 325 (SCA). In Buthelezi, the appellants (members of
parliament) sought an order declaring the unreasonable delay by the Minister of Home
Affairs in processing the Dalai Lama’s visa application unlawful. It was common cause
between the parties that the Dalai Lama’s visit had been cancelled and that the relief
would have no practical effect. The appellants, however, intended to invite the Dalai
Lama again and submitted that he could not be expected to accept such an invitation
without the assurance that the delay would not recur.
[17] On the question of mootness in the relevant circumstances, the court held as
follows at paragraph [4]:
“[4] The application was dismissed by the court below on the grounds that there was
no live controversy. That was rightly not pressed in argument before us. Whether the
authorities had acted lawfully was and remains a live issue. That they would not be
called upon to reconsider their conduct if they had acted unlawfully goes only to
whether a decision on that question would have practical effect. In view of the
appellants' intentions, it cannot be said that it will not.”
[18] Although there is no indication, in this case, that the President will appoint
retired Judges to investigative panels in future, the applicants submitted that future
Presidents may wish to investigate matters. The court’s decision will, therefore, have
a practical effect on whether it is permissible to appoint a retired Judge or other
member of the judiciary to such panels.
[19] The applicants also referred to the following dicta in Pheko and Others v
Ekurhuleni Metropolitan Municipality 2012 (2) SA 598 (CC):
“[32] It is beyond question that the interdictory relief sought will be of no consequence
as the applicants have already been removed from Bapsfontein. Although the removal
as the applicants have already been removed from Bapsfontein. Although the removal
has taken place, this case still presents a live controversy regarding the lawfulness of
the eviction. Generally, unlawful conduct is inimical to the rule of law and to the
development of a society based on dignity, equality and freedom. Needless to say, the
applicants have an interest in the adjudication of the constitutional issue at stake. The
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matter cannot therefore be said to be moot. It is also live because if we find that the
removal of the applicants was unlawful, it would be necessary to consider their claim
for restitutionary relief.”
[20] The facts herein do not concern the same constitutional issues that arose in
Pheko.
[21] In this matter, the appointment of Justice Mojapelo to head the investigative
enquiry into the Lady R saga occurred in unique circumstances. Considerations of
national security were, according to the President, the reason for the secrecy in
respect of the panel’s terms of reference and the method of execution.
[22] The president explained that the seriousness of the matter and its potential
constitutional and diplomatic consequence, informed his decision to appoint a retired
and well-respected Judge as chairperson of the panel. This appointment, according to
the President, would serve the interests of independence and impartiality.
[23] The likelihood of a similar circumstances under which Justice Mojapelo was
appointed and the specific considerations surrounding the decision arising again are
slim.
[24] A similar situation was considered by the Constitutional Court in President of
the Public of South Africa v Democratic Alliance 2020 (1) SA 428 (CC). Former
President Zuma’s decision in March 2017 to use his powers under section 91(2) and
93(1) to reshuffle his cabinet was challenged by the Democratic Alliance (DA). During
the proceedings, the DA obtained an interlocutory order requiring the President to
furnish the record and reasons for his decision under rule 53(1)(b).
[25] The President applied for and was granted leave to appeal the interlocutory
order. However, before the matter could be heard, he resigned and the present
President was appointed. The DA then withdrew the main application, but the
President persisted with the appeal, arguing that the applicability of rule 53 on
executive decisions would have a bearing on future executive decisions to appoint or
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dismiss cabinet members. The Supreme Court of Appeal dismissed the appeal on the
ground that the withdrawal of the main application resulted in the matter being moot.
[26] The President applied for leave to appeal to the Constitutional Court. Although
the main application was withdrawn and the leave to appeal only pertained to the
interlocutory order, the Court held as follows:
“[33] It thus seems to be inescapable that the merits would have to be traversed to do
justice to issues relating to the guidance for future cases that the President yearns for.
The nature and complexity of the kind of decision initially sought to be challenged by
way of review must first be closely examined. We would probably have to dig deeper
into the political character of ss 91(2) and 93(1) decisions to address the President's
concern properly. And potentially serious separation-of-powers issues might also have
to be wrestled with.”
[27] The President conceded that the interlocutory order no longer had any practical
effect between the parties and has become academic. In the circumstances the court
held, that:
“[35] …. This court is thus being asked to advise or guide the President. That is the
only real purpose to be served by entertaining this appeal. And courts should be loath
to fulfil an advisory role, particularly for the benefit of those who have dependable
advice abundantly available to them and in circumstances where no actual purpose
would be served by that decision now. Entertaining this application requires that we
expend judicial resources that are already in short supply especially at this level.
Frugality is therefore called for here.”
Conclusion
[28] A decision on the legality and constitutionality of the President’s appointment of
Justice Mojapelo, to an investigative committee, will not fulfil any discernable purpose
as the Buthelezi judgment did. Should a similar decision arise in future and before it
as the Buthelezi judgment did. Should a similar decision arise in future and before it
has been given effect, careful consideration of the complex issues raised in this
application will undoubtedly be undertaken at that time.
[29] The judicial resources in this division are already stretch far beyond their limits.
The court simply does not have the luxury of dispensing advice.
[30] In light of the above, I am of the view that the matter is moo t and the application
stands to be dismissed w ith costs.
Order
[31] Therefore, I make the follow ing order:
1. The application is dism issed.
2. The first and second applicants are ordered to pay the costs of the
application, including the costs occasioned by the emp loyment of two counsel.
Counsel's fees are to be paid on scale C .
Date heard: 29 July 2025
Date delivered: 25 September 2025
APP EARANCES :
For the First and Second Applicants:
JANSE VAN NIEUWENHUIZEN J
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Adv M Bishop, and
Adv M de Beer
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Instructed by: Minde Schapiro and Smith Inc.
For the First Respondent: Adv F Nalane SC, and
Adv N Stein
Instructed by: The State Attorney
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