CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 102/22
In the matter between:
RON SIMPHIWE MNCWABE Applicant
and
PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA First Respondent
MINISTER OF JUSTICE AND CORRECTIONAL Second Respondent
SERVICES
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS Third Respondent
LIVINGSTONE MZUKISI SAKATA Fourth Respondent
Case CCT 120/22
In the matter between:
KHULEKANI RAYMOND MATHENJWA Applicant
and
PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA First Respondent
MINISTER OF JUSTICE AND CORRECTIONAL Second Respondent
SERVICES
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS Third Respondent
SHAUN KEVIN ABRAHAMS Fourth Respondent
NATIONAL PROSECUTING AUTHORITY OF Fifth Respondent
SOUTH AFRICA
NKEBE REBECCA KANYANE Sixth Respondent
Neutral citation: Mncwabe v President of the Republic of South Africa and Others;
Mathenjwa v President of the Republic of South Africa and Others
[2023] ZACC 29
Coram: Zondo CJ, Kollapen J, Madlanga J, Majiedt J, Makgoka AJ,
Mathopo J, Potterill AJ, Rogers J and Theron J
Judgments: Majiedt J (majority): [1] to [130]
Zondo CJ (minority): [131] to [225]
Heard on: 7 February 2023
Decided on: day month year
Summary: National Prosecuting Authority Act 32 of 1998 — sections 12,
13(1) and 14(3) — Appointments in National Prosecuting
Authority — Functus officio doctrine
ORDER
On appeal from the High Court of South Africa, Gauteng Division, Pretoria:
1. Leave to appeal is granted.
2. The appeal is dismissed.
3. The costs order of the High Court is set aside.
JUDGMENT
MAJIEDT J (Kollapen J, Mathopo J, Rogers J, Theron J and Potterill AJ concurring):
Introduction
This Court has repeatedly emphasised the important role occupied by the
National Prosecuting Authority in the administration o f justice in our young
democracy.1 Axiomatically, the leadership of the National Prosecuting Authority at
both national and provincial level is crucial in fulfilling this important role. The two
cases, which were heard together, concern the appointment of two provincial Directors
of Public Prosecutions (DPPs). The cases have the same legal issues, similar factual
matrices and were also heard together in the High Court of South Africa, Gauteng
Division, Pretoria, where substantially the same relief was so ught by both applicants .
This judgment relates to both cases. Leave to appeal is sought against the decisions of
the High Court as well as the Supreme Court of Appeal dismissing the applicants’
1 Democratic Alliance v President of South Africa [2012] ZACC 24; 2013 (1) SA 248 (CC); 2012 (12) BCLR
1297 (CC) at paras 13(e) and 26; Corruption Watch NPC v President of the Republic of South Africa; Nxasana v
Corruption Watch NPC [2018] ZACC 23; 2018 (2) SACR 442 (CC); 2018 (10) BCLR 1179 (CC) ( Nxasana) at
para 19.
MAJIEDT J
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review applications.2 In addition, there are also applications for direct access to review
and set aside President Ramaphosa ’s decisions to fill the vacancies in the National
Prosecuting Authority implicated by the two cases.
Parties
The applicants are Mr Ron Simphiwe Mncwabe, an admitted advocate,
employed as an Additional Magistrate at Tsakane Magistrate’s Court, Ekurhuleni, and
Mr Khulekani Raymond Mathenjwa, an admitted advocate and the
Senior Deputy Director of Public Prosecutions in the National Prosecuting Authority ,
Gauteng Local Division.
The common respondents are the President of the Republic of South Africa, the
former Minister of Justice and Correctional Services and the National Director of
Public Prosecutions (NDPP). They are the first, second and third respondents
respectively.
In the Mncwabe app lication, the fourth respondent is Mr Livingstone
Mzukisi Sakata, the current DPP of the Northern Cape. Mr Sakata was appointed to
that position by President Ramaphosa, with effect from 1 April 2022.
In the Mathenjwa application , the fourth respondent is Mr Shaun Abrahams, a
former NDPP. The fifth respondent is the National Prosecuting Authority .
The sixth respondent is Ms Nkebe Rebecca Kanyane, the current DPP of Mpumalanga.
Ms Kanyane was appointed to that position by President Ramaphosa, also with e ffect
from 1 April 2022.
Background
During the early part of 2018 , prior to his resignation from office, former
President Zuma took steps to appoint five senior National Prosecuting Authority
2 Mncwabe v President of the Republic of South Africa [2021] ZAGPPHC 305 (High Court Judgment).
MAJIEDT J
5
members as either DPPs or Special DPPs in various National Pros ecuting Authority
offices.3 The appointments were recorded in official Presidential Minutes , all dated
1 February 2018. The news appears to have reached certain appointees, but , as will be
discussed in detail later, not directly through former President Zuma or his office. The
appointments were not announced to the public. On 14 February 2018, former
President Zuma resigned from office and President Ramaphosa assumed office. Soon
after taking office, President Ramaphosa directed his attention to these appointments.
The applicants’ appointments were recorded in the similarly worded Presidential
Minutes 10 of 2018 ( regarding Mr Mathenjwa) and 18 of 2018 ( regarding
Mr Mncwabe). During March 2019, in Presidential Minutes 67 and 69 of 2019
respectively, both dated 11 March 2019, President Ramaphosa decided to revoke, 4
amongst others, these two appointments. Aggrieved, the applicants separately
approached the High Court to review and set aside President Ramaphosa’s decision. As
stated, the matters were heard together in the High Court.
The central issue before the High Court was whether President Ramaphosa was
entitled to reverse the initial decision of former President Zuma to appoint the
applicants. That question entailed the functus officio principle.5 It requir ed a
determination of two main issues: first, whether section 13(1)(a) of the National
Prosecuting Authority Act 6 (NPA Act) was complied with prior to the notification of
the appointments. Second, it required a determination whether personal notification, on
its own, was sufficient or whether, in addition to personal notification, there had to be
public notification.
3 These were: Adv ocate M N Govender as DPP, Free State; Adv ocate K R Mathenjwa as DPP, Mpumalanga;
Advocate R S Mncwabe as DPP, Northern Cape; Dr J P Pretorius SC as Special DPP,
Priority Crimes Litigation Unit (PCLU); and Advocate B E Currie-Gamwo as Special DPP, Sexual Offences and
Community Affairs (SOCA).
4 As will appear later, it is debatable whether these were revocations, properly understood.
5 This principle entails that once an official has taken a decision, it cannot be revisited.
6 32 of 1998.
MAJIEDT J
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The High Court dismissed the review application. In holding that the functus
officio principle does not apply, the High Court relied on SARFU III,7 where it was held
that the appointment of a commission of inquiry only takes place when the President’s
decision is translated into an overt act, through public notification. The High Court held
that, absent public notification, the de cision to appoint was not final and ther efore
President Zuma was not functus officio and he (or his successor) still had the right to
change his mind regarding the appointment. In light of its conclusion on this score, the
Court turned to the applicants’ additional challenges.
After analysing the arguments advanced, t he High Court ruled against the
applicants in respect of their further challenges against the impugned decision . These
challenges were based on President Ramaphosa’s alleged non -adherence to the
audi alteram partem (hear the other side) principle and the alleged irrationality of the
decision.
The High Court further dismissed the applications for leave to appeal by both
applicants as it took the view that there were no reasonable prospects that another court
would come to a different conclusion.
The Supreme Court of Appeal d ismissed the applicants’ leave to appeal
applications on a similar ground and held that there was no further reason why an appeal
should be heard. Their applications for reconsideration to the President of that Court in
terms of section 17(2)(f) of the Superior Courts Act8 met the same fate.
Factual matrix
Further elucidation of the facts is required for a proper understanding of the
central issues. During mid-2017, Mr Mncwabe received an unsolicited call from the
personal assistant of Mr Shaun Abrahams, the then NDPP, requesting Mr Mncwabe’s
7 President of the Republic of South Africa v South African Rugby Football Union [1999] ZACC 11; 2000 (1) SA
1 (CC); 1999 (10) BCLR 1059 (CC) (SARFU III).
8 10 of 2013.
MAJIEDT J
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curriculum vitae (CV). Mr Mncwabe complied with the request and promptly furnished
his CV. Eight months after sending his CV, dur ing or about February 2018,
Mr Abrahams notified Mr Mncwabe, via a telephone call and WhatsApp message, that
he had been appointed as the DPP for the Northern Cape. Mr Mncwabe was furnished
with a copy of Presidential Minute 18 of 2018 , which confirmed his appointment. A
soft copy of the Minute was sent on the day of notification via WhatsApp and a hard
copy was sent sometime in November 2018. The Minute reads:
“Under section 13(1)(a), read with sections 6(2) and 9(1) of the National Prosecuting
Authority Act, 1998 (Act No . 32 of 1998), I, Jacob Gedleyihlekisa Zuma, after
consulting with the Minister for Justice and Correctional Services and the
National Director of Public Prosecutions, hereby appoint
Adv Ron Simphiwe Mncwabe as Director of Public Prosec utions: Northern Cape
Division of the High Court, Kimberley, with effect from 1 February 2018. Given under
my Hand at Pretoria on this 01 day of February Two Thousand and Eighteen.”
Mr Mncwabe was thus notified of his appointment during the same month th at
former President Zuma resigned from office. Following the notification received from
the then NDPP, Mr Mncwabe’s appointment was never publicly announced . On
13 August 2018, this Court in Nxasana9 confirmed, among other things, a declaration
that Mr Abrahams’ appointment as NDPP was invalid without affecting the validity of
past decisions and acts by Mr Abrahams in his official capacity. On 1 February 2019,
Ms Shamila Batohi assumed office as the new NDPP. On 18 March 2019, Ms Batohi’s
office conveyed to Mr Mncwabe that his appointment ha d been revoked by
President Ramaphosa.
Mr Mncwabe took issue with this decision and approached the High Court for
relief (Mncwabe application).
9 Nxasana above n 1 at para 93.
MAJIEDT J
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Mr Mathenjwa’s narrative mirrors that of Mr Mncwabe . During June 2017 ,
Mr Abrahams requested Mr Mathenjwa to furnish him with a copy of his CV. On
5 February 2018, Mr Abrahams informed Mr Mathenjwa that he had been promoted
and elevated by former President Zuma to the office of DPP for Mpumalanga and that
there was a Presid ential Minute to confirm this appointment . Mr Mathenjwa’s
appointment was recorded in Presidential Minute 10 of 2018. Like Mr Mncwabe,
Mr Mathenjwa’s appointment was never publicly announced following the notification
received from Mr Abrahams. On 12 Ma rch 2019, Mr Mathenjwa had a meeting with
Ms Batohi, who advised him that the e xecutive was of the view that his appointment
was never finalised . On 19 March 2019 , Mr Mathenjwa was informed by the th en
Minister of Justice that President Ramaphosa had revoked his appointment. This was
done by Presidential Minute 67 of 2019. It reads the same as
Presidential Minute 69 of 2019. Mr Mathenjwa also turned to the High Court seeking
the relief adumbrated earlier (Mathenjwa application).
In the High Court, Mr Abrahams filed an explanatory affidavit as the
fourth respondent in the Mathenjwa application. He was not joined as a respondent in
the Mncwabe application but, by informal agreement between the parties, that affidavit
formed part of the papers in both th e Mncwabe and Mathenjwa applications.
The President’s affidavit in answer to Mr Abrahams’ explanatory affidavit was filed in
the Mathenjwa application, but not in the Mncwabe application. Its admission in the
latter application was opposed. After hearin g argument, the High Court ruled that
the President’s affidavit would be part of the papers in both matters. The explanatory
affidavit and the response thereto are of considerable importance in this matter.
Applicants’ submissions in this Court
It is convenient to summari se the applicants’ submissions together, given their
commonality. Where necessary, their submissions will be separately enunciated.
In sum, the applicants’ submissions on jurisdiction are that this Court’s constitutional
jurisdiction is engaged as the case concerns the executive powers of the President under
the Constitution, namely sections 85(2)(e) and 101. In addition, the applicants contend
MAJIEDT J
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that the case raises an important point of law of general public importance because it
deals with the interpretation and application of section 13(1)(a) of the NPA Act.
The direct access applications concern the President’s appointment of Mr Sakata
and Ms Kanyane to the posts of DPP for the Northern Cape and Mpumalanga
respectively, after the rev ocation of the appointments of Mr Mncwabe and
Mr Mathenjwa to those posts. The applicants submit that they have made out a case for
direct access to be granted. They argue that the applications concern only questions of
law and that no evidence is requir ed. Moreover, direct access is intertwined with the
leave to appeal applications as a successful appeal would , in their submission ,
automatically render the later appointments irrational. In his submissions ,
Mr Mncwabe adds that this Court should conside r his direct access application even
though it might have been rendered moot after the appointment of Mr Sakata as
Northern Cape DPP. It bears mention that this submission is not altogether correct
because although the interdict initially sought may have been rendered moot, that is not
the case with the question of whether Mr Sakata’s appointment should be set aside. The
latter remains a live issue.
On the merits, the applica nts submit that t heir appointments in
Presidential Minutes 10 and 18 respectivel y became final when the decisions were
communicated to them. Contrary to what the High Court held, public notification is not
a requirement for finality : not under the tenets of the functus officio doctrine, the
NPA Act, or the Constitution. In respect of functus officio, the applicants submit that a
decision becomes final when “it is published, announced or otherwise conveyed to those
affected by such decision”. 10 The applicants further argue that section 13(1)(a) of the
NPA Act does not impose a require ment of public notification in the case of the
appointment of a DPP. Yet, so the argument goes, the NPA Act notably does so for the
appointment of Special Directors under section 13(1)(c) , which must be proclaimed in
10 For this submission the applicants rely on Hoexter and Penfold Administrative Law in South Africa 3 ed (Juta
& Co Ltd, Cape Town 2021) at 382. The applicants also cite Plover’s Nest Investment (Pty) Limited v de Haan
[2015] ZASCA 193 and MEC for Health, East ern Cape v Kirland Investments (Pty) Limited [2014] ZACC 6;
2014 (3) SA 481 (CC); 2014 (5) BCLR 547 (CC).
MAJIEDT J
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the Government Gazette. According to the applicants, the Legislature therefore did not
envision public notification in the case of DPPs.
The applicants also contend that the public notification requirement cannot be
derived from the Constitution. They argue that sections 101 and 179 of the Constitution
only require the decision to be in writing and countersigned, and the appointee to be
qualified, yet remain silent on publication requirements. In the applicants’ submission,
the High Court has ignored this choice by the Legislature and imper missibly read a
public notification requirement into section 13(1)(a) of the NPA Act, thus crossing the
divide between interpretation and legislation. The High Court went astray on the public
notification requirement as a result of its mistaken reliance o n SARFU III, contend the
applicants. That case, according to the applicants, is plainly distinguishable.
The applicants contend that i t was sufficient that the y were notified personally.
Such personal notification was validly attained when Mr Abrahams, as the then NDPP,
communicated the appointments to the m. A formal delegation from the President as
the decision-maker to Mr Abrahams was not required for this p ersonal notification as
Mr Abrahams did not exercise any authority or discretion. He merely in formed the
applicants of former President Zuma’s decision, having received the Presidential
Minutes from the Department of Justice. This, they say, was in line with practice at the
National Prosecuting Authority at the time and how Presidential Minutes we re usually
processed – namely through Mr Abrahams as the then NDPP. As a consequence, the
doctrine of functus officio applied and barred the President from revoking the
appointments at his discretion. Mr Mncwabe points out that, in addition to the two
applicants, five other appointments had been made by the former President, two of
whom are still in office. Hence, if the present two appointments were successfully
challenged, a similar finding should be made regarding the other incumbent office
holders.
MAJIEDT J
11
Further, Mr Mncwabe invoked principles of company law and labour law. It was
argued that the Turquand rule11 finds application. It was pointed out that in terms of
that rule, the recipient of a message does not have to verify whether “the legal entity’s
internal requirements have been met”. Under labour law, a written contract or letter of
appointment is not required. Instead, offers of employment can be communicated, for
example, via text message. Further, it is not necessary that the employee actually
assumes his position. Lastly, Mr Mncwabe had a legitimate expectation that a contract
had been concluded. During the oral hearing, however, Counsel for Mr Mncwabe
expressly disavowed reliance on all these submissions.
In the alternative, the applicants argue that, even if the President was not
functus officio, the decision to revoke their appointments, as recorded in
Presidential Minutes 67 and 69 respectively, must be set aside on grounds of legality,
rationality and constitutionality. In brief, it is contended, first, that the President relied
on the wrong provision of the NPA Act, namely section 13(1)(a), while in reality the
removal of a DPP is regulated by section 14(3) read with section 12 of the NPA Act.
This alone , according to the applicants, renders the decision illegal and invalid.
Moreover, the appropriate statutory requirem ents for the removal of a DPP w ere not
met, especially since the present NDPP was not consulted.
Second, the applicants argue that executive action – contrary to the High Court’s
view – is subject to procedural fairness, namely the audi alteram partem rule, as well
as administrative review in terms of the Promotion of Administrative Justice
Act (PAJA).12 They submit that executive decisions must at least be rational and the
11 The Turquand rule emanates from Royal British Bank v Turquand (1856) 6 E & B 327 and protects persons
from being affected by a company’s non -compliance with an internal formality pertaining to the authority of its
representatives: see Merifon (Pty) Limited v Greater Letaba Municipality [2022] ZACC 25; 2022 (9) BCLR 1090
(CC) at fn 12. This common law principle has been partially codified in section 2 0(7) of the
Companies Act 71 of 2008. The rule “protects third parties, who are not aware of any of the internal irregularities
affecting their contracts with a company, by entitling them to assume that all internal formalities, such as quorum
requirements, notice periods, voting procedures and the like, have been complied with” ; Seely The protection
afforded to third parties when contracting with companies: an analysis of the Turquand rule and doctrine of
constructive notice (LLM Dissertation, University of Pretoria, 2018) 5-6.
12 3 of 2000.
MAJIEDT J
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revocation decision was not. It was irrational in process, because the President did not
give the applicants a chance to be heard, as is required by the audi alteram partem rule.
Lastly, in respect of their direct access application, the applicants a rgue that, if
this Court finds the revocation decision to be flawed, it must follow that the
appointments of the present incumbents to the Northern Cape and Mpumalanga DPP
offices stand to be declared constitutionally invalid. This is because an appointme nt is
ipso facto (automatically) invalid if it is made to an office that was not validly vacated.
The applicants rely on this Court’s decision in Nxasana.13 The equitable order that
ought to be made is that the current incumbents vacate their offices and that the
applicants be retroactively appointed.
In respect of costs, the applicants argue that they should not have been mulcted
with costs, because they enjoy Biowatch14 protection.
President Ramaphosa’s submissions in this Court
The only respondent that participated in these proceedings is the first respondent,
President Ramaphosa. The third respondent , Ms Shamila Batohi, filed a notice to
oppose and an answering affidavit the day before the hearing in this Court. She sought
condonation for the late fi ling of the notice to oppose and answering affidavit. The
notice and the affidavit were almost two months late. The explanation proffered for the
lateness was inadequate. Due to the degree of lateness and the inadequate explanation,
condonation for the late filing is refused.
The President does not dispute this Court’s jurisdiction to hear this matter.
However, he does oppose the applications for direct access to set aside the appointments
of Ms Kanyane and Mr Sakata. He contends that absent exceptional circumstances,
direct access is not warranted and is not in the interests of justice . In particular,
13 Nxasana above n 1 at para 99.
14 Biowatch Trust v Registrar Genetic Resources [2009] ZACC 14; 2009 (6) SA 232 (CC); 2009 (10) BCLR 1014
(CC) at paras 22-3.
MAJIEDT J
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the President contends that if there is any review of these appointments, it should be by
the High Court in the first place, and not by this Court as a court of first and last instance.
The President submits that the relief sought by the applicants will effectively install
DPPs “who were not selected after careful deliberation by the current NDPP”. This, he
submits, would be prejudicial, not only to the National Prosecuting Authority itself, but
to the wider criminal justice system.
On the merits, the President argues that he was not functus officio when he came
into office, since the disputed appointments were never finalised by his predecessor.
Finalisation, he submits, is contingent on both public and p ersonal notification. The
argument on public notification was, however, expressly abandoned in the course of the
hearing before us. It was submitted that, if this Court finds that personal notification is
a sufficient condition to finalise the appointments, Mr Abrahams had no authority to
notify the applicants. Therefore, the decision remained inchoate, and
President Ramaphosa was at liberty to reverse it.
Before proceeding to the analysis of juris diction and the merits , it is necessary
to deal with two preliminary issues: the first issue is the length of the President’s written
submissions and the second is the issue of condonation of the late filing of the
submissions.
When these matters were set down, the parties were directed to file written
submissions on a date set out in the directions. The respondents, including
President Ramaphosa, were directed to file their written submissions on
13 December 2022. According to Practice Direction 415 in the Practice Directions made
in terms of rule 32(2) of the rules of this Court , written submissions filed in this Court
may not exceed 50 pages except with leave of the Court. Leave, according to the
directions, can be sought by way of letter , but must be sought before filing the
submissions. On 8 December 2022 , President Ram aphosa addressed a letter to the
15 Issued on 17 May 2010.
MAJIEDT J
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Court seeking leave to file submissions exceeding the maximum page length. On
20 December 2022, President Ramaphosa filed his submissions which were i n excess
of the page limit by approximately six pages.
This Court, albeit in a different context, has repeatedly held that condonation
will be granted if, regard being had to several factors, it is in the interests of justice to
do so.16 In this case, the relevant factors include: the extent to which the submissions
are in excess of the usual limit ; the reason or cause thereof; the effect on the
administration of justice and other litigants; the importance of the issue to be decided
in the matter; and the presence or absence of opposition.
As indicated above, the extent of non -compliance is only six pages. This is
minor. I think the administration of justice would be stymied if the submissions were
rejected. This is particularly so, in this matter, beca use: (a) there is no opposition, (b)
the issues for determination in this matter are of significant importance, (c) the issues
are nuanced, (d) the Court would benefit greatly from full arguments from both sides,
and (e) there is no prejudice to the partie s. Should leave be refused, President
Ramaphosa would suffer grave prejudice. In the premises, I think that it is in the
interests of justice to grant President Ramaphosa leave to file submissions in excess of
the page limit.
On the issue of the late fi ling of the submissions, I am of the view that
condonation should be granted. This is so because the submissions were late by no
more than three days and the delay was caused by a combination of the conduct of the
applicants and President Ramaphosa. Furt hermore, neither of the applicants opposed
the application nor did either of them suffer or allege any prejudice as a result of the
three-day delay.
16 Booi v Amathole District Municipality [2021] ZACC 36; (2022) 43 ILJ 91 (CC); 2022 (3) BCLR 265 (CC) at
paras 26-7.
MAJIEDT J
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Jurisdiction and leave to appeal
In order for this Court to entertain a matter it must meet two requirements. First,
it must engage this Court’s jurisdiction. For a matter to engage this Court’s jurisdiction,
it must raise a constitutional issue or an arguable point of law of general public
importance, which ought to be considered by this Court .17 The second requirement is
that the interests of justice must warrant that leave to appeal be granted.18
These applications plainly engage this Court’s constitutional and extended
jurisdiction. In the first instance, this matter engages this Court’s constitutional
jurisdiction because it concerns the interpretation and application of section 13(1) of the
NPA Act which deals with the exercise of the presidential power to appoint DPPs. In
Lufil Packaging, this Court held that “the interpretation and application of leg islation
which is specially mandated by the Constitution will inevitably be a constitutional
matter”.19 As the NPA Act is legislation envisaged by the Constitution, 20 this matter
concerns the exercise of public power , which engages this Court’s constitution al
jurisdiction.
Furthermore, the question whether the appointment of a DPP must be announced
by way of public notification before it becomes final , and the requirements for valid
personal notification, are unquestionably arguable points of law of general public
importance that this Court ought to consider.
17 Sections 167(3)(b)(i) and (ii) of the Constitution.
18 S v Boesak [2000] ZACC 25; 2001 (1) SA 912; 2001 (1) BCLR 36 at para 12.
19 National Union of Metal Workers of South Africa v Lufil Packaging (Isithebe) [2020] ZACC 7; (2020) 41 (ILJ)
1846 (CC) ; 2020 (6) BCLR 725 (CC) (Lufil Packaging ) at para 27. See also Road Traffic Management
Corporation v Waymark (Pty) Limited [2019] ZACC 12; 2019 (5) SA 29 (CC); 2019 (6) BCLR 749 (CC) at para
27 and Snyders v De Jager [2016] ZACC 55; 2017 (3) SA 545 (CC); 2017 (5) BCLR 614 (CC) at para 28.
20 Section 179(7) of the Constitution.
MAJIEDT J
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In deciding whether it is in the interests of justice to grant leave to appeal, this
Court generally considers, amongst others, prospects of success, the importance of the
issues raised and public interest in the issues raised.21
To my mind , the issues in this case are arguable and the interpretations of
section 13(1) of the NPA Act advanced by both sides are, on their face, meritorious and
there are reasonable prospects of success. As regards the impo rtance of the issues and
the public interest in the m, it is clear that the issues in this matter are of considerable
importance, not only to the parties, but also to the general public. A DPP fulfils a very
important role in our Republic’s criminal justice system and in ensuring the well-being
of our democracy. It is therefore in the interests of justice to grant leave to appeal.
On the understanding that the direct access applications are contingent upon the
applicants’ success in their main applications, this Court should entertain them for the
reasons that follow. In Bruce, this Court held that in granting an application for
direct access, the interests of justice requirement will ordinarily be met only where
exceptional circumstances exist.22 For the existence of exceptional circumstances, there
must, in addition to other factors, be sufficient urgency or public importance and proof
of prejudice to the public interest or the ends of justice and good government, to justify
such a procedure. 23 In the pr esent matter, I think that the two applications are
sufficiently linked to justify a departure from the normal procedure. A decision on the
first will inevitably affect the second. In addition, both matters concern decisions made
in terms of section 13(1) of the NPA Act. As regards urgency, importance and prejudice
to the public interest, I t ake the view t hat it is necessary to hear the application s for
direct access, because a decision on both applications will bring finality to the matter
and certainty and stability to the office s of the DPP in Mpumalanga and
21 African Christian Democratic Party v Electoral Commission [2006] ZACC 1; 2006 (3) SA 305 (CC); 2006 (5)
BCLR 579 (CC) at para 17.
22 Bruce and Another v Fleecytex Johannesburg CC and Others [1998] ZACC 3; 1998 ( 2) SA 1143 (CC); 1998
(4) BCLR 415 (CC) at para 22.
23 Id at para 19.
MAJIEDT J
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the Northern Cape. In the premises, I hold that, in the event that we do get there, direct
access should be granted.
Merits
Functus officio
As stated, this doctrine entails that once something is done, it cannot be undone,
reversed or otherwise altered by the decision-maker. This is because the decision-maker
would have exhausted her authority and relinquished her jurisdiction over the matter by
taking a final decision.24 The finality of a decision is central to the doctrine’s operation.
The doctrine promotes certainty and stability25 and it ameliorates prejudice and injustice
occasioned to those who would rely on otherwise wavering decisions.26 The doctrine’s
relationship to the Oudekraal rule27 is evident from this Court’s judgment in Kirland.28
In Retail Motor Industry Organisation, the Supreme Court of Appeal held with
regard to the doctrine—
“first, the principle applies only to final decisions; secondly, it usually applies where
rights or benefits have been granted – and thus when it would be unfair to deprive a
person of an entitlement that has already vested; thirdly, an administrative
decision-maker may vary or revoke even such a decision if the empowering legislation
authorises him or her to do so (although such a decision would be subject to procedural
24 Baxter Administrative Law (Juta & Co Ltd, Cape Town 1 984) at 372 and Hoexter and Penfold above n 10 at
381-2.
25 Kirland above n 10 at para 103. See also Khumalo v Member of the Executive Council for Education: KwaZulu
Natal [2013] ZACC 49; 2014 (5) SA 579 (CC); 2014 (3) BCLR 333 (CC) at para 47; Hoexter and Penfold above
n 10 at 381.
26 Hoexter and Penfold above n 10 at 381.
27 The rule laid down in Oudekraal Estates (Pty) Ltd v City of Cape Town [2004] ZASCA 48; 2004 (6) SA 222
(SCA) at para 26 holds that a decision must be treated as valid, that is, it exists in fact with legal consequences,
by the decision -maker and affected parties until or unless reviewed and set aside . See Kirland above n 10 at
para 90. See further: Merafong City v AngloGold Ashanti Ltd [2016] ZACC 35; 2017 (2) SA 211 (CC); 2017 (2)
BCLR 182 (CC) at para 44 and Magnificent Mile Trading 30 (Pty) Ltd v Celliers NO [2019] ZACC 36; 2020 (4)
SA 375 (CC); 2020 (1) BCLR 41 (CC) at paras 50-60.
28 Kirland above n 10.
MAJIEDT J
18
fairness having been observed and any other conditions) ; fourthly, the functus officio
principle does not apply to the amendment or repeal of subordinate legislation.”29
A useful exposition of the doctrine is advanced by Pretorius:
“The functus officio doctrine is one of the mechanisms by means of which the law gives
expression to the principle of finality. According to this doctrine, a person who is
vested with adjudicative or decision -making powers may, as a general rule, exercise
those powers only once in relation to the same matter. This rule applies with particular
force, but not only, in circumstances where the exercise of such adjudicative or
decision-making powers has the effect of determining a person ’s legal rights or of
conferring rights or benefits of a legally cognisable nature on a person. The result is
that once such a decision has been given, it is (subject to any right of appeal to a
superior body or functionary) final and conclusive. Such a decision cannot be revoked
or varied by the decision-maker.”30
The parties accept the well -established legal p rinciple that, save in special
circumstances or where there is a provision in law to the contrary, a final decision can
only be altered by way of appeal or review to the competent authority, even if that
decision is illegal. 31 It is common cause that , if the incumbent President as the
decision-maker at the time was functus officio , h is successor could not undo the
decisions taken (except through the proper procedure). The contentious issue is whether
the decision-maker ( President Zuma) became functus officio , binding his successor.
This issue, in the first instance, compels us to enquire into the requirements of the
doctrine and, in the second instance, the facts of the matter. For this, we must determine
at which specific point in time a decision is considered final, and therefore, irreversible.
29 Retail Motor Industry Organisation v Minister of Water and Environmental Affairs [2013] ZASCA 70 ; 2014
(3) SA 251 (SCA) at para 25.
30 Pretorius “The origins of the Functus Officio Doctrine, with Specific Reference to its application in
administrative law” (2005) 122(4) SALJ 832. See generally Van der Walt The Functus Officio doctrine and
invalid administrative action in South African Administrative Law (LLM thesis, University of South Africa, 2019)
at 55.
31 The rule crystallised in Oudekraal above n 27 and other cases cited therein.
MAJIEDT J
19
Hoexter and Penfold posit : “[f]inality is a point arrived at when the decision is
published, announced or otherwise conveyed to those affected by it”. 32 Finality plays
an important role in this case as far as the functus officio principle is concerned. That
is the topic that next bears consideration.
Finality
Plainly the appointment decision lacked finality until it was properly
communicated by or on behalf of the decision-maker, either to the world at large (public
notification) or to the applicants (p ersonal notification). It was only when such
communication occurred that a party af fected by a decision would acquire rights and
benefits arising from it.33
There is sound logic to that position : a decision -maker who has not
communicated a decision is entitled to have a change of view and reverse the decision
taken. There can be no prej udice to any other party as the decision has not been
communicated. Thus, no one could be said to have acquired any rights or benefits from
an uncommunicated decision or placed reliance on it. In this case, it means that if the
appointment decision had been properly communicated, the point of finality would have
been reached. If not, it was not final and therefore capable of being revisited.
The facts and decision in Kirland34 are i nstructive. There, the
Superintendent-General and head of the Eastern Cape Province’s Department of Health
had taken a decision to refuse Kirland’s applications to build private hospitals in the
province. However, the Superintendent-General went on sick leave before signing the
letter of refusal or communicating the decision to Kirland. On his return to work, the
Superintendent-General discovered that (in his absence) the acting head of the
32 Hoexter and Penfold above n 10 at 382.
33 MEC for Health, Province of Eastern Cape NO v Kirland Investments (Pty) Ltd t/a Eye & Laser Institute [2013]
ZASCA 58; 2014 (3) SA 219 (SCA) at para 15 states that “[t]he fact that the decisions were not communicated or
otherwise made known has an important effect: because they were not final, they were subject to change without
offending the functus officio principle”.
34 Kirland above n 10.
MAJIEDT J
20
department had approved the applications and communicated her decision to Kirland .
The Superintendent-General withdrew the approval. Re lying on SARFU III, the
Supreme Court of Appeal held that the initial refusal decision could be reversed by the
acting head of the department because it had not yet been communicated. It held that
the Superintendent-General had not been functus officio when he went on sick leave,
because a decision is revocable before it is published or announced or otherwise
conveyed to the affected person. This Court held that the refusal “was never signed off
or communicated to Kirland”; only the approval was. 35 Accordingly, as the approval
was communicated to Kirland it was “a decision taken by the incumbent of the office
empowered to take it, and remained effectual until properly set aside. It could not be
ignored or withdrawn by internal administrative fiat”.36
Equally edifying is Mohamed, a decision of the Full Court in the Western Cape.37
An asylum seeker’s application for asylum was rejected by a Refugee Status
Determination Officer on the basis that the application was manifestly unfounded. The
applicant was informed of the Officer’s rejection and advised that he could make further
submissions, which he did. During this time, the Standing Committee of
Refugee Affairs reviewed the Officer’s rejection and upheld it on 28 October 2011.
The Standing Committee immed iately informed the Officer. However, the applicant
was only informed of the Standing Committee’s decision on 4 February 2013.
35 Id at para 69.
36 Id at para 105.
37 Mohamed v Minister of Home Affairs [2016] ZAWCHC 13. Compare Manok Family Trust v Blue Horizon
Investment 10 (Pty) Ltd [2014] ZASCA 92; 2014 (5) SA 503 (SCA) at paras 14 and 17, where the Supreme Court
of Appeal held that a decision taken under section 11(4) of the Restitution of Land Rights Act 22 of 1994 that a
land claim failed to meet the requirements of the Act, was final and the decision-maker was functus officio because
the decision had been conveyed to the affected party, namely the applicant who claimed restitution. See also
Tahilram v Trustees of the Lukamber Trust [2021] ZASCA 173; 2022 (2) SA 436 (SCA) at para 27, where the
same Court held:
“[W]henever parties agree to refer a matter to a valuer, then so long as the valuer arrives at his
or her decision honestly and in good faith, the decision is final and binding o n them and they
are bound by it once communicated to them. The valuer is then functus officio insofar as the
valuation and matters pertaining thereto are concerned. That being so, the valuer is then not
permitted to unilaterally withdraw or cancel the va luation in order to alter or amend it. Only a
court has the power to interfere with the valuer’s decision in review proceedings.”
MAJIEDT J
21
The Standing Committee declined to consider the applicant’s further submissions
which had been made on legal advice.38
A single Judge held that the Standing Committee was functus officio after it had
upheld the Officer’s decision and therefore correctly declined to entertain the
applicant’s submissions . On appeal, the Full Court reversed that decision. With
reference to the posi tion in South African, English and Australian law, the Full Court
held that “the flexibility to alter a decision remains until the decision has been
communicated to the affected person”.39 Accordingly, the Standing Committee was not
functus officio because the Officer had failed to inform the applicant about the decision
before the applicant’s late written submissions were delivered.40
As Mohamed demonstrates, the legal position here is the same in England41 and
Australia.42 In respect of the status of a dec ision by a tribunal, Wade and Forsyth
explain it thus—
“[i]n the absence of special circumstances the tribunal’s decision is irrevocable as soon
as it has been communicated to the parties , even though orally and even though the
reasons for it remain to be given later.”43 (Emphasis added.)
The law is therefore clear that communication of a decision to an affected party
is central to the finality of that decision. But is there a requirement for public
notification as well?
38 Mohamed id at para 15.
39 Id at para 29.
40 Id at para 57.
41 See Wade and Forsyth Administrative Law (LexisNexis, London 2021) at 192 as quoted in Mohamed id at para
26; Re: 56 Denton Road Twickenham [1953] Ch 51.
42 Seminugus v Minister for Immigration and Multicultural Affairs [2000] FCA 240 at para 21; Minister for
Immigration and Citizenship v SZQOY [2012] FCAFC 13 at para 29; and Minister for Immigration, Multicultural
Affairs and Citizenship v SZRNY [2013] FCAFC 104 at paras 102 and 104.
43 Wade and Forsyth above n 41.
MAJIEDT J
22
Public notification
I deal with this aspect rather perfunctorily, given the jettisoning of this point by
Counsel for the President at the hearing. Generally, the requirement of public
notification for the appointment of public officials must be sourced in the Constitution,
legislation or the common law. As a general proposition, the issue of publication, be it
public or private, is closely linked to the importance of the post concerned, particularly
in a constitutional setting . This was also one of the main bases for the High Court
holding that public notification is required. That Court based its holding: (a) on the fact
that only the President may appoint a DPP ; (b) the significance of the DPPs’
responsibilities and the statutory requirements for their qualification; (c) the importance
of the DPP in South African society ; and (d) the public interest in their appointment.
Importantly, the President, as the sole repository of power in terms of the NPA Act, is
an essential part of the final decision to appoint a DPP. Such an appointmen t, in the
view of the High Court, only takes place when the President’s decision is translated into
an overt act, through public notification.
I have explicated the public importance of these posts. I can do no better than to
cite this Court’s dictum in Nxasana, in addressing the raison d’être underpinning the
constitutional guarantee of the independence of the National Prosecuting Authority:
“The reason why this guarantee of independence exists is not far to seek. The NPA
plays a pivotal role in the administration of criminal justice. With a malleable, corrupt
or dysfunctional prosecuting authority, many criminals – especially those holding
positions of influence – will rarely, if ever, answer for their criminal deeds. Equally,
functionaries within th at prosecuting authority may – as CASAC submitted – ‘be
pressured . . . into pursuing prosecutions to advance a political agenda ’. All this is
antithetical to the rule of law, a found ing value of the Republic . Also, malleability,
corruption and dysfuncti onality are at odds with the constitutional injunction of
prosecuting without fear, favour or prejudice. They are thus at variance with the
constitutional requirement of the independence of the NPA ’. At the centre of any
functioning constitutional democracy is a well-functioning criminal justice system. . . .
MAJIEDT J
23
If you subvert the criminal justice system, you subvert the rule of law and constitutional
democracy itself.”44
But the importance of a public post in and of itself does not establish a public
notification requirement. Our law has no requirement of universal application obliging
functionaries to communicate decisions to the public at large in order to finalise them.
The Constitution only requires that decisions of the President that have legal
consequence or are taken in terms of legislation , be in writing and accessible to the
public.45 It does not impose a public notification requirement.
On behalf of the President, much reliance was initially placed on SARFU III46 in
seeking to buttress the conte ntion that public notification of the appointments was an
essential requirement in this instance. That reliance is misconceived, as was the
High Court’s reliance on the case for its holding that these appointments had to be
announced publicly for them to take effect. SARFU III must be understood within the
factual setting of the establishment of a commission of inquiry. The case related to the
appointment of a commission of inquiry by former President Mandela into the
administration of rugby in South Africa. The South African Rugby and Football Union
44 Nxasana above n 1 at paras 19-20.
45 Section 101 of the Constitution, which reads:
“(1) A decision by the President must be in writing if it—
(a) is taken in terms of legislation; or
(b) has legal consequences.
(2) A written decision by the President must be countersigned by another Cabinet member
if that decision concerns a function assigned to that other Cabinet member.
(3) Proclamations, regulations and other instruments of subordinate legislation must be
accessible to the public.
(4) National legislation may specify the manner in which, and the exte nt to which,
instruments mentioned in subsection (3) must be—
(a) tabled in Parliament; and
(b) approved by Parliament.”
46 SARFU III above n 7.
MAJIEDT J
24
(SARFU) applied to the Transvaal High Court for an order against the President setting
aside the notice to appoint the inquiry. The matter made its way to this Court.47
One of the challenges levelled agains t the President by SARFU , which was
upheld in the High Court, was that the President had abdicated his power to appoint the
commission to the Minister of Sport at a meeting in August 1997 . Additionally, this
abdication of power rendered the appointment of the commission a nullity. This is
because the appointment of commissions of inquiry is the exclusive prerogative of the
President, pursuant to section 84(2)(f) of the Constitution.48
As was held by this Court in Hugo,49 the President’s exercise of public power in
terms of section 84(2) of the Constitution rests on the President as head of state where
he is the sole repository of the power. 50 Consequently, had SARFU proven that the
President had abdicated his power in the appointment of the commission of inquiry, the
commission would have been void ab initio.
Plainly, in SARFU III, this Court was concerned with conditions attaching to
appointments of commissions of inquiry and limited itself accordingly.51 SARFU III is
no authority for a more general proposition that public notification is a requirement for
a functionary to be functus officio . Self-evidently, a commission , once established,
wields wide-ranging powers affecting the general public and its very establishment is
usually for the investigation of matters concerning and affecting the general public.
Thus, publication in the Government Gazette, proclaiming that the extensive powers set
out in the Commissions Act 52 would apply to the commission, is understandable. But
47 Id at paras 2-3.
48 Id at para 24.
49 President of the Republic of South Africa v Hugo [1997] ZACC 4; 1997 (4) SA 1; 1997 (6) BCLR 708 at para
8.
50 SARFU III above n 7 at paras 144-5.
51 Id at paras 30-1.
52 8 of 1947.
MAJIEDT J
25
neither the Constitution nor th at Act requires public notification of the commission’s
establishment. The establishment of a commission of inquiry does not purport to confer
benefits or rights to anyone. It thus makes sense that the only way of communicating
the decision in a way that gives rise to finality is by public communication. This Court
said that the method “usually employed” to publicly communicate the establishment of
a commission is by way of promulgation in the Government Gazette.53 One must
assume that there was evidence before the Court of this practice, or that the Court took
judicial notice of it. For all these reasons, SARFU III is distinguishable.
Lastly, under this rubric, it is necessary to dispel two misconceptions regarding
public notification in the Government Gazette. The first is the role that the
Commissions Act play s in relation to commissions of inquiry. That Act does not, as
was argued, require that its establishment be proclaimed in the Government Gazette.
Instead, all it says is that if the powers se t out in that Act are to apply to a particular
commission, that fact must be proclaimed in the Government Gazette.54
The second misconception concerns section 13 (1)(c) of the NPA Act. That
section reads:
“The President, after consultation with the Minister and the National Director—
. . .
(c) may appoint one or more Directors of Public Prosecutions (hereinafter referred
to as Special Directors) to exercise certain powers, carry out certain duties and
perform certain functions conferred or imposed on or as signed to him or her
by the President by proclamation in the Gazette.”
The requirement in section 13(1)(c) is not that the appointment of a Special DPP
must be published in the Government Gazette , as was submitted on behalf of the
applicants in seeking to distinguish the appointment of a Special DPP from that of an
53 SARFU III above n 7 at para 44.
54 Section 1(a).
MAJIEDT J
26
ordinary DPP. This distinction was aimed at buttressing the contention that a public
notification requirement is expressly excluded in the case of an ordinary DPP’s
appointment through the application of the inclusio unius est exclusio alterius (inclusion
of one excludes the other) principle. The submission is fallacious. What must be
proclaimed in the Government Gazette is not the appointment itself, but the specific
powers of a Special DPP, since she is appointed for a special function, with special
powers to fulfil that function.
Personal notification
What bears consideration next is the important issue of personal notification. It
must be repeated that a DPP unquestionably occupies a very important position within
the NPA which, in turn, fulfils a very important role in South Africa’s constitutional
democracy. It is of no trifling significance that section 13(1) vests the power of
appointment in the President, a fact eloquently elucidated by this Court in EFF:
“The President is the Head of State and Head of the national Executive. His is indeed
the highest calling to the highest office in the land. He is the first citizen of this country
and occupies a position indispensable for the eff ective governance of our democratic
country. . . . [A]lmost all the key role players in the realisation of our constitutional
vision and the aspirations of all our people are appointed and may ultimately be
removed by him.”55 (Emphasis added.)
Apart from section 101 of the Constitution – read together with section 12 of the
NPA Act 56 – there are no express rules regulating the procedural aspects of DPP
appointments.
55 Economic Freedom Fighters v Speaker of the National Assembly; Democratic Alliance v Speaker of the
National Assembly [2016] ZACC 11; 2016 (3) SA 580 (CC); 2016 (5) BCLR 618 (CC) at para 20.
56 Section 12 reads:
“(1) The National Director shall hold office for a non-renewable term of 10 years, but must
vacate his or her office on attaining the age of 65 years.
(2) A Deputy National Director shall vacate his or her office at the age of 65.
MAJIEDT J
27
(3) If the National Director or a Deputy National Director attains the age of 65 years after
the first day of any month, he or she shall be deemed to attain that age on the first day
of the next succeeding month.
(4) If the President is of the opinion that it is in the public interest to retain a National
Director or a Deputy National Director in his or her office beyond the age of 65 years,
and—
(a) the National Director or Deputy National Director wishes to continue to serve
in such office; and
(b) the mental and physical health of the person concerned enable him or her so
to continue, the President may from time to time direct that he or she be so
retained, but not for a period which exceeds, or periods which in the aggregate
exceed, two years: Provided that a National Director' s term of office shall not
exceed 10 years.
(5) The Nat ional Director or a Deputy National Director shall not be suspended or
removed from office except in accordance with the provisions of subsections (6), (7)
and (8).
(6) (a) The President may provisionally suspend the National Director or a Deputy
National Director from his or her office, pending such enquiry into his or her
fitness to hold such office as the President deems fit and, subject to the
provisions of this subsection, may thereupon remove him or her from office—
(i) for misconduct;
(ii) on account of continued ill-health;
(iii) on account of incapacity to carry out his or her duties of office
efficiently; or
(iv) on account thereof that he or she is no longer a fit and proper person
to hold the office concerned.
(b) The removal of the National Dir ector or a Deputy National Director, the
reason therefor and the representations of the National Director or Deputy
National Director (if any) shall be communicated by message to Parliament
within 14 days after such removal if Parliament is then in session or, if
Parliament is not then in session, within 14 days after the commencement of
its next ensuing session.
(c) Parliament shall, within 30 days after the message referred to in paragraph (b)
has been tabled in Parliament, or as soon thereafter as is reasonably possible,
pass a resolution as to whether or not the restoration to his or her office of the
National Director or Deputy National Director so removed, is recommended.
(d) The President shall restore the National Director or Deputy National Director
to his or her office if Parliament so resolves.
(e) The National Director or a Deputy National Director provisionally suspended
from office shall receive, for the duration of such suspension, no salary or
such salary as may be determined by the President.
(7) The President shall also remove the National Director or a Deputy National Director
from office if an address from each of the respective Houses of Parliament in the same
session praying for such removal on any of the grounds referred to in subsection (6)(a),
is presented to the President.
(8) (a) The President may allow the National Director or a Deputy National
Director at his or her request, to vacate his or her office—
(i) on account of continued ill-health; or
(ii) for any other reason which the President deems sufficient.
MAJIEDT J
28
Having regard to the purpose of the functus officio doctrine, the law is plain that
personal notification to the appointed person is necessary for a decision to attain the
status of finality. That aspect has already been considered above. Personal notification
will most often be sufficient, as it realises a primary goal of the functus officio doctrine:
to enable those affected by the decision to gain certainty and to plan their affairs
accordingly. The signing of the Presidential Minutes – in accordance with section 101
of the Constitution – could not, in and of itself, be sufficient to finalise the appointments;
there had to be personal notification to those affected by the decision. Even though the
Presidential Minute is an indispensable step in the decision-making process, it does not
on its own constitute a final decision. Therefore, the mere fact that the former
President’s decision was reduced to writing by way of Presidential Minutes does not
necessarily render President Ramaphosa functus officio.
The proposition that, at the very least, an appointee must personally receive
notification of the appointment for it to be effective, appears to be uncontentious. The
applicants appear not to take issue with this concept and their argument followed suit.
(b) The request in terms of paragraph (a) (ii) shall be addressed to the President
at least six calendar months prior to the date on which he or she wishes to
vacate his or her office, unless the President grants a shorter period in a
specific case.
(c) If the National Director or a Deputy National Director—
(i) vacates his or her office in terms of paragraph (a)(i), he or she shall
be entitled to such pension as he or she would have been entitled to
under the pension law applicable to him or her if his or her services
had been terminated on the ground of continued ill -health
occasioned without him or her being instrumental thereto; or
(ii) vacates his or her office in terms of paragraph (a) (ii), he or she shall
be deemed to have been retired in terms of section 16 (4) of the
Public Service Act, and he or she shall be entitled to such pension as
he or she would have been entitled to under the pension law
applicable to him or her if he or she had been so retired.
(9) If the National Director or a Deputy National Director, immediately prior to his or her
appointment as such, was an officer or employee in the public service, and is appointed
under an Act of Parliament with his or her consent to an office to which the provisions
of this Act or the Public Service Act do not apply, he or she shall, as from the date on
which he or she is so appointed, cease to be the National Director , or a Deputy National
Director and if at that date he or she has not reached the age at which he or she would
in terms of the Public Service Act have had the right to retire, he or she shall be deemed
to have retired on that date and shall, subject to the said provisions, be entitled to such
pension as he or she would have been entitled to under the pension law applicable to
him or her had he or she been compelled to retire from the public service owing to the
abolition of his or her post.”
MAJIEDT J
29
It appears to me to have become common cause that communication of the
appointments must have been “authorised” in some form. Since the communication by
Mr Abrahams itself is undisputed, and since he was the only person who ever
communicated the appointments to the applicants, the outcome of the application
depends entirely on the question of whether this communication met the requirement of
“authorisation”. In any event, insofar as it may still be in issue, I hold that for the
reasons advanced, in this instance personal notification was required before these
appointments could take effect. That notification could be in writing or oral. The
crucial issue as to whether Mr Abrahams had the requisite authority to notify the
applicants, is what I next consider.
Did Mr Abrahams have the requisite authority to notify the applicants?
On behalf of the President, it is argued that absent an official direction from the
Justice Ministry, or the Presidency itself, Mr Abrahams took the initial, unauthorised
step of contacting the applicants in a bid to finalise President Zuma’s appointments
prematurely. The central question is who, if anyone, authorised Mr Abrahams to
communicate with the applicants? It appears useful in this case to explain and draw a
distinction between original power and conferred authority to notify. 57 The former
would refer to any power that Mr Abrahams had as the NDPP at that time and which is
sourced in his office as such. The latter would refer to any power that Mr Abrahams
did not have himself, but could have been conferred by President Zuma through
authorisation. For the ann ouncement to be valid, Mr Abrahams needed either one of
the two kinds of authority.
Original power to notify as NDPP
The obvious person, then, who can state where the power or authorisation came
from is Mr Abrahams himself. His affidavit, however, is somewhat short on details:
57 A similar distinction, albeit in a different context, was apparently drawn by Voet with regard to the office of
deputy lieutenant (legatus). It was disputed whether his jurisdiction was to be considered as original (propria) or
derived (mandata), see Translator’s Note to Voet Commentary on the Pandects Vol 1, Book 1, Title 16.
MAJIEDT J
30
“As head of the National Prosecuting Authority, and having authority over the
exercising of all my powers, and the performance of all my duties and functions
conferred or imposed on or assigned to any member of the prosecuting authority by the
Constitution, the NPA Act or any other law, I immediately informed each candidate of
their respective appointments and congratulated them.”
This statement is no more than a bare assertion on the part of Mr Abrahams. He
does not cite a specif ic legislative provision, nor could he, as there is nothing in the
Constitution or the NPA Act to lend legitimacy to his claim. Even more revealing is
his blanket invocation of “any other law” as justification for his actions. Mr Abrahams’
affidavit does not explain what law he is referring to.
It appears equally dubious that the power to notify could be an implied power of
the office of the NDPP. In AmaBhungane,58 this Court explicated the content of implied
powers:
“A distinction must be drawn between an implied primary power and an ancillary
implied power. I consider it necessary to draw this distinction because quite often
discussions of implied powers entail ancillary implied powers, and not primary implied
powers. The distinction will be better u nderstood if I first discuss the well -known
concept, the ancillary implied power. An ancillary implied power arises where a
primary power – whether express or implied – conferred by an Act cannot be exercised
if the ancillary implied power does not also exist. . . .
What I refer to as an ancillary power arises in the context of one power being necessary
in order for an unquestionably existing power to be exercised. . . . Coming to an implied
primary power, an antecedent question is: what do I mean by a pr imary power? A
primary power is a power to do something required to be done in terms of an Act and
which does not owe its existence to, or whose existence is not pegged on, some other
power; it exists all on its own. That is what makes it primary, and no t ancillary. If it
owed its existence to another primary power, then it would be an ancillary power. A
primary power may be express or implied. It is express if it is specifically provided for
58 AmaBhungane Centre for Investigative Journ alism NPC v Minister of Justice and Correctional Services;
Minister of Police v AmaBhungane Centre for Investigative Journalism NPC [2021] ZACC 3; 2021 (3) SA 246
(CC); 2021 (4) BCLR 349 (CC).
MAJIEDT J
31
. . . . The primary power is implied if it is not expressly provided for. It is implied
from a reading of the Act and a consideration of all that must be factored in the
interpretative exercise. It owes its existence to provisions of the Act and everything
that is relevant to the interpretative exercise. The fa ct that provisions of the Act,
including provisions conferring other primary powers, may shed light on whether an
implied primary power exists does not mean the implied primary power derives its
existence from these provisions. These provisions and all th at must be factored in
determining whether a primary implied power exists serve as interpretative tools that
point to its existence. As we now know, the Constitution plays a crucial role in that
interpretative exercise. . . . So, the interpretative exerc ise is not confined to the four
corners of a statute. The answer to the question whether an implied primary power
exists is yielded by the usual interpretative exercise that seeks to establish what a statute
or a provision in it means. There is nothing unusual about this.”59
Implied powers are the exception, not the rule. These powers only come into
existence when they are reasonably necessary to give practical effect to the express
powers laid down in legislation.60 Axiomatically, an implied power must draw from an
enabling legislative provision. An implied power is ordinarily less likely to be found
where the legislation is aimed at certainty. When one compares the implied powers
recognised in Masetlha61 to those now asserted by Mr Abrahams, plainly in that case
the President relied on an express legislative provision , section 209(2) of the
Constitution, which conferred the appointment power. Mr Abrahams can make no such
claim, since the statutory power to appoint DPPs vests exclusively in the Presiden t –
not the NDPP. The President may have an obligation to consult with Mr Abrahams, but
this is hardly a basis to assert an implied right for the NDPP to finalise the appointments.
It may well be practical for Mr Abrahams to notify the successful candida tes. But
59 Id at paras 63-71. See also Hoexter and Penfold above n 10 at 59-60; De Ville Judicial Review of Administrative
Action in South Africa (LexisNexis Butterworths, Durban, 2005) at 108; and Baxter above n 24 at 404-5.
60 Matatiele Municipality v President of t he Republic of South Africa I [2006] ZACC 2; 2006 (5) SA 47 (CC) ;
2006 (5) BCLR 622 (CC) at para 50.
61 Masetlha v President of the Republic of South Africa [2007] ZACC 20; 2008 (1) SA 566 (CC); 2008 (1) BCLR
1 (CC) at para 68.
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practicality is not the legal standard. The decisive factor for the existence of an implied
power is necessity.62
I accept, though, that the President’s express power to make the appointment is
coupled with the implied power to communicate it. I also accept that we are not dealing
here with an implied power vesting directly in either the Minister or the NDPP. What
we are concerned with is whether, factually, President Zuma released the minutes on
the basis that the decisions were to be communicated to the appointees forthwith. That
being the case, he was simply allowing the Minister, or someone delegated by the
Minister, to perform the mechanical act of communication on behalf of the President.
If President Zuma desired the communication of th e appointments, I can see no
legal objection to that happening through a conduit. In these circumstances,
Mr Abrahams would be a messenger, not a decision -maker. It is hardly necessary for
Mr Abrahams to be the one to communicate the final appointment to the applicants –
even though it may be convenient. This power remains with the President. Without an
instruction to make the notification on the President’s behalf, Mr Abrahams had no
authority to finalise the appointments, nor can he assert implied authority.
Save as set out, as a mere messenger or conduit, it follows that the former NDPP
had no statutory authority or implied power to inform the applicants. The averments in
his affidavit outlined earlier can be understood to arrogate such a power to hi mself “as
head of the N ational Prosecuting Authority ”. However, the original power to notify,
for the reasons enunciated, plainly lay with the President. The question of authorisation
must ultimately be determined by possible conferred authority through authorisation
and the form that such authorisation must take.
62 Lekhari v Johannesburg City Council 1956 (1) SA 552 (A) at 567B.
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Conferred authority to notify
There then remain only two bases upon which Mr Abrahams could have acted.
The first is direct authorisation from the President, either expressly or tacitly, to perform
the mechanical act of communication. This would ordinarily take the form of an
instruction. The second is if the President left it to the Minister to notify the appointees,
and if the Minister , in turn , gave the Minutes to Mr Abrahams to carry out the
mechanical act. They will be addressed presently.
The first issue for consideration is which form of authorisation was necessary
and whether the communication was merely a mechanical act by Mr Abrahams. An
ancillary aspect is whether there was, on t he facts, an instruction by someone in
authority for Mr Abrahams to communicate to the applicants their appointment to the
vacant posts. There is self -evidently a distinction between delegation and an
instruction.63 Delegation connotes the transfer of pow er from one person to another.
The delegatee stands in the shoes of the delegator and has real autonomy and discretion
about whether and how to exercise the delegated power – just as the delegator would
63 SA Freight Consolidators (Pty) Ltd v Chairman, National Transport Commission 1987 (4) SA 155 (W) at 165B-
E:
“I was referred to Wiechers – that is the English translation – Administrative Law at 516, where
the distinction between the concepts of deconcentration and decentralisation of power is dealt
with in extenso. Mr Henning, who did the reply on behalf of the applicant, referred me to Baxter
Administrative Law to what appears to be the first edition published in 1 984 at 436 n 317. In
this footnote the author refers to Wiechers’ book and the pages I have referred to and comments
as follows:
‘In order to express the varying degrees of devolution, Professor Wiechers
has delineated the threefold distinction between m andate, deconcentration
and decentralisation. ( Wiechers at 5262.) Mandate refers to an
authorisation to perform a purely mechanical act or give effect to a decision
already taken. Deconcentration is where the subdelegee is given limited
discretionary powers but exercises them in the name of the delegator
(delegans), who can withdraw them at any time and who retains full authority
over and responsibility for the acts of the delegee, and decentralisation occurs
where there is a full delegation of power a nd the subdelegee becomes fully
responsible for the exercise of the power.
These distinctions have been approved and applied on at least one occasion.
(Naidoo Johannesburg City Council 1979 (4) SA 893 (W) at 8978) But it
should be remembered that they wi ll retain their use only so long as the
categories are employed as means of expressing various degrees of devolution
and are not treated as fixed concepts.’” (Emphasis added.)
MAJIEDT J
34
had she not delegated the power. On the other hand, someone who is asked to
communicate a decision has no real autonomy or discretion about whether and how to
communicate the decision – it is a mechanical task.64 The person thus instructed must
comply fully with the instructions about how, when and to whom communication of the
decision must be made. As I see it, the form of authorisation can then be express
(written or oral) or tacit. The latter could include authorisation through a standing
practice.
Neither Mr Abrahams nor the applicants lay claim to an express instruction from
President Zuma. There is also no evidence of any such express instruction. Express
authorisation appears, to me, not to have come from the President or his office. It is of
no assistance at all for the applicants to aver that President Ramaphosa did not object
when he discovered that the appointment decisions had been communicated to the
applicants. Mr Abrahams claims in his affidavit that former President Zuma and
Minister Masutha did not object or take issue with his communi cation of the
appointments. The only reasonable inference from this statement is that they did not
authorise him to do so. This falls far short of the requirements of tacit authorisation.
Moreover, President Ramaphosa is adamant in the answering affidav it filed in this
Court that no authorisation or instructions were given to Mr Abrahams. And, as will
become clear later, Mr Abrahams’ claim that President Ramaphosa did not react is
contested.
In the present instance, absent a reliance by Mr Abrahams on either express or
tacitly direct or delegated (including sub -delegated) authorisation, the only possible
outcome is that Mr Abrahams had to have been instructed to communicate the
appointments to the applicants. But by whom was he so instructed? Mr Abrahams does
not tell us this. It is conceivable that President Zuma could have delegated to the then
Minister, Minister Masutha, the task of communicating the decision to the applicants.
Minister Masutha could in turn have instructed Mr Abrahams, as head of the
64 Id.
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National Prosecuting Authority at the time and the applicants’ ultimate supervisor, to
communicate that decision. There was no legal impediment to that scenario. Counsel
for President Ramaphosa, in oral argument correctly conceded that the President could
instruct someone to communicate the decision. Moreover, President Ramaphosa caused
the impugned revocation decisions to be communicated in a similar way, by expressly
instructing the current NDPP, Ms Batohi, to convey the revocation decisions to th e
applicants. But, on the facts, that is not what happened in respect of the appointments.
There is no evidence , at all , of a delegation from former President Zuma to
Minister Masutha and an instruction from the latter to Mr Abrahams.
Mr Abrahams does, however, explain how he came into possession of the
Minutes:
“These signed Presidential Minutes, were subsequently handed to me by the Ministry
of Justice during early February 2018, whilst I was in Cape Town on official business
so as to enable me to communicate to the individuals concerned, which I duly did upon
my return from Cape Town, providing them each with copies of the
Presidential Minutes, confirming the then President’s acquiescence to the vacating of
their respective offices, to them . The sign ed Presidential Minutes were contained in
their original customary red folders in which they were initially submitted to the
Ministry, and subsequently, the Presidency, together with the respective signed
Memoranda.” (Emphasis added.)
This passage must be understood in its proper context. In this and the preceding
paragraph, Mr Abrahams refers to the Minutes recording the decision to allow
Ms Xolisile Khanyile and Ms Thoko Majokweni to vacate their positions as DPP
Free State and Special DPP SOCA respectively (vacating Minutes). Ms Khanyile was
to be appointed as the Director of the Financial Intelligence Centre and Ms Majokweni
as South Africa’s ambassador to Eritrea. Their positions would thus become vacant
after the then President granted official ap proval that they may vacate their offices.
Therefore, in the paragraph quoted above, Mr Abrahams is alluding to President Zuma’s
MAJIEDT J
36
“acquiescence to the vacating of [Ms Khanyile and Ms Majokweni’s] respective
offices”.65
The next paragraph in Mr Abrahams’ af fidavit then deals with the five further
Minutes containing the decision to appoint five new DPPs/Special DPPs (appointing
Minutes). Mr Abrahams does not say that the appointing Minutes were handed to him
to enable him to communicate the appointments as the second judgment appears to hold.
Mr Abrahams deals first with the two vacating Minutes in stating that he was to
communicate to Ms Khanyile and Ms Majokweni the fact that they had to vacate their
positions. Mr Abrahams proceeds to deal separately with the five appointing Minutes,
but importantly does not allege that they had been given to him to enable him to
communicate the appointment decisions.
The passage quoted above cannot be invoked, as the applicants sought to do, as
support for the propositio n that Mr Abrahams had the requisite authority to
communicate the appointment decisions. On Mr Abrahams’ own version, the five
appointing Minutes were not handed to him by the Ministry as some or other token of
his authority to communicate the appointment decision to, amongst others, the
applicants. A careful reading of these paragraphs in his affidavit reveals that
Mr Abrahams, at the most, held the view (mistakenly , as I see it) that, in the ordinary
course of events and by virtue of his position as NDPP, he had the requisite authority to
communicate to the applicants their appointment by President Zuma.
In the oral proceedings, Counsel for the applicants contended that this passage
from Mr Abrahams’ affidavit is evidence of an instruction from the Mini stry for
Mr Abrahams to finalise the appointments. I disagree. When read in context and
holistically with other relevant extracts from that affidavit, the only possible
65 In his affidavit, Mr Abrahams, at para 49 declares:
“The then President subsequently signed Presidential Minute[s] 6 and 7 on 1 February 2018,
allowing Adv Khanyile and Adv Majokweni to vacate their respective offices.”
Mr Abrahams attaches copies of these Minutes to his affidavit.
MAJIEDT J
37
interpretation is the one I incline to. Thus, for example, in paragraphs 56 and 57 , the
following appears:
“I am advised that, ordinarily, once the President has signed the Presidential Minute
and Proclamation, [the] same is submitted to the Ministry concerned, in this instance
the Ministry of Justice for the administrative processing of the Presidential Minutes
and/or publication of the Proclamations.
As head of the National Prosecuting Authority and having authority over the exercising
of all my powers, and the performance of all my duties and functions conferred or
imposed on or assigned to any member of the prosecuting by the Constitution, the NPA
Act or any other law, I immediately informed each candidate of their respective
appointments and congratulated them.”
These facts cannot sustain the applicants’ case that Mr Abrahams was ta citly
authorised to inform the applicants of their appointments and to hand over the
Presidential Minutes to communicate their appointments in writing.
Even though tacit authorisation through a standing practice is sufficient, the
applicants have not demonstrated that such a practice did indeed exist. The applicants
merely allege such a practice, but do not describe it in detail or adduce evidence as to
its existence. They cite the example of a letter sent to Adv M I Thenga, the present DPP
for Limpopo. That analogy is misconceived. Adv Thenga was transferred from DPP
Northern Cape to DPP Limpopo and she was informed of this decision by
Mr Abrahams. The analogy, therefore, goes nowhere in assisting the applicants’ case.
The second judgment, authored by the Chief Justice, finds this analogy apposite. It is
not. As stated, Adv Thenga’s matter entailed a transfer from the head of one provincial
DPP office (Northern Cape) to another (Limpopo), not a new appointment as is the case
here. In any event, the letter the applicants rely on is a mere draft. This draft is not
even dated. In other words, there is no indication whatsoever that this letter ever left
Mr Abrahams’ office, even less that it made its way to the intended recipient,
Adv Thenga. Accordingly, this single letter (undated, unsigned and still in draft format)
MAJIEDT J
38
cannot, by itself, serve as evidence of a long -standing practice in the N ational
Prosecuting Authority.
Can an instruction then be inferred? On these facts, I think not. The argument
that an instruction must be inferred from the averments that the signed Presidential
Minutes were handed to Mr Abrahams by “the Ministry of Justice” during early
February 2018 in Cape Town so as to enable him “to communicate to the individuals
concerned” is fallacious. Mr Abrahams’ emphasis that the “signed Presidential Minutes
were contained in their original customary red folders in which they were initially
submitted to the Ministry, and subsequently, the Presidency, together with the
respective signed Memoranda” is neither here nor there.66 As I have explained, he does
not say that they were handed to him as authority to communicate the appointments. In
these circumstances, I do not see how an instruction can be inferred. And, crucially ,
there is no evidence at all, not even any hint or suggestion, as to how the “Ministry”
came to be seized with the power from the decision-maker, President Zuma, to instruct
Mr Abrahams to communicate the decision. For these reasons, I find that there was no
such express or tacit instruction from President Zuma to Minister Masutha and by the
latter to Mr Abrahams.
The second judgment places substantial store in what Dr Lubisi says in his
affidavit. But what must not be lost sight of, is that Dr Lubisi also categorically declares
that “there is no formal record in the Presidency showing how (if at all) the minutes
[signed by President Zuma] may have been transmitted to the Department”. This
statement must be understood in light of Dr Lubisi’s averment that it is highly unusual
for appointees to be given a Presidential Minute: “The minute is an internal formal
record of the President’s decisions and is not ordinarily released into the public
domain”. (Emphasis added.)
66 See [80].
MAJIEDT J
39
On behalf of Mr Mathenjwa, Jeewa67 was invoked as a basis for the contention
that Mr Abrahams was vested with the requisite authority to finalise the appointments.
That reliance is misplaced. Jeewa is distinguishable – it concerned a purely
administrative function that was capable of being delegated. The decision to appoint a
DPP is plainly an executive decision entrusted to the President after consultation with
the Minister and the NDPP. That distinction was made clear in Jeewa where the
Appellate Division held:
“It is clear that the power conferred by sec. 22 of the Act is conferred upon the Minister
himself and cannot be delegated , and that the act of deeming by which a person is
deemed to be an undesirable inhabitant of the Union must be the Minister’s own act
and not the act of any other person.”68 (Emphasis added.)
The second judgment lays much emphasis on the starkly different versions of
events adduced by Mr Abrahams on the one hand and President Ramaphosa and
Dr Lubisi on the other. The irreconcilable differences and inconsistencies in these
versions are a fact. The second judgment appears to endorse Mr Abrahams’ account in
its entirety, without reference to the other account advanced by the President. Much
reliance is placed in the second judgment on what is termed a “courtesy meeting”
between Presidents Zuma and Ramaphosa. However, viewing the evidence holistically,
it is not at all clear whether this meeting happened. President Ramaphosa, in categorical
terms, says he has “no knowledge” of any meeting, courtesy or otherwise, where
President Zuma supposedly informed him about the appointments:
“I have no knowledge of the briefings referred to in these paragraphs. I have never
held a meeting with Adv Abrahams and the former President at which I was advised of
these ‘appointments’ ‘as a matter of courtesy’, or a briefing where the former President
informed me that these ‘appointments’ within the NPA had been made. Despite
Adv Abrahams’ allegation that the former President undertook that he would announce
67 Jeewa v Dönges 1950 (3) SA 414 (A).
68 Id at 420.
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these ‘appointments’ and facilitate the proclamation of the relevant appointments, this
was not in fact done.”
The only indication that the meeting was planned is to be found in Mr Abrahams’
hearsay statement:
“In conversation with the then President during the course of the same week, th e then
President took it upon himself to inform me of the briefing to Mr Ramaphosa, the new
President of the ANC, on the appointments he had made in the NPA on 1 February
2018.”
In light of these inconsistencies, the correct approach is to tread lightly w ith
respect to Mr Abrahams’ evidence, and not to uncritically endorse it.
It is necessary to deal with the startling proposition advanced by Counsel for
Mr Mncwabe that notification to Mr Abrahams would be adequate since he is “an
affected person”. This appears to be a last resort clutching-at-straws point and can be
given short shrift. Mr Abrahams was patently not an “affected person” within the
meaning of the functus officio doctrine. The doctrine should be understood to refer only
to persons affected in law and not to persons who are affected merely factually. A
person is affected in law if the decision gives rise to rights or obligations for that person.
On the other hand, a person is merely factually affected if the decision does not confer
rights or obligations or otherwise changes the legal status of the person and only the
practical implementation of the decision would affect them. A useful analogy is
Mohamed69 to which I have alluded.
Although reliance on the applicability of the Turquand rule was expressly
abandoned at the hearing, it is necessary to say something in brief about an analogous
principle, the possible applicability of the maxim omnia praesumuntur rite esse acta (it
is generally presumed that acts or events which occur regularly o r routinely have
69 Mohamed above n 37.
MAJIEDT J
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followed a regular or routine course).70 That is because the burden of proof has gained
significant importance here, due to the troubling dearth of evidence from both sides. In
this regard, the second judgment places great emphasis on the lack of evidence from the
respondents’ side and they are criticised for it. 71 That criticism loses sight of the issue
of the burden of proof, an important issue -- if not the deciding issue in this matter. The
onus is on the applicants, as the alleging p arties, to establish a prima facie case for the
respondents to answer. The key question is whether there is sufficient evidence adduced
to establish a prima facie case that their claims are correct. If at the conclusion of the
case, their evidence is inc onclusive or the probabilities are evenly balanced, the
applicants cannot succeed with their claims, as they would not have discharged the onus
resting on them.72
As stated, there is a disturbing lack of evidence from both parties. The second
judgment holds this fact to be adverse to the respondents’ case. It bears repetition that
this approach is unsound because it does not take into account that the burden of proof
is on the applicants. In applying the Plascon-Evans approach, absent a basis to reject
the President’s allegations or denials as palpably false, far-fetched, or clearly untenable,
the applicants are only entitled to a final order if the facts averred in their affidavits
which have been admitted by the President, together with the facts allege d by him,
justify such an order.73 That is not the case here. The only instance where Mr Abrahams
asserts an instruction to transmit the Presidential Minutes is in the passage I have quoted
earlier.74 And yet as stated, Mr Abrahams only had instructions i n respect of
Minutes 6 and 7. At no point does he assert an instruction to transmit
Minutes 10 and 18, which form the basis of the applicants’ appointments here.
70 The maxim was applied in Kirland above n 10 at fn 75.
71 Second judgment at [60].
72 Van Wyk v Lewis 1924 AD 438 at 444.
73 Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634-5.
74 At [80] above.
MAJIEDT J
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Much is also made in the second judgment of the failure of Minister Masutha, as
then Minister, to file an affidavit contradicting Mr Abrahams’ claims.75 But this applies
to both sides – if the President could have called for these affidavits, so could the
applicants. And since they bear the onus, the criticism is more warranted in their case.
In Elgin Fireclays, Watermeyer CJ stated:
“With regard to this request, it is true that if a party fails to place the evidence of a
witness, who is available and able to elucidate the facts, before the trial Court, this
failure leads naturally to the inference that he fears that such evidence will expose facts
unfavourable to him. . . . But the inference is only a proper one if the evidence is
available and if it would elucidate the facts.”76
Of course, the principle enunciated in Elgin Fireclays is not an inflexible one
and whether such an inference is to be drawn will depend on the facts peculiar to the
case in which the question arises. 77 At best for the applicants , this is a neutral factor,
not one to be held against the respondents as the second judgme nt seeks to do. As the
parties on whom the onus rests, it is rather a factor that ought to redound to the detriment
of the applicants. Since the onus to make out a prima facie case rests on the applicants,
President Ramaphosa had no obligation to put up affidavits from President Zuma and
Minister Masutha, and no adverse inference can be drawn against him on this issue.
The same, however, cannot be said for the applicants, who had to prove their
case on a balance of probabilities. The applicants do not explain why they did not seek
affidavits from former President Zuma and Minister Masutha . They were material
witnesses for the applicants’ version of events, having played central roles. Only they
could explain whether they had instructed Mr Abrahams to c ommunicate the
Presidential Minutes. Further, former President Zuma, who signed the Minutes, had a
direct and substantial interest in his instructions being executed, since at the relevant
time he was the sole depository of the statutory power to appoint DPPs. The same
75 See the second judgment at [197].
76 Elgin Fireclays Ltd v Webb 1947 (4) SA 744 (A) at 749-50.
77 Munster Estates (Pty) Ltd v Killarney Hills (Pty) Ltd 1979 (1) SA 621 (A) at 624B-F.
MAJIEDT J
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applies to Minister Masutha, who would be able to say which functionary from “the
Ministry” gave Mr Abrahams the Minutes.
The applicants have not adduced any evidence that Mr Abrahams received
express or implied authorisation from the Pres ident and no evidence that there was
indeed a practice as described. President Ramaphosa, on the other hand, also has no
explanation for how Mr Abrahams received the information on the appointments and
the related Minutes. Apart from the bare contention in President Ramaphosa’s written
submissions that Mr Abrahams took an “unauthorised step”, there is only a denial that
Mr Abrahams was instructed to communicate with the candidates. There is even less
evidence regarding the allegation that the information at Mr Abrahams’ disposal was
leaked. In summary, neither of the parties has made out a clear case. This Court does
not know what exactly transpired. It must either speculate and decide the case on
circumstantial evidence or accept that the case is uncl ear and must be decided on the
basis of the burden of proof. In the latter instance, the omnia praesumuntur maxim
becomes relevant, since it could shift the burden of proof from the applicants to the
respondents or at least impose a duty to rebut onto the respondents.
The maxim is described by Van der Merwe thus:
“There is a general presumption that acts or events which occur regularly or routinely
have followed a regular or routine course: omnia praesumuntur rite esse acta . It is
based upon the statist ical probability of regularity in an organised community. The
presumption is usually one of fact, though in certain manifestations it appears to have
hardened into one of law. There are too many varieties for a complete classification,
but obviously it w ill only operate in circumstances where regularity is normally
encountered. One of the most fertile fields of application is that of official acts. It is
presumed that any condition precedent to the validity of an official act has been
complied with and, more particularly, that the official (or body of officials) was
qualified to perform the act in question and complied with the necessary formalities.
MAJIEDT J
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This presumption does not, however, go so far as to permit the broad assumption that
whatever any official does is lawful.”78 (Emphasis added.)
In Byers,79 the Appellate Division explained the maxim with reference to the
following passage from Wigmore on Evidence 4ed:
“The general experience that a rule of official duty, or a requirement of legal conditions,
is fulfilled by those upon whom it is incumbent, has given rise occasionally to a
presumption of due performance. This presumption is more often mentioned than
enforced; and its scope as a real presumption is indefinite and hardly capable of
reduction to rules. It may be said that most of the instances of its application are found
attended by several conditions: first, that the matter is more or less in the past, and
incapable of easily procured evidence; secondly, that it involves a mere formality, or
detail of required procedure, in the routine of a litigation or a public officer’s action;
next, that it involves to some extent the security of apparently vested rights, so that the
presumption will serve to prevent an unwholesome uncertainty; and, finall y, that the
circumstances of the particular case add some element of probability.”80
The exact nature of the maxim is not clear. One ambiguity in particular concerns
the question whether the maxim amounts to a rebuttable presumption of law or only one
of fact. A presumption of law will shift the onus or give rise to a duty to rebut. A
presumption of fact only allows the court to make the inference that what usually
happens has probably also happened in the case before it.
Schwikkard explains that three different effects of the maxim can be observed:
‘The presumption of regularity is based on the maxim omnia praesumuntur rite esse
acta. Zeffertt, Paizes & Skeen, noting that the presumption is ill-defined, describe it in
the following terms:
78 Van der Merwe “Evidence” in LAWSA 3 ed (2015) vol 18 at para 242.
79 Byers v Chin 1928 AD 322.
80 Id at 332.
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“In some cases it appears to be no more than an ordinary inference,
based upon the assumption that what regularly happens is likely to
have happened again. In other cases it is treated as a presumption of
law, sometimes placing an onus upon the opposing party and
sometimes creating only a duty to adduce contrary evidence. It has
been applied in a wide variety of cases which are impossible to
catalogue exhaustively.”’81 (Emphasis added.)
The difference between a mere inference or presumption of fact and a
presumption of law is also explained by Schwikkard:
“A distinction must be drawn between three different kinds of ‘presumption’. There is
a so-called ‘presumption of fact’ which is merely an inference drawn from evidence.
There are also so -called ‘irrebuttable pr esumptions of law’ which are really rules of
substantive law [irrelevant for our case]. The only true presumption is the rebuttable
presumption of law in terms of which an assumption which is demanded by law, must
be accepted in the absence of evidence or proof to the contrary.”82
The difference between a presumption of law that places an onus on the opposing
party and one that only creates a duty to adduce contrary evidence appears to be the
following: in the former case (placing an onus), the opposing pa rty always needs to
disprove the presumption, lest the applicants succeed. If the presumption leads only to
a duty to adduce contrary evidence, the case likely is not yet conclusive, but only made
prima facie. In this situation, the court could, regardin g “all the circumstances”,
disregard the prima facie case, even if the opposing party does not adduce contrary
evidence.83
In Byers, the Appellate Division appears to have regarded the maxim as a
presumption of law—
81 Schwikkard and Van der Merwe Principles of Evidence 4 ed (Juta, Cape Town, 2016) at 548.
82 Id at 25.
83 Id at 625.
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“[t]hus, as the burden of rebutting the presumption was on the respondents, on the
evidence in the record they have not, in my judgment, discharged it.”84
The Appellate Division did not consider whether to draw an inference or not, but
assumed a burden on the respondents. However, the principles from Wigmore, cited in
Byers, also require that there must be “some element of probability” in “the
circumstances of the particular case”. 85 This points to a presumption of fact since
presumptions of law are usually independent of the individual facts a nd circumstances
of the case.
Five years later, however, in Cape Coast Exploration,86 the Appellate Division
said:
“Absolute proof is well nigh impossible where the frail recollection of men is a factor,
and [this is especially] the case when we have to deal with the recollection of officials
who almost automatically do much of their routine work. Hence the importance of the
maxim omnia praesumuntur rite esse acta . See Byers v Chinn (1928 AD at p 332).
We must presume that an official will carry out the ordinary routine work of his office,
for in our experience this is what usually occurs.
. . .
It is here, and on all the facts of this case that the maxim omnia praesumuntur rite esse
acta assists us. The maxim itself rests upon probabilities, and obviously it could never
be legitimately applied in a case where, viewing the question in issue from a reasonable
standpoint, the probabilities did not, to some extent, support the presumption .”87
(Emphasis added.)
Again, this points strongly towards a presumpt ion of fact, rather than law.
Schmidt and Rademeyer also see the maxim primarily as a presumption of fact:
84 Byers v Chin above n 79 at 334.
85 Id at 332.
86 Cape Coast Exploration Ltd v Scholtz 1933 AD 56.
87 Id at 76 and 84.
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“The rule omnia praesumuntur rite esse acta, like the presumption of continuance, has
a wide field of application. Where its use has, through precedent, become compulsory
in certain factual situations, it operates as a presumption of law, but for the rest it is
often used as a presumption of fact in the sense that a court draws an inference on the
basis of accepting that matters have taken their regular course.
. . .
It has often been emphasised that the presumption [especially with regard to the validity
of official acts] relates to formalities and procedure rather than to material requirements
(the second condition), and also that there must be an element of probability. The latter
condition indicates that the presumption is a presumption of fact, because, as already
indicated, a presumption of law must be applied despite the probability in the
particular case, while a presumption of fact by its very nature depends on probability.
. . .
There is as yet no unanimity on where the burden of proof rests when the presumption
of regularity comes into operation . Some decisions place the burden of proof on the
party opposing the presumption; others, especi ally those relating to postal articles,
require only evidence in rebuttal – mainly because the presumption is usually applied
as a presumption of fact. The latter view is preferable.”88 (Emphasis added.)
Likewise, Pretorius, commenting on the Supreme Cou rt of Appeal’s referral to
the maxim in Oudekraal, explains:
[T]he presumption is only applicable where there is general evidence of acts having
been legally and regularly done. It cannot be applied where, viewed reasonably, the
probabilities (in the sen se of what is known usually to occur) do not support the
presumption. As such, the maxim gives expression to a factual presumption, not a legal
rule; it is a mere inference of probability which a court may draw if, on all the evidence,
it appears to be appropriate. Where it is not applicable because the abovementioned
preconditions are absent, direct evidence must be adduced to prove that the relevant
statutory requirements were satisfied.”89 (Emphasis added.)
88 Schmidt and Rademeyer Law of Evidence (LexisNexis, Durban 2022) at 5-21 and 5-24-5.
89 Pretorius “The status and force of defective administrative decisions pending judicial pronouncement” (2009)
3 SALJ 537 at 563.
MAJIEDT J
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As stated, the exact nature of the maxim remains unclear and courts have
sometimes described it in words that make it appear as a rebuttable presumption of law
(as in Byers). As demonstrated, there is a significant body of jurisprudence with
compelling reasoning that treats the maxim as a mere presumption of fact. For the
reasons that follow, I am of the opinion that the better view is that the maxim is a
rebuttable presumption of fact.
The nature of the maxim should be determined with regard to its character and
purpose. The question is this: Does it only give expression to a statistical probability
that officials usually act diligently? Or does it also have a normative aspect to it,
protecting the validity of state action and citizens’ trust in it? With regard to this,
Zeffertt et al state:
“Ultimately, it is submitted, the scope of the presumption depends on considerations of
fairness and public policy as to how much a party seeking to uphold official action
should be required to prove.
The effect of the presumption is also unclear. For instance, it has been said by some
authorities that it places an “onus” or “a burden of rebuttal”, but other authorities seem
to indicate that it merely imposes an evidentiary burden which strengthens the case of
the party bearing the onus. But why should it not be seen as creating a prima facie case
that imposes an evidential burden which, in the absence of rebuttal, becomes proof?”90
(Emphasis added.)
Thus, Zeffertt et al argue that the maxim should be seen as a presumption of law
because “considerations of fairness and public policy” would demand that “a party
seeking to uphold official action” should not be required to fully prove it.91 According
to them, there are good reasons for this stance . From the viewpoint of the state, a
presumption of law will often help uphold important and consequential public decisions
which migh t otherwise fail based on minor procedural or formal issues. From the
90 Zeffertt et al Essential Evidence 2 ed (LexisNexis, Johannesburg 2020) at 72.
91 Id.
MAJIEDT J
49
viewpoint of a citizen, they might have justified trust in an official decision affecting
them, which a presumption of law would protect.
In sum then, there is an argument that can be made that the maxim is merely a
presumption of fact or inference because its role is only to decide unclear cases based
on experience and probability. Thus, “there is a ‘statistical probability of regularity’”.92
On the other hand, it is said that the maxim is a presumption of law because its purpose
is one of fairness and protecting a citizen’s trust in state decisions. Dictates of fairness
and preferences of policy are underlying considerations of the legal concept of
presumptions.93
It seems to me on the authorities cited and given the character and purpose of the
maxim that it is a rebuttable presumption of fact and not law. This means that in this
instance there is no reversal of the burden of proof to the detriment of the respondents.
Instead, we a re at liberty to draw a factual inference if there is a basis to do so. An
important consideration here is that the appointment of a DPP is not a routine affair, but
an exceptional one that occurs rather infrequently. There is no evidence before us that
would evince routine or regular proceedings. Since the maxim at its core is a factual
presumption of regularity, it does not apply because there is no regularity here. The
statistical probabilities necessary to make a factual inference are not present.
To summarise: there is nothing in Mr Abrahams’ affidavit that suggests that he
was authorised to communicate the decision and that he did not simply take it upon
himself to do so because he believed it was his duty. It appears that it may have been
the la tter consideration that moved him to inform the applicants of the
Presidential Minutes and the decision. If he was authorised then he would simply have
said so – he does not. That leaves the assertion that he did so because he believed it
was his duty to do so. This was an incorrect belief. Mr Abrahams was not responsible
92 Van der Merwe above n 78 at 242.
93 Schwikkard and Van der Merwe above n 81 at 537; Pillay v Krishna 1946 AD 946 at 953-4.
MAJIEDT J
50
for the appointment – he may have been a part of the process leading up to it, but the
decision was not his by any measure. That being the case, there is nothing before us
that points in the direction of Mr Abrahams having the authority to do what he did.
Mr Abrahams’ coming into possession of the Presidential Minutes, and his
subsequent intimation to Mr Zuma that he informed the applicants, do not and cannot
support any conclusion that at the time he informed the applicants he had the authority
to do so. If that is the case, then there was no lawful communication of the decision,
and the decision was thus incomplete and open to revisiting. To hold otherwise would
mean that the unaut horised communication of any decision that is still internal would
render the decision a final one. That would have a chilling effect on the efficacy of
government. Mr Abrahams’ proximity to the process cannot translate into him being
an authorised perso n in the absence of any evidence to that effect. In this regard , we
are compelled to rely on what Mr Abrahams says, and on his version , he had no
authority. He does not even dare suggest that he was authorised to do so. That is fatal
to the applicants’ case.
On the facts and in applying the applicable law then, there was no official
notification of the appointment to the applicants by the decision -maker, the President,
or by his duly authorised delegatee. The decision to appoint made by the previous
President was preliminary only, thus subject to reconsideration (the notion of a
“revocation” is misguided but not fatal in the present instance) and the principle of
functus officio finds no application here. The last aspects for consideration are the
alternative legality, rationality and constitutionality grounds.
Was the President’s decision to “revoke” the appointments constitutionally and legally
sound?
It will be recalled that the applicants contended that if this Court finds that the
President was not functus officio, executive action – contrary to the High Court’s view
– is subject to procedural fairness, as reflected in the audi alteram partem rule, as well
as administrative review in terms of PAJA. It must be said that the submission was
MAJIEDT J
51
made rather faintly in oral argument, although extensive argument was set out in the
written submissions. The argument is unsustainable in law.
In Motau, this Court outlined four factors to determine whether a decision
constitutes executive or administrative action. They are:
(a) the nature of the function, as opposed to the position of the functionary;
(b) the source of the power being exercised;
(c) the degree of discretion afforded to the functionary; and
(d) the degree of scrutiny that is appropriate to apply to the decision through
judicial review (that is, whether the court should apply the more exacting
standards of PAJA, or the more lenient standards of legality).94
Measured against these four factors, the President’s decision was clearly
executive and not administrative in nature. The decision relating to the appointment of
a DPP is not the mere “conduct of the bureaucracy . . . carrying out the daily functions
of the state”,95 but an obvious policy choice, one that speaks directly to the composition
of th e National Prosecuting Authority and the wider administration of the criminal
justice system in the country.
Second, the source of this power is derived from the Constitution and the
NPA Act, both of which confer on the President exclusive discretion to m ake the
appointments.
Third, the power is restrained only by the doctrine of legality and the rule of law.
The President does not have to satisfy “a list of jurisdictional requirements” to make a
94 Minister of Defence and Milita ry Veterans v Motau [2014] ZACC 18; 2014 (5) SA 69 (CC) ; 2014 (8) BCLR
930 (CC) at paras 35-44.
95 Grey’s Marine Hout Bay (Pty) Ltd v Minister of Public Works [2005] ZASCA 43; 2005 (6) SA 313 (SCA) at
para 24.
MAJIEDT J
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DPP appointment. 96 He simply has to appoint. He may need to “consult” with the
Justice Minister, but even so, the final decision remains his own.
Since this decision: (a) concerns a clear policy objective (the proper
administration of criminal justice ); (b) concerns an exceptional power entrusted
exclusively to the President ; and (c) affords the sole repository of that power wide
discretion, it is clear that the exacting standards of PAJA are inappropriate for judicial
review in this context. And, if PAJA does not apply, neither do its standards of
reasonableness and procedural fairness. The question then becomes what legality
would require under the circumstances.
Legality applies to all exercises of public power. 97 It requires that the exercise
of public power be lawful and rational.98 This Court’s decision in Masetlha confirmed
that “procedural fairness is not a requirement of legality” 99; but the rationality of the
process is.100 This Court held that the power to dismiss—
“[being a corollary of the power to appoint] is similarly executive action that does not
constitute administrative action, particularly in this special category of appointments.
It would not be appropriate to constrain executive power to requirements of procedural
fairness, which is a cardinal feature in reviewing administrative action. These powers
to appoint and to dismiss are conferred specially upon the President for the effective
business of government and, in this particular case, for the effective pursuit of national
security.”101
96 Id at para 50.
97 Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council [1998] ZACC 17; 1999
(1) SA 374 (CC); 1998 (12) BCLR 1458 (CC) (Fedsure) at para 56. See also Minister of Public Works v Kyalami
Ridge Environmental Association (Mukhwevho Intervening) [2001] ZACC 19; 2001 (3) SA 1151 (CC); 2001 (7)
BCLR 652 (CC) at para 54.
98 Hoexter and Penfold above n 10 at 159-60. Minister of Water and Sanitation v Sembcorp Siza Water (Pty) Ltd
[2021] ZACC 21; 2023 (1) SA 1 (CC); 2021 (10) BCLR 1152 (CC) at para 49.
99 Masetlha above n 61 at para 78.
100 Albutt v Centre for the Study of Violence and Reconciliation [2010] ZACC 4; 2010 (3) SA 293 (CC); 2010 (5)
BCLR 391 (CC) at para s 49-50; Law Society of South Africa v Presid ent of the Republic of South Africa [2018]
ZACC 51; 2019 (3) SA 30 (CC); 2019 (3) BCLR 329 (CC) at para 64.
101 Masetlha n 61 at para 77.
MAJIEDT J
53
Masetlha sets a high threshold for judicial interferen ce with the President’s
exclusive appointment powers. Since the NPA Act confers a wide discretion on
the President to appoint and dismiss, there was no requirement for him to obtain the
views of the applicants when reversing the inchoate decision of his p redecessor,
President Zuma.
The decisions to appoint the applicants and to revoke those appointments – given
that they were purportedly communicated, even if the communication is being
impugned – are in their impact sufficiently final and ripe for review. The decisions
exist in fact – even if potentially not in law – and have legal consequences.
Since President Zuma’s appointments were not final decisions,
President Ramaphosa was not obliged to treat them as having any legal effect at all. If
President Zuma was not functus officio, it was as if no decision at all had been taken.
President Ramaphosa had to act rationally in appointing the people he did to the position
of DPP, but there was no obligation on him to explain why he did not give preference
to the persons whom his predecessor wanted to appoint.
Conclusion
As stated, leave to appeal must be granted. However, for the reasons advanced,
the appeal falls to be dismissed. That has the effect of rendering the direct access
applications academic. T he applicants asserted their constitutional rights and are
therefore entitled to Biowatch102 protection in respect of costs. That was also the case
in the High Court and the costs order made there ought to be set aside.
Order
The following order is made in respect of both applications:
1. Leave to appeal is granted.
102 Biowatch above n 14.
MAJIEDT J / ZONDO CJ
54
2. The appeal is dismissed.
3. The costs order of the High Court is set aside.
ZONDO CJ (Madlanga J and Makgoka AJ concurring):
Introduction
I have had the benefit of reading the first judgment, prepared by my Colleague,
Majiedt J. As reflected in the first judgment, these are two applications raising the same
issues. The one was brought by Mr Ron Simphiwe Mncwabe and the other by
Mr Khulekani Raymond Mathenjwa. Accordingly, Mr Mncwa be and Mr Mathenjwa
are applicants in their respective applications. I shall refer to them as the applicants
except where it is necessary to use their names. The applicants apply for leave to appeal
against a judgment of the Gauteng Division of the High Court which dismissed their
respective applications in which they challenged the first respondent’s decisions to
revoke their respective appointments as Directors of Public Prosecutions of the
Northern Cape Division of the High Court and the Mpumalanga Div ision of the
High Court. That was Fourie J’s judgment.
In each case the first respondent is the President of the Republic,
Mr Cyril Ramaphosa, the second respondent, the Minister of Justice and Correctional
Services and the third respondent, the National Director of Public Prosecutions. In the
application brought by Mr Mncwabe the fourth respondent is
Mr Livingstone Mzukisi Sakata. Mr Sakata was appointed as the Director of
Public Prosecutions of the Northern Cape Division of the High Court while this
litigation was continuing. In the application brought by Mr Mathenjwa the fourth
respondent is Mr Shaun Abrahams who was the National Director of
Public Prosecutions from some time in 2015 to August 2018. Mr Mathenjwa has cited
the National Prosecuting Au thority of South Africa as the fifth respondent and
ZONDO CJ
55
Ms Nkebe Rebecca Kanyane as the sixth respondent. Ms Kanyane was appointed by
the first respondent as the Director of Public Prosecutions of the Mpumalanga Division
of the High Court while this litigatio n was continuing. Mr Mncwabe also applies for
direct access to this Court to challenge the validity of the first respondent’s decisions to
appoint Mr Sakata as the Director of Public Prosecutions of the Northern Cape Division
of the High Court. Mr Mathen jwa applies for direct access to this Court to challenge
the validity of the first respondent’s decision to appoint Ms Kanyane as the Director of
Public Prosecutions of the Mpumalanga Division of the High Court. Only the first
respondent opposed the appli cants’ applications in the courts below and only the first
respondent opposes the applicants’ applications in this Court.
While I agree with the first judgment that this Court has jurisdiction in this matter
and that leave to appeal should be granted, I am unable to agree with its conclusion that
the first respondent was entitled to revoke or withdraw the applicants ’ respective
appointments and that the applicants’ appeals should be dismissed. In my view, the first
respondent was not entitled to revoke or withdraw the applicants ’ appointments.
Accordingly, the two appeals should be upheld with costs, leave for direct access should
be granted and the appointments of Mr Sakata and Ms Kanyane in the positions to which
the applicants had been appointed must be declared unlawful and invalid and should be
set aside. I will elaborate on jurisdiction and leave to appeal later.
Broad background
The first judgment has provided the factual background to this matter. However,
there are certain features of the background which are not covered in the first judgment
that, in my view, are important for the proper determination of these matters. For that
reason, I will give a broad factual background at this stage and include some of those
features. However, I will leave some of the features of the background for later in this
judgment and will deal with them together with my analysis of the facts and issues in
these appeals.
ZONDO CJ
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The relevant facts in these matters can be stated briefly. From some time in 2015
to August 2018 Mr Shaun Abrahams was the National Director of Public Prosecutions
and head of the National Prosecuting Authority. During the second half of 2017
Mr Abrahams approached the then Minister of Justice and Correctional Services,
Mr Michael Masutha, both in meetings and by way of correspondence and memoranda
and asked him to recommend to President Jacob Zuma that the latter appoint certain
persons to certain positions within the National Prosecuting Authority.
There were five persons that Mr Abrahams aske d Minister Masutha to
recommend to President Zuma for appointment as Directors of Public Prosecutions and
Special Directors of Public Prosecutions . Two of these were Mr Mncwabe and
Mr Mathenjwa. Mr Mncwabe holds B.Iuris and LLB degrees and was serving as an
Additional Magistrate at the Tembisa Magistrate’s Court, Gauteng, at all relevant times.
As of February 2018 he had served as a Magistrate, initially, in an acting capacity and,
later, as an Additional Magistrate, for about five years. Prior to appoi ntment as an
Additional Magistrate he had served as a public prosecutor at different levels from 1999
to 2012 which is about 13 years. Mr Mathenjwa was a Deputy Director of
Public Prosecutions in Gauteng. He holds four degrees, namely, B.Iuris, LLB, LLM
and LLM. He had 23 years’ experience as a public prosecutor at that time.
Mr Abrahams recommended that Mr Mncwabe be appointed as the Director of
Public Prosecutions of the Northern Cape Di vision of the High Court and
Mr Mathenjwa as the Director of Publ ic Prosecutions of the Mpumalanga Division of
the High Court. To this end Mr Abrahams prepared Ministerial Minutes (which were
to be signed by President Zuma if he agreed to make the appointments) and memoranda
which he was to send to Minister Masutha who, in turn, would send them to
President Zuma if he was happy with them. These memoranda provided motivation for
the appointment of the people that Mr Abrahams was recommending for appointment.
Minister Masutha agreed to make the recommendations to Presid ent Zuma that
Mr Abrahams had asked him to make. He then passed the draft Presidential Minutes
ZONDO CJ
57
and memoranda on to President Zuma together with a letter requesting President Zuma
to make the appointments.
On 1 February 2018 President Zuma decided to appo int five Directors of
Public Prosecutions and Special Directors of Public Prosecutions with effect from the
same day. Mr Mncwabe and Mr Mathenjwa were some of those who were appointed
by President Zuma on that day. Mr Mncwabe was appointed as the Directo r of
Public Prosecutions of the Northern Cape Division of the High Court and Mr
Mathenjwa as the Director of Public Prosecutions of the Mpumalanga Division of the
High Court. In making the appointments President Zuma would have satisfied himself
that each one of the applicants satisfied all the statutory requirements for appointment
as Director of Public Prosecutions including having integrity, being a fit and proper
person, having the right to practise in all the courts and having the requisite experience.
After President Zuma had made the appointments and signed the relevant
Presidential Minutes in which his decisions were recorded, the Presidential Minutes and
memoranda accompanying the Presidential Minutes were sent back to the Department
of Justice an d Correctional Services. It is not clear from the record whether
Minister Masutha counter -signed the Presidential Minutes before they left the
Presidency or after the Presidency had returned them to the
Department of Justice and Correctional Services . However, this is neither here nor
there. What is material is that he did counter-sign the Presidential Minutes.
The Ministry of Justice and Correctional services handed the
Presidential Minutes and memoranda over to Mr Abrahams early in February 2018
when Mr Abrahams was in Cape Town on official business. Upon his return to
Gauteng, Mr Abrahams immediately informed all the individuals who had been
appointed by President Zuma that they had been appointed to the respective positions
to which they had been appointed. Before the individuals concerned could assume duty
in their new positions, they were informed that they had to wait for an announcement
ZONDO CJ
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of their appointments by President Zuma. However, President Zuma resigned as
President of the country on 14 February 2018 before he could make the announcements.
President Cyril Ramaphosa succeeded President Zuma as President of the
country on 15 February 2018. The first respondent had a meeting with Mr Abrahams
about these appointments towards the end of February 2018. In that meeting he sought
clarification from Mr Abrahams whether these appointments had been fast -tracked
before President Zuma resigned. Mr Abrahams assured the first respondent that the
appointments had not been fast -tracked. The persons who had been appointed,
including the applicants, were left in the dark for a whole year from about the end of
February 2018 on why they were not being allowed to assume duty in their new
positions. Mr Mncwabe addressed a number of emails to both Minister Ma sutha and
the first respondent in 2018 asking why he was not being allowed to take up his new
position but neither Minister Masutha nor the first respondent responded. Some
excerpts from Mr Mncwabe’s correspondence will be referred to and quoted later in this
judgment. Mr Mathenjwa directed similar enquiries to the senior management of the
National Prosecuting Authority . Generally, he was told that the matter of his
appointment was with the first respondent.
Early in March 2019 – following a legal opinion obtained by the Department of
Justice and Correctional Services – the first respondent revoked President Zuma’s
decisions to appoint the five persons, including the applicants. The first respondent said
that, since the appointments had not bee n announc ed publicly, President Zuma’s
decisions were not final and that, for that reason, he was entitled to revoke them. The
applicants disputed this and contended that their appointments did not need to have been
announced publicly before they could be final or before they could have legal effect .
They contended that, when Mr Abrahams informed them of their respective
appointments, their appointments became final and took legal effect. They contended
that, thereafter, the first respondent had no right to revok e their appointments. This is
what the litigation that ensued was about. Indeed, this is the main issue before this
Court.
ZONDO CJ
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High Court
The applicants challenged the first respondent ’s decisions to revoke their
respective appointments in the High Court. They challenged them on various grounds.
However, the first respondent defended his decisions on the basis that President Zuma’s
decisions to appoint the applicants as Directors of Public Prosecutions had not become
final by the time President Zuma resign ed and that, as long as they were not final, he
was entitled to revoke or withdraw them. The basis he advanced as to why he contended
that President Zuma’s decisions had not become final was that, for those appointments
to be final, it was an essential re quirement that they should have been announced
publicly. The first respondent contended that, as those decisions had not been
announced publicly, they did not become final and could still be revoked.
The applicants disputed this contention. They argued that there was no legal
requirement that these appointments be announced publicly before they could be
effective in law or before they could be final . They submitted that they had been
informed of their respective appointments by Mr Abrahams early in February 2018 and
that, therefore, the appointments had become final by the time President Zuma resigned.
The first respondent contended that Mr Abrahams had no authority to inform the
individuals concerned, including the applicants, of their respective appointments. The
first respondent argued that the fact that Mr Abrahams had informed the individuals
concerned of their respective appointments did not render their appointments final since
he was not authorised to inform them.
The two applications came befo re Fourie J in the High Court. T he High Court
concluded that a public announcement of the appointments was a legal requirement for
the appointments to be final. It held that, as there had been no public announcement of
the appointments, the applicants ’ appointments had not become final when the first
respondent revoked them and he was entitled to revoke them.
ZONDO CJ
60
The High Court said that the functus officio principle states that, once a decision-
maker had rendered a final decision, he bec ame functus officio and could not change
the decision. In support of this , the High Court referred to the cases of
Retail Motor Industry Organisation103 and Milnerton Lagoon Mouth Development.104
The High Court then said:
“The principle referred to in the Milnerton Lagoon case has been explained by the
Constitutional Court in President of the Republic of South Africa v The South African
Rugby Football Union (SARFU) 2000 (1) SA 1 (CC) at para 44 as follows:
‘In law, the appointment of a Commission only takes place when the
President's decision is translated into an overt act, through public
notification. Section 84(2)(f) does not prescribe the mode of public
notification in the case of appointment of a commission of inquiry, but
the method usually employed, as in the present cas e, is by way of
promulgation in the Government Gazette. The President would have
been entitled to change his mind at any time prior to the promulgation
of the notice and nothing which he might have said to the Minister
could have deprived him of that powe r. Consequently, the question
whether such appointment is valid, is to be adjudicated as at the time
when the act takes place, namely at the time of promulgation.’”105
The High Court then made a statement that, based on the dicta to which it had
referred i n the Milnerton Lagoon case and SARFU case, it was clear that the
functus officio principle applied only to final decisions. The High Court quoted the
following passage from Hoexter Administrative Law in South Africa:
103 Retail Motor Industry Organis ation v Minister of Water and Environmental Affairs [2013] ZASCA 70; 2014
(3) SA 251 (SCA) at para 23.
104 Milnerton Lagoon Mouth Development (Pty) Ltd v The Municipality of George 2004 JDR 0258 (C) at para 12.
105 High Court judgment at para 42.
ZONDO CJ
61
“In general, the functus officio doctrine applies only to final decisions, so that a decision
is revocable before it becomes final. Finality is a point arrived at when a decision is
published, announced or otherwise conveyed to those affected by it.”106
Fourie J went on to say:
“I think there may be some merit, generally speaking, in the submission that in some
cases finality is a point arrived at when the decision is conveyed to those affected by it,
without a public announcement. This raises the question whether in this case the
decision taken by former President Zuma, and the notification thereof by Abrahams to
both the applicants, are sufficient to meet the requirement of finality.”107
The High Court concluded that, as there had never been a public announcement
of President Zuma’s decisions to appoint the applicants, his decisions to appoint them
had not become final when he resigned and that, therefore, the President was entitled to
revoke them or not to give effect to them. The High Court considered other contentions
advanced by the applicants but rejected them. The High Court dismissed the applicants’
respective applications with costs including the costs of two Counsel where two
Counsel were employed.
In this Court
Jurisdiction
The main issue for determination in this matter is whet her the President had
power to revoke or withdraw the decisions that had been made by the former President,
Mr Jacob Zuma, in terms of which the latter had appointed Mr Mathenjwa as the
Director of Public Prosecutions for the Mpumalanga Di vision of the Hig h Court and
Mr Mncwabe as the Director of Public Prosecutions for the Northern Cape Division of
the High Court. The President is the President of the country and, as such, can only
exercise power that is conferred upon him by the Constitution and the law. He may not
106 Hoexter Administrative Law in South Africa 2 ed (Juta, Cape Town 2017) at 278.
107 High Court judgment at para 45.
ZONDO CJ
62
do anything that the law does not give him power to do. If he purports to exercise power
that he does not have, he acts unconstitutionally as that would be in breach of the rule
of law which is one of our foundational values.
In Fedsure108 this Court said through Chaskalson P:
“These provisions imply that a local government may only act within the powers
lawfully conferred upon it. There is nothing startling in this proposition it is a
fundamental principle of the rule of law, recognised widely, that the exercise of public
power is only legitimate where lawful. The rule of law to the extent at least that it
expresses this principle of legality is generally understood to be a fundamental principle
of constitutional law. This has been recognised in other jurisdictions.”
Later on, Chaskalson P also said:
“It seems central to the conception of our constitutional order that the Legislature and
Executive in every sphere are constrained by the principle that they may exercise no
power and perform no function beyond that conferred upon them by law. At least in
this sense, then, the principle of legality is implied within the terms of the interim
Constitution.”109
Accordingly, this matter raises a constitutional issue.
In Pharmaceutical Manufacturer s Chaskalson P had this to say for a
unanimous Court:
“[18] In effect the finding of the Full Bench was that the President had acted unlawfully
in bringing the Act into force and that his decision to do so should accordingly be set
aside. The first quest ion, which the Full Bench was not called upon to decide, is
whether this is a finding on a constitutional matter. There can be no doubt that it is.
108 Fedsure above n 97 at para 56.
109 Id at para 58.
ZONDO CJ
63
[19] Section 2 of the Constitution lays the foundation for the control of public power.
It provides:
‘This Constitution is the supreme law of the Republic; law or conduct
inconsistent with it is invalid, and the obligations imposed by it must
be fulfilled.’
Consistent with this, section 44(4) of the Constitution provides that in the exercise of
its legislative authority Parliament ‘must act in accordance with, and within the limits
of, the Constitution.’ The same applies to members of the Cabinet who are accountable
collectively and individually to Parliament for the exercise of their powers and the
performance of their functions. They too are required to act in accordance with the
Constitution.
[20] The exercise of all public power must comply with the Constitution which is the
supreme law, and the doctrine of legality which is part of that law. The question
whether the President acted intra vires or ultra vires in bringing the Act into force when
he did, is accordingly a constitutional matter. The finding that he acted ultra vires is a
finding that he acted in a manner that was inconsistent with the Constitution.”110
Furthermore, the applicants have brought a review application to have the first
respondent’s decisions to appoint Ms Kanyane as the Director of Public Prosecutions
for the Mpumalanga Division of the High Court and Mr S akata as the
Director of Public Prosecutions for the Northern Cape Division of the High Court
reviewed and set aside. As a review application that application also raises a
constitutional issue. In so far as the applicants may argue that the first respondent’s
decisions to appoint Ms Kanyane and Mr Sakata were irrational since the posts to which
they were appointed were not vacant, that is a constitutional issue. Accordingly, this
Court has jurisdiction.
Leave to appeal
The first judgment concludes that leave to appeal should be g ranted. I agree.
A decision on whether the public announcement of an appointment of a Director of
110 Pharmaceutical Manufacturers Association of South Africa: In re Ex Parte President of the Republic of South
Africa [2000] ZACC 1; 2000 (2) SA 674; 2000 (3) BCLR 241.
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Public Prosecutions is an essential requirement f or such appointment is an important
issue that will affect the appointment of all Directors of Public Prose cutions in the
future. It is certainly an important issue for the applicants, the National Prosecuting
Authority and the first respondent . Furthermore, as will be shown below, there are
reasonable prospects of success.
Application for direct access
The applicants have also applied for leave to bring certain applications directly
to this Court. Section 167(6)(a) of the Constitution provides that national legislation or
the rules of this Court should allow a person, when it is in the interests of justice and
with the leave of this Court, to bring a matter directly to this Court. This is what is
referred to as an application for direct access. This Court only grants leave for a matter
to be brought directly to it when it is in the interests of justice to do so.
The matter that Mr Mncwabe applies for leave to bring directly to this Court is
his application for an order declaring the first respondent’s decision to appoint
Mr Sakata as the Director of Public Prosecutions of the Northern Cape Division of the
High Court invalid and reviewing and setting it aside. The matter that Mr Mathenjwa
applies for leave to bring directly to this Court is his application for an order declaring
the first respondent’s decision to appoint Ms Kanyane as the Director of
Public Prosecutions of the Mpumalanga Division of the High Court invalid and
reviewing and setting it aside.
The first respondent opposes these applications on the basis that it is not in the
interests of justice that the matters be brought directly to this Court. I do not understand
the first respondent’s basis for opposing that these two applications be brought directly
to this Court. It obviously makes perfect sense that, if the validity of the first
respondent’s decisions to appoint Mr Sakata and Ms Kanyan e are to be challenged in
any court, they should be challenged in the same court and proceedings in which the
validity of the revocations of the applicants’ appointments is being challenged. This is
so because the validity of the appointments of Mr Sakata and Ms Kanyane is linked to
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the validity of the first respondent’s decisions to revoke the appointments of the
applicants.
This means that, if this Court were to conclude that the revocations of the
applicants’ appointments were invalid and should be set aside, that will affect the
validity of the first respondents’ decisions to appoint Mr Sakata and Ms Kanyane. This
will be because, if the revocations were invalid, the posts were not vacant and, therefore,
Mr Sakata and Ms Kanyane could not be validly a ppointed to those posts. Therefore,
in such an event their appointments would be invalid. It is, obviously, in the interests
of justice that all these matters be dealt with by this Court at the same time.
Accordingly, the applicants should be granted le ave to bring these matters directly to
this Court.
The appeals
The issue for determination in th ese two appeals is whether the first respondent
was entitled to revoke or withdraw the applicants’ respective appointments. The answer
to that question will d epend on whether it is a n essential requirement that such
appointments be announced publicly before the y can be said to be final or before they
can have legal effect and, if that is not an essential requirement, whether the
appointments became final when M r Abrahams informed the applicants of their
respective appointments. The applicants contend that, if the appointments did not
become final earlier, they at least became final when Mr Abrahams informed them of
their appointments.
Counsel for the first res pondent did not advance the argument that a public
announcement of the appointments was a n essential requirement for the appointments
to be final or to take legal effect . She submitted that President Zuma himself had to
inform the applicants of their respective appointments or, alternatively, the Minister of
Justice and Correctional Services had to do so in order for the appointments to be final.
She submitted that the fact that Mr Abrahams had informed the applicants of their
appointments did not render the appointments final because Mr Abrahams had not been
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authorised to inform the m. Counsel for the first respondent submitted that, therefore,
the revocations were valid. This would mean that the appointments of Mr Sakata and
Ms Kanyane were valid. If this Court concludes that the revocations of the applicants ’
appointments are invalid, it will follow that the appointments of Mr Sakata and
Ms Kanyane by the first respondent are also invalid.
It is necessary to refer briefly to the constitutional and sta tutory framework
within which this matter needs to be determined.
Relevant constitutional and statutory framework
Section 83(a), (b) and (c) of the Constitution 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.”
Section 84(1) and (2)(e) of the Constitution reads:
“Powers and functions of the President
(1) The President has the powers entrusted by the Constitution and
legislation, including those necessary to perform the functions of Head
of State and head of the national executive.
(2) The President is responsible for—
. . .
(e) making any appointment s that the Constitution or legislation
requires the President to make, other than as head of the national
executive”
Section 85 deals with the executive authority of the Republic. In so far as it is relevant,
it reads:
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“Executive authority of the Republic
“(1) The executive authority of the Republic is vested in the President.
(2) The President exercises the executive authority, together with the other
members of the Cabinet, by—
(a) implementing national legislation except where the Constitution
or an Act of Parliament provides otherwise;
. . .
(e) performing any other executive function provided for in the
Constitution or in national legislation.”
Section 179(1) of the Constitution establishes a single National Prosecuting
Authority. In terms of that provision the Prosecuting Authority, structured in terms of
an Act of Parliament, consists of—
“(a) a National Director of Public Prosecutions, who is the head of the prosecuting
authority, and is appointed by the President, as head of the national executive;
and
(b) Directors of Public Prosecutions and prosecutors as determined by an Act of
Parliament.”
Section 179(3) reads:
“National legislation must ensure that the Directors of Public Prosecutions—
(a) are appropriately qualified; and
(b) are responsi ble for prosecutions in specific jurisdictions, subject to
subsection (5)”111
111 Section 179(5) of the Constitution reads:
“(5) The National Director of Public Prosecutions—
(a) must determine, with the concurrence of the Cabinet member responsible f or the
administration of justice, and after consulting the Directors of Public Prosecutions,
prosecution policy, which must be observed in the prosecution process;
(b) must issue policy directives which must be observed in the prosecution process;
(c) may intervene in the prosecution process when policy directives are not complied with;
and
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Section 179(6) provides that “[t]he Cabinet member responsible for the
administration of justice must exercise final responsibility over the prosecuting
authority”. Section 179(7) provides that “[a]ll other matters concerning the prosecuting
authority must be determined by national legislation”.
Section 4 of the NPA Act deals with the composition of the National Prosecuting
Authority. It provides that the National Prosecuting Au thority comprises the National
Director, Deputy National Directors, Directors, Deputy Directors and prosecutors.
Section 5 of the NPA Act establishes the Office of the National Director of Public
Prosecutions. Section 6(1) establishes an Office for the P rosecuting Authority at the
seat of each Division of the High Court. In terms of section 6(2) such an Office consists
of the head of the Office who is required to be a Director or Deputy Director and who
controls the Office, Deputy Directors, prosecutors, persons contemplated in
section 38(1) and administrative staff. Section 6(3) provides that, if a Deputy Director
is appointed as the head of an Office established by section 6(1), he or she shall exercise
his or her functions subject to the control and d irections of a Director designated in
writing by the National Director of Public Prosecutions.
Section 9 of the NPA Act deals with the qualifications for appointment as
National Director, Deputy National Director or Director. In the NPA Act the word
“Director” is defined as a Director of Public Prosecutions. Section 9 reads:
“(1) Any person to be appointed as National Director, Deputy National Director or
Director must—
(d) may review a decision to prosecute or not to prosecute, after consulting the relevant
Director of Public Prosecutions and after taking representations within a period specified
by the National Director of Public Prosecutions, from the following:
(i) The accused person.
(ii) The complainant.
(iii) Any other person or party whom the National Director considers to be
relevant.”
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(a) possess legal qualifications that would entitle him or her to practise in
all courts in the Republic; and
(b) be a fit and proper person, with due regard to his or her experience,
conscientiousness and integrity, to be entrusted with the responsibilities
of the office concerned.
(2) Any person to be appointed as the National Director must be a South African
citizen.”
Section 13 of the NPA Act governs the appointment of Directors and Acting
Directors and states as follows:
“13 Appointment of Directors and Acting Directors
(1) The President, after consultation with the Minister and the National Director—
(a) may, subject to section 6(2), appoint a Director of Public
Prosecutions in respect of an Office of the prosecuting
authority established by section 6(1);
(b) shall, in respect of any Investigating Directorate established in
terms of section 7(1A), appoint a Director of Public
Prosecutions as the head of such an Investigating Directorate;
and
(c) may appoint one or more Directors of Public Prosecutions
(hereinafter referred to as Special Directors) to exercise
certain powers, carry ou t certain duties and perform certain
functions conferred or imposed on or assigned to him or her
by the President by proclamation in the Gazette.
(2) If a vacancy occurs in the office of a Director the President shall,
subject to section 9, as soon as possible, appoint another person to that
office.
(3) The Minister may from time to time, but subject to the laws governing
the public service and after consultation with the National Director,
from the ranks of the Deputy Directors or persons who qualify to be
appointed as Deputy Director as contemplated in section 15(2),
appoint an acting Director to discharge the duties of a Director
whenever the Director concerned is for any reason unable to perform
the duties of his or her office, or while the appointment of a person to
the office of Director is pending.”
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Section 20(1) to (3) of the NPA Act provides:
“(1) The power, as contemplated in section 179(2) and all other relevant sections of
the Constitution, to—
(a) institute and conduct criminal proceedings on behalf of the State;
(b) carry out any necessary functions incidental to instituting and
conducting such criminal proceedings; and
(c) discontinue criminal proceedings, vests in the prosecuting authority
and shall, for all purposes, be exercised on behalf of the Republic.
(2) Any Deputy National Director shall exercise the powers referred to in
subsection (1) subject to the control and directions of the National Director.
(3) Subject to the provisions of the Constitution and this Act, any Director shall,
subject to the control and directions of the National Director, exercise the
powers referred to in subsection (1) in respect of—
(a) the area of jurisdiction for which he or she has been appointed; and
(b) any offences which have not been expressly excluded from his or her
jurisdiction, either generally or in a specific case, by the National
Director.”
Section 22(1) reads:
“22 Powers, duties and functions of National Director
(1) The National Director, as the head of the prosecuting authority, shall
have aut hority over the exercising of all the powers, and the
performance of all the duties and functions conferred or imposed on or
assigned to any member of the prosecuting authority by the
Constitution, this Act or any other law.”
It will have been seen above that section 13(1)(a) of the NPA Act confers on the
President the power to appoint a Director of Public Prosecutions in respect of an Office
of the Prosecuting Authority established by section 6(1) of the NPA Act. The question
for determination is whether such an appointment requires to be announced publicly in
order for it to take legal effect or to be final or whether it will take effect or be final if
it is brought to the attention of the person appointed as Director of Public Prosecutions
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by the right person even if it is not announced publicly. In this regard it is to be noted
that section 13 does not anywhere expressly refer to a public announcement nor to any
notice being given to the person appointed as Director of Public Prosecutions. Indeed,
it also does not expressly provide for the need for the acceptance of the appointment by
the person appointed as Director of Public Prosecutions by the President. That,
however, is not the end of the matter and I shall revert to this issue later.
At this stage it is important to set out the role of a Presidential Minute and the
processes relating to dealing with it before and after a President has made a decision
that must be entered therein and has signed it. Understanding this is important because
President Zuma’s decisions to appoint the applicants were contained in
Presidential Minutes. In fact, the President ’s decisions revoking the applicants’
appointments were also contained in the Presidential Minutes.
Presidential Minutes’ role and processes: before and after a Presidential decision
Mr Abrahams and Dr Lubisi, who was the Director-General in the Presidency as
of February 2018 when President Zuma made the appointments in issue here, have dealt
with the role of a Presidential Minute and the processes surrounding
Presidential Minutes in their affidavits. There are two processes involved here. The
one is the pre -Presidential decision process that a government entity or Department
follows when it requests the President to make those decisions that need to be recorded
in Presidential Minutes. The other is the post-Presidential decision process. This is the
process that is followed after the President has made the required decision and has
entered it in a Presidential Minute which process leads to the im plementation of the
President’s decision. This latter process can also be referred to as the
Presidential Minute implementation process. The applicants also mention one or two
things about Presidential Minutes in their affidavits. It is convenient to de al with such
processes here.
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Dr Lubisi’s evidence
One of the headings in Dr Lubisi’s affidavit reads: “The presidential minute was
never finalised and transmitted for implementation” . The first two paragraphs under
that heading are paragraphs 19 and 20. They read:
“The purpose of this section is to describe for this Court the process that ought to be
followed when dealing with a valid presidential minute.
Appointments by the President are noted in a presidential minute with the
countersignature of the M inister. This is in accordance with section 101 of the
Constitution. Given the nature and importance of the President’s office and the
significance of the decisions that the President is entrusted with by the Constitution
and statute, there is a process that is followed in recording and storing such decision
taken by the President.” (Emphasis added.)
In paragraph 19 of his affidavit, Dr Lubisi sets out what he describes as “the
process that ought to be followed when dealing with a valid presidential minute”. That
obviously means the process that must be followed by various people or officials or
functionaries, including the President, the Ministers, government departments and other
government agencies “ when dealing with a valid presidential minute ”. Dr Lubisi
introduces this process thus at the beginning of paragraph 21: “The standard procedure
in administering a presidential minute is as follows” and then he sets out the process
that ought to be followed when dealing with a valid Presidential Minute. That procedure
is the one set out below:
(a) Dr Lubisi does not deal with the journey of a Presidential Minute
prior to it reaching the Presidency but Mr Abrahams deals with that
journey in his affidavit as well as what happens when a draft
Presidential Minute has reached the Presidency.
(b) In a case where the National Prosecuting Authority desires the
President to make a certain decision relating to the National
Prosecuting Authority which requires to be entered in a
Presidential Minute, the National Prosecuting Authority prepares
a Presidential Minute by filling in all that needs to be filled in so
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as to enable the President to simply append his signature if he
agrees to make the decision requested of him.
(c) Once the National Prosecuting Authority has p repared a
Presidential Minute and relevant memoranda, it sends the
Presidential Minute and memorandum over to the Ministry of
Justice and Correctional Services and requests the Minister to
recommend to the President that he makes the desired decision. If
the Minister of Justice and Correctional Services is happy with the
Presidential Minute and happy to recommend to the President that
the National Prosecuting Authority’s request be granted, he passes
the Presidential Minute with the relevant memorandum to the
Presidency together with a letter requesting the President to make
the decision requested by the National Prosecuting Authority.
(d) Dr Lubisi begins his evidence with regard to “the process that
ought to be followed when dealing with a valid president ial
minute” when such a minute is received in the Presidency. In the
Presidency a Presidential Minute and accompanying
correspondence will be received by the Administrative Secretary
of the Legal and Executive Services Unit (LES). The process or
procedure that follows thereafter is as set out below.
(e) The Administrative Secretary of LES will register the
Presidential Minute in the database of the Executive Acts of the
President and the Presidential Minute will then be allocated a
unique number. LES will then review the Presidential Minute for
statutory compliance and advice. If errors are found, it is directed
back to the line function Department concerned for corrections.
(f) After a Presidential Minute has been cleared by LES, it is
considered by the Legal Advisor to the President. Thereafter, the
Presidential Minute is sent to:
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i. the Chief Director in the Private Office of the President
responsible for Personal Support Services;
ii. the Deputy Director -General for the Private Office of the
President; and,
iii. the Director -General in the Presidency for review and
approval by each one of them.
(g) Once the Director -General has approved the
Presidential Minute, it is sent back to the Private Office of the
President for final routing to the President for his signa ture.
Once the President has signed the Presidential Minute, it is
routed back to LES which will send it back to the line function
Department for the implementation of the President’s decision
by public announcement and/or appointment letter . (Emphasis
added.)
In paragraph 44.3 of his replying affidavit Mr Mathenjwa said:
“It is also clear that it is the internal process that the Legal and Executive Services Unit
would send the Presidential Minute back to the line function department for
implementation being the National Prosecuting Authority in this case .”
(Emphasis added.)
With regard to how the Presidential Minutes relating to the National Prosecuting
Authority appointments made by President Zuma on 1 February 2018 were handled, Dr
Lubisi said that—
(a) on 16 January 2018 draft Presidential Minutes were received by LES from
the Department of Justice and Correctional Services and were registered;
(b) the Presidential Minutes were reviewed and approved by the legal advisor
to President Zuma, by the Chief Direc tor in the Private Office responsible
for Personal Support Services and by the Chief Operations Officer;
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(c) in or about late January 2018 the Presidential Minutes were routed from the
Chief Operations Officer to the Private Office of President Zuma for final
routing to President Zuma for signature; and
(d) on 1 February 2018 the emails of the Presidency stopped working and, as
such, there is no record of the Minutes having been emailed back to the
Department of Justice and Correctional Services.
Dr Lubisi then says that it is possible that hard copies of the Presidential Minutes
were collected by officials in the Department of Justice and Correctional Services but
says that there is no formal record in the Presidency showing how (if at all) the
Presidential Minute s may have been transmitted to the Department of Justice and
Correctional Services. He also does not say that normally a formal record would be
kept.
At this stage I wish to deal with Dr Lubisi’s statement that there is no record in
the Presidency as to how the Presidential Minutes were transmitted to the
Department of Justice and Correctional Services and that it was possible that hard
copies of the Presidential Minutes were collected by officials of the
Department of Justice and Correctional Services . In terms of the procedure that
Dr Lubisi set out in his affidavit of the “journey” that a Presidential Minute travels after
it has reached the Presidency, he made it clear that, once a Presidential Minute has been
signed by the President, it is sent back t o the line function Department for the
implementation of the President’s decision by a public announcement and/or an
appointment letter.
In this case we know that from the Presidency the Presidential Minutes went to
the Department of Justice and Correctio nal Services which was the correct route for
them after the Presidency. Although Dr Lubisi says that there is no record of the
Presidential Minutes having been electronically transmitted from the Presidency to the
Ministry of Justice and Correctional Serv ices, he concedes that officials from the
Department of Justice and Correctional Services may have gone to the Presidency to
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collect the Presidential Minutes and other documents manually. If this is what
happened, there would have been nothing wrong. We also know that the Ministry of
Justice and Correctional Services handed the Presidential Minutes and memoranda over
to Mr Abrahams.
For what purpose did the Ministry give Mr Abrahams the Presidential Minutes?
It must be borne in mind that it was Mr Abrah ams who had asked that these
appointments be made. Indeed, it was the National Prosecuting Authority which had
prepared the Presidential Minutes and memoranda in support of such appointments and
sent them to the Ministry. The Ministry then sent them to P resident Zuma and
recommended that President Zuma make the recommended appointments.
Accordingly, it was only natural that President Zuma’s decisions be communicated to
Mr Abrahams.
Given Dr Lubisi’s evidence about the process that ought to be followed i n
dealing with a valid Presidential Minute, the purpose could only have been to inform
Mr Abrahams of the appointments and to enable him or the National Prosecuting
Authority to implement President Zuma’s decisions. Mr Abrahams or the National
Prosecuting Authority could not implement President Zuma’s decisions without
informing the individuals concerned of their respective appointments. In terms of that
procedure or process Mr Abrahams or the National Prosecuting Authority was required
to implement Presi dent Zuma’s decision by announcing the appointments publicly
and/or by writing appointment letters to the individuals concerned. That is the correct
route that the Presidential Minutes were supposed to follow after President Zuma had
signed them.
While o ne must accept that the emails in the Presidency stopped working
sometime early in February 2018, there is no reason why, if the President or Dr Lubisi
wanted to know how the Presidential Minutes had left the Presidency and got delivered
to the Department of Justice and Correctional Services, they would not have asked those
officials or employees in the Presidency who would normally have been the last ones
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to handle the signed Presidential Minutes how these Presidential Minutes were
delivered to the Departm ent of Justice and Correctional Services and asked them to
depose to affidavits which would have been filed in Court to inform the Court of what
happened.
There is also no reason why Dr Lubisi or the President could not have enquired
through the Director-General of the Department of Justice and Correctional Services or
the Minister of Justice and Correctional Services as to who had received the
Presidential Minutes from the Presidency as well as who had handed them over to
Mr Abrahams and asked them to dep ose to affidavits which could have been filed at
court to inform the Court of what happened. Neither Dr Lubisi nor the President provide
an explanation as to why this basic investigation was not undertaken so as to ensure that
there was no speculation on how the Presidential Minutes had left the Presidency, how
they had reached the Department of Justice and Correctional Services and how they had
reached Mr Abrahams. Neither Minister Masutha nor the Director -General have
elected to depose to affidavits to inform the Court of what happened.
The furthest Minister Masutha was prepared to go in a memorandum to the
President was to say that the Presidential Minutes may have been leaked. This was pure
speculation. For about a year since he had learnt that Mr A brahams had received the
Presidential Minutes from the Ministry of Justice, Minister Masutha apparently did not
cause any investigation to be undertaken in his Department to establish how the
Presidential Minutes had left his Department to reach Mr Abraham s. That must have
been because he did not think that there was any irregularity in how the
Presidential Minutes had left his Department and reached Mr Abrahams. This matter
must be decided on the basis that the Presidential Minutes and memoranda left the
Presidency lawfully and properly, were delivered to the Department of Justice and
Correctional Services lawfully and properly and were handed over to Mr Abrahams by
the Ministry of Justice lawfully and properly.
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With regard to Dr Lubisi’s evidence on the implementation process of a
President’s decision contained in a Presidential Minute referred to above, two features
of Dr Lubisi’s evidence need to be highlighted. The one is that Dr Lubisi says that,
when the Presidency returns a Presidential Minute thr ough LES to the line function
Department, the purpose thereof is “ the implementation of the President’s decision by
public announcement and/or appointment letter”. This means that the implementation
of the President’s decision is the responsibility of the line function Department. In
particular, this means that the making of a public announcement and/or the writing and
sending of an appointment letter to the individuals concerned is the responsibility of the
line function Department concerned. The other feature is that the implementation is
done by way of a public announcement and/or appointment letter.
It is now convenient to deal with Mr Abrahams’ evidence with regard to how he
got the Presidential Minutes and memoranda and what happened from there up to about
the end of February 2018.
Mr Abrahams’ evidence
Mr Abrahams says that, when he was in Cape Town on official business early in
February 2018, the Ministry of Justice handed him Presidential Minutes and
memoranda relating to Ms Khanyile and Ms Majokweni and the five persons who were
appointed by President Zuma as Directors of Public Prosecutions which included the
applicants. Mr Abrahams expressly states that the Ministry of Justice handed him the
Presidential Minutes relating to Ms Khanyile and Ms Majokweni to enable him to
communicate to the individuals concerned but does not expressly say that the Ministry
of Justice handed him the Presidential Minutes and memoranda relating to the newly
appointed Directors of Public Prosecutions to enable him to communicate to the
individuals concerned. Mr Abrahams does not say in his affidavit that the Ministry told
or instructed or asked him not to communicate President Zuma’s decisions to the newly
appointed Directors of Public Prosecutions. Nobody from the Ministry of Justice and
Correctional Services has deposed to an affidavit and said that Mr Abrahams’ evidence
in this regard is not true or accurate or does not give a complete picture.
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It is difficult to understand why, in handing to Mr Abrahams the
Presidential Minutes and memoranda relating to Ms Khanyile and Ms Majokweni,
the Ministry of Justice and Correctional Services would have had the intention that
Mr Abrahams should communicate with Ms Khanyile and Ms Majokweni but would
not have had the intent ion that Mr Abrahams should also communicate with the
newly-appointed Directors of Public Prosecutions when it gave him simultaneously the
Presidential Minutes and memoranda relating to the five newly -appointed
Directors of Public Prosecutions. What would have been expected and what would
have been natural and logical is that, if the Ministry of Justice wanted Mr Abrahams to
inform Ms Khanyile and Ms Majokweni what decisions President Zuma had taken
concerning them but did not want Mr Abrahams to inform th e newly -appointed
Directors of Public Prosecutions what decisions President Zuma had taken concerning
them, the Ministry would have expressly instructed or asked Mr Abrahams not to inform
the newly-appointed Directors of Public Prosecutions but the fact of the matter is that
the Ministry did not ask or instruct Mr Abrahams not to inform them of their
appointments.
Given Dr Lubisi’s evidence about the process that ought to be followed when
dealing with a valid Presidential Minute, as dealt with above, the f act that the Ministry
may not have said to Mr Abrahams that it was giving him the Presidential Minutes
relating to the five newly -appointed Directors of Public Prosecutions so that he could
communicate with them is neither here nor there. What is significant is that the Ministry
did not ask or instruct Mr Abrahams not to inform the newly -appointed
Directors of Public Prosecutions of their appointments. That being the case, the
Ministry’s purpose in giving the Presidential Minutes and memoranda relating to the
newly-appointed Directors of Public Prosecutions to Mr Abrahams is governed by “the
process that ought to be followed when dealing with a valid presidential minute” that
Dr Lubisi talked about in his affidavit.
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According to Dr Lubisi, when the Presid ent has signed a Presidential Minute, it
“is routed back to LES who will send it back to the line function Department for the
implementation of the President’s decision by public announcement and/or appointment
letter”. Accordingly, the purpose on the par t of the Ministry in giving Mr Abrahams
the Presidential Minutes and memoranda relating to the newly -appointed Directors of
Public Prosecutions was also to enable Mr Abrahams or the National Prosecuting
Authority, as the line function Department in this case, to implement President Zuma’s
decisions by, among others, informing them of their respective appointments. Those
decisions could not have been implemented without Mr Abrahams or the National
Prosecuting Authority informing the newly-appointed Directors of Public Prosecutions
that President Zuma had appointed them. In any event, Dr Lubisi’s evidence is quite
clear that one way of implementing such a decision is by way of an appointment letter.
If the National Prosecuting Authority or Mr Abrahams was e ntitled to write the five
Directors of Public Prosecutions ’ appointment letters, it or he could also inform them
of their new appointments.
Furthermore, there is no evidence on the record that reflects that there was any
intention or plan on the part of P resident Zuma or the Ministry of Justice and
Correctional Services between early February and 14 February 2019 to inform the five
newly-appointed Directors of Public Prosecutions that President Zuma had appointed
them. The reason why the record does not r eflect such a plan or intention is that both
President Zuma and Minister Masutha expected Mr Abrahams to inform them of their
appointments.
There are various features in what happened in this case between
1 and 14 February 2018 which support the propositi on that Mr Abrahams’
understanding was that he was the one required or expected to inform the individuals
concerned of their appointments, or which support the proposition that neither President
Zuma nor Minister Masutha thought that Mr Abrahams had done a nything wrong or
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anything unauthorised by informing the newly appointed
Directors of Public Prosecutions of their appointments Some of them are the following:
(a) Mr Abrahams told not only Ms Khanyile and Ms Majokweni what
President Zuma had decided about the m, but he did the same in relation
to the five newly-appointed Directors of Public Prosecutions. This is an
indication that Mr Abrahams had never understood the position to be that
the Ministry wanted him to tell only Ms Khanyile and Ms Majokweni and
not the five Directors of Public Prosecutions what President Zuma had
decided regarding them;
(b) after Mr Abrahams had told all the individuals concerned what decisions
President Zuma had made which related to them, he told
Minister Masutha’s Chief of Staff, Minister Masutha and President Zuma
that he had told all the individuals concerned what President Zuma had
decided about them; it is unlikely that he would have told them this if his
understanding was that Minister Masutha and President Zuma had not
wanted him to tell the newly-appointed Directors of Public Prosecutions
that President Zuma had appointed them;
(c) Minister Masutha’s reaction to the news that Mr Abrahams had told all
the individuals concerned what President Zuma had decided in relation to
them is inconsistent with the proposition that the Ministry may not have
wanted Mr Abrahams to tell the Directors of Public Prosecutions of
President Zuma’s decisions that related to them;
(d) President Zuma’s reaction to the news that Mr Abrahams had informed
all the in dividuals concerned of his decisions that related to them is
inconsistent with the proposition that President Zuma might not have
wanted Mr Abrahams to tell the individuals concerned of his decisions
that related to them; and
(e) any suggestion that the Minist er or President Zuma did not want
Mr Abrahams to tell the individuals concerned about President Zuma’s
decisions that related to them is not supported by any objective facts
between 1 and 14 February 2018.
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Mr Abrahams was criticised by Counsel for the President and he is criticised in
the first judgment for not giving more details about the handing over of the
Presidential Minutes and memoranda to him by the Ministry including who exactly in
the Ministry handed him the Presidential Minutes and memoranda. That criticism is
unjustified because nobody has disputed his evidence that he received the Presidential
Minutes from the Ministry of Justice and Correctional Services. Minister Masutha has
not deposed to an affidavit and said that he never authorised anybody from his Ministry
to hand the Presidential Minutes over to Mr Abrahams. Nor has the Director -General
of the Department done so. Indeed, no official from the Ministry has deposed to any
affidavit to suggest that the Presidential Minutes were not prop erly and regularly
released to Mr Abrahams.
Mr Abrahams says that, after returning from Cape Town where he had been
handed the Presidential Minutes, he “immediately informed each candidate of their
respective appointments and congratulated them.” He says that he told them that he
would “revert to them regarding the date on which each should take up their newfound
respective responsibilities/offices.” Although Mr Abrahams does not give the dates
when he informed the applicants of their respective appointm ents, Mr Mathenjwa said
that Mr Abrahams informed him on 5 February 2018 and Mr Mncwabe said that
Mr Abrahams informed him on 7 February 2018. None of this evidence has been
disputed. Mr Abrahams then says that, before requesting his spokesperson to “cra ft an
internal communication to announce the new appointments internally within the NPA,”
he “contacted the Ministry to establish whether the Ministry, the then President or [he]
would make a media announcement”. He then says: “I informed the Ministry that I had
already informed all the appointees of their appointments. The Chief of Staff of the
then Minister, Mr Kagiso Moleme, advised me to go ahead and make the necessary
announcements.”
Mr Abrahams states that, when Minister Masutha’s Chief of Staff to ld him that
he should go ahead and make the announcements, he remembered that, when
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Adv M I Thenga was appointed as the Director of Public Prosecutions of the
Limpopo Division of the High Court in January 2016, he had personally informed her
of her appoint ment. Mr Abrahams states that this was immediately after
President Zuma had signed the Presidential Minute to appoint her. In support of this,
Mr Abrahams attached to his affidavit copies of the relevant correspondence. Nobody
from either the Ministry o f Justice and Correctional Services or the Presidency has
deposed to an affidavit disputing this or saying that this was an exception and not the
norm.
Mr Moleme’s response to Mr Abraham’s inquiry about who would make the
public announcement of the decisi ons is telling. He said that Mr Abrahams should go
ahead and make the necessary announcement. To the extent that he may have said this
without having first checked with Minister Masutha, this reflects that his understanding
was that it was normal or to b e expected that the National Director of
Public Prosecutions would make media announcements in relation to NPA matters. He
did not say to Mr Abrahams: But you know that such announcements are made by the
President or the Minister! Nor did he ask Mr Abrahams why he had notified the
individuals concerned because it was the President or Minister Masutha who would
normally inform the individuals concerned of their appointments. Mr Moleme’s
conduct in telling Mr Abrahams what he told him does not reflect that it was
Mr Moleme’s expectation or understanding that the Minister or the President was the
one who would normally inform individuals of their appointments. His statement that
Mr Abrahams should make the announcement may be an indication that he was aware
of the “process that ought to be followed when dealing with a valid presidential minute”
as dealt with in Dr Lubisi’s affidavit.
Mr Abrahams then says that, notwithstanding the Ministry’s position as
articulated by the Minister’s Chief of Staff – namely that he should go ahead and make
the necessary announcements – he advised Mr Moleme to discuss the issue of a public
announcement of the appointments with Minister Masutha and the Presidency to seek
clarification. It must be noted that Mr Abrahams makes i t clear that he was seeking
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clarification about a public announcement and not about informing the individuals
concerned of their appointments. He then says that he also held back announcing the
appointments internally.
Mr Abrahams points out that Ministe r Masutha’s Chief of Staff subsequently
reverted to him and told him that the Minister was asking him to “hold off” on the
internal announcement of the appointments “as the then Minister agreed with the then
President that he would make the necessary media announcement”. Mr Abrahams then
says Minister Masutha’s Chief of Staff requested him to be on standby as Minister
Masutha required him to attend a meeting between him and President Zuma and also
said that Minister Masutha would call him shortly.
Mr Abrahams states that, after his conversation with Minister Masutha’s Chief
of Staff, Minister Masutha called him. It must be recalled that by now Minister Masutha
would have been told by his Chief of Staff that he (i.e. Mr Abrahams) had said that he
had already informed all the individuals of their respective appointments. Mr Abrahams
says that in that telephone conversation Minister Masutha said that he had spoken to
President Zuma who had requested that he and Mr Abrahams attend a meeting with
President Zuma and Mr Ramaphosa who was the new President of the African National
Congress “as the then President, as a matter of courtesy, wanted to brief the new
President of the ANC on the recent resignations from the NPA along with the new
appointments that he had effected in the NPA on 1 February 2018” . This is what Mr
Abrahams says Minister Masutha told him in that conversation on the telephone and
former Minister Masutha has not denied it.
Mr Abrahams states that in that telephone conversation he told Minister Masutha
that he had informed all the individuals concerned of their respective appointments.
Minister Masutha has not deposed to an affidavit and denied this or said that it is taken
out of context. Mr Abrahams does not say that Minister Masutha expressed surprise or
shock or disapproval that he had informed the individuals concerned of their respective
appointments. Former Minister Masutha has also not deposed to an affidavit to explain
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why he did not say anything to show disapproval if in fact Mr Abrahams had done what
he was not authorised or expected to do.
If Mr Abrahams had effectively usurped President Zuma ’s function or
Minister Masutha’s function in informing the individuals concerned of
President Zuma’s decisions to appoint them, Minister Masut ha would have expressed
disapproval of Mr Abrahams’ conduct. He would not have just kept quiet. He would
also have filed an affidavit to say that what Mr Abrahams had done was unauthorised
and unacceptable as it was the President ’s or his function to inf orm the individuals of
their appointments. He did not depose to an affidavit to make that point. All of this
reaction by Minister Masutha suggests strongly that, by informing the individuals of
their respective appointments, Mr Abrahams was seen by Minis ter Masutha as having
done what was expected of him. If one links Minister Masutha’s reaction to the reaction
of his Chief of Staff when Mr Abrahams told him that he had informed the individuals
– which was also like that of Minister Masutha – it gives rise to a strong inference that
Minister Masutha all along expected Mr Abrahams to tell the individuals of their
respective appointments.
Mr Abrahams states that in the same week in which he had a conversation on the
phone with Minister Masutha he also had a conversation with President Zuma. He says
that in that conversation President Zuma “took it upon himself to inform [him] of the
briefing to Mr Ramaphosa, the new president of the ANC, on the appointments he had
made in the NPA on 1 February 2018”. It i s important to state that by now
President Zuma would probably have been made aware by Minister Masutha that
Mr Abrahams had informed the individuals concerned of their appointments.
Mr Abrahams states:
“The then President emphasised that it was merely a s a matter of courtesy to the new
President of the ANC and that he would cause the appointments to be publicly
announced immediately after the meeting. My understanding from the then President
was that the Ministry would administratively facilitate the pu blication of the
Proclamations.”
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It must be noted that on Mr Abrahams’ version – which is an undisputed version
– President Zuma only intended to make a public announcement. He never said that he
intended informing the individuals concerned of their respective appointments himself.
I can see no reason why he would have spoken only about a public announcement and
not also about his intention to inform the individuals personally if he intended to also
inform the individuals concerned himself. If President Zuma also intended to personally
inform the individuals of their respective appointments, he would have indicated his
intention to Mr Abrahams in one way or another but he never did.
Mr Abrahams says that he then told President Zuma that he had informed the
individuals concerned of their appointments. Here is how Mr Abrahams puts it in his
affidavit and President Zuma’s reaction to this news:
“I took the opportunity to inform the then President that the then Minister had briefed
me and that I had alread y communicated the appointments to each appointee and had
informed them of the delay in them assuming their new positions.
At no stage did the then President directly or indirectly give me any indication that
there was a problem with any of the appointment s he had signed off on
1 February 2018, nor that he wanted to rescind any of the appointments.
It is evident that both of the then Minister and then President were fully aware that the
appointments had been communicated to the respective parties concerned. Neither the
then Minister nor the then President took issue therewith nor did they object thereto. I
understood both the then Minister and the then President to be pleased that the
candidates appreciated the reason for the delay in them taking up their new position.”
(Emphasis added.)
First respondent’s evidence
In paragraph 12 of his affidavit the President said that, after President Zuma had
signed the Presidential Minutes on 1 February 2018, “no further steps were taken by the
Presidency or the Ministry of Justice to finalise the appointments by announcing them
in public.”
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In paragraph 18 of his affidavit the President says:
“In or about January 2019, Advocate Wim Trengove SC was briefed, on instructions
from the Ministry of Justice, to advise on w hether the purported appointments of
individuals who included Advocates Pretorius, Mathenjwa and Mncwabe, by the
former President, were valid and binding. In an opinion dated 30 January 2019
Advocate Trengove SC advised that the decisions to appoint the f ive DPPs never
became final in law. This was because they had not been announced in the public
domain. They accordingly never became legally effective, or binding on the former
President or me as his successor. I have since acted pursuant to that advice .”
(Emphasis added.)
In paragraph 19 of his affidavit the President then says:
“I was thus at liberty to decide whether or not to give effect to those purported
appointments by ratifying and announcing them in public, and, to the extent necessary,
to retract or amend the purported appointments.” (Emphasis added.)
In paragraph 30.4 the President states that Mr Abrahams fails to address in his
affidavit the statement by Mr Pretorius in his affidavit that, after Mr Abrahams had
given Mr Pretorius a letter of appointment, he (i .e. Mr Abrahams) demanded it back
within minutes and informed Mr Pretorius to instead await an announcement from the
Presidency or Ministry. He then says in paragraph 30.5: “ That conduct, I submit, is
consistent with the legal requir ement for a public announcement before such an
appointment takes legal effect ”. In paragraph 28.2, 28.3 and 28.4 of his affidavit, the
President effectively makes the same points in relation to Mr Mathenjwa.
In paragraph 28.4 he says:
“Again, this is consistent with the position that such appointments only take legal effect
once announced in public.” (Emphasis added.)
In paragraph 29.4 the President makes the same points in relation to
Mr Mncwabe. He says:
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“Again, this has not been disputed by Adv Abrahams. It is consistent with our stance
that such appointments could not take legal effect in the absence of a public
announcement.” (Emphasis added.)
In paragraph 45 the President says:
“I deny that Advocate Abrahams was entitled to furnish the individual applicants with
copies of the respective signed Presidential Minutes when it had been made clear to
him that the Presidency and/or the Ministry would deal with the finalisation of the
appointments. That, as he should have been aware, required at lea st a public
announcement.” (Emphasis added.)
I pause here to point out that, to the extent that the President suggests that it was made
clear to Mr Abrahams, before he informed the individuals concerned of their
appointments by President Zuma , that the P residency and/or the Ministry would deal
with the finalisation of the appointments, that is not true. Indeed, there is no shred of
evidence to support the suggestion. Why would the Presidency and the Ministry have
handed all the documentation, including Presidential Minutes and memoranda, back to
the National Prosecuting Authority and Mr Abrahams if they had not yet finalised the
appointments? In my view, they did this because they knew that they had no further
role to play.
The President ’s case before this Court is that President Zuma’s decision s to
appoint the applicants w ere not final because they had not been announced publicly.
His case is that a public announcement of such a decision was an essential requirement
before the decision could be final. That this is the President’s case before this Court is
to be gathered from the answering affidavit of Ms Phindile Baleni, the Director-General
in the Presidency, who deposed to that affidavit on behalf of the President.
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Ms Phindile Baleni’s evidence
Ms Phindile Baleni records in her affidavit that the High Court found that
President Zuma’s decisions were not final. She goes on to say that the High Court
found that:
“An essential part of a final decision when exercising executive power is some form of
publication through an overt act of the decision, which announcement must be made in
the public domain as it is an executive action that affects the wider public.”
(Emphasis added.)
Ms Baleni also says that the High Court found that:
“Public notification is a necessary requirement and forms part of the appointment
process and without public notification, the decision to appoint would be incomplete
and therefore not final.” (Emphasis added.)
In another part of her affidavit, Ms Baleni says:
“The Preside nt’s decision had to be translated into an overt act, through public
notification;
The President would be entitled to change his mind at any time prior to the
promulgation of the notice.” (Emphasis added.)
In putting the President’s defence in the terms in which she put it in her affidavit
as reflected above, Ms Baleni accurately captured the President’s defence. This is how
the President had also put it in his affidavit in the High Court. This was the answering
affidavit that the President filed in op position to Adv PJ Pretorius SC’s application
challenging the President ’s decision to revoke President Zuma’s decision to appoint
Adv Pretorius as a Special Director of Public Prosecutions. Adv Pretorius was one of
the five persons who were appointed by P resident Zuma to various positions in the
National Prosecuting Authority on 1 February 2018, which the President purported to
revoke early in March 2019. Mr Chowe, from the State Attorney’s office, the
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President’s attorney, deposed to an affidavit and said that that affidavit of the President
was also intended to be used in opposition of the applicants’ applications. In other
words, the President wanted to use the same defence in Mr Pretorius’, Mr Mathenjwa’s
and Mr Mncwabe’s applications. The President also said that the reason why he
contended that President Zuma’s decisions to appoint the five Directors of Public
Prosecutions were not final was that they had not been announced publicly.
The parties argued whether President Zuma’s decision in each case was final.
The President contended that President Zuma’s decision was not final and that, as a
result, he was entitled to revoke each one of those decisions. The applicants disputed
that contention and argued that President Zuma’s decisions were final a nd that the
President was not entitled to revoke President Zuma’s two decisions.
Was the President entitled to revoke or withdraw President Zuma’s decisions
appointing the applicants as Directors of Public Prosecutions?
Was the President entitled to revoke or withdraw President Zuma’s decisions in
terms of which President Zuma had appointed the applicants as Directors of Public
Prosecutions? This is the main question that this Court is required to decide. The
High Court held that the President was entitled to withdraw President Zuma’s decisions
because they had not become final when President Zuma resigned as President of the
country since they had not been announced publicly.
Before us, Counsel for the President did not pursue this contention and, in my
view, correctly so. There is no legal requirement either in the Constitution or in the
NPA Act that the President’s decision to appoint someone as a Director of
Public Prosecutions should be announced publicly. Indeed, this Court’s judgment in
SARFU112 provides no authority for such a proposition. Nothing more needs to be said
in substantiation of the conclusion that the public announcement of a decision to appoint
a Director of Public Prosecutions is not a legal requirement for the validity or
112 SARFU III above n 7.
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effectiveness of such a decision. There is no express provision nor is there a basis to
suggest that such a requirement is implied either in section 179 of the Constitution or in
section 13 of the NPA Act.
Ultimately, the real issue that was argued b etween the parties was whether the
fact that Mr Abrahams had told the applicants of their respective appointments by
President Zuma meant that the President could no longer revoke the appointments.
Counsel for the President submitted that the applicants needed to have been informed
by President Zuma or Minister Masutha, as the delegated executive authority, of their
respective appointments in order for their appointments to have been final. She
contended that Mr Abrahams was not authorised to inform the individuals concerned of
President Zuma’s decisions to appoint them and, because of that, the fact that he told
them was not effective nor did it make their appointments final.
Counsel for the applicants submitted that, if President Zuma’s decisions to
appoint the applicants did not become final earlier than when they were informed by
Mr Abrahams of their respective appointments, they became final when Mr Abrahams
informed them. All Counsel for the applicants submitted that, therefore, the President
had no power to revo ke or withdraw the appointments as President Zuma, his
predecessor, had become functus officio before he resigned as President of the country.
They submitted that, if President Zuma had become functus officio, the President, too,
was functus officio and could not revoke the appointments.
It seems to me that, in considering the question whether Mr Abrahams was
entitled or authorised to inform the applicants and others of their appointments, the
evidence of Dr Lubisi which has been referred to above in rega rd to the role of
Presidential Minutes and “the processes that ought to be followed when dealing with a
valid P residential Minute”, is critically important. It is appropriate to refer to that
evidence again. Dr Lubisi said that, when a Presidential Minute has been signed by the
President, it is routed back to LES in the Presidency which would send it back to the
line function Department for the implementation of the President’s decision by public
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announcement and/or appointment letter . Here is how Dr Lub isi puts this in his
affidavit:
“After signature by the President, the presidential minute is routed back to LES who
will send it back to the line function Department for the implementation of the
President’s decision by public announcement and/or appointment letter.”
At this stage, I pause to point out that in his affidavit in which the President
responds to Mr Abrahams’ affidavit, he confirms that he had authorised Dr Lubisi to
depose to the affidavit referred herein on his behalf. The President says:
“I have read the answering affidavit of Cassius Reginald Lubisi in this matter served
on or about 19 September 2019. I confirm that he was authorised to depose to this
affidavit on my behalf and I confirm the contents thereof insofar as they relate to me.”
In other words, in giving the evidence that he gave in his affidavit about, inter
alia, how a valid Presidential Minute has to be dealt with after the President has signed
it, Dr Lubisi was doing so on behalf of the President as his witness.
It is com mon cause that Mr Abrahams told the applicants and the other
individuals that President Zuma had appointed them as Directors of
Public Prosecutions. Did that render the appointments final or legally effective? The
prior question is whether, if the applicants were informed by the right person or official
or functionary, the appointments would be final or would take legal effect with the result
that the President could no longer revoke them. Counsel for the President accepted that,
if the applicants were informed of their appointments, the appointments would be final
provided that they were informed by President Zuma or Minister Masutha or someone
who was authorised to inform them.
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As stated earlier, section 13 of the NPA Act confers on the President the p ower
to appoint a Director of Public Prosecutions. 113 Although section 13 of the NPA Act
does not expressly make provision for the notification of a person appointed as a
Director of Public Prosecutions, it is, in my view, necessarily implied that the
appointment has to be communicated to the person concerned and he or she must accept
the appointment before it can take legal effect. It cannot be otherwise because an
appointment as a Director of Public Prosecutions confers certain rights, powers and
obligations on the person so appointed and that person can obviously not begin to
exercise those rights and powers or carry out those obligations unless he or she knows
of the appointment and has accepted it. Obviously, a person appointed as
Director of Public Prosecutions may reject the appointment when it is communicated to
him or her and, in such a case, the appointment will not take legal effect. So, notification
to the person who is appointed and his or her acceptance of the appointment is essential.
The acceptance or rejection can be express or implied. In the present cases, we know
that both applicants accepted their appointments and conveyed their acceptance to
Mr Abrahams.
Dr Lubisi’s evidence that, after the President has signed a Presidential Minute,
the Presidential Minute is routed back to the LES which then sends it back “to the line
function Department for the implementation of the President’s decision by public
announcement and/or appointment letter” is in line with the purpose for which
Mr Abrahams says in his affidavit the Ministry of Justice and Correctional Services
handed to him the Presidential Minutes relating to Ms Khanyile and Ms Majokweni.
Mr Abrahams puts this in these terms in his affidavit:
“These signed Presidential Minutes, were subsequently handed to me by the Ministry
of Justice during early February 2018, whilst I was in Cape Town on official business
so as to enable me to communicate to the individuals concerned, which I duly did upon
my return from Cape Town, providing them ea ch with copies of the
113 See [172].
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Presidential Minutes, confirming the then President’s acquiescence to the vacating of
their respective offices, to them.” (Emphasis added.)
With regard to Dr Lubisi’s evidence that, when the Pres ident has signed a
Presidential Minute, it is routed back to the LES which in turn sends it back to the line
function Department for the implementation of the President’s decision by public
announcement and/or appointment letter, Mr Mathenjwa said in his replying affidavit:
“It is also clear that it is the internal process that the Legal and Executive Services Unit
would send the Presidential Minute back to the line function department for
implementation being the National Prosecuting Authority in this case. As
Adv Abrahams confirms in his explanatory affidavit:
44.3.1 the Presidential Minutes were delivered to him by the Ministry of
Justice and Correctional Services whilst he was in Cape Town on
business;
44.3.2 on his return to his office in Pretoria, he advised all of the appointees
of their appointments, thereby implementing the President’s decision
and making it a final decision which was of full force and effect.”
It seems to me, therefore that, in the context of Presidential decisions that relate
to the National Prosecuting Authority , as Mr Mathenjwa says, the line function
Department is the National Prosecuting Authority . Accordingly, the National
Prosecuting Authority was obliged to implement President Zuma’s decisions by
public announcement and/or appointment letter. If the National Prosecuting Authority
was obliged to implement President Zuma’s decisions once it had received the
Presidential Minutes back, Mr Abrahams would have been the National Prosecuting
Authority official who had the obligation to ensure that the National Prose cuting
Authority implemented President Zuma’s decisions by public announcement and/or
appointment letter. This is also in line with the fact that, according to Mr Abrahams,
Minister Masutha’s Chief of Staff said to Mr Abrahams that he should make the
public announcement in respect of the appointments.
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Mr Mncwabe also points out in his replying affidavit that “ [i]f one looks at the
sequence of communication herein, “it is quite clear that once the President’s Minute
has been countersigned by the 1 st and 2 nd Respondents, same is then sent to the
employer, being the NDPP, and the latter is then tasked with communicating the
decision to the appointee ”. The reference to the first and second respondents in this
sentence is a reference to the President and the M inister of Justice and
Correctional Services. In this sentence Mr Mncwabe says that, after a Presidential
Minute has been signed by the President and the Minister of Justice and
Correctional Services it is sent to the employer, which was the National Prosecuting
Authority as represented by the National Director of Public Prosecutions in this case.
In his replying affidavit, Mr Mncwabe added this:
“As per what I have just stated and clearly outlined under paragraph 77 above, the
established norm is that once the appointment has been confirmed and countersigned
by the 2nd Respondent, same is then sent to the employer (3rd Respondent herein) and
the latter is tasked with the duty of informing or communicating to the appointee
his/her/their appointment, accordingly, if such appointment is that of the DPP, DDPP,
SDPP and/or an ordinary prosecutor.” (Emphasis added.)
The reference in this excerpt to the second respondent is a reference to the Minister of
Justice and Correctional Services and the reference to the third respondent is a reference
to the National Director of Public Prosecutions. Mr Mncwabe’s evidence referred to in
this paragraph is to the same effect as Mr Mathenjwa’s evidence to which I have already
referred above, namely that, after the Presid ent and the Minister have signed a
Presidential Minute relating to the National Prosecuting Authority , the Presidential
Minute is sent to the National Prosecuting Authority for the implementation of the
President’s decision.
It is important to point out that Mr Mncwabe was not making the above point for
the first time in his replying affidavit of April 2019. He had already made the same
point in an email he addressed to the Ministry of Justice and Correctional Services on
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1 October 2018 – long before this litigation started. In that email he, among other
things, said:
“[Dr Rainaite, then Acting NDPP] informed me that you informed him that this matter
is in the office of the President receiving attention, which I should mention, surprised
me, because the office of the former President made the appointment, signed, passed
them to your honourable self, you signed and you passed it to the NPA for
implementation.” (Emphasis added.)
I pause here to refer back to what Dr Lubisi said as reflected above. He said that, when
the President has signed a Presidential Minute, the Presidential Minute is routed back
to the LES within the Presidency “who will send it back to the line function Department
for the implementation of the President’s decision by public announc ement and/or
appointment letter ”. Now we see that Mr Mncwabe had said the same thing to
Minister Masutha on 1 October 2018.
In that email of 1 October 2018 Mr Mncwabe also said to Minister Masutha:
“The question in my mind , for another day of course, if justified, which again I am
hopeful there will be no need, depending on your response and what follows thereafter,
is why our appointments went back to your office and then to that of the state President
as our appointments were finalised, and they were even given to the office of the NDPP
for implementation and the former NDPP formerly informed me about my appointment,
the President’s Minute herein attached serving a proof.” (Emphasis added.)
In another email to Minister Masutha dated 22 October 2018 Mr Mncwabe, inter alia,
said:
“My understanding, amplified by these pieces of legislation, is that the only procedure
left now after my appointment was signed by the former President, in his executive
capacity, and co-signed by your honourable self, is none other than implementation,
nothing more and nothing less.” (Emphasis added.)
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The importance of what Mr Mncwabe said in th ese excerpts from his email s of
1 and 22 October 2018 is that it coincides with what Dr Lubisi said in his affidavit in
which he add ressed the procedure relating to the implementation of
Presidential Minutes.
In a November 2018 email to the President – again long before this litigation
started – Mr Mncwabe once again made the point that he had made in his emails to
Minister Masutha. He wrote in the email to the President:
“The current Acting NDPP told me that the Minister told him that you are having our
appointments and that we will be informed in due course as to when we have to start
working at our posts as per the finalised appointments. That also is very surprising and
very disturbing as these appointments were finalised by the office of the President (sinc,
former) and the Minister co-signing. The only process that has to follow is none other
than the administrative process of implementation at the NPA human resource
department.” (Emphasis added.)
I draw attention to the reference in this excerpt to “the administrative process of
implementation at the NPA human resource department.”
What has emerged from the above is this : Dr Lubisi talked about the
implementation of the President’s decision by the line function Department which I
have said above must mean, in the context of this case, the National Prosecuting
Authority. In the above excerpt Mr Mncwabe wrote to the President in November 2018
that “once the President and Minister have signed the Presidential Minute”, “the only
process that has to follow is none other than the administrative process of
implementation at the NPA human resources department ”. Therefore, the
implementation of President Zuma’s decisions to which both Dr Lubisi and Mr
Mncwabe referred would happen at the National Prosecuting Authority and Dr Lubisi
says that implementation occurs through the public announcement and/or appointment
letter. Anyone who is entitled to make a public announcement of an appointment and/or
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to write an appointment letter would also be entitled to inform the individuals concerned
of their respective appointments.
In my view, there is overwhelming evidence that, once the Presid ent has signed
a Presidential Minute containing a decision relating to the National Prosecuting
Authority, the Presidency sends that Presidential Minute back to the line function
Department for the implementation of the President’s decision by public announcement
or appointment letter (if it is a decision to appoint somebody) and the line function
Department in such a case is the National Prosecuting Authority . First, it was Mr
Mncwabe who made it clear , in his emails of 1 and 22 October 2018 to Minister
Masutha and his email of November 2018 to the President, that, after the Presidential
Minutes had been signed by the President and Minister Masutha, the process was that
the President’s decision was to be communicated to the appointees by the National
Prosecuting Authority. Then came Mr Abrahams in his explanatory affidavit in which
he said that the Ministry had given him the Presidential Minutes relating to Ms Khanyile
and Ms Majokweni in order to enable him to communicate President Zuma’s decisions
to them. Then it was Dr Lubisi who gave evidence by way of his affidavit that
effectively corroborated what Mr Mncwabe had said in his emails to Minister Masutha
and the President in October and November 2018 respectively. In reply to Dr Lubisi’s
affidavit both Mr Mncwabe and Mr Mathenjwa said in their replying affidavits in effect
that, indeed, they agreed that, when the President has signed a Presidential Minute that
relates to the National Prosecuting Authority , it is sent back to the line function
Department, which is the National Prosecuting Authority in this case, for the
implementation of the President’s decision which includes the communication of the
President’s decision to the individuals concerned.
Dr Lubisi’s evidence that the implementation procedu re for a P resident’s
decision contained in a Presidential Minute is that, after the President has signed the
Presidential Minute, it is routed back to the LES which would send it back to the line
function Department for the implementation of the President’s decision by public
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announcement or appointment l etter is fatal to the proposition that Mr Abrahams was
not authorised to inform the applicants of their appointments.
I have said that Dr Lubisi’s evidence on “the process which ought to be followed
when dealing with a valid presidential minute” means that the National Prosecuting
Authority was authorised or was required or obliged to implement President Zuma’s
decisions by informing the individuals concerned of their appointments. I have also
said that, if the National Prosecuting Authority was required or obliged or authorised to
inform the individuals concerned, then Mr Abrahams, as the head of the National
Prosecuting Authority, was definitely authorised or required or obliged to inform the
applicants of their appointments. The first judgment does not suggest that a different
meaning should be given to Dr Lubisi’s evidence. Indeed, the first judgment does not
address the point I make that Dr Lubisi’s evidence means that the National Prosecuting
Authority and, therefore, Mr Abrahams, was not only authorised but obliged to inform
the individuals concerned of their appointments. This was so because informing them
was part of the implementation of President Zuma’s decisions. It just continues to
maintain that Mr Abrahams was not authorised to inform the applicants without
explaining how that proposition can be sustained in the face of Dr Lubisi’s clear and
unequivocal evidence which is consistent with Mr Mncwabe’s and Mr Mathenjwa’s
evidence. In my view, the proposition that Mr Abrahams was not authorised to inform
the applicants of their appointments is simply unsustainable in the light of the
overwhelming evidence to the contrary.
The first judgment suggests that this judgment relies on tacit authority for the
conclusion that Mr Abrahams was authorised or obliged or entitled to inform the
applicants of their appointments . That is not correct. This judgment relies on
Dr Lubisi’s evidence on the procedure for the implementation of a President’s decision
contained in a Presidential Minute. It also relies on Mr Mncwabe’s express evidence
as well as Mr Mathenjwa’s evidence.
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The first judgment also expresses the view that the applicants could have
obtained affidavits from Minister Masutha and President Zuma about whether the
Presidential Minute s had left the Presidency and the Department of Justice and
Correctional Services regularly or lawfully or properly. It must be remembered that the
President and Dr Lubisi have not stated that the Presidential Minutes were removed
unlawfully or irregularly from the Presidency or from the Department of Justice and
Correctional Services. All that they do is speculate that the Presidential Minutes may
have been leaked. The applicants do not ask this Court to conclude that the Presidential
Minutes were released irregularly. If the President seeks such a conclusion, the onus
was on him to place evidence of such irregularity before the Court. He did not do so.
In the light of the above I conclude that the procedure for d ealing with
Presidential Minutes – which is sanctioned by the Presidency – authorised the National
Prosecuting Authority and, therefore, Mr Abrahams as head of the National Prosecuting
Authority, to inform the applicants of their appointments. If the National Prosecuting
Authority or Mr Abrahams was entitled to inform the individuals concerned of their
appointments by a public announcement or by letters of appointment, it or he was
equally entitled to inform them of their appointments verbally or by phone. Indeed, I
say that that procedure obliged Mr Abrahams to inform the individuals concerned,
including the applicants, of their appointments. To the extent that the appointments had
not become final, they became final when Mr Abrahams told the applicants of their
appointments. Accordingly, the appointments became effective in law when Mr
Abrahams told the applicants about their appointments.
The result of the conclusion that Mr Abrahams was entitled/obliged and
authorised to inform the applicants of thei r respective appointments and that the
applicants’ appointments became final when Mr Abrahams told them of their
appointments is that the President had no power or right to revoke or withdraw their
appointments. Accordingly, his decisions to revoke or wit hdraw their appointments
were unlawful and invalid.
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Without Dr Lubisi’s evidence relating to the procedure for the implementation
of Presidential Minutes, it would be difficult to understand Minister Masutha’s and
President Zuma’s reactions to the news th at Mr Abrahams had told all the individuals
of their appointments. That is, if the position was that Mr Abrahams was not authorised
to inform the individuals concerned, including the applicants, of their respective
appointments because only President Zuma or Minister Masutha was meant to tell them.
Neither Minister Masutha nor President Zuma expressed his objection or displeasure or
surprise when Mr Abrahams told them that he had informed the individuals of their
appointments.
The explanation has been provided by Dr Lubisi’s evidence which says that the
line function Department bears the responsibility to make the public announcement or
to do the appointment letters. In this case, that is the National Prosecuting Authority.
Therefore, that is why Minister Masutha and President Zuma had no problem with the
fact that Mr Abrahams had informed the applicants and others of their respective
appointments. That is also why, as Mr Abrahams says in his affidavit, Minister Masutha
and President Zuma were simply happy that the individuals concerned understood why
they needed to wait a bit before they could assume duty in their new positions. That is
also why Minister Masutha’s Chief of Staff said to Mr Abrahams that he should go
ahead and make the announ cements. T hey all knew that in terms of the Presidential
Minute implementation procedure/process the National Prosecuting Authority was
supposed to inform the individuals concerned of their respective appointments.
What happened in this case is simply that, after President Zuma had made these
valid appointments, the President sought to reverse them when there was no basis in
law for those decisions to be reversed. I accept that, given how President Zuma abused
his powers in, for example, how he sought to push Mr Mxolisi Nxasana out of office as
the National Director of Public Prosecutions as reflected in the judgment of this Court
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in Corruption Watch,114 the President was not unreasonable in seeking to satisfy himself
that President Zuma had not made these appointments corruptly or for ulterior motives
before he resigned from office. However, establishing that could simply not have taken
a whole year. A month , or, at the most , two months should have been enough to
establish that. In terms of section 13(2) of the NPA Act, the President was obliged not
to do anything that unduly delayed the filling of these two very important positions.
The President has not advanced any justification for the year long delay before he took
the decision on the appointments. Decisions such as these should be made without any
undue delay. It is not acceptable that there were these kinds of delays before such
decisions were made.
A further consequence of th e conclusion that Mr Abrahams was entitled or
authorised or obliged to inform the applicants of their appointments and that, therefore,
the revocation of their appointments was unlawful and invalid is that the President’s
conduct in appointing Mr Sakata as the Director of Public Prosecutions for the
Northern Cape Division of the High C ourt and Ms Kanyane as the Director of
Public Prosecutions for the Mpumalanga Division of the High Court while this litigation
was going on were also unlawful and invalid. The President may not competently
appoint anybody to a position that is not vacant. In law these posts were not vacant
after February 2018.
Remedy
In Steenkamp115 this Court stated: “That a dismissal is invalid and of no force
and effect means that it is not recognised as having happened”.116 In the same way one
can also say that that a withdrawal or revocation of an appointment is invalid and of no
force and effect means that in law it is not recognised as having happened. In
114 Nxasana above n 1 at para 88.
115 Steenkamp v Edcon Limited [2016] ZACC 1; 2016 (3) SA 251 (CC); 2016 (3) BCLR 311 (CC).
116 Id at para 189.
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Corruption Watch this Court accepted that the declaration of invalidity of Mr Nxasana’s
removal as National Direc tor of Public Prosecutions meant that “Mr Nxasana [was]
ordinarily entitled to resume office as the default legal position” .117 In the context of
the present case it can also be said that the conclusion that the revocation of the
applicants’ appointments is invalid means that ordinarily the applicants are entitled to
assume office as the Directors of Public Prosecutions for the Northern Cape and the
Mpumalanga Division of the High Court. This is the default legal position in a case in
which section 172 of the Constitution applies.
I accept that the conclusion that the revocations of the applicants’ appointments
were invalid would ordinarily entitle the applicants to assume their positions . This is
the default position. There is one qualification to the default position. The qualification
arises from the fact that we are here dealing with a constitutional matter and the
provisions of section 172 of the Constitution apply. Section 172 confers upon a court
dealing with a constitutional matter the power to d eclare any law or conduct including
the conduct of the President invalid when it is inconsistent with the Constitution and to
make any order that is just and equitable. This means that the Court may depart from
the default legal position when it deals wit h a matter to which section 172 applies and
if it is just and equitable to do so.
Should this Court allow the default position to prevail or should it depart from
the default position? This is the question that I now need to consider. The applicants
were approached by Mr Abrahams and asked to provide their CVs and Mr Abrahams
used those to recommend that they be appointed as Directors of Public Prosecutions.
Minister Masutha recommended their respective appointments to President Zuma.
President Zuma agreed to appoint them and did actually appoint them. Mr Abrahams,
having received the Presidential Minutes reflecting that, indeed, President Zuma had
appointed the applicants and Minister Masutha had co-signed the Presidential Minutes,
117 Nxasana above n 1 at para 75.
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informed the applic ants that they had been appointed as Directors of
Public Prosecutions and congratulated them.
The applicants accepted their respective appointments and were excited about
them. Unfortunately, their excitement was short -lived. This was because they were
subsequently told that they could not assume duty in their new positions since
President Zuma needed to announce the appointments publicly or needed to consult the
then Deputy President, Mr Ramaphosa, the President, as a matter of courtesy but what
was to follow was a whole year in which both Minister Masutha and the President left
the applicants and others in limbo. During that period Mr Mncwabe wrote to both
Minister Masutha and to the President to find out what the hold-up was about but
nobody bothered to respond to him substantively. Mr Mathenjwa wrote to the National
Prosecuting Authority senior management as well and asked them to find out what the
delay was about and he expressed his frustration at the delay. No explanation has been
given by the President as to why the applicants were left in the dark for a whole year.
No apology has been extended to them for not even responding to their correspondence.
The President filled the positions to which the applicants had been appointed
while this litiga tion was going on. In doing so he knew that there was a risk that the
applicants could succeed but, nevertheless, went ahead and filled the positions. The
applicants went to court in an attempt to interdict the appointment of anybody to the
positions to which they had been appointed. The President opposed that application
successfully. The President sought to justify the appointment of other people into the
positions to which the applicants had been appointed while the litigation in this matter
was stil l continuing on the basis of seeking to ensure that there were permanently
appointed persons in those positions ahead of the release of the Report of the
State Capture Commission. 118
118 The full name of the State Capture Commission is “The Judicial Commission of Inquiry into Allegations of
State Capture, Corruption and Fraud in the Public Sector including Organs of State.”
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This explanation cannot be accepted. The President did not even put up
information to suggest that there were many cases relating to the
Northern Cape Province and the Mpumalanga Province that the State
Capture Commission was investigating. The President did not even furnish the Court
with any information on whether there wer e state capture or corruption cases that the
State Capture Commission was investigating that were expected to be dealt with in its
Report. In any event the National Executive had allowed the post of Director of
Public Prosecutions of the Northern Cape Pro vincial Division of the High Court to
remain vacant for over a year before February 2018. Mr Abrahams said that it had been
vacant since 2016.
As if that was not enough, the President took about a year from February 2018
to March 2019 to apply his mind t o whether he would give effect to the applicants’
appointments by President Zuma or he would withdraw or revoke their appointments.
He must have known how he would handle the situation if the applicants ultimately
succeeded. It seems to me that the appli cants were caught in a political storm
surrounding the recalling of President Zuma and his replacement by
President Ramaphosa. They have suffered a great deal over the years in the process. It
is necessary to ensure that justice is not only done but is a lso seen to be done in this
case.
In Corruption Watch this Court found that exceptional circumstances existed
which justified a departure from the default legal position .119 Are there exceptional
circumstances in this case? In my view, there are no except ional circumstances
justifying a departure from the default legal position in the present case. Accordingly,
the applicants are entitled to assume duty in their new positions. It seems to me that it
is just and equitable that the applicants be allowed to assume their duties. Since the
applicants were prevented from assuming their duties as Directors of
119 Nxasana above n 1 at para 86.
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Public Prosecutions and beginning to earn the remuneration and benefits that attach to
the positions to which they had been validly appointed because the President still
wanted to apply his mind to their appointments, they are entitled to all such benefits of
office, including the difference in remuneration, as they would have been paid and
would have enjoyed if they had been allowed to assume duty on 1 Mar ch 2018 until
they assume duty in those positions after the handing down of this judgment.
In the circumstances I would have made the following order:
1. Leave to appeal is granted in both applications for leave to appeal.
2. Leave for direct access is granted in the two applications for leave
for direct access.
3. The appeals in both cases are upheld.
4. The President is ordered to pay costs, including the costs of two
Counsel where two Counsel were employed, in respect of the
applications for leave to app eal, applications for direct access and
in respect of both appeals.
5. The order of the Supreme Court of Appeal in respect of Mr
Mncwabe’s application and the orders of the High Court in respect
of both Mr Mncwabe’s application and Mr Mathenjwa’s
application are set aside and in the place of the two orders of the
High Court the following order is made:
(a) The conduct of the President in purporting to revoke or
withdraw the applicants’ respective appointments as
Director of Public Prosecutions of the Northern Cape
Division of the High Court and the M pumalanga Division
of the High Court, respectively, was unlawful and invalid
and is hereby reviewed and set aside.
(b) The conduct of the President in appointing Mr Livingstone
Mzukisi Sakata as Director of Public Prosecuti ons for the
Northern Cape Division of the High Court and
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Ms Nkebe Rebecca Kanyane as Director of
Public Prosecutions for the Mpumalanga Division of the
High Court is unlawful and invalid and is hereby reviewed
and set aside.
(c) No decision taken by Mr Livings tone Mzukisi Sakata as
Director of Public Prosecutions of the Northern Cape
Division of the High Court and no decision taken by
Ms Nkebe Rebecca Kanyane as Director of
Public Prosecutions of the Mpumalanga Division of the
High Court from the date of their respective appointments
to those positions and fourteen (14) calendar days from the
date of this judgment shall be rendered invalid by this
judgment.
(d) The applicants must be allowed to assume their duties as
Directors of Public Prosecutions of the Northern Cape
Division of the High Court and the Mpumalanga Division
of the High Court, respectively, within thirty (30) calendar
days from the date of this judgment.
(e) The President is ordered to pay the applicants’ costs
including the costs consequent upon the employment of two
Counsel.
(f) The President shall pay the applicants’ costs in regard to the
proceedings in the Supreme Court of Appeal.
For the Applicant in CCT 102/22:
For the First and Third Respondents in
CCT 102/22:
For the Applicant in CCT 120/22:
For the First Respondent in
CCT 120/22:
G Madonsela SC, M Tsele and N Cele
instructed by Ehlers Fakude
Incorporated
S M Baloyi SC, L Zikalala and
S A Karim instructed by
the State Attorney
T F Mathibedi SC, Z Minty , P Mmutle
and A Kessery instruc ted by
Biccari Bollo Mariano Incorporated
S M Baloyi SC, L Zikalala and
S A Karim instructed by
the State Attorney