CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 159/18
In the matter between:
PRESIDENT OF THE REPUBLIC OF
SOUTH AFRICA Applicant
and
DEMOCRATIC ALLIANCE First Respondent
PRAVIN JAMNADAS GORDHAN Second Respondent
MCEBISI HURBERT JONAS Third Respondent
MALUSI NKANYEZI GIGABA Fourth Respondent
SFISO NORBERT BUTHELEZI Fifth Respondent
Neutral citation: President of the Republic of South Africa v Democratic Alliance
and Others [2019] ZACC 35
Coram: Mogoeng CJ, Cameron J , Froneman J, Jafta J, Khampepe J,
Ledwaba AJ, Madlanga J, Mhlantla J, Nicholls AJ, and Theron J
Judgments: Mogoeng CJ (majority): [1] to [40]
Jafta J (dissenting): [41] to [87]
Heard on: 14 February 2019
Decided on: 18 September 2019
2
Summary: Rule 53 of the Uniform Rules of Court — application to compel
— executive decisions to appoint/remove Cabinet Ministers —
mootness — interests of justice
ORDER
On appeal from the Supreme Court of Appeal (hearing an appeal from the High Court
of South Africa, Gauteng Division, Pretoria):
1. Leave to appeal is granted.
2. The appeal is dismissed.
3. The President of the Republic of South Africa is ordered to pay co sts of
this application, including the costs of two counsel.
JUDGMENT
MOGOENG CJ (Cameron J, Froneman J, Khampepe J, Ledw aba AJ, Madlanga J,
Mhlantla J and Theron J concurring):
Introduction
[1] Can the decision of the President of the Republic of South Africa to appoint and
dismiss a Minister and his Deputy be reviewed and set aside? Is the President under a
rule 53 of the Uniform Rules of Court 1 obligation to disclose the reasons for relieving
1 Rule 53(3) provides:
“The registrar shall make available to the applicant the record despatched to him or her as
aforesaid upon such terms as the registrar thinks appropriate to ensure its safety, and the
applicant shall thereupon cause copies of such portions of the record as may be necessary for
the purposes of the review to be made and shall furnish the registrar with two copies and each
of the other parties with one copy thereof, in each case certified by the applicant as true copies.
The costs of transcription, if any, shall be borne by the applicant and shall be costs in the cause.”
MOGOENG CJ
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Cabinet Ministers and their Deputies of their duties or should the arguably raw political
character of that decision perhaps exempt her from doing so?
[2] The first question would have been answered fully, but was not, because the
application that would have created the platform for doing so was withdrawn. The
second was, in a way, answered affirmatively in an interlocutory application, the
outcome for which is sought to be challenged before this Court. But, no regard was had
to the distinctly political nature of those appointments or dismissals.
[3] We thus have to grapple with the question of whether it is in the interests of
justice to grant leave to appeal against that order directing the President to disclose the
reasons, as well as the relevant part of th e record that forms the basis, for the decision
to relieve a Minister and a Deputy of their constitutional responsibilities
notwithstanding the mootness of the matter.
Background
[4] On 30 March 2017 , President Jacob Zuma announced changes to his Cabinet.
Several Ministers and Deputy Ministers including the then Minister of Finance, Pravin
Gordhan, and his Deputy, Mcebisi Jonas, were relieved of their ministerial duties. In
came Minister Malusi Gigaba and Deputy Minister Sifiso Buthelezi. On the same day,
the Presidency issued a statement which stated the reasons for the reshuffle.
[5] Four days later, the Democratic Alliance launched an urgent review application
to set aside the President’s decision in the High Court of South Africa, Gauteng
Division, Pretoria. T he grounds, therefore, were that his decision was unlawful,
unconstitutional and invalid. But, irrationality was the overarching basis. And, that
application was brought in terms of rule 53.
[6] The record of the proceedings that presumably culminated i n the impugned
decision and the reasons for the decision were required within certain timeframes, set
by the Democratic Alliance’s legal team. When several attempts to have the reasons
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and record filed in terms of the truncated rule 53 timeframes failed, the Democratic
Alliance brought an interlocutory application to have the President compelled to deliver
them.
[7] The President opposed the application. While conceding that the President’s
decision to reshuffle the Cabinet is required to be rational, it was however contended
that rule 53 does not apply to that executive decision and as a result the relief sought by
the Democratic Alliance was not competent. His contention was that legality is the
correct basis on which to review that decision. But, the ord er was granted on the basis
that rule 53, purposively interpreted, applies to executive decisions and since the
appointment or removal of Ministers and Deputy Ministers in terms of sections 91(2)
and 93(1) of the Constitution constitutes an executive function, it too fell within the
scope of that rule. The order reads in relevant part as follows:
“2. The [President] is to dispatch to the [Democratic Alliance’s] attorneys within
five court days of the date of this order:
2.1 the record of all documents and electronic records (including
correspondence, contracts, memoranda, advices, recommendations,
evaluations and reports) that relate to the making of the decisions
which are sought to be reviewed and set aside;
2.2 the reasons for these decisions which are sought to be reviewed and
set aside.”2
[8] Aggrieved by this decision, the President applied for and was granted leave to
appeal to the Supreme Court of Appeal. While the appeal was pending, President Jacob
Zuma resigned and was replaced by President Cyril Ramaphosa. And Minister Gigaba
and Deputy Minister Buthelezi were removed from the Finance Portfolio. Mr Pravin
Gordhan was appointed to the Public Enterprises Portfolio, all of which inferentially
seemed to address the source of the Democratic Alliance’s dissatisfaction. As a result,
the parties withdrew the review application by agreement.
2 Democratic Alliance v President of the Republi c of South Africa 2017 (4) SA 253 (GP) (High Court judgment)
at para 1.
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[9] The Supreme Court of Appeal was informed of that development. It then
enquired of the parties whether the appeal against the interlocutory order should still be
proceeded with seeing that the review ap plication, which is foundational to the very
existence of that order, had ceased to exist.
[10] The Democratic Alliance said it was not necessary to proceed with the appeal by
reason of its mootness whereas the President, while conceding mootness, held a
different view. He contended that in breach of the doctrine of separation of powers, the
High Court has extended the scope of rule 53 to executive actions which amounts to a
usurpation of the powers of the Rules Board.
[11] In response to the President’s contention, the Supreme Court of Appeal held that,
“[t]he correct approach is that the task of develo ping the rules is best left to the Rules
Board. This Court has pronounced on this position.”3
[12] After quoting quite generously from Absa Bank,4 the Court went on to say:
“There is thus no compelling reason why this Court should exercise its discretion,
absent objective facts, to conclusively determine the ambit of rule 53 when the Rules
Board is mandated to do so. Interesting as the debate may be, this Court should not be
tempted to decide an issue that may be of academic interest and the decision sought
will have no practical effect or result.
. . .
To sum up, the question of the High Court having established a precedent is not
supported by authority. The decision in Van Zyl 5 has put paid to that argument.
Similarly defining the ambit or scope of the applicability of rule 53 to executive
functions and/or decisions, falls, as correctly argued by the [President], within the
3 The President of the Republic of South Africa v Democratic Alliance [2018] ZASCA 79; 2018 JDR 0765 (SCA)
(Supreme Court of Appeal judgment) at para 16.
4 Absa Bank Limited v Van Rensburg: In Re: Absa Bank Limited v Maree [2014] ZASCA 34; 2014 (4) SA 626
(SCA) at para 11.
5 Van Zyl v Government of the Republic of South Africa [2007] ZASCA 109; 2008 (3) SA 294 (SCA).
MOGOENG CJ
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terrain of the Rules Board. I therefore conclude that for reasons stated, the relief sought
by the appellant will not have any practical effect or result. The appeal must therefore
be dismissed.”6
[13] The President was just as unhappy with this outcome. As a result, he has
approached this Court with an application for leave to appeal.
Mootness
[14] The appropriate starting point in dealing with mootness is section 16(2)(a)(i) of
the Superior Courts Act.7 It provides:
“When at the hearing of an appeal the issues are of such a nature that the decision
sought will have no practical effect or result, the appeal may be dismissed on this
ground alone.”
[15] The President has “concede[d] that in light of the withdrawal of the main
proceedings, the order of Vally J no longer has any practical effect between the parties
and has become academic”. The Democratic Alliance agrees that the effect of the
withdrawal of the review application is that the interlocutory order “cannot be enforced
and ceases to have any effect”.
[16] These positions not only accord with the mootness provisions of the Superior
Courts Act but are also informed by our jurisprudence. For , even this Court has
previously said that where issues are of such a nature that the decisions sought will have
no practical effect or result, the appeal may be dismissed on this ground alone.
[17] This would ordinarily put an end to this application. But, this Court has the
discretionary power to entertain even admittedly moot issues. In Langeberg we said
that we have—
6 Supreme Court of Appeal judgment above n 3 at paras 17 and 19.
7 10 of 2013.
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“a discretion to decide issues on appeal even if they no longer present existi ng or live
controversies. That discretion must be exercised according to what the interests of
justice require.”8
[18] And in Shuttleworth we said—
“to the extent that it may be argued that this dispute is moot . . . this Court has a
discretion whether to hear the matter. Mootness does not, in and of itself, bar this Court
from hearing this dispute. Instead, it is the interests of justice that dictate whether we
should hear the matter.”9
[19] It is only when the constitutional threshold requirement for entertai ning moot
applications is met, that the President’s application would be allowed. And that is the
interests of justice standard. 10 The question then arises whether it is in the interests of
justice for this Court, in the exercise of its discretion, to entertain the appeal against the
admittedly moot interlocutory order.
Interests of justice
[20] Several bases have surfaced for possibly breaking through the veil of mootness
to decide the appeal.
[21] The President still contends that—
(a) extending the scope of rule 53 to executive functions is an impermissible
encroachment into the executive domain, more specifically the exclusive
terrain of the Rules Board;
(b) it is a ground-breaking development or a novelty; and
8 Independent Electoral Commission v Langeberg Municipality [2001] ZACC 23; 2001 (3) SA 925 (CC); 2001
(9) BCLR 883 (CC) (Langeberg) at para 11.
9 South African Reserve Bank v Shuttleworth [2015] ZACC 17; 2015 (5) SA 146 (CC); 2015 (8) BCLR 959 (CC)
(Shuttleworth) at para 27.
10 See section 167(6) of the Constitution.
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(c) there is a need for certainty in relation to the obligation to disclose reasons
for future Cabinet reshuffles and the relevant part of the record that
formed the basis upon which such decisions were taken.
[22] In opposition, the Democratic Alliance argues that—
(a) rule 53 applies to all executive actions;
(b) this Court would have to pronounce on the merits to decide the issue
before us;
(c) this being an application for leave to appeal against an interlocutory order,
it would be most inappropriate to decide the merits; and
(d) entertaining this matte r would require this Court to interfere with the
discretion exercised by the Supreme Court of Appeal in relation to
entertaining most of these questions.
[23] Whether one agrees or disagrees with Vally J’s approach to the applicability of
rule 53 to executive decisions of the kind involved here, he did not seek to make or
amend rule 53. He sought to embark on what he referred to as a purposive interpretation
of that rule. And courts are entitled to interpret laws, including rules of court. It follows
that the President’s concern about separation of powers in that context is misplaced.
[24] The Democratic Alliance’s assertion relating to the applicability of rule 53 to all
executive functions requires some special attention. An indication was, as the
Democratic Alliance contends, indeed given in OUTA that in an application believed to
be “in the heartland of executive-government function and domain” concerning “policy-
laden and polycentric decision -making” a record would have to be produced in ter ms
of rule 53.11 And only in a footnote did Moseneke DCJ say:
“Rule 53 of the Uniform Rules of Court provides that in all applications for review an
applicant should call upon the decision -maker to show cause why a decision or
11 National Treasury v Opposition to Urban Tolling Alliance [2012] ZACC 18; 2012 (6) SA 223 (CC); 2012 (11)
BCLR 1148 (CC) (OUTA) at paras 67-8.
MOGOENG CJ
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proceedings should not be re viewed and corrected or set aside, and to d espatch the
record of the proceedings sought to be reviewed together with its reasons. Once such
a record is made available to the applicant he may make copies and within ten days
bring an application to amend, a dd to or vary the terms of his review application and
supplement the supporting affidavit.”12
[25] It must be noted that the applicability of rule 53 is alluded to in a footnote
precisely because we were not called upon to decide whether every executive decision,
including those that are seemingly mired in hard -core politics, fall within the ambit of
rule 53. The issue was not even debated. To conclude, as does the Democratic Alliance,
that OUTA, particularly the footnote, is dispositive of the question whethe r rule 53
applies to all executive decisions, would arguably be to read much more into the
footnote than is justifiable. And it bears repetition that the Court was not called upon
to decide whether rule 53 applies, hence the relegation of the rule 53 issue to a footnote.
The same caution probably extends to the reliance sought to be placed on ARMSA13 and
Van Zyl.14
[26] That said, it must be assumed, without deciding whether the principle applies to
this matter, that executive decisions are generally reviewable under the principle of
legality or rule 53. And the real basis for considering possible interference with the
interlocutory order is therefore the need to provide guidance for future appointments or
dismissals of Ministers and Deputies, Members of the Executive Council and Members
of Mayoral Councils.
[27] To begin with, this is an application for leave to appeal again st an interlocutory
order and “generally, it is not in the interests of justice for interlocutory relief to be
subject to appeal as this would defeat the very purpose of that relief”.15 This requires a
12 Id at para 20.
13 Association of Regional Magistrates of Southern Africa v President of the Republic of South Africa [2013]
ZACC 13; 2013 JDR 1041 (CC); 2013 (7) BCLR 762 (CC) (ARMSA).
14 Van Zyl above n 5.
15 Mathale v Linda [2015] ZACC 38; 2016 (2) SA 461 (CC); 2016 (2) BCLR 226 (CC) at para 25.
MOGOENG CJ
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clarificatory context. What the President has applied for is leave to appeal against an
interlocutory order. That order directed him to furnish reasons for and the record of the
proceedings that preceded the decision to dismiss certain Ministers. The question to be
answered is whether he may be granted leave in spite of mootness. Mootness does not
have the magical effect of somehow rendering irrelevant, factors that would ordinarily
have been considered in an application for leave to appeal against an interlocutory order.
Mootness does not lessen the burden for the applicant, it compounds it.
[28] The odds are all the more stacked against entertaining the appeal here because,
unlike in almost all other matters where leave to appeal against an interlocutory order
was sought, the main application that gave birth to this interlocutory order has been
withdrawn by agreement between both participating parties. The reasons and the record
whose disclosure that order was supposed to facilitate are no longer necessary. And, as
correctly conceded by both parties, the or der is of no use or effect to any of them. In
sum, the interlocutory nature of the order sought to be appealed against and its mootness
combine to create a force that is fatal to the prospects of exercising our discretion in the
President’s favour.
[29] Additionally, to determine whether the kind of executive decisions to which rule
53 applies or might apply include the appointment and removal of Cabinet Members or
Deputy Ministers, is an exercise that is inextricably interwoven with the merits.
Remember, the decision initially sought to be reviewed and set aside, in terms of rule
53, was the President’s dismissal of Minister Pravin Gordhan and Deputy Minister
Mcebisi Jonas. The request for reasons and the associated record owes its
appropriateness or relevance, in any court including this one, to that original challenge.
The guidance the President needs for future appointments or dismissals cannot therefore
be provided without proper regard to the merits and the likely political dynamics at play
in decisions of that kind. The irrationality on which the main application hinged could
only have been properly tested with the aid of a range of factual considerations, which
are just as important to resolve the question whether rule 53 applies to Ministerial
appointments or dismissals. The reach of the rationality review in relation to executive
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decisions located within the heartland of the Executive was not properly ventilated
before us.
[30] It is my understanding that, properly contextualised, the President’s thirst for
clarity and certainty would not be quenched by a judgment that merely resolves the
question whether rule 53 is wide enough to apply to executive decisions. It is not a
legal technical knockout that he needs – but an assurance that he has the latitude or
space to exercise his powers freely. He strikes me as desiring a decision that resolves
the question whether he is under any circumstances obliged to disclose the reasons for
appointing or dismissing Ministers and Deputy Ministers regardless of a lega l
instrument that might be sought to be used to cause him to do so – rule 53 or legality.
[31] This may be inferred from some of the statements made on his behalf, in
particular this one:
“As will be evidenced in the answering affidavit of the President, in h is response to
your application to compel the delivery of the records, the decision to reshuffle the
Cabinet as he did was informed by his political judgement that the reshuffle will best
deliver on the mandate the African National Congress received from t he majority of
the electorate in the last general elections.”
[32] This seems to suggest that this application relates to an executive decision of the
kind this Court has not grappled with before. That this Court might have readily
accepted, in a footnote, th e reviewability of apparently all executive decisions on the
basis of rationality may not necessarily serve as authority for the contention that rule 53
applies to all executive actions. The non -binding concession by the President that the
decision to reshuffle Cabinet has to be rational and is therefore reviewable under legality
is not dispositive of this complex legal issue. This Court must satisfy itself that our
adoption of that concession as law, is in sync with the jurisprudential trajectory we
ought to follow. A proper ventilation of the issues that would inform the decision to
extend the applicability of rule 53 or a shade of rationality even to this particular
executive decision appears to be necessary.
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[33] It thus seems to be inescapable that the m erits would have to be traversed to do
justice to issues relating to the guidance for future cases that the President yearns for.
The nature and complexity of the kind of decision initially sought to be challenged by
way of review must first be closely ex amined. We would probably have to dig deeper
into the political character of sections 91(2) and 93(1) decisions to address the
President’s concern properly. And potentially serious separation of powers issues might
also have to be wrestled with.
[34] What then is in the interests of justice here – to grant or refuse leave? Again,
interlocutory orders are ordinarily not appealable even in circumstances where the main
application has not been withdrawn. Here, the main application to which the
interlocutory order owes its life has been withdrawn. And it is in the main application
that the reviewability of the President’s decision and the merits of the application would
have been decided. The merits do not merely relate to a matter that is “in the heartland
of executive-government function and domain” in connection with “policy -laden and
polycentric decision-making”, they also seem to relate to a constitutionally -ordained
political decision. OUTA was about an executive decision to introduce e-tolls. On the
contrary, this matter relates to the appointment and removal of Cabinet Members. There
is a yawning gap between the true nature or character of each of these decisions. We
would probably derive a lot of benefit from a thorough-going and discrete engagement
with counsel on this specific issue before a conclusion is reached that legality or rule 53
applies to sections 91(2) and 93(1) decisions.
[35] This Court cannot decide the merits that the High Court and the Supreme Court
of Appeal did not decide. The Pres ident himself says “the order of Vally J no longer
has any practical effect between the parties and has become academic”. This Court is
thus being asked to advise or guide the President. That is the only real purpose to be
served by entertaining this appeal. And courts should be loath to fulfil an advisory role,
particularly for the benefit of those who have dependable advice abundantly available
to them and in circumstances where no actual purpose would be served by that decision,
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now. Entertaining this application requires that we expend judicial resources that are
already in short supply especially at this level. Frugality is therefore called for here.
Conclusion
[36] When the President’s decision to appoint or dismiss is impugned in the future
and she is asked for information that is similar to that asked for in this matter, it would
then be open to her to confront that challenge squarely. Only then may we, if the matter
ultimately gets to us, traverse the merits that would allow us to provide the guida nce
now asked for. This is not a case where the interests of justice require that we exercise
our discretion to decide a moot issue. As indicated, this is so because the order is
interlocutory; the interests of justice are ordinarily against entertaining appeals against
interlocutory orders; the main application has been withdrawn and the merits of that
withdrawn application are essential for the proper determination of the issues in relation
to which the President requires guidance.
[37] It can thus be rightly said that this is an application that―
“raises no discrete legal point which does not involve detailed consideration of facts
and no similar cases exist or are anticipated, so that the issue will most likely ne ed to
be resolved in the near future.”16
[38] There is no discrete issue raised here. Detailed factual considerations would
have to be traversed to do justice to this matter. And the President stands to suffer no
harm should the determination of the issue be left to a future challenge to the
appointments or dismissals of Cabinet Members. A refusal to exercise our discretion
to address a moot interlocutory question would thus not be a lost opportunity, necessary
to address foreseeably imminent challenges. Thi s is not one of those challenges to
presidential power that are likely to arise as frequently as is apparently feared. It didn’t
for the past 25 years of our constitutional democracy and is most unlikely to arise any
time soon.
16 Legal Aid South Africa v Magidiwana [2014] ZASCA 141; 2015 (2) SA 568 (SCA) (Magidiwana) at para 31.
MOGOENG CJ / JAFTA J
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[39] But, even if the request for reasons for the appointment or dismissal is reasonably
anticipated, that would then present the President with an appropriate opportunity to
mount a proper challenge to the applicability of rule 53 to the exercise of the
constitutional power to appoint or dismiss Members of Cabinet. The issue is thus best
left to be resolved on another day.
[40] In the result, the application for leave to appeal is dismissed with costs.
Order
[41] In the result, the following order is made:
1. Leave to appeal is granted.
2. The appeal is dismissed.
3. The President of the Republic of South Africa is ordered to pay co sts of
this application, including the costs of two counsel.
JAFTA J (Nicholls AJ concurring)
[42] I have had the benef it of reading the judgment of the Chief Justice
(first judgment). I agree that the matter as between the President and the
Democratic Alliance is moot. But I think that it is in the interests of justice to interpret
rule 53 for guidance of future cases.
[43] Our difference flows from the exercise of a discretion on entertaining a moot
appeal. The fact that this Court retains a discretion to decide a moot appeal cannot be
gainsaid. It is also not controversial that the exercise of the discretion depends on where
the interests of justice lie. In Mukhamadiva this Court formulated the test in these terms:
“The fact that a matter may be moot in relation to the parties before the court is not an
absolute bar to the court considering it. The court retains discretion, and in exercising
JAFTA J
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that discretion it must act according to what is required by the interests of justice. And
what is required for the exercise of this discretion is that any order made by the court
has practical effect either on the parties or others. Other relevant factors that could be
considered include: the nature and extent of the practical effect the order may have; the
importance of the issue; and the fullness of the argument advanced. Another
compelling factor could be the public importance of an otherwise moot issue.”17
[44] It is evident from this statement that in determining whether the interests of
justice warrant a determination of a moot matter, the Court takes account of a number
of factors. These include whether a judgment would have a practical effect in future
litigation either between the same parties or other parties; the importance of the legal
issue raised; the impact or effect of the judgment appealed against on future litigation
and the wrong statements of law in that judgment.
[45] The background facts are comprehensively set out in the first judgment for which
I am grateful. It is not necessary to repeat them here.
[46] The institution of the review application by the Democratic Alliance in terms of
rule 53 automatically triggered cert ain procedural rights in its favour and imposed
obligations upon the President, in his capacity as the decision-maker. From the date of
service of the papers on him, the President was under a duty to d espatch a record of
proceedings relating to the impugn ed decision to the registrar of the High Court in
which the review was launched.18 The President was obliged to do so within 15 days.
[47] It was the President’s breach of this duty which prompted the
Democratic Alliance to institute the interlocutory application to compel the President to
comply with the rule. The judgment against which the current President seeks to appeal
was rendered in that interlocutory application. In that judgment the High Court ordered
the President to d espatch the record and reasons for the impugned decision, not to the
17 Director-General Department of Home Affairs v Mukhamadiva [2013] ZACC 47; 2013 JDR 2860 (CC); 2014
(3) BCLR 306 (CC) (Mukhamadiva) at para 40.
18 The text of the relevant part of rule 53 is quoted in [80] below.
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Registrar as rule 53 demands, but to the attorneys of the Democratic Alliance. He was
required to do so within five days from the date of the order.
[48] It will be noted from the text of rule 53 that it does not require that the record be
delivered to the applicant for a review. Instead, it obliges the decision -maker to make
delivery to the Registrar. The applicant for a review must approach the Registrar if it
wishes to have access to the record and the latter may make the record available on
terms the Registrar deems appropriate. Under the rule the applicant is entitled to make
copies at its own expense and furnish the Registrar with two copies and each of the
other parties with one copy. All of which must be certified as true copies.
[49] The High Court order was based on rule 53 as interpreted by it. Although the
Court accepted that the language of the rule does not cover the President, it held that
there was no reason not to apply rule 53 in applications to review executive decisions.
The High Court concluded:
“Relying on the purposive interpretation there is no logical reason not to utilise it in an
application to review and set aside an executive decision. The judicial exercise
undertaken by the court in such a review is no different from the one undertaken in
review applications of an ‘inferior court, [a] tribunal, board or officer performing
judicial, quasi-judicial or administrative functions’. The tests to be applied may be
different but the process utilised can be the same. Its provisions, in my judgment,
should be applied unless it can be shown that its application in a particular case would
result in a failure of justice.”19
[50] Even though the Democratic Alliance had intimated tha t it will not enforce
compliance with the order following its withdrawal of the review application, the
President was wary of the legal effect of the High Court’s judgment. He argued in the
Supreme Court of Appeal and in this Court that the High Court’s j udgment set a
precedent that rule 53 applies to executive decisions by the President. As mentioned
the merits of the appeal may be decided only if it is in the interests of justice to do so.
19 High Court judgment above n 2 at para 29.
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Interests of justice
[51] A number of factors show that it is in the interests of justice to determine whether
the High Court was right to conclude that rule 53 applies despite questioning that the
language of the rule suggests otherwise.
[52] The first factor is that a judgment of this Court on the matter would have a
practical effect in the future for the President and any other party that wishes to have
the appointment or dismissal of Ministers reviewed. Rule 53 continues to apply and
there is no indication that it will be repealed. There can be no doubt that in future
Ministers would be appointed and dismissed as mandated by section 91 of the
Constitution.20 Therefore, it is likely that a similar dispute would arise. The
interpretation of rule 53 would be helpful in future litigation between the President and
parties who seek to take on review his decision to appoint or dismiss a Minister. This
type of practical effect has been accepted as a factor that warranted adjudication of a
moot matter in a number of cases.21
[53] Relying on a statement made in Magidiwana,22 the Supreme Court of Appeal in
this matter refused to reach the merits and interpret rule 53. The statement relied on
was to the effect that the appeal in Magidiwana did not raise a discrete legal point which
excluded consideration of the facts and that no similar cases existed or were anticipated.
On the basis of that statement the Supreme Court of Appeal held:
“The review application having being withdrawn, it would be unwise for this Court to
opine on the interpretation of a rule, in the absence of objective facts and the context
20 Section 91(2) of the Constitution provides:
“The President appoints the Deputy President and Ministers, assigns their powers and functions,
and may dismiss them.”
21 POPCRU v SACOSWU [2018] ZACC 24 ; 2019 (1) SA 73 (CC) ; 2018 (11) BCLR 1411 (CC) ; MEC for
Education, Kwazulu-Natal v Pillay [2007] ZACC 21 ; 2008 (1) SA 474 (CC) ; 2008 (2) BCLR 99 (CC) ; AAA
Investments (Pty) Limited v Micro Finance Regulatory Council [2006] ZACC 9; 2007 (1) SA 343 (CC); 2006 (11)
BCLR 1255 (CC); and Langeberg above n 8.
22 Magidiwana above n 16.
JAFTA J
18
within which they were raised in the review application. It would neither be practical
nor desirable for this Court to postulate under what circumstances and on what grounds,
legal and / or factual, would a cabinet reshuffle be taken on review and the disclosure
of the record be demanded in terms of rule 53 in future.”23
[54] A quick observation is that Magidiwana was not concerned with the
interpretation of legislation that continues to operate and consequently the reference to
the absence of a discrete legal point that did not involve considerations of facts had no
bearing on this matter. The statement by the Supreme Court of Appeal in this case
suggests that obje ctive facts are necessary for the interpretation of the relevant rule.
This is incorrect. Facts play no role in an interpretation of a rule or legislation for that
matter.24 If this were to be so, a provision in legislation would carry different meanings,
depending on the facts of specific cases.
[55] This Court has affirmed the principle that facts have no bearing on an
interpretation process. In Kubyana the Court said:
“The process of interpretation, I emphasise, does not involve a consideration of facts.
Matters of evidence do not come into the equation. This is so because statutory
construction is an objective process, with no link to any set of facts but in terms of
which words used in a statute are given a general meaning that applies to all cases,
falling within the ambit of the statute.”25
[56] The Democratic Alliance too is mistaken in asserting that the Court would have
to pronounce on the merits of the review in determining the scope of rule 53. The
interlocutory application had no bearing on whether the impugned decisions were
reviewable. The scope of rule 53 may be determined with reference to its language to
which I shall return later.
23 Supreme Court of Appeal judgment above n 3 at para 15.
24 CA Focus CC v Village Freezer t/a Ashmel Spar [2013] ZASCA 136; 2013 (6) SA 549 (SCA) at para 18.
25 Kubyana v Standard Bank of South Africa Limited [2014] ZACC 1; 2014 (3) SA 56 (CC); 2014 (4) BCLR 400
(CC) at para 78.
JAFTA J
19
[57] Another factor that supports entertaining this appeal is the incorrect judgment of
the High Court. A rule may n ot be applied beyond its scope as determined by its
language on the ground that “there is no reason in logic not to utilise it”. The fact that
the rule regulates similar situations does not alter this proposition. Nor does purposive
interpretation do. T he High Court was therefore mistaken to conclude that rule 53
applies to the review of decisions not mentioned in the rule because there is no logical
reason not to use it.
[58] The reasoning also reveals a misapplication of purposive interpretation. A
purposive interpretation does not entail asking the question whether there is a logical
reason for not applying a legislative provision to a similar set of facts. Instead, the
purpose of the provision is invoked to establish context and a meaning that is capabl e
of achieving the object of the provision. In other words, a purposive interpretation is a
technique of paying attention to what the lawmakers intended to achieve by enacting
the provision in question.26
[59] Of course, a purposive construction is not a licen ce to ignore the language used
in a provision under interpretation. An interpretation exercise commences with the
consideration of the language used, which must be assigned its ordinary meaning unless
provided otherwise in the legislation or that the ordi nary meaning would result in an
absurdity which is incongruent with the purpose of the provision in question.27 In Bertie
Van Zyl this Court emphasised that “a contextual or purposive reading of a statute must
of course remain faithful to the actual wordi ng of the statute”. 28 This principle was
reaffirmed in Oudtshoorn Municipal Council in these words:
“In Bertie van Zyl this Court stated that ‘the purpose of a statute plays an important role
in establishing a context that clarifies the scope and intended effect of a law’. It pointed
26 Bertie Van Zyl (Pty) Ltd v Minister for Safety and Security [2009] ZACC 11; 2010 (2) SA 181 (CC); 2009 (10)
BCLR 978 (CC) at para 21 and Department of Land Affairs v Goedgelegen Tropical Fruits (Pty) Ltd [2007] ZACC
12; 2007 (6) SA 199 (CC); 2007 (10) BCLR 1027 (CC) at paras 51-4.
27 Cool Ideas 1186 CC v Hubbard [2014] ZACC 16; 2014 (4) SA 474 (CC); 2014 (8) BCLR 869 (CC) at para 28.
28 Bertie Van Zyl above n 26 at para 22.
JAFTA J
20
out that a contextual or purposive reading of a statute must remain faithful to the actual
wording of the statute.”29
[60] The High Court here failed to keep fidelity to the language employed in rule 53
despite recognition by that Court that facially the language used does not cover
executive decisions by the President and that at the time the rule was adopted in the
1960s executive decisions were not subject to review and that the rule has not been
amended to cater for the changed circumstances.30 All of this illustrates that there are
good prospects of success which is an additional factor supporting the adjudication of
this appeal.
[61] But of more importance is the fact that if the High Court’s judgment is left intact,
the President would be placed in a very difficult position in future should his decisions
to appoint or dismiss a Minister be challenged on review. The untenable situation he
would find himself in stems from both the scheme of rule 53 and the decision of the
High Court. As stated, under rule 53 once the review papers are served on the President,
he is obliged to submit a record to the Registrar. What triggers this obligation is the
service of the papers.
[62] It is not open to the President to take the view that rule 53 does not apply and
therefore to ignore the rule. It is not for him as a litigant to determine whether the rule
applies or not. That is a function performed exclusively by the courts and here the
President is asking this Court to do just that.
[63] Moreover, the High Court’s judgment is binding on the President. Without
having it set aside on appeal he cannot ignore that judgment. As far as the President is
29 Provincial Minister for Local Government, Western Cape v Oudtshoorn Municipal Council [2015] ZACC 24;
2015 (6) SA 115 (CC); 2015 (10) BCLR 1187 (CC) (Oudtshoorn Municipal Council) at para 13.
30 High Court judgment above n 2 at para 21.
JAFTA J
21
concerned, the High Court has finally settled the issue of the applicability of rule 53 to
reviews pertaining to decisions to dismiss or appoint Ministers.31
[64] What is more unacceptable is the proposition that the President should wait for
a similar review to be brought in future and raise the issue of the applicability of rule 53
there. This would place the President in a position that is at odds with his duty to uphold
the Constitution and all laws. Rule 53 forms part of laws he must uphold. To expect
him to comply with this rule and yet challenge its applicability would be equally
unsustainable. And this challenge would be hampered by the High Court’s judgment
which defines the scope of the rule.
[65] If the President were to fail to despatch the record after receipt of papers in future
proceedings and seek to challenge the applicability of rule 5 3, he would be acting in
conflict with the present judgment of the High Court. But he would not only be in
breach of the judgment, he would be violating section 165(5) of the Constitution which
declares that an order or decision of a court binds organs of state to which it applies.32
There can be no doubt that the judgment of the High Court constitutes a decision on the
applicability of rule 53 which is not affected by the abandonment of the order by the
Democratic Alliance. It is not open to the Presiden t to violate the Constitution, even
for a limited period. Yet a refusal to entertain the merits will expose him to that risk if
he does not follow the decision of the High Court under appeal.
[66] Other factors which favour adjudication of the matter include the incorrect
statements of law in the High Court’s judgment. And what makes it necessary to do so
is the likelihood of a similar dispute arising in future. On a number of occasions this
31 Port Elizabeth Municipality v Smit [2002] ZASCA 10; 2002 (4) SA 241 (SCA) at paras 9-10 and Natal Rugby
Union v Gould [1998] ZASCA 62; 1999 (1) SA 432 (SCA) at 444.
32 Section 165(5) of the Constitution provides:
“An order or decision issued by a court binds all persons to whom and organs of state t o which
it applies.”
JAFTA J
22
Court has held that moot appeals may be entertained to correct wron g statements of
law.33 In AAA Investments the Court declared:
“[I]f we do not consider this aspect of the case, the judgment of the Supreme Court of
Appeal, with all its implications for future regulations, would remain binding. . . .
Neither the judgment of the Supreme Court of Appeal nor that of the High Court can
be said to be unassailable.”34
[67] Superior courts which include the High Court, contribute in the development of
our jurisprudence by stating and clarifying what the law requires in a given case. In our
system once a superior court has declared what a particular law means, all parties
affected by it are expected to follow the law as interpreted by the court. Therefore it is
important that incorrect statements of law in judgments be corrected espe cially where
those statements are, as here, likely to regulate future conduct.
[68] The importance of the matter to the President cannot be questioned. He needs to
know what his procedural obligations are under the Uniform Rules of Court in case his
decision to appoint or dismiss a Minister is challenged. The matter is also of great
importance to the public, not only for the fact that it involves a challenge to the
appointment or dismissal from Cabinet that governs the country but also for the need to
clarify procedural rights of a party who wishes to impugn such decision.
[69] Three factors were advanced as warranting the dismissal of the appeal on the
ground of mootness. The first was that it is generally not in the interests of justice to
grant leave or entert ain an appeal against an interlocutory relief. However, this is not
on point. Here we are concerned with the exercise of discretion to adjudicate a moot
appeal. We are not dealing with the question whether the order granted by the High
Court was appealable. But even if the appealability was in issue, the point would still
33 POPCRU above n 21 at paras 75-81 and AAA Investments above at n 21 at para 21.
34 AAA Investments id at para 21.
JAFTA J
23
be without merit because that order had a final effect. It could not be reversed at the
hearing of the review.
[70] Whilst it is true that the withdrawal of the review application rendered the matter
moot, this cannot be one of the reasons for declining to decide the appeal. This is so
because it is mootness itself that triggers the exercise of discretion. Absent mootness,
there is no discretion to exercise.
[71] Another factor that was advanced against adjudication of the appeal was that the
conclusion by the High Court that rule 53 applies to a review of executive decisions
was not novel. This Court’s attention was drawn to a number of cases where the rule
was applied to executive decision s. But none of them dealt with a decision to appoint
or dismiss Ministers. More importantly none of those cases undertook to interpret
rule 53 to determine its scope. It seems that the courts in those matters simply assumed
that this rule applies. None of them determines the legal basis for applying the rule.
[72] The other factor put forward as not warranting a decision on the merits was that
the determination of the applicability of the rule was bound together with the impugned
decisions. For a number of reasons, I cannot agree with this proposition. First, the rule
regulates procedural issues and not substantive ones. As it appears from its own text, it
governs the process to review a number of specified decisions and proceedings. It can
hardly be argued that its scope of operation is linked to the question of whether a review
of a particular decision is competent.
[73] Second, the scope of the rule may be determined only with reference to its
language. That exercise involves the interpretation of the rul e. Review competence
plays no part in that interpretative process. Simply put, the question whether the review
of the impugned decision was competent has no bearing on the meaning of rule 53.
Moreover, the search for answers to the competence question d oes not lie in rule 53 as
this rule has nothing to do with the power to appoint or dismiss Ministers.
JAFTA J
24
Consequently, the interpretation of the rule does not require any reference to section 91
of the Constitution.
[74] For all these reasons I conclude that it is in the interests of justice to determine
the merits of this appeal in spite of mootness.
Merits
[75] The issue that arises is whether rule 53 applies to a review of the President’s
decision to appoint or dismiss a Minister. The answer to this question lie s in the
interpretation of the rule.
[76] Endumeni Municipality , aptly reminds us of what the interpretation process
entails:
“Interpretation is the process of attributing meaning to the words used in a document,
be it legislation, some other statutory instrument, or contract, having regard to the
context provided by reading the particular provision or provisions in the light of the
document as a whole and the circumstances attendant upon its coming into existence.
Whatever the nature of the document, consideration must be given to the language used
in the light of the ordinary rules of grammar and syntax; the context in which the
provision appears; the apparent purpose to which it is directed and the material known
to those responsible for its production.”35
[77] This is a restatement of well-settled principles of interpretation which require us
to commence with consideration of the language of rule 53 and proceed to take account
of the context in which the rule appears; its purpose and the material known to the
Chief Justice in 1965 when the Uniform Rules were made.36
35 Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; 2012 (4) SA 593 (SCA )
(Endumeni Municipality) at para 18.
36 Government Gazette 999 of 12 January, 1965 . But in 1987 the Rules Board was established and it was given
the responsibility of making rules for courts.
JAFTA J
25
[78] As noted by this Court in a series of cases, section 39(2) of the Constitution
requires that the spirit, purport and objects of the Bill of Rights be promoted in
interpreting legislation that af fects rights guaranteed by the Bill of Rights. 37 But this
promotion of the objects of the Bill of Rights depends on whether the provision under
interpretation is reasonably capable of a meaning that advances a guaranteed right. In
Hyundai Motor Distributo rs38 this Court cautioned against stretching language in an
attempt to promote guaranteed rights. This Court said:
“There will be occasions when a judicial officer will find that the legislation, though
open to a meaning which would be unconstitutional, i s reasonably capable of being
read ‘in conformity with the Constitution’. Such an interpretation should not, however,
be unduly strained.”39
[79] It bears repeating that as we commence the interpretation of the rule, we must
maintain fidelity to its language. It is the language chosen by the rule -maker which
determines the reach of the rule. No amount of purposive interpretation may extend its
scope beyond that language. As far back as 1995, this Court cautioned against a
slovenly approach to language during interpretation. In a unanimous judgment in
Zuma40 the Court stated:
“We must heed Lord Wilberforce’s reminder that even a constitution is a legal
instrument, the language of which must be respected. If the language used by the
lawgiver is ignored in fav our of a general resort to ‘values’ the result is not
interpretation but divination”.41
37 Makate v Vodacom Lt d [2016] ZACC 13 ; 2016 (4) SA 121 (CC) ; 2016 (6) BCLR 709 (CC) at para 88;
Democratic Allia nce v Speaker, National Assembly [2016] ZACC 8 ; 2016 (3) SA 487 (CC) ; 2016 (5) BCLR
577 (CC) at para 132; and Phumelela Gaming and Leisure Ltd v Gründlingh [2006] ZACC 6; 2007 (6) SA 350
(CC); 2006 (8) BCLR 883 (CC) at para 27.
38 Investigating Directorate: Serious Economic Offences v Hyundai Motor Distributors (Pty) Ltd: In Re Hyundai
Motor Distributors (Pty) Ltd v Smit N O [2000] ZACC 12; 2001 (1) SA 545 (CC); 2000 (10) BCLR 1079 (CC)
(Hyundai Motor Distributors).
39 Id at para 24.
40 S v Zuma [1995] ZACC 1; 1995 (2) SA 642 (CC); 1995 (4) BCLR 401 (CC).
41 Id at para 18.
JAFTA J
26
[80] This is the context in which the interpretation of rule 53 must be undertaken.
Meaning of rule 53(1)
[81] Rule 53(1) provides:
“Save where any law otherwise provides, all proceedings to bring under review the
decision or proceedings of any inferior court and of any tribunal, board or officer
performing judicial, quasi-judicial or administrative functions shall be by way of notice
of motion directed and delivered by the part y seeking to review such decision or
proceedings to the magistrate, presiding officer or chairperson of the court, tribunal or
board or to the officer, as the case may be, and to all other parties affected—
(a) calling upon such persons to show cause why s uch decision or
proceedings should not be reviewed and corrected or set aside; and
(b) calling upon the magistrate, presiding officer, chairperson or officer,
as the case may be, to despatch, within fifteen days after receipt of the
notice of motion, to the registrar the record of such proceedings sought
to be corrected or set aside, together with such reasons as he or she is
by law required or desires to give or make, and to notify the applicant
that he or she has done so.”42
[82] It is apparent from the language employed in the rule that it regulates the review
of decisions and proceedings of “any inferior court and of any tribunal, board or officer
performing judicial, quasi-judicial or administrative functions”. The rule requires that
the applicant for revie w must deliver a notice of motion to “the magistrate, presiding
officer or chairperson of the court, tribunal or board or the officer” calling upon “the
magistrate, presiding officer, chairperson or officer to d espatch” to the registrar the
record of proceedings sought to be reviewed within 15 days from the date on which the
notice of motion is received.
[83] A reading of the text reveals that a decision and proceedings to which the rule
applies are those of specified bodies like inferior courts; boards and tri bunals which
42 Rule 53(1) of the Uniform Rules of Court.
JAFTA J
27
perform judicial, quasi-judicial or administrative functions. It does not only single out
bodies whose proceedings and decisions are covered by it, but it also classifies the
functions performed by those bodies. Therefore, for the rule to ap ply, the decision or
proceedings must belong to one of the identified bodies and relate to one of the
classified functions.
[84] The President is not one of the identified bodies nor does he perform one of the
classified functions when he appoints or dismisses Ministers. This is hardly surprising.
At the time the rule was adopted, the exercise of prerogative powers such as appointing
Ministers and dismissing them from Cabinet was beyond judicial control. It was not
competent for courts to review those decisi ons.43 This was known to the Chief Justice
when he made the rule. He could not have intended the rule to cover the President’s
decisions such as the ones we are concerned with here. The rule carefully identifies the
nature of decisions and proceedings to which it applies and the decision-makers it calls
upon to despatch a record of proceedings to the Registrar. These decision -makers do
not include the President.
[85] It cannot be disputed that in its historical context, the rule was not construed to
cover decisions taken by the President in the exercise of prerogative powers. Without
changes in its language, there can be no basis for giving it a new meaning now. It bears
the same meaning regardless of the nature of the decision or proceedings challenged.
And grounds advanced to impugn a particular decision have no bearing on the
interpretation of the rule.
[86] Therefore, I conclude that properly construed rule 53 does not apply to the
review of decisions to appoint or dismiss Ministers from Cabinet. The question whether
those decisions are subject to review accordingly does not arise here and should be left
for determination in appropriate proceedings.
43 Kruger v Minister of Correctional Services 1995 (2) SA 803 (T) at 810; Rapholo v State President 1993 (1) SA
680 (T) at 688; and Smith v Minister of Justice 1991 (3) SA 336 (T) at 340.
JAFTA J
28
[87] But what needs to be stressed at the moment is the fact that under the present
legal order rule 53 does not have the monopoly of regulating procedure in terms of
which the reviews of administrative decisions are prosecuted. This much is evident
from the Promotion of Administrative Justice Act 44 (PAJA) which governs reviews of
administrative action. Section 7 of PAJA requires that special rules be made to regulate
reviews that fall within its ambit. 45 The Rules Board was obliged to make those rules
before 28 February 2009. Until the rules in question came into force, applications for
the review of administrative decisions must be instituted in the High Court. 46 This
means that rule 53 serves as a stopgap. But notably PAJA does not say that in the
High Court review proceedings must be instituted in terms of rule 53.
[88] Accordingly, I would grant leave to appeal and uphold the appeal.
44 3 of 2000.
45 Section 7(3) of PAJA provides:
“The Rules Board for Courts of Law established by section 2 of the Rules Board for Courts of
Law Act, 1985 (Act 107 of 1985), must, before 28 February 2009, subject to the approval of the
Minister, make rules of procedure for judicial review.”
46 Section 7(4) of PAJA provides:
“Until the rules of procedure referred to in subsection (3) come into operation, all proceedings
for judicial review under this Act must be instituted in a High Court or another court having
jurisdiction.”
For the Applicant:
For the First Respondent:
I A M Semenya SC and A Stein
instructed by Bowman Gilfillan
Attorneys
S Budlender and L Zikalala instructed
by Minde Schapiro and Smith
Incorporated