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[2018] ZASCA 79
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President of the Republic of South Africa v Democratic Alliance and Others (664/17) [2018] ZASCA 79 (31 May 2018)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not reportable
Case No: 664/17
In
the matter between:
THE PRESIDENT OF THE
REPUBLIC OF
SOUTH
AFRICA
APPELLANT
and
DEMOCRATIC
ALLIANCE
1
st
RESPONDENT
PRAVIN JAMNADAS
GORDHAN
2
nd
RESPONDENT
MCEBISI
HURBERT
JONAS
3
RD
RESPONDENT
MALUSI NKANYEZI
GIGABA
4
TH
RESPONDENT
SFISO
NORBERT
BUTHELEZI
5
TH
RESPONDENT
Neutral
Citation:
The
President of the RSA v DA & others
(664/17)
[2018] ZASCA 79
(31 May 2018)
Coram:
Maya P and Majiedt and Dambuza JJA
and Plasket and Mothle AJJA
Heard:
2 May 2018
Delivered:
31 May 2018
Summary:
Section 16(2)(a)(i)
Superior Courts Act 10 of 2013
– Appeal against an
interlocutory order in a review application – review
application withdrawn – judgment would
have no practical effect
or result – Appeal found moot and dismissed.
ORDER
On
appeal from
: The
High Court, Gauteng Division, Pretoria (Vally J) sitting as court of
first instance:
The
appeal is dismissed with costs including the costs of two counsel.
JUDGMENT
Mothle
AJA (Maya P, Majiedt and Dambuza JJA and Plasket AJA concurring)
[1]
What started as a case of major public interest ended up being
overtaken by new developments before it was heard. This appeal,
with
leave of the High Court, Gauteng Division, Pretoria (Vally J), arises
from
an interlocutory application in which the President of the Republic
of South Africa (appellant) was ordered to make available
to the
Democratic Alliance (respondent), a record of decision requested in
terms of rule 53 of Uniform Rules of the Court, pending
an
application for review of the appellant’s decision to reshuffle
the cabinet, (the review application). The review application
was
withdrawn. Therefore, the crisp issue raised by this appeal is
whether
the decision or relief sought would have any practical effect or
result or, stated otherwise, whether the appeal has not
become
moot.
[1]
[2]
The principle of mootness has evolved over the years and is now
provided for in s 16(2)(
a
)(i)
of the
Superior Courts Act 10 of 2013
,
[2]
which 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.’
[3]
The factual matrix is
briefly
that on 31 March 2017, the then President of the Republic of South
Africa, President Jacob Zuma, announced a cabinet reshuffle
and in
the process removed the then Minister of Finance, Mr Pravin Gordhan,
as well as his deputy, Mr Mcebisi Jonas, both cited
as second and
third respondents respectively.
The second and third
respondents were replaced by Mr Malusi Gigaba and Mr Sfiso Buthelezi
(also cited as the fourth and fifth respondents
in the review
application) as new Minister and Deputy Minister of Finance,
respectively.
[4]
On 4 April 2017, the respondent launched the review application,
challenging the constitutional validity of the appellant’s
reshuffle of the cabinet, which resulted in the dismissal of Mr
Gordhan and Mr Jonas. The review application was brought in terms
of
rule 53
of Uniform Rules of Court. The rule permits an applicant to
call ‘upon the magistrate, presiding officer, chairperson or
officer, as the case may be, to dispatch, 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.
[5]
The respondent alleged that through rule 53, it sought
,
amongst other relief, disclosure of the record of the appellant’s
decision to effect the cabinet reshuffle. The respondent
particularly
called for disclosure of an alleged ‘intelligence report’,
the existence of which, it is alleged, was
in the public domain.
[6]
It was common cause between the parties that after the exchange of
correspondence, the appellant failed to make available the
record
sought. The respondent then approached the High Court by way of
urgency, seeking relief to compel the appellant to make
available the
record in order to prosecute its review application. The High Court
accepted that there was no precedent which served
as authority that
rule 53, applies to executive decisions. In its judgment the High
Court stated that it had applied the purposive
method of
interpretation to conclude that rule 53 also covered executive
decisions and thus ordered disclosure of the record. The
appellant
successfully applied to the High Court for leave to appeal the ruling
to this Court.
[7]
After the lodging of the appeal documents and the allocation of the
date of hearing, circumstances changed. First, President
Jacob Zuma,
whose cabinet reshuffle was being challenged, resigned from office.
Secondly, the new President, Mr Cyril Ramaphosa,
effected a cabinet
reshuffle. Thirdly, on 18 April 2018 this Court was informed that the
review application before the High Court
had, by agreement between
the parties, been withdrawn.
[8]
The following day, on 19 April 2018, the parties were directed in
writing to file written submissions on ‘why the appeal
against
a judgment on an interlocutory issue should be entertained when the
main proceedings, the review application, has been
withdrawn’.
Both the appellant and the respondent
delivered written submissions.
[9]
In his written submission and at the hearing of the appeal, the
appellant, arguing against mootness, contended that the order
of the
High Court established a precedent which extends the ambit of rule 53
to cover executive functions. In so doing, it was
argued that the
High Court usurped the powers of the Rules Board as the only body
authorised to effect changes to the rule. In
establishing this
precedent, the argument continued, the High Court impermissibly
encroached into the terrain of the other branches
of government in
breach of the doctrine of separation of powers. The decision was
described by appellant’s counsel as ‘ground-breaking’
and needed to be corrected as it posed an uncertainty for future
cabinet reshuffles or the reshuffles of provincial executive councils
by the Premiers. There was further argument on the merits of the
appeal, which in my view are irrelevant for consideration of the
question of mootness.
[10]
The respondent argued that the matter was moot mainly for two
reasons. First, the review application had been withdrawn and
thus
the order sought would have no practical effect. Secondly, generally
an interlocutory order is not appealable. Therefore the
appellant
still has to seek the court’s indulgence to prosecute the
appeal. In response to the submissions of the appellant
that the
decision of the High Court is ground-breaking and unprecedented, the
respondent pointed to a number of decisions where
the courts have
applied rule 53 in circumstances that appear to be extending its
scope and ambit, including where it concerned
executive functions. I
now turn to deal with these submissions.
[11]
The question of mootness of an appeal has featured repeatedly in this
and other courts.
[3]
These cases demonstrate that a court hearing an appeal would not
readily accept an invitation to adjudicate on issues which are
of
‘such a nature that the decision sought will have no practical
effect or result’. The Constitutional Court in
National
Coalition for Gay and Lesbian Equality & Others v Minister of
Home Affairs
2000 (2) SA 1
(CC) para 21 footnote 18 remarked:
‘
A
case is moot and therefore not justiciable if it no longer presents
an existing or live controversy which should exist if the
Court is to
avoid giving advisory opinions on abstract propositions of law. Such
was the case in
JT
Publishing (Pty) Ltd and Another v Minister of Safety and Security
and Others
[1996] ZACC 23
;
1997
(3) SA 514
(CC)
(1996 (12) BCLR 1599)
, where Didcott J said the
following at para [17]:
“
(T)here
can hardly be a clearer instance of issues that are wholly academic,
of issues exciting no interest but an historical one,
than those on
which our ruling is wanted have now become.”
[12]
There are instances where there have
been
exceptions to the provision, initially of s 21A of Act 59 of
1959 and presently s 16(2)(
a
)(i)
of the
Superior Courts
Act
10 of 2013
. The courts have exercised a discretion to hear a matter
even where it was moot. This discretion has been applied in a limited
number of cases, where the appeal, though moot, raised a discrete
legal point which required no merits or factual matrix to resolve.
[4]
In this regard, the Constitutional Court in
Independent
Electoral Commission v Langeberg Municipality
[2001] ZACC 23
;
2001 (3) SA 925
(CC), in paragraph 11 held:
‘…
A
prerequisite for the exercise of the discretion is that any order
which this Court may make will have some practical effect either
on
the parties or on others.’
The
question is thus whether such a discretion should be exercised in
this case.
[13]
The appellant submitted that in future there could develop a class or
classes of presidential executive functions where disclosure
of
records as stated in
rule 53
would not apply.
In reply,
appellant narrowed its argument in support of a request for a ruling
by this court to decide on the applicability
of
rule 53
to executive
functions concerning the reshuffling of cabinet. The essence of
appellant’s argument against mootness as I understood
it is
twofold. First, that there is a need to set aside the decision of the
High Court as it established a wrong precedent on the
applicability
of
rule 53
to disclosure of the records relating to a reshuffling of
cabinet, and secondly, the need for a ruling in order to provide
guidance
for future reshuffling of cabinets.
[14]
In support of the submission that the appeal is not moot, the
appellant made the argument that the decision of the High Court
is
unprecedented and therefore even in the absence of the review
application, there is a compelling reason for this Court to
intervene.
The respondent in answer, contended that the decision of
the High Court is not unprecedented and there is no compelling reason
for this court to pronounce on a matter that is moot. Instances were
cited where this Court and the Constitutional Court had interpreted
rule 53
to be applicable to decisions arising from the discharge of
executive functions and to decisions of other constitutional organs
of state. By way of example, reference was made to the matter of
Van
Zyl and Others v Government of the Republic of South Africa and
Others
2008 (3) SA
294
(SCA), in which this Court held in a judicial review of an
executive decision that the parties were required to follow
rule 53.
Further, in the recent Constitutional Court decision in
Helen
Suzman Foundation v Judicial Service Commission
[2018] ZACC 8
(24 April 2018), which concerned a review of a decision
of the Judicial Service Commission regarding the appointment of
judges.
The Constitutional Court found that
rule 53
applied, and
the Judicial Service Commission was ordered to provide a full record
of its decision. Therefore in my view, the decision
of the High Court
does not establish a kind of precedent that may cause this Court to
decide on the appeal, even if it is moot.
[15]
As stated above, the purpose of the interlocutory application
compelling disclosure of the record was clearly intended to enable
the respondent to prosecute its review application. 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 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. This Court stated in paragraph 31 of the judgment in
Legal-Aid South Africa v Mzoxolo Magidiwana (1055/13)
[2014] ZASCA
141:
2015 (2) SA 568
(SCA)
:
‘ …
The
appeal 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 need to be resolved in the near
future.’
[16]
The appellant raised, as one of its grounds of attack, the submission
that the High Court in extending
rule 53
through its interpretation,
veered impermissibly into the terrain of the Rules Board, in breach
of the doctrine of separation of
powers. If this argument is correct,
then it would equally apply to this Court. The correct approach is
that the task of developing
the rules is best left for the Rules
Board. This Court has pronounced on this position. In
ABSA Bank
Limited v Van Rensburg and Another: In Re: ABSA Bank Limited v Maree
and Another
2014 (4) SA 626
(SCA), The Court said in para 11 of
the judgment:
‘
At
stake is the precise requirement of a rule of court procedure.
Bearing in mind that
section 21A
was aimed at reducing the heavy
workload of appellate courts, it is very relevant that there is a
statutory body specially created
to deal with all issues pertaining
to matters of this nature, as pointed out by Absa itself. The Rules
Board for Courts of Law
Act 107 of 1985 (the Rules Board Act) is
chiefly aimed as providing “for the making of rules for the
efficient, expeditious
and uniform administration of justice in the
Supreme Court of Appeal, High Courts and Lower Courts”. This
object is achieved
through the Rules Board for Courts of Law (the
Rules Board) which is empowered, inter alia, “from time to time
on a regular
basis [to] review existing rules of Court and subject to
the approval of the Minister, make, amend or repeal rules ….
Regulating
the practice and procedure in connection with litigation …
[and] the form, contents and use of process.” The present
question falls squarely within this ambit and any uncertainty
relating to the relevant rule’s application should rightly
be
resolved by the Rules Board.’
[17]
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.
[18]
The merits of the appeal were argued in full. However, in
consideration of the position I take on the mootness of this appeal,
I refrain from expressing a view on the merits.
[19]
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 appellant, within the
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.
[20]
In the result I make this order:
The
appeal is dismissed with costs including the costs of two counsel.
_____________________
S
P Mothle
Acting
Judge of Appeal
APPEARANCES:
For
Appellant: I A
M Semenya SC
M
Sikhakhane SC
M
Sello
Instructed
by:
The
State Attorney, Pretoria
The
State Attorney, Bloemfontein
For
1
st
Respondent: S Budlender
L
Zikalala
Instructed
by:
Minde
Schapiro Smith Inc, Bellville, C/o Klagsbrun Edelstein, Nieuw
Mucklneuk
Symington
& De Kok, Bloemfontein
For 4
th
&
5
th
Respondents:
The
State Attorney, Pretoria
The
State Attorney, Bloemfontein
[1]
In effect
the appeal faced two hurdles, first the fact that it was an appeal
on a ruling concerning an interlocutory application
and secondly the
question of mootness. The mootness question took precedence.
[2]
This text
appeared in section 21A of the repealed Supreme Court Act 59 of
1959.
[3]
See
John
Walker Pools v Consolidated Aone Trade and Invest 6 (Pty) Ltd (in
Liquidation) & another
(245/2017)
[2018] ZASCA 012
(8 March 2018;
SA
Metal Group (Pty) Ltd v The International Trade Administration
Commission
(267/2016)
[2017 ZASCA 14
(17 March 2017);
Legal
Aid South Africa v Mzoxolo Magidiwana
(1055/13)
[2014] ZASCA 141
(26 September 2014) and cases cited
there.
[4]
See
Natal Rugby Union v
Gould
1999 (1) SA 432
(SCA).
[5]
Ibid.