President says ConCourt ruling will cause problems
PRESIDENT Cyril Ramaphosa has told the Constitutional Court the ruling that compelled his office to produce records to prove the rationality of his executive decisions – including cabinet reshuffles – would create problems for him.
Ramaphosa approached the apex court to appeal against a ruling by the North Gauteng High Court which ordered that then president Jacob Zuma release the record of his decision for firing former finance minister Pravin Gordhan and his then deputy, Mcebisi Jonas, in March 2017.
The Supreme Court of Appeals dismissed an appeal against the ruling, on the basis of muteness as it said Zuma was no longer president, but Ramaphosa approached the apex court as he said the high court ruling created the wrong precedent.
The DA lodged the case in a bid to have Zuma’s decision declared irrational and set aside, claiming it was based on a fake intelligence report. The party also wanted the record of Zuma’s decision through rule 53 of the Uniform Rules of Court.
Advocate Ishmael Semenya, acting for Ramaphosa, said Ramaphosa’s executive powers were already being challenged by the DA since the ruling.
“We already have an application that seeks to question the cabinet reshuffle by the incumbent president. The application relates to whether Minister Bathabile Dlamini should have remained in cabinet and whether the decision to keep her by the incumbent president is rational,” he said.
Semenya said while his client accepted that his executive decisions had to be legal and rational, they were exempt from the rule.
Semenya said the executive decision to change the cabinet did not fall under rule 53, which he said was intended for judicial, quasi-judicial and administrative decisions which were preceded by documented proceedings before they were taken.
“There must be a record of such proceedings sought to be corrected or set aside together with such other reasons. We must at the beginning highlight the point that a decision taken in terms of section 91(2) (of the Constitution) is not a decision that comes as a consequence of proceedings before it,” Semenya said.
He said this created uncertainty before the general elections, when Ramaphosa would have to form a new cabinet.
Advocate Steven Budlender, for the DA, said the judicial reviews pursued by the DA were aimed at ensuring that the exercise of public power was in compliance with the principle of legality and were rational.
“If we accept that there is a review for rationality in cabinet appointments, the only debate is about the mechanism. You cannot have a meaningful debate about rationality without the record. This court has said again and again that every exercise of executive power has to be rational,” he said.
Chief Justice Mogoeng Mogoeng said cabinet changes involved politics which made the assessment of the decision relating to it complex. “I am worried that this may not be a simple and straightforward thing where you look at a section and arrive at a conclusion. It appears that there are some complexities,” he said.
Judgment was reserved.