Executive decisions judgment reserved
PRESIDENT Cyril Ramaphosa has asked the Constitutional Court to exempt him from being compelled to produce records to prove the rationality of his executive decisions, including cabinet appointments and reshuffles.
He approached the apex court to appeal the decision by the High Court in Pretoria, which ordered then-president Jacob Zuma to release the record and reasons that led to his decision to axe former finance minister Pravin Gordhan and his then-deputy, Mcebisi Jonas, in March 2017.
The ruling came after the DA approached the court to demand the record through rule 53 of the Uniform Rules of Court, mainly aimed at record disclosures of decisions which were to be reviewed. It also wanted Zuma’s decision to be declared as irrational and set aside, claiming it was based on a fake intelligence report.
Yesterday advocate Ishmael Semenya, for Ramaphosa, said that while his client accepted that his executive decisions had to be legal and rational, they were exempt from the rule.
He 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.
“We must at the very 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.
The Supreme Court of Appeal dismissed an appeal against the ruling on the basis of mootness as it said Zuma was no longer president, but Ramaphosa approached the Concourt as he said the High Court ruling had created a wrong precedent.
Semenya said Ramaphosa’s executive powers were already being challenged by the DA following 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 or have not remained in cabinet and whether the decision to keep her… is rational or not.”
Semenya said this created uncertainty ahead of the elections, where 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 rational and in compliance with the principle of legality.
“If we accept, as we must, 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,” Budlender said.
Chief Justice Mogoeng Mogoeng said there were politics involved in cabinet changes 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 that are there.”
The judgment is reserved.