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DA V President - Heads of Argument
DA V President - Heads of Argument
review application in which the applicant seeks to review and set aside the
refused to file the record and reasons for his decision. His stance is that he
not obliged to file the records and reasons is simply wrong as a matter of law.
4 On 31 March 2017 at 12:14 am, the President announced his cabinet reshuffle.
5 On 4 April 2017, two court days later, the applicant launched an urgent
1
Compelling application, FA, para 5, p 7.
2
Compelling application, FA, para 6 p 7, annexure FA3, p 46.
1
6 Given the urgency of the main application, the President was required to
furnish the record and reasons by Tuesday 11 April 2017. This was not done.
terms of Rule 53. There was no suggestion in this correspondence that Rule
53 was inapplicable or that the President did not have to furnish the record.
7.1 On 6 April, the State Attorney requested an extension till 28 April for
the delivery of the record.3 This extension was not granted because
7.2 On 11 April, the State Attorney undertook to file the record on 21 April.
how crucial such a consultation is in order to furnish you and the Court
7.4 However, on 18 April 2017, the President again failed to file the record
3
Compelling application, FA, para 14 p 9; annexure FA4, p 51 (emphasis added).
4
Compelling application, FA, para 15 p 9 - 10; annexure FA5, p 52.
5
Compelling application, FA, paras 18-19 p 10-11; annexure FA6, p 54 55 (emphasis added).
6
Compelling application, FA, para 20 p 11; annexure FA8 p 58.
2
only that we will revert as soon as we have consulted in relation to the
record.7
8 In the circumstances and in view of the urgency of this matter, the applicant
9 Up to that point there had been no suggestion that the President might not file
a record at all or might contend Rule 53 was not applicable. On the contrary,
the position was that the President would file a Rules 53 record, the only
10 This position changed on 21 April 2017. This was the day on which the
President had undertaken to file the record and the day on which his answering
affidavit in this compelling application was due. On that day, first in a letter and
then in an answering affidavit, the President made clear for the first time that
7
Compelling application, FA, para 23 p 12; annexure FA9 p 61.
8
DA FA notice of motion p 1 4.
3
Rule 53 has no application in the present proceedings. As a result,
the applicant is not entitled to the record as envisaged in the Rule.9
seek to avoid or delay complying with his obligations under the Constitution
in its application to compel. We first address urgency and then the Presidents
URGENCY
13 The review application and this compelling application were each launched on
an urgent basis.11
14 We submit that the review application and accordingly this application are
far-reaching nature. For as long as they are not set aside, they will continue to
9
Ibid.
10
Compelling application, AA para 5.2 p 66.
11
The present application was originally enrolled for hearing on 25 April 2017, but was then removed and re-
enrolled for 2 May 2017 to ensure that all papers had been filed in advance in accordance with this Courts
practice.
4
the fact that the dismissal decisions were expressly cited by ratings agency
S&P Global and Fitch in their decisions to downgrade South Africa to junk
15 The Presidents only answer to this is to state that the downgrading has
already taken place14 and contend that any urgency that may have existed
15.1 While S&P and Fitch have made their decisions, there remains a third
of Finance and Deputy Minister of Finance, but has indicated that it will
makes its decision and for that to occur, this compelling application
been recognised by the new Finance Minister who together with a team
12
Compelling application, FA para 9 10 p 8; annexures FA1 p 17 and FA2 p 38.
13
Main application, FA paras 69 71 p 36 - 37
14
Compelling application, AA para 22 p 70.
15
Main application, FA para 61 p 35-36; Compelling application, RA para 13.2 p 83.
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from National Treasury is seeking to meet with Moodys to avert the
16 Beyond this, the President offers no further basis for disputing urgency.
16.1 Indeed, the President has failed in his answering affidavit to deny or
even engage with the key allegations made by the applicant regarding
urgency that:
17 We are instructed that the next date available on the opposed motion roll is
likely only in October 2017. The notion that the applicant and the public should
heard, meaning that the review application will only be heard in 2018, is
16
Compelling application, RA para 13.4 p 83; annexure RA3 p 96 97.
17
Compelling application, FA paras 31 32 p 14
6
18.1 The President has not suggested that he requires further time to
18.2 Even assuming that the ordinary periods in terms of Rule 53 were
applicable, the record was due on 28 April 2017. This means that by
the time this application will be heard, the Presidents dilatory conduct
will have secured him more time than is permitted in terms of the Rules
matter of urgency.
20 The President disputes that the applicant is entitled to the record in terms of
Rule 53 on the basis that the decisions in question are executive decisions
powers granted to the President in terms of sections 91(2) and 93(1) of the
Constitution.20
18
Compelling application, AA para 18 - 19 p 69 70.
19
Compelling application, RA para 11.1 p 79.
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.
Section 93(1) of the Constitution provides:
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22 The fact that the dismissal decisions are executive decisions means that they
are not subject to the Promotion of Administrative Justice Act 3 of 2000. That
action.
23 However, this does not assist the President in this application. Rather, it is now
23.2 Given that the Presidents dismissal decisions are reviewable under
the principle of legality, the record and reasons must be furnished for
principle of legality and the principle of rationality which forms part thereof.21
This is so even when the public power being exercised involves an executive
President may appoint (a) any number of Deputy Ministers from among the members of the National
Assembly; and (b) no more than two Deputy Ministers from outside the Assembly, to assist the
members of the Cabinet, and may dismiss them.
21
See Affordable Medicines Trust and Others v Minister of Health and Others [2005] ZACC 3; 2006 (3) SA
247 (CC) at para 49; Pharmaceutical Manufacturers Association of South Africa and Another: In re Ex Parte
President of the Republic of South Africa and Others [2000] ZACC 1; 2000 (2) SA 674 (CC) at para 20
and Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council and
Others [1998] ZACC 17; 1999 (1) SA 374 (CC).
8
24.1 In Albutt v Centre for the Study of Violence and Reconciliation and
22
Albutt v Centre for the Study of Violence and Reconciliation and Others [2010] ZACC 4; 2010 (3)
SA 293 (CC).
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decision must satisfy all legal requirements, it also means that the
decision should not be arbitrary or irrational26
25 The principle of legality thus constrains the exercise of all public power and
this includes the exercise by the President of his executive powers. More
Ministers and Deputy Ministers in terms of section 91(2) and 93(1) of the
Constitution.
26 Indeed, the President himself accepts that his decision to appoint and dismiss
legality and rationality. This is evident from the Presidents answering affidavit
recently filed in the separate pending matter before the Constitutional Court
26
Democratic Alliance v Ethekwini Municipality 2012 (2) SA 151 (SCA) at paras 20-21 (emphasis added).
27
United Democratic Movement v Speaker of the National Assembly (CCT 89/2017). Compelling application,
RA para 11.3 p 80; annexure RA2 p 92.
28
Emphasis added
29
Emphasis added
10
executive action, it is still subject to a judicial review to determine, inter alia,
whether such decision is lawful, rational and therefore consistent with the
Constitution.
28 Once it is clear that the Presidents dismissal decisions are subject to judicial
review under the principle of legality, it must follow that the applicant is entitled
to be provided with the record and reasons for the decisions. This is ordinarily
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relevant evidential material before court The rule is an
important tool in determining objectively what considerations
were probably operative in the mind of the decision-maker
when he or she made the decision sought to be reviewed. The
applicant must be given access to the available information
sufficient for it to make its case and to place the parties on
equal footing in the assessment of the lawfulness and
rationality of such decision.32
30.1 It ensures that review applications are not conducted in the dark
copies of the relevant documents for them to make out their case; and
31 The President contends that that Rule 53 is not applicable to a review of his
decision. It is not clear on what basis he does so. However, to the extent that
32
Helen Suzman Foundation at para13.
33
Turnbull-Jackson v Hibiscus Court Municipality and Others 2014 (6) SA 592 (CC),
34
Turnbull-Jackson at 37.
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the suggestion is that Rule 53 is not applicable to executive acts, this
of South Africa.35
32.3 Far from holding that Rule 53 was inapplicable to executive decisions,
the SCA held the very opposite. It concluded that the appellants had
32.4 The SCA returned to this point later on its judgment. It rejected the
The justification for the new case was the fact that they did not
have the government's internal documents when the application
was launched. The answer to this is that had they bothered to follow
Uniform Rule 53, they would have had the documents before the
35
Van Zyl and Others v Government of Republic of South Africa and Others 2008 (3) SA 294 (SCA)
36
Van Zyl at para 77.
37
Van Zyl at para 36 (emphasis added)
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answering affidavit was filed; they would have been entitled to
amplify their founding affidavit; and the case would have proceeded
in an orderly manner and without complications.
35 Even if there were any doubt on the question of whether Rule 53 applied, this
would still not assist the President. This is because even if Rule 53 were
35.1 This is made clear by the decision of the SCA in Democratic Alliance
35.2 There, the SCA considered whether Rule 53 applied to the review
38
In discussing Rule 53, the work at B53.3 explains that the meaning of review in the rule has changed in the
light of constitutional principles. It emphasizes that courts may subject any exercise of public power to
constitutional review under rule of law principle and the term review refers to the power conferred upon a
court to assess whether state or public power has been exercised in accordance with the principle of legality ie
whether such power has been exercised lawfully, rationally and in good faith.
39
Democratic Alliance and Others v Acting National Director of Public Prosecutions and Others 2012 (3) SA
486 (SCA).
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discontinue prosecutions and therefore whether the record of the
35.3 The SCA noted the wording of Rule 53 and noted that Uniform Rule
35.4 However, having considered the history of the Rule as the primary
36 Accordingly, once it is clear that the applicant can seek to review Presidents
dismissal decisions under the principle of legality, it follows that the President
or, if Rule 53 is inapplicable for any reason, in terms of this Courts inherent
power.
40
Democratic Alliance at para 35.
41
The Court quoted section 173 of the Constitution: The Constitutional Court, the Supreme Court of Appeal
and the High Court of South Africa each has the inherent power to protect and regulate their own process,
and to develop the common law, taking into account the interests of justice.
42
Democratic Alliance at para 37 (emphasis added)
15
37 This obligation extends not only to the records of the dismissal decisions (i.e.
the documents that were before the President in taking his decisions), but also
to give or make.43
37.2 Once it is clear that the Presidents decision is subject to legality and
37.3 As the SCA explained in the context of a review of the decision of the
43
Emphasis added
16
be able to rebut the defence by the decision-maker: Trust me, I
have good reasons, but I am not prepared to provide them?
Exemption from giving reasons will therefore almost invariably
result in immunity from an irrationality challenge. I believe the same
sentiment to have been expressed by Mokgoro and Sachs JJ when
they said in Bell Porto School Governing Body v Premier, Western
Cape [2002] ZACC 2; 2002 (3) SA 265 (CC) para 159:
The duty to give reasons when rights or interests are affected
has been stated to constitute an indispensable part of a sound
system of judicial review. Unless the person affected can
discover the reason behind the decision, he or she may be
unable to tell whether it is reviewable or not and so may be
deprived of the protection of the law.44
37.4 The same two premises relied on by the SCA are plainly present here.
accountability.
37.5 It follows that the President is required to provide the reasons for his
dismissal decisions.
38 The facts of the present case demonstrate why it is so essential that the
President provides the records and reasons for the dismissal decisions.
38.1 Only the President knows what documents and facts he relied on in
38.2 In this regard, a key question in the review application is whether and
44
Judicial Service Commission and Another v Cape Bar Council and Another 2013 (1) SA 170 (SCA) at paras
43-44
17
Report in making his dismissal decisions. That will only become clear
once the record and reasons are furnished. The applicant is entitled to
38.3 The founding affidavit in the review application quotes what has been
stated in public by very senior government and ANC officials about the
taking his decision. 45 But the applicant does not know whether this is
so and, if so, what form the intelligence report took. If a record is not
furnished, there is no way for the applicant and this Court to assess
what were the real facts relied on by the President and what may be
RELIEF
39 We submit that the the relief sought in prayers 2.1 and 2.2 of the application
should be granted. The applicant should also be awarded its costs, including
STEVEN BUDLENDER
LERATO ZIKALALA
45
Compelling application, RA para 26 p 88-89
46
Trustees for the Time Being of the Biowatch Trust v Registrar, Genetic Resources 2009 (6) SA 232 (CC).
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