SCA dismisses Ramaphosa's appeal against Zuma being forced to disclose reasons for Cabinet reshuffle

2018-05-31 20:24
Former President Jacob Zuma (Gallo Images)

Former President Jacob Zuma (Gallo Images)

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The Supreme Court of Appeal (SCA) has dismissed the Presidency's leave to appeal a ruling over the release of records explaining former president Jacob Zuma's controversial March 2017 Cabinet reshuffle.

"...the relief sought by the appellant (Presidency) will not have any practical effect or result. The appeal must therefore be dismissed," the SCA ruled on Thursday.

Zuma had previously approached the SCA to appeal the ruling by the North Gauteng High Court in Pretoria which ordered him to hand over records explaining his reshuffle.

ALSO READ: Rules of court support DA's application to review Cabinet reshuffle decision

However, when Zuma stepped down from his position President Cyril Ramaphosa continued to pursue the matter, in order for the High Court ruling not to set a precedent for future Cabinet reshuffles made by a sitting president.

The case stems from Zuma's infamous late-night reshuffle on March 31, 2017 which saw Pravin Gordhan axed as finance minister along with his deputy Mcebisi Jonas, among others.

At the time, a "dodgy" intelligence report was alleged to have sparked the reshuffle that resulted in Zuma demanding that Gordhan cut short his investor roadshow abroad and return home.

Decision deserving of 'protection from disclosure'

The DA then launched a review application, challenging the constitutional validity of Zuma's reshuffle on April 4, 2017.

The review application was brought in terms of rule 53 of Uniform Rules of Court. The rule governs High Court proceedings and was established to regulate procedures to be followed in cases of all types of reviews, whether based on statutory or common law.

Zuma described this as an abuse of court processes and argued he was exercising his powers in terms of section 91 (2) of the Constitution – giving him the prerogative to choose his executive.

He said that changing his Cabinet was an executive decision that deserved protection from disclosure.

The DA alleged at the time that through rule 53, it sought, among other relief, disclosure of the record of Zuma's decision of his Cabinet reshuffle.

The SCA said its decision to dismiss the Presidency's appeal was because the circumstances had changed since the lodging of the appeal documents and the allocation of the date of hearing.

Firstly, Zuma - whose Cabinet reshuffle was being challenged - had resigned from office; secondly, new president Ramaphosa had also effected a Cabinet reshuffle; and thirdly, on April 18 the court was informed that the parties had agreed to withdraw the review application before the High Court.

No precedent, says court

A day after the withdrawal, both parties were directed to file written submissions on why the appeal against a judgment on an interlocutory issue should be entertained when the review application had been withdrawn.

"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," the SCA said.

In its ruling, the SCA found that there was no compelling reason why it should exercise its discretion when objective facts were "to conclusively determine the ambit of rule 53 when the Rules Board is mandated to do so".

It said as interesting as the debate may be, the SCA 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.

Weakness in Zuma case

"The correct approach is that the task of developing the rules is best left for the Rules Board."

The SCA said it would be "unwise" for it to opine on the interpretation of a rule in the absence of objective facts and contexts raised in the review application.

High Court Judge Bashier Vally had previously explained that most of the cases where rule 53 was applied involved a decision or proceedings of an inferior court, a tribunal, a board, or an officer performing judicial, quasi-judicial or administrative functions, and not an executive decision.

Zuma had relied on this to contend that the provisions of rule 53 did not apply to an application to review his executive decision to reshuffle his Cabinet.

The weakness in Zuma's case was that he had relied on the literal interpretation of the rule, Vally said.

He said it was true that rule 53 had not been amended to cater for this, but to decide on its applicability to review executive decisions it was necessary to subject the rule to a purposive interpretation.

The rule could thus be applied to a bid to review and set aside an executive order or decision, Vally said.

In court papers, Zuma had said that the DA's urgent application to have reasons for his Cabinet reshuffle divulged was misconceived and without merit.

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