UPDATE | President must pay costs, ConCourt dismisses Ramaphosa leave to appeal application

President Cyril Ramaphosa. (Gallo Images/Sowetan/Esa Alexander)
President Cyril Ramaphosa. (Gallo Images/Sowetan/Esa Alexander)

President Cyril Ramaphosa has been ordered to pay costs in an application for leave to appeal a High Court ruling on the disclosure of records of decisions relating to the review of Cabinet changes.

The matter dates back to 2017 when the DA approached the Gauteng High Court in Pretoria after former president Jacob Zuma's infamous midnight Cabinet reshuffle in which then finance minister Pravin Gordhan and his deputy, Mcebisi Jonas, were fired.

The DA challenged the constitutional validity of the reshuffle in terms of Rule 53 of the Uniform Rules of Court. It argued at the time that, through Rule 53, it sought, among other relief, the disclosure of the record of Zuma's decision.

The party succeeded.

READ: High Court dismisses DA bid to halt Cabinet reshuffle

However, after Ramaphosa was appointed, the Presidency took the matter further to the highest court in the land to clarify whether Rule 53 was applicable when it came to executive decisions.

On Wednesday, in a majority judgment penned and handed down by Chief Justice Mogoeng Mogoeng, Ramaphosa's application was dismissed and he was ordered to pay costs.

ALSO READ: Cabinet reshuffle: ConCourt dismisses Presidency's leave to appeal application

Justice Mogoeng said that in the majority judgment, it was held that it was not in the interests of justice to grant leave to appeal.

"Not only because the issue is moot but also because the order sought to be appealed against is interlocutory in character," he said.

This was further explained in the full judgment, where it stated that the interlocutory nature of the order and its mootness created a force that was "fatal" to the prospects of the court exercising its discretion in the president's favour.

Justice Mogoeng further said that, in his understanding, the president's "thirst" for clarity and certainty would not be quenched by a judgment that merely resolved to question if the Rule 53 was wide enough to apply to executive decisions.

"Here, the main application to which the interlocutory order owes its life, has been withdrawn and it is in the main application that the reviewability of the president's decision and the merits of the application would have been decided," he said, adding that interlocutory orders were ordinarily not appealable, even when the main application was not withdrawn.

"This is not a case where the interests of justice require that we exercise our discretion to decide a moot issue," he wrote.

However, all is not lost.

The judgment stated that in the future, when the president's decision to appoint or dismiss is questioned, the matter would be confronted and challenged properly and solid guidance will be provided by the Constitutional Court.

Presidency spokesperson Khusela Diko noted the court did not make any determination on the substantive issues that the Presidency sought to get the court to make a decision on.

"To this end, therefore, we welcome the court’s own assertion, using their words, that when a decision is taken by the President in future to change ministers or deputy ministers and he is asked to provide information – a record and reasons for that decision – it would then be open to him to confront that challenge."

Diko continued, "This is a matter that the Presidency will continue to peruse if and when that situation should arise in the future."

- additional reporting by Azarrah Karrim

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