CCT CASE NO:
SCA CASE NO: 664/2017
In the matter between:
PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA Appellant (First Respondent a quo) and
DEMOCRATIC ALLIANCE First Respondent
(Applicant a quo) PRAVIN JAMNADAS GORDHAN Second Respondent MCEBISI HURBERT JONAS Third Respondent MALUSI NKANYEZI GIGABA Fourth Respondent SIFISO NORBERT BUTHELEZI Fifth Respondent
ANSWERING AFFIDAVIT
I, the undersigned
JAMES SELFE
do hereby make oath and say:
1 I am the Chairperson of the Federal Executive of the respondent (“the DA”). I am duly authorised to depose to this affidavit on its behalf.
2 The facts herein contained are, save where otherwise stated, within my own personal knowledge and are to the best of my knowledge and belief both true and correct. Insofar as I make legal submissions, such submissions are made on the advice of the applicant’s legal representatives, which advice I believe to be correct.
OVERVIEW OF GROUNDS OF OPPOSITION
3 This affidavit is filed in answer to the application for leave to appeal filed by the President against the judgment of the Supreme Court of Appeal in this matter.
4 The appeal concerns an interlocutory order granted by the High Court in the context of an application to review the decisions by then President Zuma to dismiss then Minister of Finance, Pravin Gordhan, and then Deputy Minister of Finance, Mcebisi Jonas. I refer to these decisions as “the dismissal decisions”.
5 In this affidavit, I set out the two bases upon which the application should be dismissed. By way of outline, they are as follows.
6 First, the matter is entirely moot.
6.1 The interlocutory order at issue compelled the President to furnish the record and reasons for the dismissal decisions.
6.2 It is quite plain that the interlocutory order sought to be appealed against has now ceased to have any effect between the parties. It is truly moot.
6.3 While I accept that this Court has a discretion to decide appeals in moot appeals where the interests of justice so require, I submit that this is not such a case.
6.4 The President has advanced no proper basis for this Court to take the extraordinary step of becoming embroiled in a moot and interlocutory dispute.
7 Second, and in any event, the proposed appeal bears no prospects of success.
This is because the President’s contentions suffer from a fatal flaw.
7.1 The President conceded before the High Court and the SCA that the dismissal decisions were subject to review in terms of the principle of legality, which applies to all exercises of public power.
7.2 Yet, despite this concession, the President insists that there was no duty to file a record or provide reasons for his decisions.
7.3 This stance is simply untenable. Repeated decisions of this Court make clear that a record and reasons are essential elements of any judicial review process. Having rightly conceded that the decisions are subject to judicial review on the grounds of irrationality, the President could not resist providing the record and reasons.
7.4 I emphasise that President Zuma did not resist the interlocutory application on the basis that there was in fact no record for the dismissal decisions. He implicitly accepted that there was a record but
declined to provide it or to provide any reasons for the dismissal decisions. This stance was, with respect, untenable.
8 In the circumstances, I respectfully submit that the application for leave to appeal falls to be dismissed, with costs.
9 In what follows, I deal with these two issues in turn. Given the nature of the application I do not deal with the submissions and allegations made in the founding affidavit ad seriatim. This must not be understood as any concession as to the correctness of any such submission or allegation.
MOOTNESS AND THE INTERESTS OF JUSTICE
10 The decision of President Zuma on 31 March 2017 to dismiss Minister Gordhan and Deputy Minister Jonas had extraordinarily serious consequences for the country and the economy. It was for that reason that the DA sought urgently to review that decision.
11 Since then, however, the factual position has changed. The President has changed, the Minister of Finance has changed and the Deputy Minister of Finance has changed.
12 The application to review the decision to dismiss Minister Gordhan and Deputy Minister Jonas therefore became moot and it was unnecessary to proceed with
it. The DA accordingly withdrew the application for review, with President Ramaphosa’s express consent.
13 In this Court, the President argues that “the appeal had not become moot as it concerned a discreet and live matter”1 and that it did not fall within the purview of section 16(2)(a)(i) of the Superior Courts Act2 thereby warranting a consideration of the merits by the SCA.
14 There is no merit to this submission.
14.1 It is quite clear that the interlocutory order made by the High Court is entirely moot and has no effect between the parties.
14.2 The review application has been withdrawn. The DA accepted before the SCA and accepts again that the interlocutory order granted by the High Court cannot be enforced – it has ceased to have any effect.
15 I accept, of course, that this Court (and the SCA) have a discretion regarding whether to hear appeals in moot matters. This discretion is to be exercised “in the interests of justice”. However, for this Court to be persuaded to hear an appeal against a moot interlocutory order would require the most extraordinarily compelling circumstances. Nothing raised by the President meets this bar.
16 The President advances two arguments in that regard:
1 Founding Affidavit (FA) para 19.
2 10 of 2013.
16.1 First: that the High Court’s order was significant and precedent-setting and that “the chilling effect of the judgment and order of the court a quo as they stand, if not appealable, is that the judgment and order will be binding in relation to all executive decision and remain outside the correction by another court.”3
16.2 Second: the High Court’s order is “extremely far-reaching” in that it entails an “amendment” of Rule 53 because it applies the Rule to entities, other than those whose decisions and proceedings the Rule specifically lists. Thus by interpreting the Rule purposively the High Court is said to have arrogated to itself the rule-making function of Parliament and thus breached the separation of powers.4
17 With respect, neither contention is sustainable.
18 In respect of the first contention:
18.1 The High Court order does not “bind” any other court. It is an order made by a single judge of one division of the High Court. In future cases, it will at most be of persuasive value. Even another single judge sitting in the Pretoria High Court would not be “bound” by the judgment in the present matter – he or she would be able to depart from that judgment if satisfied it was wrong.
3 Founding affidavit paras 48.
4 Founding affidavit paras 41 – 46.
18.2 Similarly, the SCA judgment did not decide the merits of the appeal at all. It took great pains to emphasise that in view of its conclusion on mootness, it “refrained from expressing a view on the merits”.5 Accordingly, the SCA judgment does not decide the merits issue.
18.3 It is this clear that if this Court declines to deal with the appeal, no
“binding precedent” will be created at all.
19 In respect of the second contention:
19.1 Even if it assumed that the High Court judgment “breached separation of powers” by dealing with a matter within Parliament’s domain, this would not be a basis for deciding a moot appeal. This is because, as I have already explained, the High Court judgment does not create any binding precedent and it will be open to the President, in a future case, to seek to argue that the High Court judgment is incorrect.
19.2 But more importantly, there is no basis at all for the contention the High Court breached separation of powers by dealing with a matter within Parliament’s domain. The High Court did no more than interpret Rule 53 purposively and generously, in light of our present constitutional dispensation.
5 SCA judgment, para 18
19.3 That is precisely what this Court has held is required when it comes to interpreting Rules of Court. It did so in PFE International,6 where it had to give an interpretation to Rule 38 and held:
“If the literal approach to construing rule 38(1) were correct, the argument advanced by the applicants would have merit. But the rule must be generously and purposively interpreted so as to give the holders of the right the fullest protection they need.”
…
The Supreme Court of Appeal rejected the narrow, literal reading of the Rule and opted for a construction that promotes wider access to information. This construction is also in line with the purpose for the exclusion of PAIA in cases where access to information is regulated by the rules of court. Even before the adoption of the Constitution in 1994, our courts construed the rules in a manner that advanced the process of litigation if the literal reading would hamper its progress.”7
19.4 Even more on point, it was precisely the approach that this Court recently adopted to Rule 53 in the Helen Suzman Foundation matter.8
19.4.1 That case concerned a review of a decision of the Judicial Service Commission. Such a decision does not fit comfortably within the literal wording of Rule 53. It is not a “decision or proceedings of any inferior court and of any tribunal, board or officer performing judicial, quasi-judicial or administrative functions”.
19.4.2 Yet, this Court rightly had no hesitation in finding that Rule 53 applied to reviews of JSC appointment decisions.
6 PFE International Inc (BVI) and Others v Industrial Development Corporation of South Africa Ltd 2013 (1) SA 1 (CC)
7 PFE International at paras 25-27.
8 Helen Suzman Foundation v Judicial Service Commission [2018] ZACC 8 (24 April 2017).
19.5 Accordingly, the core contention advanced by the President – that the Court stepped beyond its limits into the shoes of Parliament and the Rules Board – is quite unsustainable.
20 Lastly, we point out that the President (correctly) seeks leave to appeal against the SCA judgment – not the High Court judgment.
20.1 But the SCA self-consciously exercised a discretion in determining whether or not to decide the merits of an appeal that was moot.9 It held, in its discretion,10 that it should not decide the merits and dismissed the appeal.
20.2 Once that was so, the President must do more than show that this Court might have adopted a different stance from the SCA on that issue.
Given the nature of the discretion at issue, the President had to show that the SCA’s discretion:
“was not exercised…. judicially, or that it had been influenced by wrong principles or a misdirection on the facts, or that it had reached a decision which in the result could not reasonably have been made by a court properly directing itself to all the relevant facts and principles.’
An appellate court ought to be slow to substitute its own decision solely because it does not agree with the permissible option chosen by the lower court.”11
20.3 The President does not even allege that the SCA’s exercise of its discretion falls foul of this heightened test. Still less does he
9 SCA judgment, para 12
10 SCA judgment, para 17
11 Trencon Construction (Pty) Limited v Industrial Development Corporation of South Africa Limited and Another 2015 (5) SA 245 (CC) at para 88
demonstrate that this is so. I submit that this ought to be fatal to the application for leave to appeal against the SCA judgment.
NO PROSPECTS OF SUCCESS ON THE MERITS
21 In any event, the President’s proposed appeal bears no prospects of success.
22 The President disputes that the DA was entitled to the record in terms of Rule 53 because the “main application concerns an executive decision and the [DA]
is not entitled to the record in terms of Rule 53”. This is unsustainable for the following reasons.
23 First, the President was vested with the power to make the dismissal decisions by sections 91 and 93 of the Constitution. These are executive powers.
23.1 However, it is well-established that the exercise of every public power is subject to the principle of legality and the principle of rationality which forms part thereof. This includes executive powers. This Court has said so expressly:
“The principle of legality requires that every exercise of public power, including every executive act, be rational….”12
23.2 The President rightly was constrained to concede that this is the case.
12 Minister of Military Veterans v Motau 2014 (5) SA 69 (CC) at para 69
24 Second, once it is so that the President’s dismissal decisions were subject to judicial review under the principle of legality, it had to follow that the DA was entitled to be provided with the record in the review proceedings.
24.1 This Court has repeatedly made clear the critical role played by a record in review proceedings.
24.2 In Turnbull-Jackson, it held:
“Undeniably, a rule 53 record is an invaluable tool in the review process. It may help: shed light on what happened and why;
give a lie to unfounded ex post facto (after the fact) justification of the decision under review; in the substantiation of as yet not fully substantiated grounds of review; in giving support to the decision-maker’s stance; and in the performance of the reviewing court’s function.” 13
24.3 In Helen Suzman Foundation, it held:
“Our courts have recognised that rule 53 plays a vital role in enabling a court to perform its constitutionally entrenched review function:
‘Without the record a court cannot perform its constitutionally entrenched review function, with the result that a litigant’s right in terms of section 34 of the Constitution to have a justiciable dispute decided in a fair public hearing before a court with all the issues being ventilated, would be infringed.’
The filing of the full record furthers an applicant’s right of access to court by ensuring both that the court has the relevant information before it and that there is equality of arms between the person challenging a decision and the decision- maker. Equality of arms requires that parties to the review proceedings must each have a reasonable opportunity of presenting their case under conditions that do not place them at a substantial disadvantage vis-à-vis their opponents….”14
13 Turnbull-Jackson v Hibiscus Court Municipality and Others 2014 (6) SA 592 (CC) at para 37
14 Helen Suzman Foundation at paras 14-15
24.4 Thus, once the President’s dismissal decisions were reviewable, as was rightly conceded, a record had to be provided.
25 Third, the position may have been different if the President had resisted the attempt to compel production of the record by contending that there was no record at all – that is, that the decision was of such a nature that factually no record existed.
25.1 However, the President did not do so. On the contrary, the President deposed to no affidavit at all in the compelling application and the affidavit deposed to by the State Attorney on his behalf did not contain any suggestion that the record does not exist.
25.2 The case must therefore be assessed on the basis that there was a record but that the President refused to provide it. This is not sustainable in light of the principles already set out.
26 For all of these reasons, the appeal simply bears no prospects of success on the merits and on this ground too it falls to be dismissed.
CONCLUSION
27 I therefore submit that the application for leave to appeal falls to be dismissed, with costs.
JAMES SELFE
I hereby certify that the deponent knows and understands the contents of this affidavit and that it is to the best of the deponent’s knowledge both true and correct. This affidavit was signed and sworn to before me at on this the ____day of JULY 2018, and that the Regulations contained in Government Notice R.1258 of 21 July 1972, as amended by R1648 of 19 August 1977, and as further amended by R1428 of 11 July 1989, having been complied with.
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