Pravin Gordhan. Picture: ALON SKUY
Pravin Gordhan. Picture: ALON SKUY

The Supreme Court of Appeal is deliberating whether executive decisions should be subject to the same court rule that provides that a record of decision making be provided when a decision is taken on review.

The High Court in Pretoria set a precedent on the matter in 2017 when it ordered then-president Jacob Zuma to provide the record of decision making on the axing of Pravin Gordhan as minister of finance and Mcebisi Jonas as deputy minister of finance.

The DA later argued the decision was irrational. A year later Gordhan has made his way back to President Cyril Ramaphosa’s Cabinet as public enterprises minister and Jonas was appointed as one of Ramaphosa’s economic envoys.

The DA withdrew its review application on Zuma’s March 2017 midnight Cabinet reshuffle as the issue had become moot. But the application for leave to appeal against the judgment that ordered Zuma to provide the record of how he came to fire them, was argued in the Supreme Court of Appeal and judgment was reserved on the matter. Zuma had initially brought the application for leave to appeal against the high court judgment, while Ramaphosa continued the fight against it.

In April the court asked the appellant and the respondents to file submissions on why the appeal should be entertained after the review application, the main proceeding, was dropped.

The Presidency’s counsel said in the written submissions that the judgment by the high court extended the scope of Rule 53 of the Uniform Rules of the court to include executive decisions. Rule 53 deals with reviews of decisions or proceedings by any tribunal, board or officer performing judicial, quasi-judicial and administrative actions.

The rule calls on an applicant to show cause why the decision should not be reviewed and set aside, as well as to provide the record of the proceedings that was to be reviewed and set aside, along with reasons for it if the person is required by law to do so or would like to do so.

Zuma argued that the judgment (compelling him to provide the record of decision making on why he fired Gordhan and Jonas) was unprecedented regarding the exercise of a constitutional executive decision, be that by the president, the premier or the executive council at local government level.

"The order is a groundbreaking judgment in our constitutional law," says the submission. "The order of the court a quo (court below), if undisturbed, will in all probability continue to influence how litigants, the high courts, as well as the lower courts, approach the review of an executive decision, even if bad in law," his counsel argued.

But the DA maintained that the order was not groundbreaking, saying that the court had ruled in 2008 that Rule 53 applied to executive decisions, and therefore the president was wrong.