The Constitutional Court in session. Picture: GCIS
The Constitutional Court in session. Picture: GCIS

The Constitutional Court has dismissed President Cyril Ramaphosa's application for leave to appeal against a high court judgment that the president is obliged to disclose the reasons, and a record of decision, when firing a minister or deputy minister.

Ramaphosa approached the highest court in the country after the Supreme Court of Appeal (SCA) dismissed his bid to set aside the ruling that 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.

This means that the judgment by the High Court in Pretoria, which ordered in 2017 that former president Jacob Zuma must provide the record of decision-making in the axing of then finance minister Pravin Gordhan and his deputy Mcebisi Jonas, still stands.

It also means that if Ramaphosa fires a minister or deputy minister in future, he could be asked to provide reasons for why he made such a decision. 

Zuma told the ANC top six and leaders of the SACP after firing Gordhan and Jonas in 2017 that it was based on an intelligence report that contained allegations that the pair was lobbying business to help remove him as president.

Since then the inspector-general of intelligence, Setlhomamaru Dintwe, has had no success in establishing the authenticity of the report. This after he was asked by former DA MP David Maynier in March 2017 to investigate allegations surrounding the report.

Dintwe has not been able to get a copy of the report from Zuma, raising questions about whether it exists at all. Neither did Zuma submit the report during court proceedings brought by the DA to have his cabinet reshuffle declared irrational.

The DA approached the court for the record on the basis that Zuma's decision was irrational. The record of decision was going to be used in another court application seeking a review of Zuma’s cabinet reshuffle in March 2017.

This matter was, however‚ dropped by the DA after Zuma resigned as president and Gordhan was reappointed to the cabinet‚ this time as public enterprises minister.

Zuma had brought the initial application for leave to appeal against the high court judgment‚ and Ramaphosa continued the fight against it.

Chief justice Mogoeng Mogoeng, handing down judgment on Wednesday, said it was not in the interest of justice to grant the president leave to appeal because the matter was now moot and the order he sought to appeal was interlocutory.

The SCA dismissed the appeal‚ saying defining the ambit or scope of the applicability of rule 53 of the uniform rules of the court to include executive decisions fell within the terrain of the rules board.

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.

Mogoeng in the judgment said it could not be disputed that in its historical context, the rule was not construed to cover decisions taken by the president in the exercise of prerogative powers.

“Therefore, I conclude that properly construed rule 53 does not apply to the review of decisions to appoint or dismiss ministers from cabinet. The question whether those decisions are subject to review accordingly does not arise here and should be left for determination in appropriate proceedings,” he said. 

A dissenting judgment agreed that the matter was now moot, but found that it was in the interest of justice to interpret rule 53 for guidance in future cases.

The presidency said it noted and respected the ruling. 

Spokesperson Khusela Diko, however, said the court did not make any determination on the substantive issues that the presidency had sought a decision on.

“To this end 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 is asked to provide information, a record and reasons for the decision, it would then be open to him to confront that challenge,” she said. 

“This is a matter that the presidency will continue to pursue if and when that situation should arise in the future.”

quintalg@businesslive.co.za