Notwithstanding that President Jacob Zuma has accepted that the exercise of executive power must meet the test of rationality, he has chosen to stymie the court process to verify the rationality of his decision-making.
This is his default position. By nature, the president is a "bittereinder". And the longer he delays the review of his reshuffle decision, the less likely it is that any court will set aside those decisions. The lapse of time makes it so much more difficult to unscramble the omelette.
Zuma also suggests that some executive decisions should be ring-fenced: that there is an unidentified cluster of executive decisions which lie outside the realm of judicial review.
The essence of his application for leave to appeal against the ruling that he give reasons for his reshuffle of his Cabinet is that he made a decision, that factors which informed that decision are of no moment, and that he need not provide reasons. This approach harkens back to PW Botha’s imperial presidency.
Our courts are not enjoined to defer to capricious arbitrary conduct. The rule of law means that an executive decision-maker cannot act on a whim; matters of personal like or dislike should not trammel the government’s business. At this stage, there is nothing meaningful to indicate a contrary basis for the president’s reshuffle decision.
The DA’s application was intended to obtain the record on which the president’s decision to reshuffle the cabinet was made. Implicit in the application for leave to appeal is the contention that the Presidency’s statement provides sufficient reason for the decision.
The court is not marking the president’s homework to establish if he has got it right.
Wayne van NiekerkLinden