Johannesburg - Judgment has been reserved by the Supreme Court of Appeal (SCA) in the case between the President of the Republic of South Africa and the Democratic Alliance over the releasing of a record for his decision that led to the dismissal of former finance minister Pravin Gordan and his deputy Mcebisi Jonas last year.
In the case, which was largely academic, the then President Jacob Zuma approached the SCA to appeal a ruling by the North Gauteng High Court ordering him to release the record that led to his decision to fire the two.
This was after the DA had approached the high court in Pretoria seeking an order for the president to release the record that led to that decision.
DA federal executive chairman James Selfe had argued in the High Court papers that Zuma’s decision was unlawful, unconstitutional and irrational. He therefore wanted Zuma to furnish the court with the reasons for his decision to fire Gordhan and present supporting documents for his decision. Selfe also argued the whole cabinet reshuffle was wrong and should be reconsidered.
But although Zuma is no longer the president of the country, the office of the president pursued the matter so that the high court ruling does not set a precedent for future cabinet reshuffles made by a sitting resident.
The DA on the other hand also wanted the appeal court to decide whether such a decision can be reviewed.
The case started with SCA Judge President Mandisa Maya asking the Advocate Muzi Sekhakhane for the appellant why the case was continuing given the change of office bearers in the Presidency.
“Why is the president pursuing this case, why are we here?”
To which Sekhakhane answered: “Much of this case is about substance… The applicability of the ruling of the (North Gauteng) High Court. The respondents have withdrawn the main point of their case. The Office of the President does not want the ruling of the high court to become a precedent, hence it’s pursuing this case.”
But this was shot down by Juctice Selewe Peter Mothle who asked why there should be a blanket ruling on matters of that nature?
“Isn’t it supposed to be up to the president to appeal on a case by case basis instead of having this court making a blanket ruling on the matter?” he asked.
“It’s in the interest of justice that a case of this matter is determined by this court… so that that there is no ambiguity,” Sekhakhane replied.
Sekhakhane argued that Rule 53, on which the High Court ruling is based on was not supposed to be applied in this case.
Rule 53 mainly deals with the disclosure of records.
Advocate Steve Budlender said the appeals court should make a decision on the matter as they believed Rule 53 was applied appropriately.
“We believe this court has a discretion over this matter. Rule 53 is a standard procedure to review a public decision. That includes any decision that can be reviewed including an executive decision… it is important to know if the president had that intelligence report before him when he made that decision (to dismiss Gordhan and Jonas).
“We submit that the president should admit that his decision is reviewable, which he must. And once he admits, he should make that record available,” he said.
Budlender also suggested that the president should pay the cots of the appeal.
Advocate Ishmael Semenya, also for the president, argued that Rule 53 should not be the only instrument used in a case of this nature as it was a bit too broad.
“The allegation that the decision of the president arose from the intelligence report cannot be true. It’s unfounded and the assertion that the Rule 53 can be applied to a certain type of cabinet decisions and not others, does not apply.
“A Cabinet desion is a political decision. The president is not always bound to present a record of what led him to make that decision,” he said.
The DA’s Selfe said after court that he was happy with the way the appeal went and it was clear that it was important for those in the executive to make decisions in a responsible manner.
“It is quite clear that all executive decisions have to be rational in terms of our new constitutional order. And in order to be rational, there need to be reasons and a record of decisions. That applies as much to a cabinet reshuffle as to any other executive decisions. And it was particularly agreed in the case of the sacking of Mr Pravin Gordhan last year… because the then president knew fully well what the consequences of that would be and therefore he quoted some sort of an intelligence report and it was important for us to get that record and find out whether the president, in fact, made a rational decision. And, if not, to set that decision set aside as being unlawful and irrational.