Cabinet reshuffle court judgement is about process not the decision itself

5 May 2017


South Africa’s main opposition party, the Democratic Alliance (DA), has secured a court application ordering President Jacob Zuma to provide the reasons and record of decision to axe Pravin Gordhan and Mcebisi Jonas. This will clear the way for the DA to challenge the rationality of the President’s decision.

The decision has already sparked an outcry from Zuma’s supporters that the South African courts are encroaching on to the executive turf. The ANCYL issued a statement saying it was the constitutional prerogative of the president to “hire and fire members of the executive.”

But other observers said the court is for now concerning itself with process and not the decision itself. One law expert, Ulrich Roux, was quoted saying the ruling highlighted the importance of transparency. “The most important thing is that there should be transparency”. He said its reasonable given the magnitude of the decision.

Law scholar, Professor Pierre de Vos said “It is not surprising the court ordered President to provide record of all documents (if any) relied on and reasons for cabinet reshuffle.”

He added that “Since the Constitutional Court handed down President of RSA vs Hugo in 1996 it is trite law that the exercise of all public power (including firing or appointment of Ministers) is reviewable by court. It is reviewable on at least two grounds:

  • Did Pres have the legal authority to do what he did; and
  • Did he act rationally.

“In order for a court to determine whether President acted rationally it is necessary to know what the reasons were for the decision. Reasons will help the court to determine whether there was rational relationship between the decision and the purpose of the decision,” said De Vos.

The North Gauteng High Court ruled yesterday after it was approached by the DA filed an urgent application to force President Zuma to supply his record of decision. This is after the President claimed that the DA and South Africa were not entitled to the reasons behind his decision.

The DA said this is a victory not only for the opposition party but for all South Africans who deserve to know on what basis the President made this disastrous decision.

The High Court ruling orders Zuma to supply his record of decision within five days of the ruling. This is to clear the way for the DA to proceed with its earlier application to review the rationality of Zuma’s decision.

The DA said the record of decision should also contain the now infamous ‘intelligence report’ which South Africa and the court can fully interrogate.

“It is high time that those in power and especially the President, are held accountable for their actions and decisions based on self-interest and personal gain rather than the best interests of our country.

“The fact is that President Zuma ought to have rationally foreseen the consequences of this reshuffle on our country and the 9 million unemployed people, who are likely to increase given the recent downgrades to junk status his decision precipitated.”

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