President Jacob Zuma has filed an application for leave to appeal the decision of the North Gauteng High Court, handed down by Judge Bashier Vally, ordering the President to submit the record and reasons of the decision to reshuffle his Cabinet on 31 March 2017.
The grounds of appeal are the following:
1. The High Court erred in finding that Rule 53 must be read to include executive decisions, even though nothing in the language of Rule 53 suggests that it should be interpreted to include executive decisions. Such an approach violates the separation of powers.
2. Whereas the court held in paragraph 21 that rule 53 has not been amended to cater for the record in respect of executive decisions, the Court erred in holding that a purposive interpretation will, nevertheless bring executive decisions under rule 53.
3. In so far as rule 53 does not cover executive decisions, there are processes for the making and amending of the rules of Court. The High Court erred to mero moto amend rule 53 to include the review of executive decisions, alternatively, executive decisions of the nature of the impugned decision.
4. The High Court ought to have found that decisions of the nature of the impugned decision, do not fall within the ambit of rule 53 at all. It is not sufficient to end the enquiry at whether or not rationality applies. The nature of the executive decision and the remedy sought are important to consider.
5. The court ought to have found that not considering the nature of the executive decision in determining whether or not to furnish the record, would lead to a violation of the separation of powers doctrine, which is part of our constitutional scheme.
6. The court erred in not considering whether the remedy sought in the review can ever be obtained.
7. The court erred in holding once it is found that an executive decision should be rational, it follows that rule 53 applies. The authorities do not make this claim at all.
8. The High Court ought to have found that nothing in the language of rule 53 suggests that executive decisions should be included in its application.
9. The High Court erred in holding that it was relevant for the first respondent to state whether or not the record was available. This question is irrelevant in determining the principle.
10. The High Court erred in holding that the letter of 11 April 2017 gives the impression that the record would be furnished. No such undertaking is made. Instead, the State attorney requests that he ought to take proper instructions in order to reply to the request. Nothing suggests that the State Attorney’s undertaking to revert, is an undertaking to furnish the record. It does not follow.
11. The High Court ought to have found that the executive decision in question is the exercise of a constitutional power, and is a decision of the nature that does not call for the production of the record and reasons in terms of rule 53. Alternatively, it ought to have found that the statement of 31 March 2017 from the Presidency is sufficient to meet the test of rationality and therefore no further record was required.
12. The High Court ought to have found that the expansive reading of rule 53, failure to consider the nature of the executive decision and remedy, would lead to the violation of the separation of powers doctrine.
Accordingly, the President is arguing that the court ought to have found that the applicant is not entitled to the record by reason of the nature of the executive decision and that the rule does not cover it.
The Presidency further contends that there is a reasonable prospect that another Court will come to a different decision from that of the High Court and that the matter is one of considerable importance to the parties and the country.
In addition, in the main review application, the Democratic Alliance quotes excerpts from the document referred to as the Intelligence Report. The Presidency has instructed the state attorney to request a copy of the full document in terms of the Rule 35(12) of the Uniform Rules and the full printed report, showing the source of the report, the date of the report and the author of the report.
Rule 35 (12) provides that “Any party to any proceeding may at any time before the hearing thereof deliver a notice as near as may be in accordance with Form 15 in the First Schedule to any other party in whose pleadings or affidavits reference is made to any document or tape recording to produce such document or tape recording for his inspection and to permit him to make a copy or transcription thereof.
Any party failing to comply with such notice shall not, save with the leave of the court, use such document or tape recording in such proceeding provided that any other party may use such document or tape recording.”