President Cyril Ramaphosa could approach the Constitutional Court after the Supreme Court of Appeal (SCA) dismissed his bid to set aside a precedent-setting high court judgment that records of decisions should be made available when executive decisions are taken on review.
“We are considering our options including an appeal to the Constitutional Court and that is because it’s a precedent-setting judgment and it can’t be correct that the executive decisions that are taken by the president will be brought for review in the manner the DA sought to do‚” presidency spokeswoman Khusela Diko said on Monday.
The original decision in question was Jacob Zuma’s axing of Pravin Gordhan as finance minister and Mcebisi Jonas as deputy finance minister when Zuma was president.
The SCA last week dismissed an application by Ramaphosa to appeal against 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 Zuma provide the record of decision-making on the axing of Gordhan and Jonas — still stands.
The DA had approached the court for the record on the basis that the 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 of SA‚ and Gordhan was reappointed to the Cabinet‚ this time as public enterprises minister.
Despite the DA dropping the matter‚ the application for leave to appeal against the judgment that ordered Zuma to provide the record was argued in the SCA.
Zuma had initially brought the application for leave to appeal against the high court judgment‚ and Ramaphosa continued the fight against it.
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.
“It would neither be practical nor desirable for this court to postulate under what circumstances and on what grounds‚ legal and/or factual‚ would a Cabinet reshuffle be taken on review and the disclosure of the record be demanded in terms of rule 53 in future‚” the SCA said in its judgment.
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