By Phephelaphi Dube: Director, Centre for Constitutional Rights
2 July 2018
The Gauteng High Court (High Court) in Pretoria previously ordered former President Jacob Zuma to provide within five days, a record and reasons as to the firing of former Finance Minister, Pravin Gordhan. The Presidency unsuccessfully petitioned the Supreme Court of Appeal (SCA) for leave to appeal and is said to have approached the Constitutional Court in the belief that the High Court judgment sets a bad precedent.
The President’s spokesperson is reported to have stated that “If that matter is left unattended, it means that we’re going to have to provide records for all Cabinet reshuffles. Some of these are decisions taken on the basis of certain political considerations.”
The doctrine of separation of powers seeks to prevent the abuse of power within different spheres of government – all public power is subject to the dictates of the Constitution – with the courts being the ultimate guardian of the Constitution. The Constitution provides that any law or conduct inconsistent with the Constitution is invalid. As such, courts are empowered to review laws or conduct – even in matters involving the Legislature or the Executive. Despite the fact that the Executive is made up of political appointees, this does not mean that all decisions taken by the Executive are of a political nature and therefore incapable of being the subject of judicial review. Neither does it mean that the courts have carte blanche power to review all decisions taken by the Executive.
Former Constitutional Court Judge, Kate O’Regan, cautions that “a Court should be careful not to attribute to itself superior wisdom in relation to matters entrusted to other branches of government. A Court should thus give due weight to findings of fact and policy decisions made by those with special expertise and experience in the field…A decision that requires an equilibrium to be struck between a range of competing interests or considerations and which is to be taken by a person or institution with specific expertise in that area must be shown respect by the Courts. Often a power will identify a goal to be achieved but will not dictate which route should be followed to achieve that goal. In such circumstances a Court should pay due respect to the route selected by the decision maker”.
But where does that equilibrium lie? In the 2010 decision of Albutt v Centre for the Study of Violence and Reconciliation and Others, the Constitutional Court stated that courts may not interfere with the Executive decisions selected simply because they do not like them, or because there are other more appropriate means that could have been selected. However, where an Executive decision is challenged, the courts are obliged to examine the means selected to determine whether they are rationally related to the objective sought to be achieved. The purpose of the review is to determine, not whether there are other means that could have been used, but whether the means selected are rationally related to the objective sought to be achieved. If objectively speaking, they are not, then they fall short of the standard demanded by the Constitution.
So what does the above mean in the context of the decision to reshuffle the Cabinet position of the then Minister of Finance, Pravin Gordhan? The decision was not without dire consequence – including a ratings downgrade by S&P Global. This was effected without a public explanation from former President Jacob Zuma. However, individuals within the governing party mentioned in public that Jacob Zuma had, in internal party meetings, stated that the decision for the reshuffle was due to an intelligence report suggesting that Pravin Gordhan and the Deputy Finance Minister were working against the interests of the party. The intelligence report was dismissed by the same members of the party on the basis that it was “fake” and “rubbish”. In response, Jacob Zuma argued that the Cabinet reshuffle decision is an “Executive decision” falling outside of the purview of the courts.
The latter position reflects an Executive-minded approach, which falls short of understanding the context in which the Executive exists. The Rule of Law demands that Executive decisions be rational and that they be connected to the purpose for which the power is exercised. It is therefore questionable as to whether reliance on the largely discredited intelligence report to reshuffle the Finance Minister constitutes a rational choice. The courts have no authority to interfere in Executive decisions beyond reviewing the decisions for rationality and lawfulness. The Executive can then rest easy knowing that rational and lawful policy-making can never become the subject of judicial review.
Given the inevitable tension arising between the Judiciary and the Executive – the position adopted by the Presidency (new occupant of the Office regardless) is hardly surprising. However, both the Executive and the Judiciary have to accept that each branch has a role to play and that the Rule of Law and the separation of powers is ultimately meant to ensure that legitimate government policies are implemented.