It's the DA vs Ramaphosa as battle over cabinet reshuffles hits ConCourt
President Cyril Ramaphosa and the Democratic Alliance will go head to head in the Constitutional Court on Thursday over whether the president must release records and reasons for executive decisions, including cabinet reshuffles.
The case stems from a controversial March 2017 cabinet reshuffle by Ramaphosa’s predecessor, Jacob Zuma.
The president is arguing that a court order for the release of records surrounding the two-year-old cabinet reshuffle, in which former finance minister Pravin Gordhan was fired by former president Jacob Zuma, was judicial overreach.
Ramaphosa is arguing that if the judgment by the North Gauteng High Court in relation to his predecessor is not overturned “it would be relied upon by future litigants where executive decisions in general, and cabinet reshuffles in particular, are taken on review”.
Ramaphosa, in essence, wants the Constitutional Court to rule that courts cannot get involved in executive decisions and cannot order that records and reasons for decisions taken under the president’s prerogative be made public.
This case is a result of the DA’s court bid in 2017 to challenge Zuma over his midnight reshuffle of Gordhan.
While the case was withdrawn after Gordhan was reappointed to cabinet under Ramaphosa, the court ruled that the president release records surrounding the controversial decision.
When Ramaphosa was elected, he decided to take up the fight, unsuccessfully, in the Supreme Court of Appeal. Now, in the Constitutional Court, he is arguing that this judgment would lead to future interference by the judiciary in executive decisions.
In his affidavit, Ramaphosa argues that the “chilling effect” of the Constitutional Court not appealing the lower court ruling will be that it will be “binding in relation to all executive decisions”.
In its heads of argument, the DA says the high court did not breach the separation of powers doctrine.
“Once it is conceded, as it has been, that the dismissal decisions are subject to challenge under legality review, including on grounds of irrationality, it is difficult to see how it can seriously be contended that reasons need not be provided by the president. How else are the litigants and courts able to assess the rationality of the decisions concerned?” the DA is set to argue before the apex court.
While The Presidency argues in its heads of argument that there are no records of a decision to reshuffle the executive, the DA has rubbished this.
The hearing is expected to take place at 10am.