Top court grapples with cabinet appointments: can they be reviewed?

The Constitutional Court on Thursday grappled with the question of whether cabinet appointments or removals by the president are subject to judicial review.

In a cabinet reshuffle in March 2017, which led to the country's credit rating being downgraded, former president Jacob Zuma removed Pravin Gordhan as minister of finance and replaced him with Malusi Gigaba.

After the reshuffle, the DA launched an application challenging the constitutionality of the review.

The DA required Zuma to furnish it with a record of his decision about the reshuffle, as required by Rule 53 of the Uniform Rules of the Court.

When no record of decision was forthcoming, the DA approached the high court in Pretoria to compel Zuma to do so - before proceeding with a review application. The high court in May 2017 ordered Zuma to disclose the record.

Zuma then applied for leave to appeal to the Supreme Court of Appeal but before this could be heard, he resigned as president. 

The Supreme Court of Appeal, in a judgment in May 2018, dismissed the president's appeal with costs. It said while the merits of the president's arguments were argued in full, the judgment did not express a view on the merits because the decision sought was moot and had no practical effect or result.

The presidency then appealed to the Constitutional Court.

In his arguments to the Constitutional Court on Thursday, counsel for the president Ishmael Semenya SC said the DA was entitled to reasons for the decision the president took - but not to the record.

Semenya said the reason was contained in Zuma's statement announcing the cabinet changes, where Zuma said he made the changes to improve effectiveness and efficiency.

He said no record could be obtained from the president exercising his right under Section 91 (2) of the constitution. The section gives the president the power to appoint and dismiss ministers.

Semenya said the matter currently on appeal was not moot. He said there was an application challenging the appointment of minister of women in the presidency,  Bathabile Dlamini.

"We don't exclude that those proceedings will demand the dispatch of the record," Semenya said.

However, DA counsel Steven Budlender said the president's counsel had conceded that the president’s power to dismiss was subject to review.

"The mechanism by which these reasons have to be provided is by way of Rule 53."

Justice Johan Froneman asked Budlender if he accepted that in certain instances, a record might not exist. Budlender agreed.

The court reserved judgment.