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President of the Republic of South Africa v Democratic Alliance and Others (664/17) [2018] ZASCA 79

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President of the Republic of South Africa v Democratic Alliance and Others (664/17) [2018] ZASCA 79

1st June 2018

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[1] What started as a case of major public interest ended up being overtaken by new developments before it was heard. This appeal, with leave of the High Court, Gauteng Division, Pretoria (Vally J), arises from an interlocutory application in which the President of the Republic of South Africa (appellant) was ordered to make available to the Democratic Alliance (respondent), a record of decision requested in terms of rule 53 of Uniform Rules of the Court, pending an application for review of the appellant’s decision to reshuffle the cabinet, (the review application). The review application was withdrawn. Therefore, the crisp issue raised by this appeal is whether the decision or relief sought would have any practical effect or result or, stated otherwise, whether the appeal has not become moot.[1]

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[2] The principle of mootness has evolved over the years and is now provided for in s 16(2)(a)(i) of the Superior Courts Act 10 of 2013,[2] which provides:

‘When at the hearing of an appeal the issues are of such a nature that the decision sought will have no practical effect or result, the appeal may be dismissed on this ground alone.’

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[3] The factual matrix is briefly that on 31 March 2017, the then President of the Republic of South Africa, President Jacob Zuma, announced a cabinet reshuffle and in the process removed the then Minister of Finance, Mr Pravin Gordhan, as well as his deputy, Mr Mcebisi Jonas, both cited as second and third respondents respectively. The second and third respondents were replaced by Mr Malusi Gigaba and Mr Sfiso Buthelezi (also cited as the fourth and fifth respondents in the review application) as new Minister and Deputy Minister of Finance, respectively.

[4] On 4 April 2017, the respondent launched the review application, challenging the constitutional validity of the appellant’s reshuffle of the cabinet, which resulted in the dismissal of Mr Gordhan and Mr Jonas. The review application was brought in terms of rule 53 of Uniform Rules of Court. The rule permits an applicant to call ‘upon the magistrate, presiding officer, chairperson or officer, as the case may be, to dispatch, within fifteen days after receipt of the notice of motion, to the registrar the record of such proceedings sought to be corrected or set aside, together with such reasons as he or she is by law required or desires to give or make, and to notify the applicant that he or she has done so.

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