That cabinet reshuffle – When can the courts interfere?
2 June 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”.