IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NO: 24396/2017
In the interlocutory application between -

DEMOCRATIC ALLIANCE Applicant

and

PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA Respondent


In re the application between -

DEMOCRATIC ALLIANCE Applicant

and

PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA First Respondent

PRAVIN JAMNADAS GORDHAN Second Respondent

MCEBISI HURBERT JONAS Third Respondent

MALUSI NKANYEZI GIGABA Fourth Respondent

SFISO NORBERT BUTHELEZI Fifth Respondent


APPLICANTS HEADS OF ARGUMENT



INTRODUCTION ..................................................................................................... 1

THE FACTS LEADING UP TO THIS APPLICATION TO COMPEL ...................... 1

URGENCY ............................................................................................................... 4

THE PRESIDENTS OBLIGATION TO FURNISH THE RECORD & REASONS ... 7
Every executive decision is subject to the principle of legality .................... 8
The DAs entitlement to the record and reasons .......................................... 11

RELIEF .................................................................................................................. 18
INTRODUCTION

1 This is an urgent compelling application. It arises from an urgent pending

review application in which the applicant seeks to review and set aside the

decision of the President to dismiss Mr Gordhan as the Finance Minister and

Mr Jonas as Deputy Finance Minister (the dismissal decisions).

2 The review application is unable to proceed because the President has

refused to file the record and reasons for his decision. His stance is that he

has no obligation to do so because he contends that Rule 53 has no

application to his dismissal decisions.

3 As we demonstrate in what follows, the contention of the President that he is

not obliged to file the records and reasons is simply wrong as a matter of law.

He should therefore be compelled to do so urgently, so that the review

application can proceed.

THE FACTS LEADING UP TO THIS APPLICATION TO COMPEL

4 On 31 March 2017 at 12:14 am, the President announced his cabinet reshuffle.

This included dismissal of Mr Gordhan and Mr Jonas.1

5 On 4 April 2017, two court days later, the applicant launched an urgent

application (the review application) to review, set aside and declare as

unlawful, unconstitutional and invalid the dismissal decisions of the President.2

1
Compelling application, FA, para 5, p 7.
2
Compelling application, FA, para 6 p 7, annexure FA3, p 46.

1

6 Given the urgency of the main application, the President was required to

furnish the record and reasons by Tuesday 11 April 2017. This was not done.

7 Through a series of correspondence, the President via his attorney sought

indulgences so that a proper record of the decisions could be furnished in

terms of Rule 53. There was no suggestion in this correspondence that Rule

53 was inapplicable or that the President did not have to furnish the record.

7.1 On 6 April, the State Attorney requested an extension till 28 April for

the delivery of the record.3 This extension was not granted because

no reasons were furnished as to why such an indulgence was sought.4

7.2 On 11 April, the State Attorney undertook to file the record on 21 April.

This delay was explained as being because of the need for a

consultation with the President. It was stated: You will understand

how crucial such a consultation is in order to furnish you and the Court

with a proper Rule 53 record that you have requested.5

7.3 To accommodate the Presidents request whilst ensuring that this

matter continued to be treated with the required level of urgency, the

DA agreed to a limited extension to Tuesday 18 April 2017.6

7.4 However, on 18 April 2017, the President again failed to file the record

or reasons. In a letter dated 18 April 2017, the State Attorney stated

3
Compelling application, FA, para 14 p 9; annexure FA4, p 51 (emphasis added).
4
Compelling application, FA, para 15 p 9 - 10; annexure FA5, p 52.
5
Compelling application, FA, paras 18-19 p 10-11; annexure FA6, p 54 55 (emphasis added).
6
Compelling application, FA, para 20 p 11; annexure FA8 p 58.

2

 only that we will revert as soon as we have consulted in relation to the

record.7

8 In the circumstances and in view of the urgency of this matter, the applicant

was forced to launch this urgent application to compel.8

9 Up to that point there had been no suggestion that the President might not file

a record at all or might contend Rule 53 was not applicable. On the contrary,

the position was that the President would file a Rules 53 record, the only

debate was one of timing.

10 This position changed on 21 April 2017. This was the day on which the

President had undertaken to file the record and the day on which his answering

affidavit in this compelling application was due. On that day, first in a letter and

then in an answering affidavit, the President made clear for the first time that

he refused to file a record and reasons at all.

10.1 The State Attorneys letter stated:

As will be evidenced in the answering affidavit of the President, in

his response to your application to compel the delivery of the
records, the decision to reshuffle cabinet as he did was informed by
his political judgment that the reshuffle will best deliver on the
mandate of the African National Congress received from the
majority of the electorate in the last general elections.
The decision in question is not covered by the above provision of
Rule 53 and the President is under no obligation to furnish the
applicant with any record.

7
Compelling application, FA, para 23 p 12; annexure FA9 p 61.
8
DA FA notice of motion p 1 4.

3

 Rule 53 has no application in the present proceedings. As a result,
the applicant is not entitled to the record as envisaged in the Rule.9

10.2 A similar stance was taken in the answering affidavit.10

11 The Presidents about turn is surprising and regrettable because it is inimical

to the values of accountability and transparency which form part of our

constitutional order. It is not permissible or appropriate for the President to

seek to avoid or delay complying with his obligations under the Constitution

and the Rules of Court.

12 In what follows, we demonstrate the applicants entitlement to the relief sought

in its application to compel. We first address urgency and then the Presidents

obligation to furnish the records and reasons.

URGENCY

13 The review application and this compelling application were each launched on

an urgent basis.11

14 We submit that the review application and accordingly this application are

patently urgent. The dismissal decisions were of an extraordinarily serious and

far-reaching nature. For as long as they are not set aside, they will continue to

have major prejudicial ramifications for the country. This is demonstrated by

9
Ibid.
10
Compelling application, AA para 5.2 p 66.
11
The present application was originally enrolled for hearing on 25 April 2017, but was then removed and re-
enrolled for 2 May 2017 to ensure that all papers had been filed in advance in accordance with this Courts
practice.

4

 the fact that the dismissal decisions were expressly cited by ratings agency

S&P Global and Fitch in their decisions to downgrade South Africa to junk

status in respect of both foreign and local bonds.12 These downgrade

decisions affect ordinary South Africans severely.13

15 The Presidents only answer to this is to state that the downgrading has

already taken place14 and contend that any urgency that may have existed

has now dissipated. That is patently incorrect.

15.1 While S&P and Fitch have made their decisions, there remains a third

rating agency Moodys which is still considering whether to

downgrade South Africa. Moodys has placed South Africa on review

for a downgrade due in material part to the dismissals of the Minister

of Finance and Deputy Minister of Finance, but has indicated that it will

only make this decision in June 2017.15

15.2 It is imperative that the main application be decided before Moodys

makes its decision and for that to occur, this compelling application

must be decided urgently.

15.3 The importance of the impending Moodys downgrade decision has

been recognised by the new Finance Minister who together with a team

12
Compelling application, FA para 9 10 p 8; annexures FA1 p 17 and FA2 p 38.
13
Main application, FA paras 69 71 p 36 - 37
14
Compelling application, AA para 22 p 70.
15
Main application, FA para 61 p 35-36; Compelling application, RA para 13.2 p 83.

5

 from National Treasury is seeking to meet with Moodys to avert the

third down grade.16

16 Beyond this, the President offers no further basis for disputing urgency.

16.1 Indeed, the President has failed in his answering affidavit to deny or

even engage with the key allegations made by the applicant regarding

urgency that:

The dismissal decisions, with which the main application is

concerned, continue to have negative effect on South Africas
economic outlook with a second ratings downgrade being done
shortly after the main application was launched. The consequence
of which is simply disastrous.
Moreover, there is considerable public outcry, anxiety and disquiet
about the Presidents dismissal decisions. It is in the public interest
that this application and the main application are determined
urgently.17

16.2 Those allegations must be accordingly be accepted.

17 We are instructed that the next date available on the opposed motion roll is

likely only in October 2017. The notion that the applicant and the public should

be expected to wait six months merely for this compelling application to be

heard, meaning that the review application will only be heard in 2018, is

patently not tenable or in accordance with the interests of justice.

18 This is especially the case as:

16
Compelling application, RA para 13.4 p 83; annexure RA3 p 96 97.
17
Compelling application, FA paras 31 32 p 14

6

 18.1 The President has not suggested that he requires further time to

answer the compelling application he has done so; and

18.2 Even assuming that the ordinary periods in terms of Rule 53 were

applicable, the record was due on 28 April 2017. This means that by

the time this application will be heard, the Presidents dilatory conduct

will have secured him more time than is permitted in terms of the Rules

of Court. There is no reason why the President should not be urgently

compelled to furnish the record forthwith.

19 In the circumstances, we submit that this application should be dealt with as a

matter of urgency.

THE PRESIDENTS OBLIGATION TO FURNISH THE RECORD & REASONS

20 The President disputes that the applicant is entitled to the record in terms of

Rule 53 on the basis that the decisions in question are executive decisions

and therefore that Rule 53 is not applicable.18

21 There is no dispute that the dismissal decisions in question amount to

executive action.19 The dismissal decisions concerns the exercise of executive

powers granted to the President in terms of sections 91(2) and 93(1) of the

Constitution.20

18
Compelling application, AA para 18 - 19 p 69 70.
19
Compelling application, RA para 11.1 p 79.
20
Section 91(2) of the Constitution provides:
The President appoints the Deputy President and Ministers, assigns their powers and functions, and
may dismiss them.
Section 93(1) of the Constitution provides:

7

22 The fact that the dismissal decisions are executive decisions means that they

are not subject to the Promotion of Administrative Justice Act 3 of 2000. That

is because PAJA is applicable only to administrative action not to executive

action.

23 However, this does not assist the President in this application. Rather, it is now

trite on decisions by our highest courts that:

23.1 Every exercise of public power including every executive decision

is subject to the principle of legality and therefore a legality review; and

23.2 Given that the Presidents dismissal decisions are reviewable under

the principle of legality, the record and reasons must be furnished for

a proper ventilation of the matter.

Every executive decision is subject to the principle of legality

24 It is well-established that the exercise of every public power is subject to the

principle of legality and the principle of rationality which forms part thereof.21

This is so even when the public power being exercised involves an executive

decision, meaning that PAJA is not applicable.

President may appoint (a) any number of Deputy Ministers from among the members of the National
Assembly; and (b) no more than two Deputy Ministers from outside the Assembly, to assist the
members of the Cabinet, and may dismiss them.
21
See Affordable Medicines Trust and Others v Minister of Health and Others [2005] ZACC 3; 2006 (3) SA
247 (CC) at para 49; Pharmaceutical Manufacturers Association of South Africa and Another: In re Ex Parte
President of the Republic of South Africa and Others [2000] ZACC 1; 2000 (2) SA 674 (CC) at para 20
and Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council and
Others [1998] ZACC 17; 1999 (1) SA 374 (CC).

8

 24.1 In Albutt v Centre for the Study of Violence and Reconciliation and

Others22 a case dealing with the exercise of the Presidents pardon

powers under section 84(2)(j) of the Constitution, the Constitutional

Court held that:

It is by now axiomatic that the exercise of all public power must

comply with the Constitution, which is the supreme law, and the
doctrine of legality, which is part of the rule of law.23

24.2 Furthermore, in Minister of Military Veterans v Motau24 the

Constitutional Court stated that:

The principle of legality requires that every exercise of public

power, including every executive act, be rational. For an exercise
of public power to meet this standard, it must be rationally related
to the purpose for which the power was given.25

24.3 The SCA has explained the position neatly as follows

I think it can be accepted with confidence that [the decisions at

issue] do not constitute administrative action under PAJA. The
further somewhat intricate question as to whether these decisions
should be categorised as the exercise of an executive function as
opposed to a legislative function, is one we do not have to decide.
As long as these decisions do not qualify as 'administrative action',
PAJA does not apply.
This conclusion does not mean, however, that these decisions are
immune from judicial review. The fundamental principle, deriving
from the rule of law itself, is that the exercise of all public power, be
it legislative, executive or administrative is only legitimate when
lawful (see eg Fedsure para 56). This tenet of constitutional law
which admits of no exception, has become known as the principle
of legality (see eg Cora Hoexter Administrative Law in South Africa
117). Moreover, the principle of legality not only requires that the

22
Albutt v Centre for the Study of Violence and Reconciliation and Others [2010] ZACC 4; 2010 (3)
SA 293 (CC).

23 Albutt ibid at para 49.

24 Minister of Military Veterans v Motau 2014 (5) SA 69 (CC).
25
Motau ibid at 69 (emphasis added)

9

 decision must satisfy all legal requirements, it also means that the
decision should not be arbitrary or irrational26

25 The principle of legality thus constrains the exercise of all public power and

this includes the exercise by the President of his executive powers. More

specifically, it includes the executive powers of the President to dismiss

Ministers and Deputy Ministers in terms of section 91(2) and 93(1) of the

Constitution.

26 Indeed, the President himself accepts that his decision to appoint and dismiss

Ministers must at least be exercised within the constitutional constraints of

legality and rationality. This is evident from the Presidents answering affidavit

recently filed in the separate pending matter before the Constitutional Court

regarding whether motions of no confidence in him should take place by secret

ballot.27 In that matter, the President states on oath:

. . . I am advised that in this regard that there are no constitutional

constraints on the President on how power is to be exercised or
process by which that power [power to appoint and dismiss Ministers]
is to be exercised, as long as the exercise of such power is rational.28
What I do as the President of the Republic requires compliance with
the Constitution and the law. As a political party, there are [broad]
range of political ideological considerations that inform what we do.
On the other hand public office requires the exercise of public power
to be within constitutional constraints, least of which is rationality. My
decision to reshuffle the Cabinet was done for rational purposes.29

27 It must therefore be accepted that, while the Presidents decision constitutes

26
Democratic Alliance v Ethekwini Municipality 2012 (2) SA 151 (SCA) at paras 20-21 (emphasis added).
27
United Democratic Movement v Speaker of the National Assembly (CCT 89/2017). Compelling application,
RA para 11.3 p 80; annexure RA2 p 92.
28
Emphasis added
29
Emphasis added

10

 executive action, it is still subject to a judicial review to determine, inter alia,

whether such decision is lawful, rational and therefore consistent with the

Constitution.

The DAs entitlement to the record and reasons

28 Once it is clear that the Presidents dismissal decisions are subject to judicial

review under the principle of legality, it must follow that the applicant is entitled

to be provided with the record and reasons for the decisions. This is ordinarily

done via Rule 53 of the Rules of this Court. 30

29 Our courts have repeatedly emphasised how essential having access to a

Rule 53 record is for a judicial review application to occur.

29.1 In Helen Suzman Foundation v Judicial Service Commission31 the

SCA recently summarised the purpose of Rule 53 as follows:

The primary purpose of the rule is to facilitate and regulate

applications for review by granting the aggrieved party seeking
to review a decision of an inferior court, administrative
functionary or State organ, access to the record of the
proceedings in which the decision was made, to place the

30
Rule 53(1) of the High Court Rules states:
Save where any law otherwise provides, all proceedings to bring under review the decision
or proceedings of any inferior court and of any tribunal, board or officer performing judicial,
quasi-judicial or administrative functions shall be by way of notice of motion directed and
delivered by the party seeking to review such decision or proceedings to the magistrate,
presiding officer or chairperson of the court, tribunal or board or to the officer, as the case
may be, and to all other parties affected
(a) calling upon such persons to show cause why such decision or proceedings should
not be reviewed and corrected or set aside, and
(b) calling upon the magistrate, presiding officer, chairperson or officer, as the case may
be, to despatch, 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.
31
Helen Suzman Foundation v Judicial Service Commission 2017 (1) SA 367 (SCA).

11

 relevant evidential material before court The rule is an
important tool in determining objectively what considerations
were probably operative in the mind of the decision-maker
when he or she made the decision sought to be reviewed. The
applicant must be given access to the available information
sufficient for it to make its case and to place the parties on
equal footing in the assessment of the lawfulness and
rationality of such decision.32

29.2 Similarly, in Turnbull-Jackson v Hibiscus Court Municipality33 the

Constitutional Court held:

Undeniably, a rule 53 record is an invaluable tool in the review

process. It may help: shed light on what happened and why;
give a lie to unfounded ex post facto (after the fact) justification
of the decision under review; in the substantiation of as yet not
fully substantiated grounds of review; in giving support to the
decision-makers stance; and in the performance of the
reviewing courts function.34

30 The procedure envisaged by Rule 53 therefore fulfils an important function:

30.1 It ensures that review applications are not conducted in the dark

without access to the relevant records;

30.2 It ensures fairness in the proceedings by providing all parties with

copies of the relevant documents for them to make out their case; and

30.3 It allows the reviewing court to properly perform its function.

31 The President contends that that Rule 53 is not applicable to a review of his

decision. It is not clear on what basis he does so. However, to the extent that

32
Helen Suzman Foundation at para13.
33
Turnbull-Jackson v Hibiscus Court Municipality and Others 2014 (6) SA 592 (CC),
34
Turnbull-Jackson at 37.

12

 the suggestion is that Rule 53 is not applicable to executive acts, this

proposition is not sustainable.

32 This is demonstrated by the decision in Van Zyl v Government of Republic

of South Africa.35

32.1 In that case, individuals sought to review the South African

governments decision to refuse diplomatic protection.

32.2 The SCA confirmed that a decision as to whether diplomatic protection

should be given is an aspect of foreign policy that is essentially the

function of the executive.36 As such, the SCA was dealing with a

judicial review application in respect of an executive decision.

32.3 Far from holding that Rule 53 was inapplicable to executive decisions,

the SCA held the very opposite. It concluded that the appellants had

been required to follow Rule 53 in reviewing the executive decision:

Review applications, in the ordinary course of events, have to be

brought under Uniform Rule 53 (unless covered by the Promotion
of Administrative Justice Act 3 of 2000 - PAJA). This one was not,
and the failure to follow the rule caused much aggravation. 37

32.4 The SCA returned to this point later on its judgment. It rejected the

appellants attempts to make out a new case in their replying affidavit:

The justification for the new case was the fact that they did not
have the government's internal documents when the application
was launched. The answer to this is that had they bothered to follow
Uniform Rule 53, they would have had the documents before the

35
Van Zyl and Others v Government of Republic of South Africa and Others 2008 (3) SA 294 (SCA)
36
Van Zyl at para 77.
37
Van Zyl at para 36 (emphasis added)

13

 answering affidavit was filed; they would have been entitled to
amplify their founding affidavit; and the case would have proceeded
in an orderly manner and without complications.

33 A similar approach is taken in the work Superior Court Practice.38

34 In light of this, we submit that it is clear that:

34.1 Rule 53 does apply to the review of executive decisions;

34.2 The executive decision-maker is required to file a record in terms of

Rule 53 to allow the application to properly proceed; and

34.3 The present compelling application must accordingly succeed.

35 Even if there were any doubt on the question of whether Rule 53 applied, this

would still not assist the President. This is because even if Rule 53 were

regarded as too narrow to encompass the Presidents dismissal decisions, the

applicant would be entitled to a compelling order in terms of this Courts

inherent powers under section 173 of the Constitution.

35.1 This is made clear by the decision of the SCA in Democratic Alliance

v Acting National Director of Public Prosecutions.39

35.2 There, the SCA considered whether Rule 53 applied to the review

decision by the office of the National Director of Public Prosecutions to

38
In discussing Rule 53, the work at B53.3 explains that the meaning of review in the rule has changed in the
light of constitutional principles. It emphasizes that courts may subject any exercise of public power to
constitutional review under rule of law principle and the term review refers to the power conferred upon a
court to assess whether state or public power has been exercised in accordance with the principle of legality ie
whether such power has been exercised lawfully, rationally and in good faith.
39
Democratic Alliance and Others v Acting National Director of Public Prosecutions and Others 2012 (3) SA
486 (SCA).

14

 discontinue prosecutions and therefore whether the record of the

decision was compellable.

35.3 The SCA noted the wording of Rule 53 and noted that Uniform Rule

53 appears to be confined to dealing with decisions of particular

institutions and officials performing certain categorised functions,

namely, judicial, quasi-judicial or administrative functions.40

35.4 However, having considered the history of the Rule as the primary

means of controlling the exercise of public power the SCA concluded:

In the constitutional era courts are clearly empowered beyond the

confines of PAJA to scrutinise the exercise of public power for
compliance with constitutional prescripts. That much is clear from
the Constitutional Court judgments set out above. It can hardly be
argued that, in an era of greater transparency, accountability and
access to information, a record of decision related to the exercise
of public power that can be reviewed should not be made available,
whether in terms of Rule 53 or by courts exercising their
inherent power to regulate their own process.41 Without the
record a court cannot perform its constitutionally entrenched review
function, with the result that a litigants right in terms of s 34 of the
Constitution to have a justiciable dispute decided in a fair public
hearing before a court with all the issues being ventilated, would be
infringed.42

36 Accordingly, once it is clear that the applicant can seek to review Presidents

dismissal decisions under the principle of legality, it follows that the President

is required to provide the records of the decisions. This is so under Rule 53

or, if Rule 53 is inapplicable for any reason, in terms of this Courts inherent

power.

40
Democratic Alliance at para 35.
41
The Court quoted section 173 of the Constitution: The Constitutional Court, the Supreme Court of Appeal
and the High Court of South Africa each has the inherent power to protect and regulate their own process,
and to develop the common law, taking into account the interests of justice.
42
Democratic Alliance at para 37 (emphasis added)

15

37 This obligation extends not only to the records of the dismissal decisions (i.e.

the documents that were before the President in taking his decisions), but also

to the reasons for the decisions.

37.1 Rule 53(1)(b) provides that the decisionmaker is to provide: 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.43

37.2 Once it is clear that the Presidents decision is subject to legality and

rationality review, then it follows that he is required by law to supply the

reasons for the decision.

37.3 As the SCA explained in the context of a review of the decision of the

Judicial Service Commission regarding the appointment of judges:

I think it is true to say that there is no express constitutional or other

legal enactment that obliges the JSC to give reasons for not
recommending a candidate for judicial appointment. That of course
does not exclude an implied obligation to do so. In contending for
the existence of such an implied obligation, the CBC relied on two
premises. First, that the JSC is under a constitutional duty to
exercise its powers in a way that is not irrational or arbitrary.
Secondly, that because the JSC is an organ of State (as
contemplated by s 239(b) of the Constitution) it is bound (by s 195
of the Constitution) to the values of transparency and
accountability. I do not think that the validity of these premises can
be denied and I did not understand the JSC to do so.
But once these premises are accepted as valid, I cannot see how
the inference of an obligation to give reasons can be avoided. It is
difficult to think of a way to account for ones decisions other than
to give reasons (see eg Mphahlele v First National Bank of SA
Ltd [1999] ZACC 1; 1999 (2) SA 667 (CC) para 12). As to rationality,
I think it is rather cynical to say to an affected individual: you have
a constitutional right to a rational decision but you are not entitled
to know the reasons for that decision. How will the individual ever

43
Emphasis added

16

 be able to rebut the defence by the decision-maker: Trust me, I
have good reasons, but I am not prepared to provide them?
Exemption from giving reasons will therefore almost invariably
result in immunity from an irrationality challenge. I believe the same
sentiment to have been expressed by Mokgoro and Sachs JJ when
they said in Bell Porto School Governing Body v Premier, Western
Cape [2002] ZACC 2; 2002 (3) SA 265 (CC) para 159:
The duty to give reasons when rights or interests are affected
has been stated to constitute an indispensable part of a sound
system of judicial review. Unless the person affected can
discover the reason behind the decision, he or she may be
unable to tell whether it is reviewable or not and so may be
deprived of the protection of the law.44

37.4 The same two premises relied on by the SCA are plainly present here.

First, the President is under a constitutional duty to exercise his powers

in a way that is not irrational or arbitrary. Second, the President is

bound (by s 195 of the Constitution) to the values of transparency and

accountability.

37.5 It follows that the President is required to provide the reasons for his

dismissal decisions.

38 The facts of the present case demonstrate why it is so essential that the

President provides the records and reasons for the dismissal decisions.

38.1 Only the President knows what documents and facts he relied on in

making the dismissal decisions.

38.2 In this regard, a key question in the review application is whether and

to what extent the President relied on the so-called Intelligence

44
Judicial Service Commission and Another v Cape Bar Council and Another 2013 (1) SA 170 (SCA) at paras
43-44

17

 Report in making his dismissal decisions. That will only become clear

once the record and reasons are furnished. The applicant is entitled to

know this before it supplements its papers in terms of Rule 53.

38.3 The founding affidavit in the review application quotes what has been

stated in public by very senior government and ANC officials about the

fact that the President relied on the so-called Intelligence report in

taking his decision. 45 But the applicant does not know whether this is

so and, if so, what form the intelligence report took. If a record is not

furnished, there is no way for the applicant and this Court to assess

what were the real facts relied on by the President and what may be

ex post facto justifications of the decision under review.

RELIEF

39 We submit that the the relief sought in prayers 2.1 and 2.2 of the application

should be granted. The applicant should also be awarded its costs, including

the costs of two counsel.46

STEVEN BUDLENDER

LERATO ZIKALALA

Counsel for the Applicant

Chambers, Sandton
26 April 2017

45
Compelling application, RA para 26 p 88-89
46
Trustees for the Time Being of the Biowatch Trust v Registrar, Genetic Resources 2009 (6) SA 232 (CC).

18