South Africa: North Gauteng High Court, Pretoria

THE FIRST RESPONDENT'S ANSWER

[26] An answering affidavit deposed to by the Director-General in the Presidency and Secretary of the Cabinet was filed in both applications. In answer to the fourth respondent's explanatory affidavit an affidavit by President Ramaphosa was also filed.

[27] By the end of January 2018 (in his capacity as the  newly  elected President of the African National Congress and Deputy President of the country) President Ramaphosa was informed by former Minister Masutha of the intention to make a number of appointments of Directors and Special Directors of Public Prosecutions in the NPA across the country. It was also explained to him that former President Zuma had intended to make these appointments, but they had not been finalised and no public announcement had been made.

[28] Following his appointment as President, a series of briefing sessions took place with various organs of State, including the NPA. During a briefing session with Abrahams on or about 27 February 2018, the President enquired from Abrahams whether these appointments .had been fast-tracked and, if so, what were the reasons therefore. He was given the assurance that the appointments had not been fast-tracked and Abrahams was then informed that the President needed to apply his mind to the proposed appointees.

[29] In August 2018 the Constitutional Court delivered its judgment in the Nxasana matter and decided that the purported appointment of Abrahams as NDPP was unlawful and that he had to vacate that office. The appointment of a new NDPP was of critical importance and took priority. Once a new NDPP was appointed, the President turned to consider the other issues facing the leadership of the NPA including the appointments which are the subject matter of these proceedings.

[30] At the request of the President, a legal opinion was sought and obtained on the status of those proposed appointments . The essence of the opinion was that the proposed appointments were not final and as a result they could be revoked in the discretion of the President. The President gives the following explanation:

"I was thus at liberty to decide whether or not to give effect to those purported appointments by ratifying and announcing them in public, and, to the extent necessary, to retract or amend the purported appointments."

[31] Pursuant to the advice received the President then exercised his discretion and decided not to proceed with giving effect to - and publicly announcing - the purported appointments by former President Zuma. The following explanation is given by the President:

"I was not satisfied that the persons purportedly appointed by the former President, on the recommendation of Adv Abrahams, would necessarily best serve the interests of a highly effective NDPP or be in the best interests of the restructuring and revitalisation of the NDPP, as a vital organ in the justice system. I determined that the appointment of suitable persons to those positions should rather be considered afresh by the new NDPP, Adv. Batohi, who could then make recommendations in due course to me as President for appointment. That process awaits the outcome of the present litigation. "

[32] The President then exercised his discretion not to finalise  the appointment of the selected individuals. This was reflected in Presidential Minutes 67 and 69 referred to above.

THE LEGISLATIVE FRAMEWORK

[33] Section 179(1) of the Constitution, 1996 provides that there is a single National Prosecuting Authority consisting of a National Director of Public Prosecutions, Directors of Public Prosecutions and Prosecutors as determined by an Act of Parliament. Subsection (3) stipulates that national legislation must ensure that the Directors of Public Prosecutions are appropriately qualified and are responsible for prosecutions in specific jurisdictions.  Subsection (4) stipulates that national legislation must ensure that the Prosecuting Authority exercises its functions without fear, favour or prejudice.

[34] Executive decisions are dealt with in section 101 of the Constitution. Subsection (1) provides that a decision by the President must be in writing if it is taken in terms of legislation, or has legal consequences. Subsection (2) stipulates that a written decision by the President must be counter-signed by another Cabinet Member if that decision concerns a function assigned to that other Cabinet Member. Section 85(2)(e) is also relevant. It provides that the President exercises the executive authority, together with the other members of the Cabinet, by performing any other executive function provided for in the Constitution or in national legislation.

[35] In terms of the National Prosecuting Authority Act No 32 of 1998 ("NPA Act"), which is the legislation giving effect to the constitutional directive contained in section 179, the single National Prosecuting Authority is structured with an office of the National Director of Public Prosecutions and offices of the Prosecuting Authority  at each  Division of the High Court.   These offices are established under section 6(1) of the NPA Act and headed either by a Director of Public Prosecutions or a Deputy Director of Public Prosecutions appointed to the seat of each Division of the High Court.

[36] The appointment of Directors of Public Prosecutions is prescribed in section 13(1) of the NPA Act. It provides as follows:

"(1) The President, after consultation with the Minister and the National Director -

(a) may, subject to section  6(2) appoint a Director of Public Prosecutions in respect of an office  of the Prosecuting Authority established by section 6(1);

(aA) …

(b) …

(c) may appoint one or more Directors of Public Prosecutions (herein referred to as 'Special Directors} to exercise certain powers, carry out certain duties and perform certain functions conferred or imp9sed on or assigned to them or her by the President by proclamation in the Gazette."

[37] Section 14(3) provides that section 12(3), (4), (6), '(7), -(8) and (9), in respect of the vacation of office and discharge of the National Director, shall apply, with the necessary changes, with regard to the vacation  of office and discharge of a Director.

DISCUSSION

[38] The main issue to be considered is whether President Ramaphosa was entitled to reverse the initial decision of former President Zuma regarding the appointments of the applicants. Put differently, was he not precluded from doing so in view of the fact that the applicants had by then already been informed by Abrahams about their appointments?

[39] It was contended on behalf of the applicants that Presiden Ramaphosa was functus officio (he was not entitled to reconsider the decision which had already been made) and could therefore not set aside the decision of former President Zuma. It was further submitted that Presidential Minutes No 10 and 18 in terms whereof the applicants were appointed by former President Zuma are both final and valid documents, fully compliant with the provisions of section 13(1)(a) of the NPA Act read together with section 101(1) and (2) of the Constitution.

[40] Counsel for the President accepted that section 101 of the Constitution has been complied with, but submitted that compliance cannot alone determine the issue. It was further contended that a decision only becomes final and binding once it has been implemented by an overt external act oy the decision- maker. Until then, and despite the completion of certain procedural steps, the decision originally made is merely preliminary and therefore, so it was contended, the decision-maker may reverse or amend his or her preliminary decision.

[41] The functus officio doctrine states, generally speaking , that once a decision-maker has rendered a final decision, he becomes functus officio and cannot reconsider the decision made (Retail  Motor  Industry  Organisation   and Another  v Minister of Water and Environmental Affairs  and Another 2014 (3) SA 251 (SCA) par 23). This principle was applied in Milnerton Lagoon Mouth Development (Pty) Ltd v  The Municipality  of  George  &  Others 2004 JDR  0258

(C) par 12 where the High Court held as follows:

"The applicant submits, however, that the decision in Hopf v Pretoria ·City Council is no longer good law on the grounds that the Constitution and the statutory duties imposed on a municipality militate against the rule that a public authority may rescind its own decision. The short answer to this submission, in my view, is that it loses sight of the distinction between a preliminary decision and a final decision. A public authority is regarded as being functus officio only once a final decision has been made.   The authority may at any time revoke a decision before the actual exercise Q/ a power in terms of an empowering law.  This principle has been followed by the Constitutional Court in President of the Republic of South Africa and Others v South African Rugby Football Union and Others."

[42] The principle referred to in the Milnerton Lagoon case has  been explained by the Constitutional Court in President of the Republic- of South Africa and  Others  v  South African  Rugby  Football  Union  and  Others 2000  (1)  SA 1 (CC) par 44 as follows:

"In law, the appointment of a commission only takes place when the President's decision is translated into an overt act, through public notification ... section  84(2)(f)  does not prescribe  the mode  of public notification in the case of the appointment of a commission of enquiry but the method usually employed, as in the present case, is by way of promulgation in the Government Gazette. The President would have been entitled to change his mind at any time prior to the promulgation of the notice and nothing which he might have said to the Minister could have deprived him of that power. Consequently, the question whether such appointment is valid, is to be adjudicated as at the time when the act takes place, namely at the time of promulgation."

[43] Taking into account the dicta referred to above, it is clear that the functus officio doctrine applies only to final decisions. As the Constitutional Court indicated in President of the Republic of South Africa and Others v South African Rugby Football Union and Others, supra, the appointment of a commission only takes place when the President's decision is translated into an overt act, through public notification - meaning that the President would have been entitled "to change his mind at any time prior to the promulgation of the notice".

[44] However, it was submitted on behalf of the applicants, and  also  by counsel for Abrahams, that an overt act through public notification is not necessarily applicable in all cases --also not in this one - more particularly when there is no statutory requirement for publication in the Government Gazette or otherwise. Taking into account that the decision to appoint the -applicants was conveyed to them by Abrahams, it was contended that a point of finality is also arrived at when the decision is "announced or otherwise conveyed to those affected by it". In support of this submission, I was referred to the following statement by Prof Hoexter, Administrative Law in South Africa, 2nd Ed, p 278:

"In general, the functus officio doctrine applies only to final decisions, so that a decision is revocable before it becomes final. Finality is a point arrived  at  when  the  decision  is  published, announced  or otherwise conveyed to those affected by it." (my emphasis)

[45] I think there may be some merit, generally speaking, in the submission that in some cases finality is a point arrived at when the decision is conveyed to those affected by it, without a public announcement.   This raises the question whether  in this  case the decision taken  by former  President Zuma,  and the notification thereof by Abrahams to both the applicants, are sufficient to meet the requirement of finality.

[46] Counsel for the President pointed out the importance of the role of the Director of Public Prosecutions. In terms of the NPA Act there is a single National Prosecuting Authority structured with an office of the National Director of Public Prosecutions and offices of the Prosecuting Authority at each Division of the High Court. The offices of the Prosecuting Authority are established under section 6(1) of the NPA Act and headed either by a Director of Public Prosecutions or a Deputy-Director of Public Prosecutions appointed to the seat of each Division of the High Court.  I think there is merit in this argument.

[47] The importance of the role of the Director of Public Prosecutions is underscored and amplified by the fact that in section 13(1)(a) of the NPA Act the President appoints the Director of Public Prosecutions. The significance of this cannot be understated. The President is the Head of State and Head of the National Executive. His is indeed the highest calling to the highest office in the country (Economic Freedom  Fighter  v Speaker  of the National Assembly 2016 (3) SA 580 (CC) at 20). The decision of the President to appoint a Director of Public Prosecutions is therefore not the same, and also not on the same level, as a decision, for example, of a functionary to grant or refuse a licence. In such a case it may be sufficient if the applicant is formally notified .of the decision without it having been passed into the public domain (cf Raje  v Zeerust   Town Council 1938 TPD 283 at 290 as well as MEC for Health, Eastern   Cape, and Another  v Kirland Investments  (Pty) Ltd 2014 (3) SA  219  (SCA) where a subsequent decision to grant a  licence  to  operate  a   hospital was only communicated to the applicant).

[48] I was also referred to the decision of the Supreme Court of Appeal in Plover's  Nest Investment  v De Haan [2015] ZASCA (193) where the issue was whether conditions imposed  on owners of unimproved erven, which were  not communicated to them,  and  not  registered  against  the  title  deeds  of  the respective  properties,  \ifere  binding  on  the  owner.  Mhlantla  JA  held,  with reference to SARFU (President of the Republic of South Africa and  Others v South African Rugby Football Union and Others, supra) referred to  above, as follows (in par 24):

"SARFU Ill related to the exercise of presidential executive powers to appoint a commission of enquiry in terms of s 84(2)(f) of the Constitution. The question before the Court was whether the exercise of the power conferred on the President constituted administrative action. The Constitutional  Court held that the decision  was executive rather than administrative action. But Plover's Nest argued that SARFU Ill was authority for the proposition that a decision takes effect only when communicated.    The Court said  (para 44) that the appointment  of a commission of enquiry 'only takes place when the President's decision is translated into an overt act, through public notification '. The argument  loses sight of the fact that the President  was the repository  of power  in terms of the Constitution: only he could take such a decision and  he was  required   to  make   it  public.   In  this  matter   Gever  was   not the repository of power. Geyer simply miscommunicated its decision." (my emphasis)