[E]ven if the [coronavirus] is under control, many voters may be cautious about stepping out to a polling place where many people will gather. When I reached out to a wide array of voting rights advocates, election law scholars, and former election officials, I heard the same three-word solution over and over again: “vote by mail.” Mail-in ballots are a major reason turnout did not crater in the Florida and Arizona primary elections held earlier this month. And they are the most straightforward way to ensure that voters can still cast a ballot even if they are stuck at home. In the ideal regime, which already exists in Colorado, Oregon, Washington, Utah, and Hawaii, voters would automatically receive a ballot in the mail in the weeks before the election. These voters should also be given the option to vote in person, in case they do not receive the ballot or lose it, but no one should have to request a mail-in ballot in order to receive one.
Earlier this week the North Gauteng High Court ordered President Jacob Zuma to provide all documents he relied on when making the decision to reshuffle his cabinet. The court also ordered the President to provide reasons for the reshuffle. However, the High Court judgment is less surprising (and may be less consequential) than many armchairs lawyers might have realised.
In 2009 then President Thabo Mbeki proceeded to consider the pardoning of prisoners who claimed that they were convicted of offences that were politically motivated. After seeking guidance from a range of people, President Mbeki concluded that he would pardon selected prisoners to advance the twin objectives of “nation-building and national reconciliation”.
As section 84(2)(j) of the Constitution grants the President the exclusive right to pardon or reprieve offenders (just as section 91 grants the President the exclusive right to appoint and dismiss cabinet ministers), President Mbeki probably did not expect his decision to be challenged in court. But this is exactly what happened.
The Presidency had declined a request from various groups representing the interests of the victims of apartheid era political offences – including the Khulumani Support Group – to participate in the process of consultation leading up to the intended pardon. The aggrieved groups then turned to the courts to have the decision to exclude them from the process declared irrational and invalid.
The matter eventually ended up in the Constitutional Court and in early 2010 the court handed down judgment in the case Albutt v Centre for the Study of Violence and Reconciliation and Others. The main judgment – written by Ngcobo J – summarised the well-settled law on the power of the court to review and set aside decisions taken by the President as follows:
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… It follows therefore that the exercise [by the President] of the power to grant pardon must be rationally related to the purpose sought to be achieved by the exercise of it.
The President derives all his powers from the Constitution, which means that the exercise of this power must comply with the provisions of the Constitution, including section 1(c) which entrenches the Rule of Law. This necessarily mean that the president must always act rationally when he exercises any powers in terms of the Constitution.
By the time Albutt was decided this general principled had been confirmed in several Constitutional Court judgments, including in Affordable Medicines Trust and Others v Minister of Health and Others; Pharmaceutical Manufacturers Association of South Africa and Another: In re Ex Parte President of the Republic of South Africa and Others; President of the Republic of South Africa and Others v South African Rugby Football Union and Others and Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council and Others.
In fact, the principle was first confirmed by the Constitutional Court in 1997 in President of the Republic of South Africa and Another v Hugo in a case that also dealt with the pardoning of prisoners. In Hugo the Constitutional Court warned that some decisions taken by the President would be of such a nature and would be exercised in such a manner that the Constitution would provide “no ground for an effective review of a presidential exercise of such a power”.
This means that where the President decides to appoint or dismiss a cabinet minister – a highly political decision – and where the President provides general, open ended, reasons for the decision, the courts will usually not be able to review and set the decision aside the decision.
For example, a court will not review and set aside the dismissal of a cabinet minister, if the President merely states that the minister was dismissed for political reasons or because he did not get along with the minister. The President has extremely broad powers to appoint and dismiss cabinet ministers and can do so for a myriad of valid reasons and courts would be extremely hesitant to interfere in such decisions. There would therefore normally be no grounds for an effective review of the presidential decision to appoint or dismiss a cabinet minister.
However, as justice Goldstone held in Hugo:
This does not mean that if a president were to abuse this power vested in him or her… a court would be powerless, for it is implicit in the … Constitution that the President will exercise that power in good faith. If, for instance, a president were to abuse his or her powers by acting in bad faith I can see no reason why a court should not intervene to correct such action and to declare it to be unconstitutional. For example, a decision to grant a pardon in consideration for a bribe, could no doubt be set aside by a court. So, too, if a president were to misconstrue his or her powers I can see no objection to a court correcting such an error, though it could not exercise the discretion itself.
This is so because an abuse of power or the exercise of power in bad faith would be irrational and invalid. It is important to note that rationality review does not allow the court to consider the merits of the President’s decision. The court could not interfere with the appointment of a cabinet minister simply because it did not like the decision, or because the decision had adverse consequences for the country, or because the vast majority of citizens opposed it. As the Ngcobo J held in Albutt:
What must be stressed is that the purpose of the enquiry is to determine not whether there are other means that could have been used, but whether the means selected are rationally related to the objective sought to be achieved. And if objectively speaking they are not, they fall short of the standard demanded by the Constitution.
When determining whether the President acted rationally, the reasons for the decision (and the facts on which the President relied to make the decision) would be pivotal. In Albutt for example, the court held that the decision by President Mbeki to exclude all victim groups from the process to determine who would be pardoned and who not was irrational because there was no rational connection between the reasons given for the pardoning inquiry and the process followed during the pardoning inquiry.
Recall that President Mbeki had stated that the reason for the pardoning process was to advance the twin objectives of “nation-building and national reconciliation”. In other words, President Mbeki provided very specific and distinct reasons for his actions. This ultimately led to the invalidation of the process: the court held that the exclusion of the victims from participating in the complex pardoning process was not rationally related to the achievement of the objectives of the pardoning process, namely to achieve “nation-building and national reconciliation”.
The more general the reasons provided by the President, the more difficult it would be for the court to intervene. If President Mbeki had merely stated that the reason for the pardoning decision was that he wished to show mercy for certain categories of prisoners, the court would not have been able to review and set aside the decision.
From the above it must be clear that for a court to determine whether it could review and set aside any decision by the President on the ground of rationality, it is necessary to know what the reasons for the decision were and on what facts the decision was based.
This is why the High Court this week ordered the President to provide reasons for the decision to reshuffle his cabinet and to provide any record on which the decision was based. The High Court was merely following the existing Constitutional Law precedent.
Unless the Constitutional Court qualifies its previous precedent (for example, by holding that the appointment and dismissal of cabinet ministers are so inherently political in nature that it would never be possible for the court to review and set aside such decisions) – the President could always be ordered to provide reasons for the decision to hire or fire a cabinet minister.
However, it remains highly unlikely that the court will in fact review and set aside the decision by the President to reshuffle his cabinet.
There are at least two reasons for this.
First, the appointment or dismissal of cabinet ministers are highly charged political decisions and courts do not usually interfere with such decisions. Unless there is clear evidence (not just suspicions) that the President acted in bad faith or with an ulterior purpose, it would be easy for the President to show that he acted rationally when he exercised his power to appoint or dismiss cabinet ministers. In the absence of smoking gun evidence, it would therefore be close to impossible to prove that the President indeed acted in bad faith or with an ulterior purpose.
Second, there are few objective criteria for hiring or firing ministers. In terms of section 91 of the Constitution there is only one objective requirement for appointment as a minister. This is that the President must appoint all but two ministers from among the members of the National Assembly (NA). This means if the President appoints a third person to the cabinet who is not a member of the NA, the decision could be reviewed and set aside as irrational because the objective requirement for appointment would not have been met.
But if the President appoints an obscure back-bencher who has been charged with corruption to the cabinet, it is unlikely that the court will review and set this decision aside because rationality review does not empower the court to interfere with cabinet appointments merely because the appointments are wrong-headed or catastrophically unwise.
I suspect the only potential problem that the President might face if the decision is indeed challenged in court, is that he is alleged to have given contradictory and invalid reasons for reshuffling his cabinet. If it is true that the President claimed to have relied on a fake intelligence report when he made the decision (a claim made by others but not by the President), this could provide evidence that the decision was made in bad faith or with an ulterior purpose.
But the President may well provide some of the publicly stated reasons for the reshuffle (the break-down of the relationship with Pravin Gordhan; infusing the cabinet with more youthful talent; giving effect to the ANC’s wishes) and remain silent on the alleged fake intelligence report. If this happens, this might well be the end of the matter: the court may then dismiss the application to review and set aside his decision to reshuffle the cabinet.
Unless the President’s reliance on the fake intelligence report is confirmed before the court by someone with direct knowledge of the facts (this would be one of the top 6 of the NEC), it is difficult to imagine that the court will interfere with the decision to reshuffle the cabinet.
Of course, it is not possible to predict what facts will be put before the court if a review application is launched. But as things stand, what at first might appear to be a radically invasive order handed down by the High Court, might turn out to be of little consequence and not nearly as invasive as some armchair lawyers have argued on social media.BACK TO TOP