President of the Republic of South Africa v Democratic Alliance and Others

In March 2017 President Jacob Zuma reshuffled his Cabinet, dismissing, among others, the Minister of Finance Pravin Gordhan and Deputy Minister Mcebisi Jonas, and appointing Malusi Gigaba and Sifiso Buthelezi in their stead. The Democratic Alliance (DA) launched an urgent review application in the High Court under rule 53 of the Uniform Rules of Court, contending that the President’s decision was unlawful, unconstitutional and irrational. When the President did not furnish the record and reasons, the DA brought an interlocutory application compelling compliance with rule 53. The High Court granted the order. While the President’s appeal against that interlocutory order was pending, President Zuma resigned, the Cabinet was reshuffled again, and the DA withdrew the main review application by agreement. Despite the withdrawal, the President persisted with the appeal against the interlocutory order, ultimately seeking leave to appeal to the Constitutional Court.

Leave to appeal was granted, but the appeal was dismissed. The President was ordered to pay the costs of the application, including the costs of two counsel.

The case affirms the Constitutional Court’s cautious approach to mootness and interlocutory appeals, particularly in politically sensitive executive matters. It underscores that the Court will not provide advisory opinions on abstract questions of executive power and judicial review in the absence of a live dispute, and reinforces judicial restraint grounded in the separation of powers.