The DA’s application to have President Jacob Zuma disclose reasons for firing former Finance Minister Pravin Gordhan and his Deputy Mcebisi Jonas has got everyone including “legal experts” confused. The debate started with the issue of separation of powers, then it was the issue of rationality or lack thereof, then we were told the case couldn’t be appealed. All very technical as Greg Mashaba says in his response to Mdu – letters page. Mashaba also says it’s a two-step procedure which this law expert, James Grant, writing in his blog South African Criminal Law says. Grant writes this of himself: PhD, Advocate, Member of Jhb Bar, Visiting Associate Professor of Law (Wits) – does it count for anything? You be the judge…
Judge Vally’s order, that President Zuma must provide the record of his reasons, is known as an interlocutory ruling. It doesn’t decide the main dispute – only a procedural step along the way.
Normally, these cannot be appealed – because litigation would be endless if every ruling were appealable and everything was appealed.
But our law in both the common law (court judgments) and in the High Court rules, seems to provide for it – in exceptional circumstances. Ultimately the test will be what is in the interests of justice, and some of the considerations are whether a significant portion of the dispute has been decided, would irreparable harm be done, and is the rulings truly final. Arguably, given the importance of the matter, Zuma may succeed in persuading a court that this ruling perhaps goes sufficiently deep into to the issue, would be irreparable if observed, and is final on this issue, would case irreparable harm, and it cannot be altered. So Zuma may be able to overcome the hurdle that Judge Vally’s ruling is only interlocutory in nature.
That does not mean he will be granted leave to appeal – that is another hurdle and the ordinary rules apply there: especially that there must be reasonable prospects of success. And yes, if Zuma is denied leave by the Pretoria High Court, he may apply to the SCA – and so it goes.
But what of the effect of Judge Vally’s order? For many, this is the real question – as it is for me.
Here one must consult the almost unintelligible rule 18 of the High Court rules.
Section 18(2) provides that if one applies for leave to appeal or appeals an interlocutory ruling, the effect of the ruling is not suspended – unless the applicant can show exceptional circumstances, which include that the applicant will suffer irreparable harm. The point is that Judge Vally’s order remains in force as the default and time is running – tomorrow (at the time of writing) is the deadline whether you have applied for leave to appeal or not. There could be and probably will be a condonation application – a please forgive me for being late with my homework. But crucially, the clock is ticking.
To stop the clock, the burden will be on Zuma to persuade the Pretoria High Court:
1) to Grant him leave to appeal; AND
2) that there are these exceptional circumstances that require that the court suspend the order that he must provide the record of his decision.
If Zuma is successful, the court will order that the ruling that he must disclose the record is suspended. But if this happens, it triggers in the rules an almost unbelievable consequence. Under rules 18(4), the moment the suspension order is granted, suspending the effect of the original ruling, that order to suspend the effect of the ruling, is itself suspended. To be clear, even if Zuma is successful in persuading the High Court to grant leave to appeal and to suspend the ruling that he must disclose the record, that order is suspended and he must still provide the record. The order of suspension will be suspended, until the appeal is decided.
Unbelievable? Yes. Does the law sometimes get it right, even by committing a few compensating wrongs?
– James Grant
10 May 2017