[1] This is an urgent application by the Democratic Alliance (‘DA’) for interim relief pending a proposed application for judicial review which the DA undertakes to institute by no later than Monday 3 April 2017. The interim relief which the DA seeks concerns the so-called cabinet reshuffle which was announced in the early hours of this morning, Friday 31 March 2017.

[2] The interim relief which the DA claims is an interdict to prevent the swearing in ceremony of the newly appointed cabinet ministers and deputy ministers scheduled to take place at six ‘o clock this evening, ie in about 50 minutes’ time, and to interdict the reshuffle and to order that the cabinet, as it existed immediately  prior to the announcement of the reshuffle, remain in place pending the judicial review, alternatively pending a vote of no-confidence in the President to be moved in the National Assembly.

[3] In regard to the vote of no-confidence, there is a prayer directing the President, alternatively the Speaker, to summon the National Assembly to an extraordinary sitting with a view to considering and voting on the DA’s motion of no-confidence. Mr Katz SC, who appeared for the DA leading Mr Mayosi, did not press for this latter relief.

[4] The President’s power to select ministers to his cabinet is to be found in s 91(3) of the Constitution. His power to appoint deputy ministers is sourced in s 93(1) of the Constitution. The power to de-select (dismiss) ministers and deputy ministers is not expressly conferred by the Constitution but is inherent in the power of selection (cf Masethla v President Of the Republic of South Africa & Another [2007] ZACC 20; 2008 (1) SA 566 (CC) para 68).

[5] In the proposed review, which is to be instituted by Monday, the DA will be contending that the President has exercised his constitutional powers of selection and dismissal in a manner which is unlawful. The present application foreshadows that this contention will be based on allegations that the President’s decisions are irrational and were taken in bad faith.

[6] We need not decide today whether the President’s decisions under the provisions I have mentioned are susceptible to judicial review. I am not aware of any decision of our higher courts holding that certain classes of acts performed in the exercise of public power are altogether beyond the reach of judicial scrutiny. It may well be that, as an exercise of public power, the President’s decision to appoint or dismiss a minister or deputy minister is subject to legality review inter alia on the ground of irrationality, having due regard to the purposes for which the powers in question have been conferred (the oath or solemn affirmation which the President and his ministers must make, as set out in Schedule 2 of the Constitution, shed significant light on these purposes). But the threshold at which a court will intervene must be sensitive to the nature of the power.

[7] It is difficult to imagine a power closer to the heartland of the President’s personal preferences than the power to appoint and dismiss ministers and deputy ministers; it is by its nature highly discretionary. It may well be that the exercise of these powers can be impeached on the ground of irrationality but the threshold for judicial interference is likely to be very high. Of course, if bad faith could be properly proved by satisfactory evidence, interference might follow more readily. In general, though, I think it can be said that the primary consequence of decisions to appoint and fire cabinet ministers which the public or sectors of it regard as bad decisions, is political rather than legal.

[8] The interim relief which the DA seeks presupposes that the applicant enjoys reasonable prospects of success in the proposed review. That is the essence of the DA’s alleged prima facie case or prima facie right. I have indicated that the evidence required for interference on the basis of irrationality is likely to be at a high threshold though mala fides may stand on a different basis. But whatever the precise test for interference, it would need to be supported by facts properly established.

[9] Because of the (perhaps understandable) haste with which this application has been brought, the founding papers consist essentially of conclusions rather than facts when it comes to matters such as irrationality and bad faith. Ordinary observers of South African public life over the last 15 months may have their own views about the quality of the President’s decisions but any conclusion we reach as a court must be based on facts before us rather than on public perceptions or our own private opinions. Here the factual foundation for the prima facie case underlying the interim relief sought is not in our view to be found within the four corners of the affidavits before us.

[10] Apart from having to prove a prima facie case, the applicant must also establish that the balance of convenience favours the granting of interim relief and that, in the absence of such interim relief, irreparable harm is likely to be suffered.  The relatively short founding affidavit concentrates on the harm flowing from the cabinet reshuffle rather than on facts showing it to be an impeachable decision. The consequences are largely financial in nature, concerned with a rapid weakening in the South African currency and the risk of a sovereign credit downgrade. These phenomena are not to be underestimated: if South Africa is downgraded to sub-investment (junk) status, the cost of our borrowings, which are already very high, will increase and that will undoubtedly compromise the country’s ability to tackle a large number of social and economic challenges which have to be met to alleviate poverty and advance the quality of life of all our citizens.