Democratic Alliance v President of South Africa and Others (CCT 122/11) [2012] ZACC 24; 2012 (12) BCLR 1297 (CC); 2013 (1) SA 248 (CC) (5 October 2012)

Key Facts

Issues

• The consequences for rationality when relevant factors (e.g., Ginwala Commission findings) are ignored, and whether such omissions taint the entire decision-making process.
• Whether the evidence demonstrates Mr. Simelane is a fit and proper person for the role, based on his conduct before the Ginwala Commission and disciplinary investigations.
• Whether the process as well as the ultimate decision by the President must be rational, including the relationship between steps taken and the constitutional purpose for the appointment.
• How the principle of separation of powers interacts with the rationality requirement for executive decisions, particularly presidential appointments.
• The distinction between reasonableness and rationality in the context of presidential and executive decision-making, particularly regarding the evaluation of means and ends in administrative law.
• Whether the President had an ulterior purpose in appointing Mr. Simelane, potentially undermining the appointment's constitutionality.
• Whether the requirement that the National Director must be a fit and proper person is an objective jurisdictional fact antecedent to appointment, as outlined in section 9(1)(b) of the National Prosecuting Authority Act.
• Whether the President's decision to appoint Mr. Simelane was rational, considering the Ginwala Commission's findings and the Public Service Commission's recommendations.

Holdings

• The Constitutional Court confirmed the Supreme Court of Appeal's declaration that the President's appointment of Menzi Simelane as National Director of Public Prosecutions was irrational and invalid due to failure to consider critical evidence and recommendations from the Ginwala Commission and Public Service Commission. The court emphasized that the process lacked rational connection to the purpose of appointing a fit and proper person.
• The court held that the invalidity of Simelane's appointment does not automatically invalidate decisions made by him during his tenure as National Director, provided those decisions can be challenged on other grounds.

Remedies

• The Minister (Second Respondent) is ordered to pay the applicant's costs in this Court, including the costs of two counsel.
• The Constitutional Court confirmed the declaration of invalidity of the President's appointment of Menzi Simelane as National Director of Public Prosecutions, stating it was inconsistent with the Constitution.
• Decisions made by Menzi Simelane in his capacity as National Director are not invalidated merely due to the invalidity of his appointment.

Legal Principles

• The Constitutional Court applied the principle of the rule of law, holding that the President's appointment of Mr. Simelane must be rationally connected to the constitutional purpose of ensuring a fit and proper National Director. The judgment clarified that rationality is a constitutional requirement for executive decisions, ensuring they are not arbitrary or capricious.
• The court conducted a rationality review under judicial oversight, finding the President's failure to consider the Ginwala Commission's findings and the Public Service Commission's recommendations rendered the appointment irrational. The judgment distinguished rationality from reasonableness, affirming that executive decisions must be rationally connected to their constitutional purpose.

Precedent Name

• SARFU
• S v Lawrence; S v Negal; S v Solberg
• Merafong Demarcation Forum and Others v President of the Republic of South Africa and Others
• Poverty Alleviation Network and Others v President of the Republic of South Africa and Others
• Chonco and Others v President of the Republic of South Africa and Others
• Brink v Kitshoff NO
• Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others
• Johannesburg Stock Exchange and Another v Witwatersrand Nigel Ltd and Another

Cited Statute

• Public Service Act, 1994
• Constitution of the Republic of South Africa
• National Prosecuting Authority Act 32 of 1998
• Promotion of Administrative Justice Act 3 of 2000 (PAJA)

Judge Name

• Maya AJ
• Khampepe J
• Jafta J
• Skweyiya J
• Van der Westhuizen J
• Froneman J
• Cameron J
• Mogoeng CJ
• Yacoub ADCJ
• Nkabinde J

Passage Text

• The Supreme Court of Appeal was of the view that the fact that the Ginwala Commission's comments were not taken into account was in itself enough to set aside the appointment as irrational.
• The President's decision to ignore it was of a kind that coloured the rationality of the entire process, and thus rendered the ultimate decision irrational.
• The declaration of invalidity by the Supreme Court of Appeal of the decision of the President... is confirmed.