When courts can intervene in executive decisions

News that the Presidency has approached the Constitutional Court, in the belief that the High Court judgment – ordering former President Jacob Zuma provide a record and reasons as to the firing of former Finance Minister, Pravin Gordhan – would set a bad precedent, is taken up by Centre for Constitutional Rights’ Phephelaphi Dube. In an analysis on the centre’s website, she notes that courts are empowered to review laws or conduct – even in matters involving the legislature or the executive. In the 2010 decision of Albutt v Centre for the Study of Violence and Reconciliation and Others, the Constitutional Court stated that courts may not interfere with the executive decisions selected simply because they do not like them, or because there are other more appropriate means that could have been selected. However, where an executive decision is challenged, the courts are obliged to examine the means selected to determine whether they are rationally related to the objective sought to be achieved. ‘If objectively speaking, they are not, then they fall short of the standard demanded by the Constitution.’ Dube notes that in this case, Zuma argued that the Cabinet reshuffle decision is an ‘executive decision’ falling outside of the purview of the courts. This, she says, reflects an executive-minded approach, which falls short of understanding the context in which the executive exists. ‘The rule of law demands that executive decisions be rational and that they be connected to the purpose for which the power is exercised. It is therefore questionable as to whether reliance on the largely discredited intelligence report to reshuffle the Finance Minister constitutes a rational choice.’ She adds ‘both the executive and the judiciary have to accept that each branch has a role to play and that the rule of law and the separation of powers is ultimately meant to ensure that legitimate government policies are implemented’.