President Jacob Zuma has to explain why he reshuffled his Cabinet because of a rule governing high courts which relates to reviews of decisions, Judge Bashier Vally said on Tuesday.
Rule 53 of the Uniform Rules of Court, which governs High Court proceedings, was established to regulate on a national basis the procedure to be followed in cases of all types of review, whether based on statutory or common law.
Vally said for the last five decades, courts had been able to perform their judicial functions because of rule 53.
He explained, in the South Gauteng High Court in Johannesburg, the reasons for his ruling last Thursday in the North Gauteng High Court in Pretoria that Zuma should hand over all records he used to justify reshuffling his Cabinet.
However, most of the cases where rule 53 was applied involved a decision or proceedings of an inferior court, a tribunal, a board, or an officer performing judicial, quasi-judicial or administrative functions, and not an executive decision.
Zuma had relied on this to contend that the provisions of rule 53 did not apply to an application to review his executive decision to reshuffle his Cabinet.
The weakness in Zuma's case was that he had relied on the literal interpretation of the rule, Vally said.
"Rule 53 was promulgated at a time when executive decisions were not subject to review. Subsequently, with the enactment of the Constitution and the development of common law since its enactment, these decisions, as the president acknowledges, are subject to review."
He said it was true that rule 53 had not been amended to cater for this, but to decide on its applicability to review executive decisions, it was necessary to subject the rule to a purposive interpretation.
"Relying on the purposive interpretation, there is no logical reason not to utilise it in an application to review and set aside an executive decision."
The rule could thus be applied to a bid to review and set aside an executive order or decision, Vally said.
In court papers, Zuma had said that the DA's urgent application to have reasons for the recent Cabinet reshuffle divulged was misconceived and without merit.
The Democratic Alliance filed an urgent application with the court on April 24, to force Zuma to disclose his reasons for reshuffling his Cabinet on March 30.
Having succeeded, the DA's next step would be to ask the court to review and set aside his decision to sack Pravin Gordhan as finance minister, and his deputy Mcebisi Jonas.
Zuma described it as an abuse of court processes and argued he was exercising his powers in terms of section 91 (2) of the Constitution. He said it was an executive decision that deserved protection from disclosure.