Democratic Alliance v President of the Republic of South Africa and Others (091427/23) [2025] ZAGPPHC 1268 (9 December 2025)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: North Gauteng High Court, Pretoria South Africa: North Gauteng High Court, Pretoria You are here: SAFLII >> Databases >> South Africa: North Gauteng High Court, Pretoria >> 2025 >> [2025] ZAGPPHC 1268 | Noteup | LawCite sino index ## Democratic Alliance v President of the Republic of South Africa and Others (091427/23) [2025] ZAGPPHC 1268 (9 December 2025) Democratic Alliance v President of the Republic of South Africa and Others (091427/23) [2025] ZAGPPHC 1268 (9 December 2025) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPPHC/Data/2025_1268.html sino date 9 December 2025 REPUBLIC OF SOUTH AFRICA IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA Case Number: 091427/23 (1)      REPORTABLE:  NO (2)      OF INTEREST TO OTHER JUDGES: NO (3)      REVISED: NO DATE 9 December 2025 SIGNATURE In the matter between: DEMOCRACTIC ALLIANCE First Applicant SAREL JACOBUS FRANCOIS MARAIS Second Applicant and PRESIDENT OF THE RESPUBLIC OF SOUTH AFRICA First Respondent RETIRED JUSTICE PMD MOJAPELA Second Respondent LEAH GCABASHE SC Third Respondent ENVER SURTY Fourth Respondent JUDGMENT JANSE VAN NIEUWENHUIZEN J [1] This is an application for leave to appeal against the whole judgment and order of this court delivered on 25 September 2025. [2] The application is premised on three main grounds, firstly, the court erred in finding that the matter is moot; secondly, the court erred in failing to deal with the merits of the application and thirdly, the court erred in awarding costs against the applicants in circumstances where the Biowatch principle is applicable. [3] The first ground dealing with mootness revolves around the question whether the first respondent or any other executive authority would in future consider appointing a retired judge to a panel of enquiry. In this respect, the facts are common cause between the parties, and the question had to be answered with reference to authorities in which the principle of mootness have been dealt with. [4] The applicants maintain that the court erred in applying the law as it has crystallised in the authorities to the facts in casu. The principles applicable to the question of mootness in a constitutional context is complex and having carefully considered the submissions on behalf of the applicants, I am of the view that the application has prospects of success. [5] The second ground depends on the finding in respect of mootness and logic dictates that leave must be granted in respect thereof. [6] Insofar as the cost order is concerned, a court has a discretion in awarding costs  and a court of appeal would seldom interfere with the court’s discretion. The exercise of this discretion is, however, somewhat different in constitutional litigation against the State by private parties. In the result, I am of the view that leave to appeal should also be granted in respect of the cost order. [7] The issues are complex and deserves the attention of the Supreme Court of Appeal. ORDER 1.         The applicants are granted leave to appeal to the Supreme Court of Appeal against the whole judgment and order of this court delivered on 25 September 2025. 2.          Costs of the application is costs in the appeal. JANSE VAN NIEUWENHUIZEN JUDGE OF THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION DATE HEARD: 30 October 2025 DATE DELIVERED: 10 December 2025 December 2025 APPEARANCES Counsel for the Applicants: M Bishop M de Beer Instructed by: Minde Shapiro and Smith Counsel for the First Respondent: Nalane SC N Stein Instructed by: State Attorney Pretoria sino noindex make_database footer start