Case CCT 257/21 and CCT 259/21
 ZACC 01
Hearing Date: 08 November 2021
Judgement Date: 04 February 2022
Post Judgment Media Summary
The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.
On Friday, 4 February 2022 at 10h00, the Constitutional Court handed down judgment in two consolidated applications for leave to appeal directly to the Court against the judgment and order of the High Court of South Africa, Western Cape Division, Cape Town. These applications were brought by the Speaker of the National Assembly (Speaker) and the Democratic Alliance (DA) against the Public Protector. The Public Protector sought conditional leave to cross-appeal directly to the Court in the event that leave to appeal is granted to the Speaker and/or the DA. The matter concerns the validity of rules for the removal of office-bearers of Chapter 9 institutions in terms of section 194 of the Constitution.
Advocate Busisiwe Mkhwebane was appointed as the Public Protector in October 2016. Between 2017 and 2019, the DA initiated several motions in the National Assembly (NA) to have the Public Protector removed from office. The Portfolio Committee submitted a report which concluded that there were no rules for the removal of Chapter 9 institution office-bearers. As a result, the Rules were drafted, and adopted by the NA on 3 December 2019. The Rules provide for a 17-step process for the removal of Chapter 9 institution office-bearers from office. One of the steps involves the Speaker appointing an independent panel to consider whether there is prima facie evidence against the office-bearer. In terms of the Rules, the Speaker may appoint a Judge to serve on the independent panel (rule 129V). Another pertinent feature of the process is that, if the NA decides to proceed with a formal enquiry, the Rules provide that the office-bearer is entitled to legal presentation; however, the expert or legal representative is not allowed to participate in the formal proceedings (rule 129AD(3)). After the Rules were adopted, the Speaker appointed an independent panel, which included Justice Nkabinde, to consider whether there was prima facie evidence for the removal of the Public Protector. The panel concluded that there was prima facie evidence that the Public Protector had committed misconduct, and was incompetent to hold office.
The Public Protector disputed the validity of the Rules and alleged that the panel was biased. She instituted an application in the High Court challenging the constitutional validity of the Rules. She sought relief in two parts. In Part A she sought an interdict to halt the process of removing her from office pending the finalisation of Part B of the application. Part A was dismissed with costs. In Part B, the Public Protector challenged the Rules on 12 separate grounds and sought an order declaring them unconstitutional. The High Court considered the challenge to the Rules, and upheld two grounds: (a) the limitation on the right to legal representation was irrational; and (b) the appointment of a Judge to serve on the independent panel offends the doctrine of separation of powers. As section 194 provides that the process must be reasonable and procedurally fair, the High Court held that in this matter the flexibility to allow for full legal representation is required to attain procedural fairness. The High Court severed a portion of the rule 129AD(3) and removed the part that limited the office-bearer’s right to full legal representation. On the appointment of a Judge, the High Court held that it is undesirable for a Judge to be part of the independent panel, due to the process being inherently politically charged. The High Court held that the test established in NSPCA v Minister of Agricultural, Forestry and Fisheries was not met and, therefore, the appointment of a Judge to the independent panel offends the principle of separation of powers. The reference to “Judge” in rule 129V was severed. The other grounds of challenge to the Rules were dismissed.
Before the Constitutional Court, the Speaker challenged both orders of the High Court and submitted that it is in the interests of justice to grant leave to appeal directly to the Court on an urgent basis. On the merits, she argued that the limitation on legal representation is rationally connected to the Chapter 9 office-bearer being personally accountable to the NA. Further, Judges may perform non-judicial functions; hence nothing bars their appointment to the panel – especially considering the qualities, skills and independence they possess. In any event, no Judge may be appointed to the panel without the involvement of the Chief Justice, whom the Speaker must consult before a Judge is appointed. This protects judicial independence. The DA only challenged the order relating to the appointment of a Judge to the independent panel. It submitted that rule 129V is constitutionally valid, does not breach the separation of powers doctrine, and does not threaten judicial independence. According to the DA, the High Court erroneously asked whether it is desirable to appointment a Judge to the panel, when it ought to have asked whether it is permissible to do so.
The Public Protector argued that the applicants failed to establish urgency and no circumstances exist to justify the granting of a direct appeal. On the merits, the Public Protector submitted that rule 129AD(3) does not dislocate the Chapter 9 institution office-bearers’ accountability to the NA, the assertion that they must be accountable personally is unsustainable. As a result, the Public Protector averred, that ground of appeal must fail. Concerning the issue of the separation of powers doctrine, she submitted that mere consultation with the Chief Justice does not negate the concerns regarding judicial independence. Neither the Chief Justice nor the Speaker is empowered to appoint a Judge. This violates the separation of powers doctrine and the rule of law. In the conditional cross-appeal, the Public Protector challenged the Rules on the following grounds: irrationality in the form of ultra vires; procedural irrationality; audi alteram partem; retrospectivity; interpretation of section 194; severance; reviewability; and costs order and/or mala fides.
In a unanimous judgment penned by Mhlantla J, the Constitutional Court held that this matter is urgent, purely legal in nature, concerns matters of public importance, and that direct appeal should be granted. On the right to legal representation, the Court agreed with the High Court that the limitation of legal representation is not rationally connected to the purpose sought to be achieved. The Rules apply equally to all Chapter 9 institution office-bearers, and it is of no moment that the Public Protector is legally trained. The accountability of the Chapter 9 institution office-bearer is sufficiently secured by the fact that a legal representative cannot give evidence on behalf of the office-bearer. The Rules state that the NA must ensure that the enquiry is conducted in a reasonable and procedurally fair manner – this requires full legal presentation. As a result, the appeal against this order of the High Court failed.
Regarding the appointment of a Judge to the independent panel, Mhlantla J held that the correct question concerning the appointment of a Judge is whether it is permissible, and not whether it is desirable to do so. Therefore, the High Court erred as it asked the wrong question. The Court considered whether the appointment of a Judge to the panel to consider evidence and make a prima facie finding would be incompatible with judicial office. In answering this question, the Court had regard for its jurisprudence, in particular, South African Association of Personal Injury Lawyers v Heath and NSPCA v Minister of Agricultural, Forestry and Fisheries. The Court held that the separation of powers doctrine is not absolute and by applying the test articulated in NSPCA, it is apparent that the impartiality, independence and lack of bias of a Judge places the Judge in the perfect position to perform this function. Furthermore, the Judge is appointed in consultation with the Chief Justice, which safeguards the separation of powers doctrine. Lastly, the rule places an explicit time limit on the duration of the Judge’s appointment, being a 30-day period. In the result, this Court held that the High Court erred when it severed part of rule 129V, which relates to the appointment of a Judge to the independent panel. The appeal on this ground was upheld, and the order set aside.
Concerning the conditional cross-appeal, the Constitutional Court held that, although the Public Protector did not comply with the procedure for bringing a cross-appeal before the Court, it was in the interests of justice to entertain it so as to bring finality to these proceedings. On the first ground of the cross-appeal, which is, irrationality in the form of ultra vires, the Court held that the NA’s power to adopt rules can be found squarely within the Constitution. Moreover, the Rules make provision for a person who has already been appointed as a Judge to serve on the independent panel; therefore, the Speaker does not appoint a person to the office of a Judge but appoints a Judge in consultation with the Chief Justice to be a member of the independent panel. In terms of the argument relating to audi alteram partem, the Court held that the office-bearer has two opportunities to be heard, and the absence of a hearing at every stage of the process does not breach the principle of legality. The Court also dismissed the third ground, being retrospectivity, on the basis that it was unimaginable that the drafters of the Rules intended for the Rules not to apply to the very removal process that was before the NA. On the interpretation of section 194, the Court held that the Public Protector failed to show that the definitions of “incapacity” and “misconduct”, as contained in the Rules, are impermissibly broad or narrow. In response to the challenge on severability, the Court held that the High Court correctly severed rule 129AD(3), this is clearly an instance where the good can be separated from the bad. Lastly, the Court also dismissed the unmeritorious challenges on reviewability and mala fides. The Court, therefore, dismissed the cross-appeal in its entirety.
In conclusion, the current processes before the NA to remove the Public Protector from office have been suspended pending the outcome of this litigation, and the process has not yet reached the stage of the section 194 enquiry before the rule 129AA committee. As a result, the retrospectivity of the order of constitutional invalidity will have no bearing on the lawfulness of the current process, and will not disrupt the steps already undertaken. When the section 194 enquiry formally proceeds, the Public Protector will be entitled to full legal representation in the committee proceedings.
In the result, the Court granted leave to appeal directly to it on an urgent basis. The appeal was upheld in part, with the order of the High Court, which severed part of rule 129V – relating to the appointment of a Judge to the panel – being set aside. The appeal against the order relating to full legal representation was dismissed. The cross-appeal was also dismissed. In the first application, the Speaker and the Public Protector were ordered to pay their own costs. In the second application, the Public Protector was ordered to pay the costs of the DA.
The Full judgment here