Speaker of the National Assembly v Public Protector and Others; Democratic Alliance v Public Protector and Others (CCT 257/21;CCT 259/21) [2022] ZACC 1; 2022 (3) SA 1 (CC); 2022 (6) BCLR 744 (CC) (4 February 2022)

Key Facts

Issues

• Whether rule 129AD(3) of the Rules limits a Chapter 9 institution office-bearer's right to legal representation during the section 194 enquiry into their removal from office.
• In the event that leave to cross-appeal is granted, whether the High Court erred when it dismissed the other grounds on which the Rules were challenged and the punitive costs order sought.
• Whether the Public Protector's conditional application for leave to cross-appeal against eight dismissed grounds is properly before this Court, and if leave to cross-appeal should be granted.
• Whether a Judge may be appointed to the independent panel established in terms of rule 129V to determine prima facie evidence of misconduct, incapacity, or incompetence in Chapter 9 institution office-bearers, in light of the separation of powers doctrine.
• In the event that an order of invalidity is granted, whether the order should be prospective or retrospective.

Holdings

• Leave to cross-appeal is granted, but the cross-appeal is dismissed as it lacks reasonable prospects of success.
• Leave to appeal directly to this Court on an urgent basis is granted.
• In CCT 257/21, each party must pay their own costs. In CCT 259/21, the Public Protector must pay the Democratic Alliance's costs, including two counsel.
• The proviso in rule 129AD(3) is irrational and inconsistent with the Constitution, and is declared invalid. The amended rule now provides that the section 194 committee must allow the holder of a public office to be assisted by a legal practitioner or expert of their choice.
• The appeal against the order in paragraph 118(a)(ii) of the High Court is upheld. The High Court's order severing the provision for a Judge's appointment to the panel is set aside, and the application relating to the constitutionality of rule 129V is dismissed.
• The appeal against the order in paragraph 118(a)(i) of the High Court is dismissed, except as amended to allow legal practitioners to participate in the committee.

Remedies

• The cross-appeal by the Public Protector is dismissed. The Public Protector's conditional application to challenge the High Court's findings on eight additional grounds is rejected for lack of merit and procedural compliance.
• The Public Protector must pay the Democratic Alliance's costs in CCT 259/21, including costs of two counsel. In CCT 257/21, each party bears their own costs. This reflects the court's determination of responsibility for legal expenses.
• Leave to appeal directly to the Constitutional Court on an urgent basis is granted. The Speaker of the National Assembly and Democratic Alliance were permitted to appeal directly without going through the Supreme Court of Appeal due to the constitutional significance and urgency of the matter.
• The High Court's order declaring the limitation of legal representation unconstitutional is amended. The proviso in rule 129AD(3) is declared invalid and severed, now allowing office-bearers full legal representation during the section 194 enquiry.
• The appeal against the High Court's order in paragraph 118(a)(i) (limiting legal representation) is dismissed except for the amended provision. The limitation on legal practitioners participating in the committee was declared invalid and severed from rule 129AD(3), now allowing full legal representation during the section 194 enquiry.
• The appeal against the High Court's order in paragraph 118(a)(ii) (Judge appointment to the panel) is upheld. The High Court's severance of the provision allowing a Judge on the panel is set aside, affirming the constitutionality of rule 129V.

Legal Principles

• The Court emphasized that the National Assembly's Rules must comply with constitutional mandates. The Rules were validated as they align with the constitutional requirement for accountability of Chapter 9 institutions, ensuring that no office-bearer is subject to unmeritorious removal motions and that processes are transparent and fair.
• The Constitutional Court upheld the permissibility of appointing a Judge to the independent panel for the removal of Chapter 9 institution office-bearers, distinguishing it from the AmaBhungane case. The Court emphasized that the Speaker appoints the Judge in consultation with the Chief Justice, ensuring the role is non-judicial and does not interfere with judicial independence. The NSPCA test was applied, confirming the appointment is not incompatible with judicial office.
• The Rules were challenged as ultra vires and irrational. The Court found the appointment of a Judge to the panel was not ultra vires, as the Speaker's power to appoint comes from section 57 of the Constitution. The limitation on legal representation was deemed irrational under the Wednesbury test, as it was not proportionate to the objective of personal accountability.
• The Court affirmed the necessity of full legal representation for Chapter 9 institution office-bearers during section 194 enquires, aligning with procedural fairness. The High Court's decision to sever the limitation on legal participation was upheld, as the restriction was deemed irrational and inconsistent with constitutional requirements for fairness.

Precedent Name

• Economic Freedom Fighters v Speaker of the National Assembly (EFF II)
• Electoral Commission v Mhlope
• Public Protector v Commissioner for the South African Revenue Service
• South African Association of Personal Injury Lawyers v Heath
• AmaBhungane Centre for Investigative Journalism NPC v Minister of Justice and Correctional Services
• NSPCA v Minister of Agricultural, Forestry and Fisheries
• Hamata v Chairperson, Peninsula Technikon Internal Disciplinary Committee

Cited Statute

• Section 28(2) of the Judicial Service Commission Act 9 of 1994
• Section 174(3) of the Constitution
• Section 57(1) of the Constitution
• Section 194 of the Constitution
• Section 89(1) and (2) of the Constitution
• Regulation of Interception of Communications and Provision of Communication-Related Information Act 70 of 2002 (RICA)
• Section 181(5) of the Constitution
• Section 172(1)(a) and (b) of the Constitution
• Promotion of Administrative Justice Act 3 of 2000

Judge Name

• Tshiqi
• Majiedt
• Theron
• Madlanga
• Rogers
• Madondo
• Pillay
• Mhlantla
• Tlaletsi

Passage Text

• The Public Protector argues that the High Court erred by not finding that the Rules altered the grounds of removal found in section 194 of the Constitution. The Rules cannot be said to 'extend' the definition of misconduct because the Rules require not mere negligence, but 'gross negligence'.
• The Constitutional Court applies the NSPCA test to determine whether a Judge's appointment to the independent panel violates separation of powers. The test concludes that such appointments are permissible as they are non-judicial and closely connected to judicial functions.
• The High Court held that the limitation of legal representation in rule 129AD(3) was irrational and severed the proviso. The Constitutional Court agrees, emphasizing that the Rules apply equally to all Chapter 9 institution office-bearers, including those without legal training.