Public Protector of SA v Speaker of the National Assembly and Others (8500 / 2022) [2022] ZAWCHC 117 (10 June 2022)

Key Facts

Issues

• The applicant contended that National Assembly rules (specifically 129R and 129AD) could justify suspending the impeachment process. The court rejected this, emphasizing the rules apply to members' conduct, not the committee's proceedings, and that factual determinations must be left to the committee.
• The court considered the applicant's motion to strike out portions of the unsealing papers submitted by the respondents, arguing these sections were irrelevant, vexatious, and scandalous. The court evaluated if this would cause irreparable harm or prejudice to the applicant, ultimately dismissing the application as lacking merit.
• The court assessed whether the applicant could obtain an interim prohibitory interdict to halt the parliamentary respondents from proceeding with the impeachment process while her rescission application against the Constitutional Court's judgment was pending. The applicant argued this would prevent constitutional harm, but the court found insufficient evidence of irreparable harm or a prima facie right.
• The court examined the applicability of res judicata and issue estoppel to determine if the applicant's current challenges were barred by previous judgments. It concluded that the applicant had already litigated these issues in a prior application, and re-litigation would undermine judicial finality and the doctrine of separation of powers.

Holdings

• The court ruled that the sub judice rule does not apply to suspend the impeachment inquiry. The process must continue to ensure accountability, as delaying it would undermine public trust in the institution. The National Assembly has a constitutional duty to act without unnecessary delay.
• The court determined that the applicant's claims regarding the President's conflict of interest lack merit. The President's authority to initiate a suspension process is valid, as no reasonable apprehension of bias was demonstrated. The suspension power is triggered upon referral of the matter to the impeachment committee.
• The costs order was granted in favor of the fifth respondent (Democratic Alliance), with the applicant liable for their costs on the attorney and client scale. The applicant is also personally liable for costs from 7 May 2022 onward, excluding the fifth respondent's costs.
• The court dismissed the application for an interim interdict, finding that the applicant failed to demonstrate a prima facie right or irreparable harm. The court emphasized that the apex court's judgment is final and cannot be circumvented through rescission applications. The impeachment process is constitutionally valid and must proceed without interference.
• The court rejected the argument that the impeachment committee's proceedings were unlawfully suspended and resumed. The chairperson's actions in managing the committee's meetings were within their authority under the National Assembly rules.

Remedies

• The applicant (Public Protector) was ordered to pay the costs of the fifth respondent (Democratic Alliance) up to and including the proceedings until 6 May 2022. This reflects the court's determination that the fifth respondent was substantially successful in opposing the application.
• The court dismissed the applicant's application to strike out parts of the unsealing papers of the first, second, and fifth respondents. It found no justification for such an order, emphasizing that the applicant had raised no valid grounds for prejudice and that the documents were already in the public domain.
• Adv Mkhwebane was ordered to pay the costs of the application in her personal capacity from 7 May 2022 onward on a party and party scale. This was based on the court's view that her conduct during litigation, while not punitive, warranted partial personal liability.
• The court dismissed the applicant's main application seeking an interim interdict to halt the parliamentary respondents' impeachment process. The judgment concluded that the applicant failed to demonstrate a prima facie right or irreparable harm sufficient to justify such relief.

Legal Principles

• The judgment underscores the rule of law by affirming the finality of the Constitutional Court's decisions. It rejects attempts to circumvent these decisions through successive rescission applications, reinforcing judicial authority.
• The court applied the principle of res judicata to prevent the applicant from re-litigating issues already decided by the Constitutional Court. The doctrine ensures finality of judgments and bars reopening of matters that could have been addressed in prior proceedings.
• Issue estoppel was considered to prevent the applicant from challenging the same legal issues in subsequent applications after they were already determined. The court emphasized that the applicant's prior failure to raise these issues in an initial application barred her from doing so later.
• The court relied on the presumption of impartiality for the President and Speaker, noting that without evidence of bias, their decisions (e.g., suspension or impeachment processes) could not be presumed conflicted. This presumption aligns with common law principles of judicial and executive neutrality.
• The court stressed the constitutional principle of separation of powers, noting that judicial interference with the President's and Parliament's roles would undermine their accountability functions. The balance of convenience was weighed against the applicant due to the need for parliamentary processes to continue.

Precedent Name

• Beecham Group Ltd v B-M Group (Pty) Ltd
• Henderson v Henderson
• Biowatch Trust v Registrar, Genetic Resources, and Others
• President of the Republic of South Africa v Office of the Public Protector and Others
• Ekurhuleni Metropolitan Municipality v Germiston Municipal Retirement Fund
• S v Basson
• National Treasury and Others v Opposition to Urban Tolling Alliance and Others
• Gleniter v President of the Republic of South Africa and Others
• Kouwenhoven v DPP (Western Cape) and Others

Cited Statute

• Uniform Rules of Court
• Constitutional Court Rules
• National Assembly Rules
• Constitution of the Republic of South Africa
• Superior Courts Act

Judge Name

• M J Dolamo
• E D Wille
• N C Erasmus

Passage Text

• the balance of convenience is not with the applicant
• the mere fact that the law might change in the future does not grant an entitlement to approach a court in anticipation of a change in the law for interdictory relief
• the applicant must demonstrate that she will suffer irreparable harm if the stay is not granted and that she has no alternative remedy