Public Protector of South Africa v Speaker of the National Assembly and Others (8500/2022) [2022] ZAWCHC 197; [2023] 1 All SA 256 (WCC); 2023 (4) SA 205 (WCC) (11 October 2022)

Key Facts

Issues

• Whether the application was appropriately brought as a matter of extreme urgency with very truncated timelines, given the public interest and the need for swift resolution involving the head of a Chapter 9 institution and the President.
• Whether the applicant has made a case for the judgment to be implemented pending the appeals lodged by the DA and the President, considering the balance of irreparable harm and the public interest.
• Whether the order declaring the President's decision to suspend the applicant invalid under sections 167(5) and 172(2)(a) of the Constitution requires confirmation by the Constitutional Court before it has any force or effect, and if not, whether the applicant is entitled to seek relief under section 18(1) read with section 18(3) of the Superior Courts Act.
• If the applicant is entitled to seek relief under section 18(1) read with section 18(3) of the Superior Courts Act, whether she has met the jurisdictional requirements, including proving exceptional circumstances, irreparable harm, and the absence of harm to the opposing party.
• Whether the applicant should be ordered to pay the DA's costs on a punitive scale in her personal capacity, and whether the DA and President should recover costs including counsel fees, excluding expenses related to excessive documentation.

Holdings

• The court held that the President's decision to suspend the Public Protector constitutes 'conduct of the President' under section 172(2)(a) of the Constitution. This decision requires confirmation by the Constitutional Court before it can have any force or effect.
• The court held that section 172(2)(b) of the Constitution has no application to the judgment. The just and equitable order (187.6) is not a temporary order that can be dealt with under this provision.
• The court determined that the declaration of constitutional invalidity by the High Court in relation to the President's conduct must be referred to the Constitutional Court for confirmation. This referral is independent of any steps taken by the parties.
• The court found that section 18 of the Superior Courts Act does not apply to this matter. The judgment requiring confirmation by the Constitutional Court is inchoate and cannot be suspended or executed independently.
• The court concluded that paragraphs 187.5 and 187.6 of the judgment are composite orders, not self-standing. They must be referred to the Constitutional Court for confirmation as a single, interconnected decision.

Remedies

• The applicant's application seeking an order to render the judgment operational and executable pending appeal is dismissed. The court concluded the judgment cannot be enforced until confirmed by the Constitutional Court.
• The Public Protector is directed to pay the costs of the DA, including the costs of two counsel where employed. This cost order follows the court's determination that the DA was substantially successful in the matter.
• The application to intervene by the Deputy Public Protector is dismissed with no order as to costs. The court found no legal interest prejudiced by the judgment in this matter.
• The costs awarded to the DA exclude any and all costs associated with irrelevant and unnecessary documentation submitted as part of the record (pages 290-382, 425-530, and 565-711 of the DA's answering affidavit).

Legal Principles

• The court applied a purposive interpretation to judgments, focusing on the manifest purpose of the order as a whole. This approach was used to determine that the President's decision to suspend the Public Protector constituted 'conduct' under section 172(2)(a), requiring constitutional oversight.
• The exercise of public power by the President must comply with the Constitution and the doctrine of legality. The court emphasized that the President, as a servant of the Constitution, is under an obligation to obey its commands, and any breach of constitutional duty in exercising public power is subject to judicial review.
• Orders declaring the President's conduct inconsistent with the Constitution under section 172(2)(a) are inchoate and require confirmation by the Constitutional Court to take effect. The court clarified that such declarations are subject to the supervisory role of the Constitutional Court, regardless of appeals or interlocutory relief.
• The Constitutional Court's exclusive authority to confirm orders of constitutional invalidity against the President's conduct is upheld to preserve the balance between the judicial, executive, and legislative branches. The court reiterated that no other court can independently enforce such orders until confirmed by the Constitutional Court.

Precedent Name

• National Coalition for Gay and Lesbian Equality v Minister of Justice
• Capitec Bank Holdings Ltd v Coral Lagoon Investments
• Dawood v Minister of Home Affairs
• Democratic Alliance v President of South Africa
• Sibilya and Others v Director of Public Prosecutions
• Corruption Watch NPC v President of the Republic of South Africa
• Economic Freedom Fighters v Speaker of the National Assembly
• Pharmaceutical Manufacturers Association of South Africa v President of the Republic of South Africa
• Von Abo v President of Republic of South Africa
• Natal Joint Municipal Pension Fund v Endumeni Municipality

Cited Statute

• Superior Courts Act 10 of 2013
• Aliens Control Act 96 of 1999
• Constitution of the Republic of South Africa

Judge Name

• M Francis
• J D Lekhuleni
• L G Nuku

Passage Text

• [89.3] Paragraphs 187.5 and 187.6 of the judgment are composite, not self-standing, orders, and must be referred to the Constitutional Court;
• [89.1] The decision of the President to suspend the Public Protector amounts to 'conduct of the President' for the purposes of section 172(2) of the Constitution;
• [89.5] Section 18 of the Superior Courts Act has no application to this matter.