Democratic Alliance and another v Public Protector of South Africa and others
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Maya DCJ, Baqwa AJ, Madlanga J, Majiedt J, Mathopo J, Mbatha AJ, Mhlantla J, Rogers J, and Tshiqi J |
| Judgment Date | 13 July 2023 |
| Citation | 2023 JDR 2534 (CC) |
| Hearing Date | 24 November 2022 |
| Docket Number | CCT 251/22 |
| Court | Constitutional Court |
Maya DCJ (Baqwa AJ, Madlanga J Majiedt J, Mathopo J, Mbatha AJ, Mhlantla J, Rogers J, Tshiqi J concurring):
Introduction
This matter comprises three consolidated cases. The first is CCT 251/22, an appeal, alternatively an application for leave to appeal directly to this Court, in terms of section 172(2)(d) [1] of the Constitution, section 15 [2] of the Superior Courts Act [3] and rule 16 [4] of this Court’s Rules. The appeal is brought by the Democratic Alliance (DA)
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Maya DCJ (Baqwa AJ, Madlanga J Majiedt J, Mathopo J, Mbatha AJ, Mhlantla J, Rogers J, Tshiqi J concurring)
challenging the orders contained in paragraphs 187.5 to 187.7 [5] of the judgment of a Full Court of the High Court of South Africa, Western Cape Division, Cape Town (Part B judgment), [6] in which the Full Court dealt with Part B of a review application brought by the Public Protector of South Africa (Public Protector). In the alternative, in the event that this Court decides that the High Court’s judgment is not subject to confirmation in terms of sections 167(5) [7] and 172(2) of the Constitution, the DA applies in terms of rule 19 [8] of this Court’s Rules for leave to appeal against the said orders.
The second matter, CCT 252/22, is an appeal, alternatively an application for leave to appeal directly to this Court, brought by the President of the Republic of South Africa, in which he challenges the same paragraphs of the Part B judgment impugned by the DA in CCT 251/22. This appeal is also brought in terms of section 172(2)(d) of the Constitution read with rule 16 of the Rules of this Court, with an alternative application for leave to appeal in terms of rule 19 of this Court’s Rules.
The Public Protector has filed a conditional application for leave to cross-appeal against a portion of the Part B judgment. She pleads that the Full Court erred in dismissing certain relief she sought from that Court, as discussed hereunder. In addition to the cross-appeal, the Public Protector brings a conditional application for confirmation of the Full Court’s orders in her favour in the event that this Court finds that section 172(2)(a) of the Constitution applies to such orders. In that application, she
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Maya DCJ (Baqwa AJ, Madlanga J Majiedt J, Mathopo J, Mbatha AJ, Mhlantla J, Rogers J, Tshiqi J concurring)
seeks this Court’s confirmation of paragraphs 187.5 to 187.7 of the orders of the High Court.
The third matter is CCT 299/22. In this application, the Public Protector brings an urgent conditional application for leave to appeal directly to this Court against the whole judgment and order of the Full Court of the High Court, in which that Court dismissed her application in terms of section 18 of the Superior Courts Act for leave to execute the review judgment. [9]
Parties
As indicated, the DA and the President are the applicants in CCT 251/22 and CCT 252/22, respectively. The Speaker of the National Assembly (Speaker), Chairperson of the Section 194 Committee [10] and All Political Parties Represented in the National Assembly (Political Parties) are the second, third and fourth to seventeenth respondents, respectively. The Political Parties are cited merely as interested parties. Of this cohort, only the tenth, eleventh and sixteenth respondents – the United Democratic Movement (UDM), African Transformation Movement (ATM) and the Pan Africanist Congress of Azania (PAC), respectively – are participating in these proceedings.
Background
The matters arise from the same set of facts and impugned decisions of the President, the Speaker and the Section 194 Committee. On 4 February 2022, this Court, in Speaker, [11] declared rule 129AD(3) of the Rules adopted by the National Assembly
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Maya DCJ (Baqwa AJ, Madlanga J Majiedt J, Mathopo J, Mbatha AJ, Mhlantla J, Rogers J, Tshiqi J concurring)
on 3 December 2019 (Rules) [12] unconstitutional to the extent that the rule limited the right to legal representation of a Chapter 9 institution office-bearer during proceedings concerning their removal from office. This Court severed the offending part of the rule to cure its invalidity and it now provides that the Section 194 Committee—
“must afford the holder of a public office the right to be heard in his or her defence and to be assisted by a legal practitioner or other expert of his or her choice.” [13]
Following the order of this Court in Speaker, on 22 February 2022, the Section 194 Committee resolved to proceed with the consideration of the motion for the removal of the Public Protector. Subsequently, on 10 March 2022, the Speaker wrote a letter to the President advising him of the latest developments in the matter. In the letter, the Speaker informed the President that: (a) the Section 194 Committee had previously paused its enquiry pending the outcome of the proceedings before the Constitutional Court in Speaker; and (b) having considered the Constitutional Court’s judgment in Speaker, it resolved to continue with its consideration of the motion for the removal of the Public Protector.
On 17 March 2022, the President wrote a letter to the Public Protector informing her of the Speaker’s letter. He invited the Public Protector to provide him with reasons why he should not exercise his powers in terms of section 194(3)(a) of the Constitution and suspend her pending the finalisation of the enquiry of the Section 194 Committee.
In response, on 18 March 2022, the Public Protector, through her attorneys, Seanago Attorneys Incorporated (Seanago), wrote to the Speaker demanding a retraction of the letter sent by the Speaker to the President on 10 March 2022. The
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Maya DCJ (Baqwa AJ, Madlanga J Majiedt J, Mathopo J, Mbatha AJ, Mhlantla J, Rogers J, Tshiqi J concurring)
Speaker refused to do so. On 22 March 2022, the Public Protector wrote a letter to the President informing him that there were multiple instances of conflict of interest, which precluded the President from personally suspending her. The alleged conflicts of interest included various investigations that had been recently conducted, or were currently being investigated, by the Office of the Public Protector against the President. In response, the President, through the State Attorney, informed the Public Protector that he would act personally and did not consider himself to be disqualified from doing so.
On the same day, Seanago wrote a letter to the Section 194 Committee demanding the suspension of its enquiry pending the Public Protector’s application for the rescission of the Speaker judgment. [14] The Section 194 Committee considered the
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Maya DCJ (Baqwa AJ, Madlanga J Majiedt J, Mathopo J, Mbatha AJ, Mhlantla J, Rogers J, Tshiqi J concurring)
demand and resolved to continue with its work. The Public Protector did not accept this turn of events and approached the High Court for relief.
The High Court litigation
The Part B application
On 1 April 2022, the Public Protector launched application proceedings in the High Court. She sought orders declaring certain conduct and decisions of the Speaker, President and the Section 194 Committee irrational, unconstitutional and invalid. She launched the application in Parts A and B. In Part A, she sought urgent interdictory relief against the Section 194 Committee, the Speaker and the President. Part A is, however, not the subject of these proceedings. Part B is, and in it she sought orders declaring the conduct of the Speaker in writing the letter to the President, the conduct of the President in writing the letter initiating the suspension process, and the conduct of the Section 194 Committee in proceeding with the section 194 enquiry, irrational, unconstitutional and invalid.
On 6 May 2022, this Court dismissed the Public Protector’s application to rescind the Speaker judgment. On 10 May 2022, the Public Protector launched another rescission application in this Court, this time to have the order of 6 May 2022 refusing rescission rescinded.
On 26 May 2022, Seanago addressed a letter to the President setting out the Public Protector’s representations as to why she should not be suspended.
On 1 June 2022, while Part A of the High Court matter was still pending, a former senior investigating officer and Deputy Director-General of Home Affairs, Mr Arthur Fraser, laid criminal charges against the President in relation to grave allegations of criminal misconduct involving foreign currency allegedly stolen at the President’s Phala Phala farm. On 3 June 2022, the Office of the Public Protector received a complaint against the President from ATM’s president, Mr Vuyo Zungula,
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Maya DCJ (Baqwa AJ, Madlanga J Majiedt J, Mathopo J, Mbatha AJ, Mhlantla J, Rogers J, Tshiqi J concurring)
requesting an investigation into any part which the President might have played in the commission of the alleged crimes, specifically breaches of the Executive Members Ethics Act [15] or the President’s oath of office.
On 7 June 2022, the Public Protector wrote a letter to the President with the heading “The investigation into allegations of a violation of the Executive Ethics Code against the President of the Republic of South Africa, His Excellency Mr M C Ramaphosa”. The letter contained 31 questions in respect of the Phala Phala incident. It required answers from him to be provided within 14 days. On 8 June 2022, the Public Protector publicly announced her intention to launch an investigation into the Phala Phala incident in terms of the law. The President submitted his reply to these questions on 22 July 2022.
In the meantime, on 9 June 2022, the President suspended the Public Protector in terms of section 2A(7) of the Public Protector Act [16] and the Deputy Public Protector took...
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