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Parliament, Friday, 4 February 2022 – The Speaker of the National Assembly (NA) welcomes the judgment of the Constitutional Court today on her direct appeal to the apex Court against the decision of the Western Cape Division of the High Court on the constitutionality of the National Assembly rules regarding the process to remove heads of Chapter 9 Institutions.

The Public Protector, who also lodged a cross-appeal of the High Court judgment, sought, amongst others, an order declaring unlawful, unconstitutional, invalid and null and void, the new rules governing the process in the NA for motions for the removal of officer bearers of Chapter 9 institutions in terms of section 194 of the Constitution. The Public Protector had also sought to declare invalid the Assembly’s process to adopt the rules, as well as the inclusion of a Judge in the panel of experts to assess the allegations against her.

The Speaker appreciates the clarification and guidance provided by the Constitutional Court in relation to the judgment of the High Court, which removes any hurdle to the continuation of the process by the Section 194 Committee which is tasked with considering the motion.

The Court has provided clear guidance on the correct phrasing of the rule regarding the participation of a legal representative in the removal process, ruling that the rule be amended to read that the "holder of a public office must be afforded 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". The court made it clear that this does not imply that the Section 194 Committee cannot ask the Public Protector to personally respond to questions put to her. This was contrary to the Public Protector’s contention for the rules to be declared unlawful. We agree with the judgment that this was a clear tactic to delay the proceedings of the section 194 committee.

We also concur with the judgment that the Speaker’s inclusion of a Judge in the panel of experts did not offend the doctrine of separation of powers. Contrary to the Public Protector’s argument, the inclusion of a Judge was not tantamount to the undue appropriation of the presidential powers in the Constitution to appoint a judge. The Speaker in making an appointment to the panel contemplated in Assembly Rule 129U is not making a judicial appointment.

Assembly Rule 129V (3) states that “[i]f a Judge is appointed to the panel, the Speaker must do so in consultation with the Chief Justice”, thereby providing for a person already designated as a Judge to be appointed to serve on the independent panel. We fully agree with the judgment that the argument implying that the Rules bypass section 174 of the Constitution, by claiming that a person who is not designated as a Judge miraculously becomes a Judge by merely being included on the independent panel, is without a doubt unmeritorious. Furthermore, the court noted that, before appointing the independent panel, the Speaker invited the political parties represented in the National Assembly to nominate persons to serve on the panel. This step in the removal process, the court held, promoted section 57(1)(b) of the Constitution, as it made provision for representative and participatory democracy.

Importantly, the court noted that it was regrettable that the Public Protector failed to comply with the Rules of the Constitutional Court in her “application” to cross-appeal. However, the court considered it expedient to deal with the issues notwithstanding, to avoid a further potential abuse where the Public Protector could likely apply to the SCA to hear her appeal. This would have caused further delays. The Speaker welcomes the court’s decision to finally dispose of the matter.

The Speaker also welcomes the dismissal of the Public Protector’s call for a cost order against the Speaker on the allegation of bad faith by not initially pausing the proceedings pending the finalisation of the litigation. The Speaker, as the Court found, was under no obligation to do so and therefore the Public Protector’s contention was unwarranted.

Enquiries: Moloto Mothapo 082 370 6930