Parliament, Friday 9 October 2020 – Three High Court judgments this week, on applications challenging how Parliament conducts its law making and oversight responsibilities, have affirmed Parliament’s conduct.

Today, the Western Cape High Court dismissed Pubic Protector Advocate Busisiwe Mkhwebane’s application for an interim interdict to stop National Assembly (NA) Speaker Ms Thandi Modise from continuing to process a motion for her removal from office. The Democratic Alliance submitted the motion on 21 February.

The court found that the Public Protector had failed to demonstrate a strong case to interdict the process. The court was satisfied that the balance of convenience favoured the NA proceeding with carrying out its constitutional function in terms of section 194 of the Constitution and the NA rules.

The judge accepted the Speaker’s submission that an interim interdict would have amounted to a serious restriction of a critical feature of the National Assembly's oversight powers and would have encroached unduly on the separation of powers.

The judge held that the impeachment process of an office bearer of a Chapter 9 institution is a serious mechanism for the accountability of the office bearers under the Constitution and, therefore, a court should not lightly interfere with such processes.

The Public Protector was ordered to pay the costs of the Speaker and one other respondent, including the costs of up to three counsel.

At the time this case was brought before the court the Speaker was, in terms of the relevant rules, in the process of appointing a three-member panel of experts to make a preliminary assessment on the motion for the removal of the Public Protector. The process is almost complete and the Speaker will announce the names of panel members in due course.

On 8 October, the Western Cape High Court also dismissed AfriForum’s application challenging the constitutionality of Parliament’s processing the review of Section 25 of the Constitution.

The court was critical of AfriForum’s litigation of the matter because it tried to adapt its case based on the defences that Parliament presented. As a measure of its disapproval of this conduct, the court awarded Parliament costs.

The court also found that the matter was moot because no practical effect could be given to the relief that AfriForum sought as the matter was overtaken by events and, therefore, it was not in the interests of justice to grant the relief.

On 7 October, the Gauteng Division of the High Court (Pretoria) dismissed an Application from the Helen Suzman Foundation (HSF) to compel Parliament to pass specific COVID-19 legislation.

In its judgment, the court found that measures to manage COVID-19 were captured adequately in the provisions and regulations of the Disaster Management Act (DMA). The HSF had also not challenged these. Significantly, the Court affirmed that there was no duty on the Executive to act or for Parliament to pass any further legislation to manage the effects of COVID-19 because the DMA was the legislation that was envisaged to manage disasters of an extended duration.

The court ordered Parliament and the HSF to pay their own costs.

Enquiries: Moloto Mothapo