CONSTITUTIONAL COURT JUDGMENT REAFFIRMS PARLIAMENT IS CARRYING OUT ITS CONSTITUTIONAL RESPONSIBILITIES PROPERLY

Parliament, Thursday 1 July 2021 – National Assembly (NA) Speaker, Ms Thandi Modise, welcomes today’s Constitutional Court judgment on the application for appeal by the Public Protector, Advocate Busisiwe Mkhwebane, and others against the judgment of the full bench of the North Gauteng High Court on: “Report on an investigation into allegations of the Executive Ethics Code through an improper relationship between the President and African Global Operations (AGO), formerly known as Bosasa”.

Today’s judgment, once and for all, clarifies the powers of the Public Protector in relation to Parliament. It also adds force to the principle of the separation of powers, upon which our constitutional democracy is based.

Ms Modise was the second applicant in the matter. She did not oppose the Public Protector’s application to the Constitutional Court for leave to appeal the March 2020 High Court judgment. However, the Speaker gave notice she would oppose issues about Parliament in the appeal.

In its judgment today, the Constitutional Court found that the Public Protector’s remedial action fell to be set aside for additional reasons. These included the fact that the Public Protector ordered the Speaker of the NA to take steps in respect of which she had no authority in law; issuing supervisory orders against, inter alia, the Speaker; and taking remedial action for the violations of the Code, not empowered by the Members Act. 

The Court agreed with the 2020 High Court judgment that the Speaker did not have the powers to instruct the President to disclose donations received by the CR17 Campaign in the Register of Members’ Interests because the Code of Ethical Conduct and Register applied only to serving Members of Parliament. President Ramaphosa stopped being a Member of Parliament when he was elected President – on 15 February 2018 and again on 22 May 2019.

The 2020 High Court judgment also had found the Public Protector’s directive that Parliament implement her observations was inappropriate and an unwarranted encroachment on the NA Speaker’s discretionary powers. This included a directive about possible amendment of the Rules on questions and answers in the House.

Statement issued by Parliament of the Republic of South Africa, 1 July 2021