NA Speaker welcomes Constitutional Court judgment in the appeal against the order of the Western Cape High Court in the matter of Public Protector and Speaker of the National Assembly and others
13 July 2023
The Speaker of the National Assembly welcomes the judgement delivered by the Constitutional Court today regarding the appeal application by the Democratic Alliance (DA) and the President against the suspended Public Protector, Adv Busisiwe Mkhwebane. The Public Protector also lodged a cross appeal against the High Court’s decision which effectively set aside the President’s decision to suspend the PP in 2022 pending the outcome of the Section 194 Enquiry.
The PP had, in 2022, brought an application before the WCHC, for an order declaring the conduct of the Speaker, President of RSA and the section 194 Enquiry irrational, unconstitutional and invalid. The conduct related to the decision to proceed with the consideration of the motion for her removal as adopted by the NA, refusal by the Speaker to retract a letter informing the President of the decision, and the President’s decision to initiate a suspension process against her pending the outcome of the s194 Enquiry.
Against the Speaker, she contended that the Speaker was not authorized by the empowering legislation and did not act in good faith in issuing the letter to the President. She contended that the Speaker’s process was intended to trigger her suspension and was based on the incorrect interpretation of section 194(3)(a) of the Constitution. The Speaker’s argument was upheld by the High Court and upheld by the Constitutional Court who affirmed the Speaker’s constitutional obligation to inform the President of the section 194 Committee developments.
As against the section 194 Committee, she invoked the sub judice rule as envisaged in Rule 89 of the NA Rules. She also contended that failure by the NA to amend Rule 129AD(3), which relates to legal representation, was unconstitutional. In dismissing the PP’s argument, the court reiterated that the sub judice rule does not preclude members of the NA from carrying out their oversight mandate and holding Chapter 9 institutions accountable. It also confirmed that there was no need for the NA to amend the impugned Rule as the CC had already taken it upon itself to amend it in its previous ruling.
In respect of the President, among other things, she alleged conflict of interest in respect of a number of investigations her office was seized with at the time, against the President, and the timing in respect of his decision to suspend her.
The Speaker agrees with the Constitutional Court's rejection of Adv Mkhwebane's claim that the letter sent to the President aimed to trigger her suspension. According to the Constitution, the President may suspend an individual from office at any point after the start of the proceedings of a National Assembly committee for their removal. The letter merely conveyed the factual position, specifically the Section 194 Committee's decision to continue its inquiry. The Speaker's intention was to inform the President of the developments within the National Assembly and, particularly, the Section 194 Committee. This action aligns with the cooperative governance obligation imposed by the Constitution. As a representative and leader of the National Assembly, the Speaker has a responsibility to notify the President when section 194 proceedings commence, as done by the previous Speaker in similar circumstances.
Regarding Adv Mkhwebane's assertion that the section 194 proceedings had not yet commenced when the President made the decision to suspend her on 9 June 2022, the Speaker agrees with the Court's ruling. The proceedings of the Section 194 Committee began when the complaint was referred to it, which occurred in March 2021 when the National Assembly resolved to initiate a section 194 inquiry, or possibly in April 2021 when the Committee was established. The Court also provided an alternative finding, stating that, giving Adv Mkhwebane the benefit of a liberal interpretation, the Committee's proceedings began at the latest in April 2022 when she was informed of the allegations against her and invited to respond within 30 days. In this case, the court considered it unnecessary to determine which view is correct.
Speaker is particularly indebted to the Concourt for clarifying that the application of the sub judice rule in the circumstances (in the section 194 proceedings) would frustrate the NA from performing its constitutional obligation to hold the PP accountable. It cautions that if the principle would be applicable, any person subject to a section 194 process would be able to stop it by simply bringing a litigation related to the process. It further confirms that the committee is not concerning itself about the merits of the pending case, but whether or not she is incompetent, or has committed a misconduct.
The Speaker acknowledges the Constitutional Court's judgment and its valuable clarifications regarding the appeal application. The National Assembly remains committed to upholding its constitutional responsibilities and ensuring a fair and transparent process in accordance with the law in the course of discharging its oversight responsibilities.
Issued by Parliament, 13 July 2023
