CONSTITUTIONAL COURT OF SOUTH AFRICA


Case CCT 333/23

In the matter between:


CORRUPTION WATCH (RF) NPC Applicant

and

SPEAKER OF THE NATIONAL ASSEMBLY First Respondent

PRESIDENT OF THE REPUBLIC
OF SOUTH AFRICA Second Respondent

COMMISSION FOR GENDER EQUALITY Third Respondent

INFORMATION REGULATOR Fourth Respondent

NTHABISENG SEPANYA-MOGALE Fifth Respondent

THANDO GUMEDE Sixth Respondent

BONGANI NGOMANE Seventh Respondent

PRABASHNI SUBRAYAN NAIDOO Eighth Respondent

LEONASHA LEIGH-ANN VAN DER MERWE Ninth Respondent

and

MEDIA MONITORING AFRICA Amicus Curiae



Neutral citation: Corruption Watch (RF) NPC v Speaker of the National Assembly
and Others [2025] ZACC 15

2
Coram: Madlanga ADCJ, Dambuza AJ, Goosen AJ, Kollapen J,
Mhlantla J, Opperman AJ, Rogers J, Theron J and Tshiqi J


Judgments: Goosen AJ (unanimous)

Heard on: 6 March 2025

Decided on: 1 August 2025

Summary: Public participation — other processes — Chapter 9 institution —
access to information — reasonableness — exclusive jurisdiction
— obligations of the National Assembly — section 167(4)(e) of
the Constitution — Commission for Gender Equality




ORDER



On application for direct access in terms of section 167(4)(e) of the Constitution:
1. Direct access is granted.
2. It is declared that:
(a) Parliament failed to comply with its constitutional obligation to
facilitate reasonable public involvement in recommending persons
to be appointed as members of the Commission for Gender
Equality.
(b) The appointment of the fifth to ninth respondents as
Commissioners to the Commission for Gender Equality with effect
from 1 March 2023 is invalid.
(c) The declaration of invalidity in paragraph 2(b) is suspended for a
period of 12 months from the date of this order to enable the first
respondent to conduct an appointment process and the second
respondent to make appointments in a manner that is consistent
with the Constitution.

3
3. The first respondent must pay the applicant’s costs, including the costs of
two counsel where employed.



JUDGMENT




GOOSEN AJ (Madlanga ADCJ, Dambuza AJ, Kollapen J, Mhlantla J, Opperman AJ,
Rogers J, Theron J and Tshiqi J concurring):


Introduction
[1] The right of members of the public to participate meaningfully in democratic
governance is a hallmark of our constitutional democracy. Public involvement in the
legislative and other processes of all three spheres of government is not merely a
fashionable accessory; it is a thread woven into the fabric of our democracy.

[2] This case concerns an alleged failure, on the part of the National A ssembly, to
comply with its constitutional obligations to facilitate public involvement in the
appointment of Commissioners to the Commission for Gender Equality (CGE). It
comes before the Court by way of an application in terms of section 167(4)(e) of th e
Constitution1 for an order to declare the appointments of certain Commissioners to be
invalid. Reliance is placed upon s ection 193(6) read with s ection 59(1)(a)2 of the
Constitution.

1 Section 167(4)(e) provides:
“Only the Constitutional Court may decide that Parliament or the President has failed to fulfil a
constitutional obligation.”
2 Section 193(6) provides:
“The involvement of civil society in the recommendation process may be provided for as
envisaged in section 59(1)(a).”
Section 59(1)(a) provides:
“The National Assembly must facilitate public involvement in the legislative and other
processes of the Assembly and its committees.”

GOOSEN AJ
4

Parties
[3] The applicant is Corruption Watch , a non-profit company that aims to advance
principles of transparency, accountability and integrity in an effort to contribute towards
a society that is fair and free from corruption. It runs campaigns that focus on the
appointment processes of key leadership positions in public in stitutions – including
those established in terms of Chapters 9 and 10 of the Constitution . In doing so
Corruption Watch seeks to ensure that the appointment processes are transparent, merit-
based and include meaningful public participation.

[4] The first respondent is the Speaker of the National Assembly (Speaker) and the
second respondent is the President of the Republic of South Africa (President). The
third respondent is the CGE. The fourth respondent is the Information Regulator ,
established in terms of the Protection of Personal Information Act 3 (POPIA), and the
fifth to ninth respondents are the Commissioners of the CGE who were appointed in
terms of the impugned appointment process.

[5] The Speaker opposes the application. I shall refer to the opposition as that of the
National Assembly. The President, who made the impugned appointments based on the
recommendation of the National Assembly, abides by the decision of this Court. The
Information Regulator filed an explanatory affidavit regardi ng the impact of certain
provisions of POPIA, but did not otherwise participate in the proceedings. The fifth to
ninth respondents (to whom I shall refer as the Commissioners) filed affidavits in
response to directions issued by the Chief Justice. The Commissioners did not oppose
the principal declaratory relief sought by Corruption Watch. They sought, instead, to
explain the potential impact that a declaration of invalidity would have upon the CGE
and upon them personally. They advanced submissions relevant to the exercise of the

3 4 of 2013.

GOOSEN AJ
5
Court’s discretion to suspend an order of invalidity in terms of s ection 172 of the
Constitution.4

[6] Media Monitoring Africa was admitted as an amicus curiae (friend of the court)
prior to the hearin g. It filed written submission s which addressed the nature of
information required for , and the role of the media in , fostering meaningful public
involvement in the processes of the National Assembly.

Factual background
[7] On 26 June 2022, the National Assembly’s Portfolio Committee on Women ,
Youth and Persons with Disabilities (Portfolio Committee) invited members of the
public and organisations to nominate suitable candidates for appointment as members
of the CGE. The closing date for the nominations was midnight on 18 July 2022.

[8] On 23 and 24 August 2022, the Portfolio Committee convened to shortlist
candidates from the nominations and applications it had received. It resolved to publish
the curricula vitae (CVs) of the shortlisted candidates on the parliamentary website.

[9] On 2 September 2022, the Portfolio Committee called for public comment on the
suitability of the shortlisted candidates. Comments were to be submitted on or before
16 September 2022. The comments were to be submitted on an online form accessible
to the public via a link provided on the parliamentary website. The form consisted of a
list of names of the 24 shortlisted candidates and a further link to additional information

4 Section 172(1) reads:
“(1) When deciding a constitutional matter within its power, a court—
(a) must declare that any law or conduct that is inconsistent with the Constitution
is invalid to the extent of its inconsistency; and
(b) may make any order that is just and equitable, including—
(i) an order limiting the retrospective effect of the declaration of
invalidity; and
(ii) an order suspending the declaration of invalidity for any period and

invalidity; and
(ii) an order suspending the declaration of invalidity for any period and
on any conditions, to allow the competent authority to correct the
defect.”

GOOSEN AJ
6
about the candidates. This link provided access to a spreadsheet which contained the
full names of the candidates and their qualifications. Their CVs were , however, not
published.

[10] The online form consisted of three fields that a member of the public or an
interested organisation was required to comple te: the commenter’s name or
organisation; the name of the candidate to whom the comments relate d; and a section
for comments. These comments were limited to 2 000 characters, which the applicant
suggested was roughly equivalent to 500 words.

[11] On 6 September 2022, Corruption Watch, with the support of 44 civil society
organisations and 17 prominent members of the public, sent a letter of objection to the
Portfolio Committee regarding the latter’s proposed manner of public participation in
the recommendation process. Corruption Watch requested that the Portfolio Committee
extend the period within which public comments could be submitted to at least 30 days,
and that the CVs of the shortlisted candidates be made public, suitably redacted of
personal in formation. Corruption Watch also requested that the word limitation on
public submissions be removed to permit written submissions in the usual manner. The
Portfolio Committee did not respond to the letter.

[12] On 16 September 2022, Corruption Watch sent an other letter to the
Portfolio Committee reiterating the concerns with the appointment process. It requested
that the Portfolio Committee suspend the process and extend the period for submissions
by 30 days and make available to the public the CVs of the s hortlisted candidates.
Corruption Watch alleged that the appointment process was flawed and opaque in that
it failed to provide the public with a reasonable opportunity to participate meaningfully.
The Portfolio Committee also did not respond to this letter.

[13] On 20 September 2022, Corruption Watch again wrote to the
Portfolio Committee requesting an urgent response to its prior letters. The

Portfolio Committee requesting an urgent response to its prior letters. The
Portfolio Committee responded on 22 September 2022, at a stage when it was already

GOOSEN AJ
7
conducting interviews with the shortlisted candidates.5 It rejected the request to extend
the time for comments, stating that the 14 days it had allowed was reasonable. It further
rejected the request to remove the character limitation on comments. Regarding the
publication of the candidates’ CVs, the Portfolio Committee stated that POPIA imposed
a “processing limitation” on the publication of the CVs and that it met this by publishing
the least amount of information possible.

[14] On 20 October 2022, Corruption Watch, with the support of 10 civil society
organisations, wrote to the Information Regulator to address the approach adopted by
the Portfolio Committee with regard to the provisions of POPIA. Corruption Watch
requested the Information Regulator to advise members of the Portfolio Committee
regarding personal information which could lawfully be published.
The Information Regulator did not respond to the letter.

[15] Following the interviews, the Portfolio Committee met on 25 October 2022 to
select candidates for nomination . On 26 Octob er 2022, it tabled its report before the
National Assembly. The report recorded that 156 applications were received. In regard
to public participation, the report stated that the Portfolio Committee had followed an
open and transparent process in line with section 59(1) of the Constitution , and that it
had provided “a platform for civil society to comment on all candidates” because of the
public interest in gender equality issues . It reported that the Portfolio Committee
published the names of all candidates with their qualifications on Parliament’s website
to allow the public to comment. The report also stated that the Portfolio Committee had
received a total of 656 comments relating to 22 of the shortlisted candidates with
comments per candidate ranging from one to 99 comments.

[16] The Portfolio Committee urged the National Assembly to adopt the report as a

[16] The Portfolio Committee urged the National Assembly to adopt the report as a
matter of urgency, as it was concerned that the CGE would not be quorate from
1 November 2022 because six posts would become vacant at the end of October 2022.

5 The interviews were conducted from 20 to 23 September 2022.

GOOSEN AJ
8
On 1 November 2022, the National Assembly adopted the report and resolved to
recommend the suggested candidates for appointment by the Presiden t. The names of
the recommended candidates were then communicated to the President for
consideration and appointment.

[17] On 25 February 2023, the President announced the appointment of a chairperson
and four new members to the CGE as Commissioners, with effect from 1 March 2023.
The term of the Chairperson and three of the Commissioners will end on
28 February 2028. The term of the fourth Commissioner will end on
31 December 2027.

In this Court
Jurisdiction and direct access
[18] Corruption Watch brings this application under the Court’s exclusive jurisdiction
in section 167(4)(e) of the Constitution. This section provides that only this Court may
decide that the National Assembly has failed to fulfil a constitutional obligation .
Doctors for Life6 settled the question of this Court’s jurisdiction in relation to a similar
challenge concerning the question of whether Parliament had complied with its
obligation to facilitate public involvement. We accordingly have jurisdiction to
entertain this application.

[19] Corruption Watch commenced the application nine months after the appointment
of the Commissioners was announced. It explained the delay in its condonation
application as arising from the time taken to secure funding and to obtain the assistance
of legal representatives. The condonation application was not opposed. The
National Assembly also brought an application for condonation of the late filing of its
answering affidavit. Corruption Watch did not oppose th at application. For reasons
which will become apparent in addressing the merits of the application, the interests of

6 Doctors for Life International v Speaker of the N ational Assembly [2006] ZACC 11; 2006 (6) SA 416 (CC) ;
2006 (12) BCLR 1399 (CC) at para 27.

GOOSEN AJ
9
justice favour the granting of condonation to both parties. No prejudice arose because
of the delay. Condonation for the late filing of the application and the answering
affidavit is granted. The Commissioners sought condonation for the late filing of the ir
written submissions. The delay was minimal and no prejudice was caused thereby.
Condonation is granted.

[20] Shortly before the hearing of the application, Corruption Watch sought leave to
file a supplementary affidavit. The affidavit dealt with a subseq uent number of
appointments to the CGE. The evidence was presented on the basis that it may bear
upon the remedy, if any, that this Court might grant. The application was also not
opposed. Indeed, the Commissioners made common cause with the remedial
implications said to flow from the supplementary evidence. The supplementary
affidavit was therefore admitted. Leave to file the supplementary affidavit is granted.

Corruption Watch’s case
[21] The nub of Corruption Watch’s challenge is that the National Assembly failed
to comply with its constitutional obligations imposed in terms of section 59(1)(a) of the
Constitution in three interrelated respects. Corruption Watch avers that the
National Assembly:
(a) failed to provide members of the public and civil society organisations
with adequate information about the shortlisted candidates to enable
meaningful and effective comments to be submitted;
(b) failed to provide a reasonable opportunity to submit written
representations because the period for submissio ns was restricted to
14 days, thereby unduly limiting the opportunity for members of the
public to consider, consult and provide written feedback regarding the
shortlisted candidates; and
(c) imposed an unreasonable restriction upon public involvement by utilising
an online form and limiting written submissions to 2 000 characters.

GOOSEN AJ
10
[22] These were not discrete challenges. Corruption Watch’s case is that their
individual and collective effect rendered the public participation process unreasonable
and ineffective.

The National Assembly’s case
[23] The National Assembly’s case on the other hand is that it had, through the
conduct of the Portfolio Committee, provided the public with a reasonable opportunity
to participate in the recommendation process. It contended that this was demonstrated
by the fact that 15 6 nominations had been solicited, and that 65 6 comments on the
shortlisted candidates had been received. Regarding the 14-day period for public
participation, it submits that this was reasonable. It accorded with periods allowed for
appointments to other Chapter 9 institutions. It was also necessary to fill the vacancies
on the CGE to enable it to function effectively.

[24] As to the limitation on the length of submissions, the National Assembly denies
that it was arbitrary. It arose because of the use of an online submission form. The
Portfolio Committee had not initially been aware of this limitation and when it became
aware it resolved to allow Corruption Watch and members of the public to submit
comments directly to it.

[25] The National Assembly’s case is that the Portfolio Committee decided not to
publish the CVs of the shortlisted candidates because it believed that it was prohibited
from doing so by the provisions of POPIA, in the absence of consent given by the
candidates. The Portfolio Committee took the view that the information it did publish
was, in any event, sufficient to enable members of the public to make mea ningful
comments.

GOOSEN AJ
11
The right to public participation in governance
[26] Public participation is a central feature of our democracy. In New Clicks7 Sachs J
described what he termed a new philosophy expressed by the Constitution, namely that
persons who are affected by legislation have a right to be heard before such legislation
is enacted. This right finds expression in numerous provisions of the Constitution. He
went on to say:

“What all these provisions, both constitutional and statutory, have in common is a
commitment to accountability, responsiveness and openness in government. They
presuppose a democracy that is not only representative but participatory. Indeed, the
Constitution itself was a product of national dialogue, first outside of then inside
Parliament. We have developed a culture of imbizo, lekgotla, bosberaad and indaba.
Hardly a day goes by without the holding of consultations and public participation
involving all stakeholders, role-players and interested parties, whether in the public or
private sector. The principle of consultation and involvement has become a distinctive
part of our national ethos.”8

Later in his judgment, Sachs J stated:

“The right to speak and be listened to is part of the right to be a citizen in the full sense
of the word. In a constitutional democracy dialogue and the right to have a voice on
public affairs is constitutive of dignity.”9

[27] This characterisation of the nature and importance of public participation was
endorsed in Doctors for Life. 10 At issue in that case was the nature of the obligation
imposed by section 72(1)(a) of the Constitution in relation to the legislative processes
of the National Council of Provinces. The equivalent provision in relation to the
National Assembly, at issue in the present mat ter, is section 59(1)(a). It provides that

7 Minister of Health v New Clicks South Africa (Pty) Ltd [2005] ZACC 14; 2006 (1) BCLR 1 (CC) ; 2006 (2) SA

311 (CC) at para 621.
8 Id at para 625.
9 Id at para 627.
10 Doctors for Life above n 6.

GOOSEN AJ
12
the National Assembly must “facilitate public involvement in the legislative and other
processes of the Assembly and its committees”.

[28] In Doctors for Life this Court held that the right of members of the public to
participate in the legislative and other processes of Parliament is an aspect of the right
to political participation.11 The right to political participation is a fundamental human
right which consists of a general right to take part in the conduct of public affairs and
the more specific right to vote or to be elected. Public participation, the Court said, is
considered in international law instruments to be a necessary condition for the full and
effective exercise of democracy. 12 This Court held that the duty to facilitate public
involvement, encapsulated in s ections 59(1)(a) and 72(1)(a), is a manifestation of the
international law right to political participation. 13 What the duty envisages, howe ver,
is more specific tha n the general expression of the right contained in Article 25 of the
International Covenant on Civil and Political Rights.14

[29] Doctors for Life held, unequivocally, that ours is a participatory democracy that
envisages a far more expansive role for public involvement in parliamentary processes
and public affairs. 15 Public participation is an integral feature of our constitutional
democracy. Significant leeway must necessarily be given to Parliament to determine
appropriate and effective forms of public involvement. 16 Nevertheless, Parliament’s

11 Id at para 89.
12 Id at para 94.
13 Id at para 107.
14 Id. Article 25 of the International Covenant on Civil and Political Rights, 23 March 1976 states:
“Every citizen shall have the right and the opportunity, without any of the distinctions
mentioned in article 2 and without unreasonable restrictions:
(a) To take part in the conduct of public affairs, directly or through freely chosen
representatives;

representatives;
(b) To vote and to be elected at genuine periodic elections which shall be by
universal and equal suffrage and shall be held by secret ballot, guaranteeing
the free expression of the will of the electors;
(c) To have access, on general terms of equality, to public service in his country.”
15 See Doctors for Life above n 6 at para 129.
16 See New Clicks above n 7 at paras 634 and 636.

GOOSEN AJ
13
conduct is to be judged by an objective standard of reasonableness. This Court sketched
the contours of the standard of reasonableness as it relates to the legislative process, in
these terms:

“Whether a legislature has acted reasonably in discharging its duty to facilitate public
involvement will depend on a number of factors. The nature and importance o f the
legislation and the intensity of its impact on the public are especially relevant.
Reasonableness also requires that appropriate account be paid to practicalities such as
time and expense, which relate to the efficiency of the law -making process. Yet the
saving of money and time in itself does not justify inadequate opportunities for public
involvement. In addition, in evaluating the reasonableness of Parliament’s conduct,
this Court will have regard to what Parliament itself considered to be appropriate public
involvement in the light of the legislation’s content, importance and urgency. Indeed,
this Court will pay particular attention to what Parliament considers to be appropriate
public involvement.
What is ultimately important is that the legislature has taken steps to afford the public
a reasonable opportunity to participate effectively in the law -making process. Thus
construed, there are at least two aspects of the duty to facilitate public involvement.
The first is the duty to provide meaningful opportunities for public participation in the
law-making process. The second is the duty to take measures to ensure that people
have the ability to take advantage of the opportunities provided.”17 (Emphasis added.)

[30] Since Doctors for Life, this Court’s jurisprudence on public involvement in the
legislative and other processes of legislatures has expanded significantly. In
Matatiele II18 the question of public involvement in the legislative process arose in the
context of an amendment to the Constitution which altered the boundaries of a province.

context of an amendment to the Constitution which altered the boundaries of a province.
The amendment required the approval of the provincial legislature of KwaZulu -Natal
province in terms of section 74(8) of the Constitution. The question was whether such
provincial approval required the facilitation of public involvement in accordance with
section 118(1)(a) of the Constitution. This Court held that the obligation to facilitate

17 Doctors for Life above n 6 at paras 128-9.
18 Matatiele Municipality v Pres ident of the Republic of South Africa (2) [2006] ZACC 12; 2007 (1) BCLR 47
(CC); 2007 (6) SA 477 (CC).

GOOSEN AJ
14
public involvement was not confined to the process of enacting provincial legislation.
Section 74(8) required t he provincial legislature to involve itself in the law -making
functions of Parliament since the constitutional scheme required provincial approval.
The provincial legislature was therefore involved in a law -making process in the
exercise of its authority. Section 118(1)(a) thus applied and mandated public
involvement facilitated by the provincial legislature.

[31] Significantly, Matatiele II also held that it is not sufficient that a legislature
enacts rules or procedures to facilitate public involvement. Nor does th e fact that
legislatures comprise persons elected to represent the public negate or diminish the
obligation to facilitate public involvement. Instead, this Court stated that:

“Our constitutional democracy has essential elements which constitute its foundation;
it is partly representative and partly participative. These two elements reflect the basic
and fundamental objective of our constitutional democracy. The provisions of the
Constitution must be construed in a manner that is compatible with these principles of
our democracy.
. . .
Our system of government requires that the people elect representatives who make laws
on their behalf and contemplates that people will be given the opportunity to participate
in the law-making process in certain circumstances. The law-making process will then
produce a dialogue between the elected representatives of the people and the people
themselves.”19

[32] What is required is the achievement of a balanced relationship between the
representative and participatory elements of our democracy.20

[33] In Mogale21 Theron J reiterated the essential principles established by the
judgments of this Court as follows:

19 Id at paras 57-8.
20 Id at para 60, citing Doctors for Life above n 6 at para 122.

19 Id at paras 57-8.
20 Id at para 60, citing Doctors for Life above n 6 at para 122.
21 Mogale v Speaker of the National Assembly [2023] ZACC 14; 2023 (6) SA 58 (CC); 2023 (9) BCLR 1099
(CC).

GOOSEN AJ
15

“This Court has repeatedly emphasised that, regardless of the process Parliament
chooses to adopt, it must ensure that ‘a reasonable opportunity is offered to members
of the public and all interested parties to know about the issues and to have an adequate
say’. A reasonable opportunity to participate in legislative affairs ‘must be a n
opportunity capable of influencing the decision to be taken ’. It is unreasonable if the
content of a public hearing could not possibly affect Parliament’s deliberations on the
legislation. If the hearing is not effectively or timeously advertised, if people are unable
to attend the hearing, or if the submissions made at the hearing are not transmitted or
accurately transmitted to the legislature, then the hearing is not capable of influencing
Parliament’s deliberations. This does not mean that the legislature must accommodate
all demands arising in the public participation process, even if they are compelling.
The public involvement process must give the public a meaningful opportunity to
influence Parliament, and Parliament must take account of the public’s views. Even if
the lawmaker ultimately does not change its mind, it must approach the public
involvement process with a willingness to do so.”22

[34] The National Assembly contends that these principles, which were developed in
relation to legislative p rocesses, are not readily “translatable” to the “other processes”
of Parliament. Reliance is placed on New Clicks where Sachs J referred to the “infinite
variation” of public participation processes. 23 It is suggested that since Parliament is
accorded a wide discretion to determine the manner in which it facilitates public
involvement, a fact -based assessment is require d in each instance where
“other processes” are at issue.

[35] The principles upon which this Court adjudicates public participation challenges
are well settled. They may be summarised as follows:

are well settled. They may be summarised as follows:
(a) Parliament is under a constitutional obligation to facilitate public
involvement in its legislative and other processes.24

22 Id at para 35.
23 New Clicks above n 7 at para 630.
24 Section 59(1)(a) of the Constitution explicitly obliges public participation in the “other processes ” of the
National Assembly.

GOOSEN AJ
16
(b) A failure to comply may render the conduct (whether or not it is
legislative) invalid and liable to be struck down as unconstitutional.
(c) Parliament is accorded a wide discretion to determine the manner in
which it facilitates public involvement , and the courts must take due
cognisance of what Parliament considers to be reasonable.
(d) The nature of the legislation or other process and its importance to
particular interest groups or sectors of the public may warrant the
employment of different measures to facilitate appropriat e public
involvement.
(e) The subj ect matter of the p arliamentary process which requires public
involvement, its purpose and importance , the urgency with which the
process must be conducted and considerations of practicality and
efficiency are all relevant to determining whether the measu res adopted
are reasonable.
(f) Whether, in relation to a specific challenge, the obligation has been met
is to be judged by an objective standard of reasonableness. The test is
sufficiently flexible to permit an evaluatio n of a wide range of factors in
a fact-specific enquiry.

[36] This Court’s judgments serve as a guide to the elements of an effective and
meaningful public involvement process.25 The public and organs of civil society must
be informed of the matter requiring public involvement. This is an elementary notice
requirement. Sufficient time must be given to allow for public participation.
Participation must occur at a stage in the process when it is possible for the public
participation input to alter o r influence the outcome of the p arliamentary process.
Parliament must consider the views and comments of members of the public in its
deliberations and decision-making. Parliament is not bound by the views or comments
but should demonstrate a preparedness to be guided by the public involvement process.

25 New Clicks above n 7; Doctors for Life above n 6; Matatiele II above n 18; Mogale above n 21; and
South African Iron and Steel Institute v Speaker of the National Assembly [2023] ZACC 18; 2023 (10) BCLR
1232 (CC) (SA Iron and Steel).

GOOSEN AJ
17
Members of the public and organs of civil society must have access to sufficient
information about the subject matter to enable meaningful and informed deliberation .
The process selected for public involvement should be accessible to the public so as to
foster inclusive public engagement.

The nature of the parliamentary process
[37] The starting point for determining the scope of the obligation to facilitate public
involvement is an appraisal of the nature and importance of the process in which the
public has a right to participate. In this case we are concerned with the appointment of
Commissioners to the CGE.

[38] The CGE is a Chapter 9 institution established in terms of the Constitution to
strengthen democracy. Section 181(2) provides t hat Chapter 9 institutions are
“independent, and subject only to the Constitution and the law, and they must be
impartial and they must exercise their powers and perform their functions without fear,
favour or prejudice”.

[39] Other organs of state are obliged to assist and protect these institutions, and no
person may interfere with the ir functioning.26 These provisions in effect provide for
institutional independence from the arms of government in terms similar to that
provided in relation to the courts. Thus, while these institutions are independent of
government, they are required to fulfil their primary functions to strengthen democratic
governance.

[40] Section 187(1) defines the principal purpose of the CGE. It must “promote
respect for gender equality and the protection, development and attainment of gender
equality”.27 The CGE is clothed with the power to “monitor, investigate, research,

26 Section 181(3) and (4) of the Constitution.
27 Section 187(1) of the Constitution.

GOOSEN AJ
18
educate, lobby, advise and report on issues concerning gender equality ”.28 Section 11
of the Commiss ion for Gender Equality Act 29 (CGE Act) confer s upon the CGE its
powers and functions.30

[41] The CGE thus plays a vital role in the development of social norms and values
which promote the achievement of gender equality in South Africa. Its reason for
establishment is to facilitate the transformative agenda endorsed by the Constitution. 31
It serves as an important intermediary between the public and government in relation to
its role of promoting gender equality. Murray describes this role as “providing a
different opportunity for public participation in public life to that provided in political
processes”.32 In this sense , the CGE by its nature gives expression to the value of
participatory democracy. Its purpose is to support the democratic, open, transparent,
and accountable exercise of state power.

[42] The appointment of Commissioners to the CGE is regulated by section 193(4)33
of the Constitution read with section 3(2) of the CGE Act. Section 193(6) of the

28 Section 187(2) of the Constitution.
29 39 of 1996.
30 Section 11(1)(a) of the CGE Act states:
“(1) In order to achieve its object referred to in section 1 87 of the Constitution, the
Commission—
(a) shall monitor and evaluate policies and practices of—
(i) organs of state at any level;
(ii) statutory bodies or functionaries;
(iii) public bodies and authorities; and
(iv) private businesses, enterprises and institutions, in order to promote
gender equality and may make any recommendations tha t the
Commission deems necessary.”
31 Speaker of the National Assembly v Public Protector; Democratic Alliance v Public Protector [2022] ZACC 1;
2022 (3) SA 1 (CC); 2022 (6) BCLR 744 (CC) at para 5.
32 Murray “Human Rights Commission et al: What is the role of South Africa’s Chapter 9 Institutions?” (2006) 2
Potchefstroom Electronic Law Journal 1 at 6-7.

Potchefstroom Electronic Law Journal 1 at 6-7.
33 Section 193(4) provides:
“(4) The President, on the recommendation of the National Assembly, must appoint the
Public Protector, the Auditor-General and the members of—
(a) the South African Human Rights Commission;

GOOSEN AJ
19
Constitution provides that “[t]he involvement of civil society in the recommendation
process may be provided for as envisaged in section 59(1)(a) ”. It is not without
significance that section 193(6) contains a specific reference to the involvement of civil
society organisations in the process of recommending persons for appointment as
Commissioners. It references the general obligati on, contained in section 59 (1)(a), to
facilitate their involvement.

[43] Although Corruption Watch based its challenge upo n both sections of the
Constitution, it did not assert a failure to comply with a specific obligation arising from
section 193(6). In light of this , it is not necessary to consider the interplay between
these two sections, nor whether section 193(6) impos es a specific obligation upon the
National Assembly to take steps to involve organs of civil society. That question must
be left open. It suffices to observe that the reference to organised interest groups
suggests the centrality of public participation in the appointment of Commissioners to
a Chapter 9 institution. This is consonant with the importance of these institutions and
the roles they are required to play in the development of our democratic order.

[44] In this instance, t he procedure followed by the National Assembly involved
distinct stages. The first was a public call for nomination of suitable candidates.
Thereafter, the Portfolio Committee considered the nominations it received and selected
candidates to be interviewed. A shortlist of candidates was compiled. Public comments
on the shortlisted candidates were invited and thereafter t he Portfolio Committee
conducted interviews. It selected candidates to be recommended and presented these to
the National Assembly. The National Assembly adopted a resolution recommending
persons for appointm ent and this was placed before the President, who appointed the
persons.

persons.


(b) the Commission for Gender Equality; and
(c) the Electoral Commission.”

GOOSEN AJ
20
[45] It is not in dispute that public involvement was confined to an opportunity to
comment upon a shortlist of candidates selected for interview. As indicated earlier,
Corruption Watch challenged the appointment process on three interrelated grounds. I
shall address each in turn.

The published information
[46] Access to information is a prerequisite for effective public participation.34 The
information which is provided must be sufficient and of a character that allows the
public to deliberate upon and make informed submissions about the subject matter of
the consultative process.

[47] The requirements for appointment are set out in section 193(1) of the
Constitution and section 3(1) of the CGE Act. They are that the person should be a
South African citizen; is fit and proper to hold the particular office; have a record of
commitment to the promotion of gender equality ; and have applicable knowledge or
expertise with regard to matters connected with the objects of the CGE.

[48] Corruption Watch argued that in order to participate meaningfully, the public
would need to have access to information regarding the candidates’ kno wledge,
experience and record of commitment to promoting gender equality, that is, the
qualifying requirements for appointment, to inform their participation. Only the names
and qualifications of the candidates were published. The National Assembly’s
justification for the provision of limited information was said to be the restrictions
imposed upon the processing of personal information contained in POPIA.

[49] This contention was elevated , during oral argument, to a submission that the
National Assembly acted reasonably in relying upon the internal legal advice it had
received. Ordinarily such justification would need to be pleaded in order to be
considered. In this case the National Assembly did not do so. No such evidence was

34 SA Iron and Steel above n 25 at para 30.

GOOSEN AJ
21
presented upon which the reasonableness of reliance on the advice could be judged. In
any event, the provisions of PO PIA do not support the stance adopted by the
Portfolio Committee.

[50] It was not in dispute that the publication of CVs supplied by the candidates to
the Portfolio Committee would constitute the “processing” of “personal information”
as defined by POPIA.35 Section 11 of POPIA, in relevant part, provides as follows:

“(1) Personal information may only be processed if—
(a) the data subject or a competent person where the data subject is a child
consents to the processing;
. . .
(c) processing complies with an obligation imposed by law on the
responsible party;
. . .
(e) processing is necessary for the proper performance of a public law duty
by a public body.”

[51] Section 11 of POPIA provides for publication with the consent of the data
subject. It also excludes unlawfulness if the publication of the personal information is
required to fulfil a public law duty. The constitutional obligation to provide sufficient
information to facilitate public involvement is plainly the type of public law duty which
would entitle the Portfolio Committee to publish the personal information of the
candidates.


35 “Processing” of information is defined in section 1 of POPIA to mean “any operation or activity or any set of
operations, whether or not by automatic means, concerning personal information, including —
(a) the collection, receipt, recording, organisation, collation, storage, updating or
modification, retrieval, alteration, consultation or use;
(b) dissemination by means of transmission, distribution or making available in any other
form; or
(c) merging, linking, as well as restricti on, degradation, erasure or destruction of
information.”

GOOSEN AJ
22
[52] What constitutes sufficient information will depend upon the subject matter on
which public involvement is sought. In this case the question at issue was whether the
candidates were suitably qualified and had the necessary experience to meet the
requirements for appointment as Commissioners to the CGE. The question could only
be answered by considering the personal information provided by the candidates in their
CVs with reference to the requirements stipulated in the Constitution and the CGE Act.

[53] One example suffices to illustrate the point. To assess a candidate’s commitment
to gender equality, information about that candidate’s work history, involvement in the
activities of civil society organs and the like is essential. This is the type of information
which would typically appear in a detailed CV. Furthermore, the selection of a suitably
qualified candidate from amongst competing candidates inevitably involves
comparative assessment. If members of the public and civil society organs are to
provide meaningful input which will enrich and influence the se lection process, the
scope for proper comparative assessment must exist.

[54] The scant information which was published was not sufficient. Publication of
the candidates’ CVs would have provided the type of information upon which
meaningful and effective public participation could be based. The publication of their
CVs was therefore necessary to ensure that the right to public participation could be
exercised. Section 11(1)(e) of POPIA provides the lawful basis upon which the
National Assembly could have met its public law obligation while protecting the rights
to privacy which POPIA seeks to ensure.

[55] In any event, s ection 11(1)(a) of POPIA provides that the data subject may
consent to publication of personal information. The National Assembly claimed that
candidates had only given limited consent to the processing of their personal

candidates had only given limited consent to the processing of their personal
information to members of the Portfolio Committee. No evidence of consent in this
limited form was, however, presented . The National Assembly also did not explain
why a broader consent was not sought when the Portfolio Committee was alerted to the
potential impact of POPIA upon the appointment process.

GOOSEN AJ
23

[56] Corruption Watch argues that in the context of appointments of office bearers to
public or state institutions and where those appointments are subject to public
involvement, the provision of a CV by a candidate ought to be regarded as conveying
an implied consent to publication. There is some force in this argument. It is, however,
not necessary to decide this question.

[57] The National Assembly also made no attempt to provide candidate CVs which
were suitably redacted to protect personal information that was not relevant to the
requirements for appointment. It was called upon to do so during the initial exchanges
between Corruption Watch and the Portfolio Committee. This request was supported
by many civil society organisations and numerous prominent public figures,
demonstrating the significant public interest in the appointment of Commissioners to
the CGE. The request was made at a stage when it was possible to correct the initial
failure to provide adequate information. Yet, the Portfolio Committee ignored the
request and, in these proceedings, provided no rationale for its stance. The failure to
publish the CVs of the shortlisted candidates resulted in relevant information being
shielded from pub lic and media scrutiny . The public was therefore precluded from
meaningfully participating in the appointment process.

[58] The National Assembly relied upon the fact that candidates underwent a rigorous
“vetting procedure” to determine their suitability for appointment. The proposition was
that this “vetting procedure” in some respects served to overcome deficiencies of public
involvement in the appointment process. There is no substance to the proposition. It is
akin to an argument that this Court rejected in Matatiele II.36 In that case the argument
was that elected representatives of a legislature represented the public and exercised
decision-making on behalf of the public. On the strength of this, public involvement
was unnecessary.

was unnecessary.


36 Matatiele II above n 18.

GOOSEN AJ
24
[59] This Court held that r epresentative decision-making does not obviate the need
for public involvement. Public participation in decision-making is not, as this Court
has repeatedly affirmed, a nice-to-have accessory. It is integral to an open, transparent
and democratic process which seeks to ensure the integrity and legitimacy of the process
of governance.

[60] It was also suggested that the limited information provided about the shortlisted
candidates could be supplemented by p ublicly available inf ormation because of the
“online presence” of the candidates. As I understand the contention, it is that members
of the public were able to undertake their own research in order to obtain relevant
information upon which comments could be based. It strikes me as an unfortunate
proposition which does not appreciate the nature of the constitutional obligation to
facilitate public involvement. Members of the public are, as of right, co-participants in
decisions which concern matters that affect them. Meaningful participation necessarily
requires that they have access to the same essential information which bears upon the
decision to be made. If that were not so , the deliberative process would f lounder and
be susceptible to misdirection arising from the inadequacy of information which
informs the decisions.

[61] In summary, the information provided to the public was insufficient to allow
meaningful and effective participation in the appointment process. On this basis alone,
Parliament did not comply with the obligation to facilitate public involvement. I move
on to consider the period allowed for public comments.

The period allowed for comments
[62] The periods were motivated by the “urgent” need to appoint Commissioners to
allow the CGE to continue to operate once the terms of existing Commissioners expired.
This ostensible urgency , which was conveyed to the National Assembly by the

This ostensible urgency , which was conveyed to the National Assembly by the
Portfolio Committee in its report, is difficult to understand. It must have been apparent
to the Portfolio Committee that the terms of office of the Commissioners would expire
and that further appointments would need to be made long in advance. No explanation

GOOSEN AJ
25
is offered as to why the process could not have been initiated at an earlier stage. The
National Assembly suggested that the 14-day period it allowed for comments was in
keeping with similar time periods provided on other occasions such as the appointment
of the Public Protector and the appointment of Commissioners to the South African
Human Rights Commission. Such comparators do not, per se , establish the
reasonableness of the time allowed for comments.

[63] The period cannot be considered in isolation. In light of the restricted
information made available, the limited period operated as a further imp ediment to
effective and meaningful public involvement. When an extension of time was first
requested, the Portfolio Committee ignored the request. It only responded when its
appointment procedure had effectively run its course and then it refused the re quested
extension. This was not explained. The N ational Assembly did not advance any
rationale for its selection of the 14-day comment period.

The mode of submission of comments
[64] Digital information systems and online platforms to facilitate public involvement
are, undoubtedly, innovations which ought to be encouraged. However, in a society
wracked by unequal access to resources and technology, such innovation ought to be
approached with caution where it is the exclusive mode of participation. In LAMOSA37
this Court considered the methods chosen to facilitate public involvement. 38 In that
case, the language in which notices were published and information made available and
the accessibility of the meetings which were held were relevant. While these factors
are not strictly relevant in this case, what they point to is the need to take reasonable
steps to ensure that the mode of public involvement does not exclude or inhibit
participation. The selection of an online form, with character limitations, inherently
excludes participation by those who have little or no access to the technology needed to

excludes participation by those who have little or no access to the technology needed to
participate.

37 Land Access Movement of South Africa v Chairperson of the National Council o f Provinces [2016] ZACC 22;
2016 (5) SA 635 (CC); 2016 (10) BCLR 1277 (CC).
38 Id at paras 65-82.

GOOSEN AJ
26

[65] Furthermore, the evidence establishes that the Portfolio Committee was initially
unaware of the character restriction which applied to the online form. When it was
drawn to its attention, the Portfolio Committee , to its credit, recognised the need to
permit longer form submissions. It resolved to inform members of the public that they
could do so by sending submissions directly to them . However, it did not act upon its
own resolution. The public was not informed of this decision and, in any event, the
time period for submissions was not extended.

[66] In summary, I conclude that the mechanisms adopted by the Portfolio Committee
to facilitate public involvement in the appointment of Commissioners to the CGE failed
to allow for effective public participation. While a court must take due cognisance of
what the National Assembly chooses to do to facilitate public involvement, the
assessment of what was done is objective. In this instance, the National Assembly acted
upon an interpretation of POPIA which was manifestly incorrect. It took no steps to
ensure compliance with its obligations within permissible exceptions provided by
POPIA. This conduct was unreasonable. This, coupled with the short period allowed
for public comments and the restriction on such comments , materially affected the
appointment process as a whole . In the circumstances, t he appointment process
conducted by the National Assembly therefore did not comply with the obligations
imposed by section 59(1)(a) of the Constitution.

[67] In this case , the failure to take reasonable steps to ensure effective public
involvement in the appointment of Commissioners to the CGE served to undermine the
legitimacy of the appointments to a crucial state institution charged with serving as the
“guardians and protectors” of our democracy. 39 I wish to emphasise that the
appointments are tainted by procedural irregularity. It was not suggested that the

appointments are tainted by procedural irregularity. It was not suggested that the
Commissioners did no t, objectively, meet the criteria for appointment. Nevertheless,
the legitimacy of the appointments rests upon the outcome of a lawful process .

39 See Speaker of the National Assembly v Public Protector above n 31 at para 2.

GOOSEN AJ
27
Furthermore, even though the Commissioners may have met the criteria for
appointment, they were not necessarily the only candidates who did so or the most
suitable candidates for selection . It follows that the appointment process is
unconstitutional and that the appointments of the Commissioners are invalid.

Remedy
[68] Section 172(1)(b)(ii) of the Constitution permits this Court, upon a declaration
of invalidity, to make any order that is just and equitable, including an order suspending
the declaration of invalidity, “to allow the competent authority to correct t he defect”.
Corruption Watch moved for a suspension for a period of 18 months. In argument,
Corruption Watch made the point that part of its initial rationale was to avoid a situation
where the CGE was unable to function or its work was disrupted. As was explained in
the supplementary affidavit it had filed, that reason has since fallen away in light of the
additional appointments of Commissioners to the CGE by the President . Any concern
that the CGE would have insufficient Commissioners to continue its work or would lack
leadership are no longer relevant considerations. The Commissioners accepted that this
is indeed the case.

[69] Corruption Watch nevertheless argues for suspension of the order on the basis
that the declaration of invalidity w ill negatively impact the Commissioners who ha ve
already been appointed. The Commissioners, in turn, contended for a suspension period
to allow them to serve out the full period of their terms of office.

[70] As indicated earlier in the judgmen t, the Commissioners filed affidavits and
participated in the hearing in order to deal with the potential adverse consequences of a
declaration of invalidity upon them. Relying on this Court’s judgment in Nxasana,40
the Commissioners submitted that the prejudice which they will suffer would outweigh
the harm of retaining the status quo. They submitted that an order permitting them to

the harm of retaining the status quo. They submitted that an order permitting them to

40 Corruption Watch NPC v President of the Republic of South Africa; Nxasana v Corruption Watch NPC [2018]
ZACC 23; 2018 (2) SACR 442 (CC); 2018 (10) BCLR 1179 (CC).

GOOSEN AJ
28
complete their terms of office was consistent with the case advanced by
Corruption Watch because Corruption Watch had not challenged the Commissioners’
suitability to hold office.

[71] The challenge by Corruption Watch impugned the legitimacy of the
appointments. That, as stated earlier, concerns both the process and the consequential
outcome of the process. The purpose of a remedy, in this context, must be to vindicate
the infringed right and to allow the breach of the right to be corrected. Declaratory
relief alone may serve as a form of vindication . However, effective relief ordinarily
requires correction of the defect. Thus, where corrective conduct or action is possible,
it ought to form part of the remedial order.41 What stands to be corrected in this instance
is the process by which Commissioners of the CGE were appointed and the
consequential legitimacy of those appointments.

[72] Suspension of the declaration of invalidity seeks to avoid the disruptive and
negative prospective consequences of the order of invalidity .42 Considerations of
disruption and good governan ce would apply equally where, as in this case, an
immediate order of validity affects the appointment of a person to a public post. In such
event, a court will consider whether invalidating an appointment would hamstring the
institution in its ability to carry out its functions. In the absence of such disruption, the
declaration of invalidity would ordinarily take immediate effect unless there are other
circumstances which, on the basis of justice and equity, warrant a suspension.

[73] In this case, an immediate order will cause the Commissioners obvious economic
hardship and disrupt their personal lives. They are victims of the National Assembly’s
unconstitutional conduct and played no part in it. The immediate consequences of the
declaration of invalidity ought therefore to be ameliorated in the interests of justice and

declaration of invalidity ought therefore to be ameliorated in the interests of justice and
equity. That said, I do not believe that a suspension which permits the Commissioners

41 Allpay Consolidated Investment Holdings (Pty) Ltd v Chief Executive Officer of the South African Social
Security Agency (II) [2014] ZACC 12; 2014 (4) SA 179 (CC); 2014 (6) BCLR 641 (CC) at para 30.
42 See Doctors for Life above n 6; LAMOSA above n 37; Mogale above n 21; and SA Iron and Steel above n 25.

GOOSEN AJ
29
to complete their terms of office would be appropriate. Such an order would have no
practical remedial effect. It would permit the National Assembly to ignore the
consequences of its unconstitutional conduct. This Court’s judgment would , in that
event, serve only to guide the National Assembly in relation to its future obligation to
ensure a constitutionally compliant process for the next routine round of appointments.
That is not desirable.

[74] Furthermore, it is undesirable that a Chapter 9 institution should perform its vital
constitutional role under the taint of illegality. The fact that the Commissio ners’
appointments are invalid will, no doubt, cause substantial reputational harm to the CGE
because it implicates the rule of law and the principle of legality. Such harm should not
be compounded by the remedial relief that this Court grants. The suspension should
therefore operate only for so long as may be required to correct the unconstitutional
conduct. A suspension order necessarily balances competing interests. Even though
the failures here are procedural, and there is no suggestion that th e Commissioners do
not meet the criteria for appointment, the public interest in a lawful appointment process
outweighs the personal interests of the Commissioners.

[75] The 18-month period suggested by Corruption Watch is unduly generous. It was
initially motivated by concerns about the impact that the declaration would have upon
the functioning of the CGE. That consideration has fallen away. In this instance, we
are not dealing with a legislative process which, by its nature, is protracted. It was
implicit in the N ational Assembly’s case that an appointment process could be
conducted in a constitutionally compliant manner in approximately six months, as they
attempted in this case. The process was , however, not compliant in part because the
time allowed f or public participation was unduly restricted. In my view, a period of

time allowed f or public participation was unduly restricted. In my view, a period of
12 months would be long enough to permit the National Assembly to conduct an
appointment process which complies with its obligation to facilitate meaningful and
effective public involvement.

GOOSEN AJ
30
Costs
[76] Corruption Watch relies upon the principle set out in Biowatch43 to claim costs
in the event of success. In my view, an award of costs, including those of two counsel,
payable by the National Assembly is justified. The Commissioners did not oppose the
principal relief. They sought merely to place facts and submissions before the Court
concerning the period of suspension of the order of invalidity. They should not be
mulcted in costs. They did not seek an order that their costs be pai d by the
National Assembly. In the circumstances no order relating to their costs should be
made.

Order
[77] The following order is made:
1. Direct access is granted.
2. It is declared that:
(a) Parliament failed to comply with its constitutional obligation to
facilitate reasonable public involvement in recommending persons
to be appointed as members of the Commission for Gender
Equality.
(b) The appointment of the fifth to ninth respondents as
Commissioners to the Commission for Gender Equality with effect
from 1 March 2023 is invalid.
(c) The declaration of invalidity in paragraph 2(b) is suspended for a
period of 12 months from the date of this order to enable the first
respondent to conduct an appointment process and the second
respondent to make appointme nts in a manner that is consistent
with the Constitution.
3. The first respondent must pay the applicant’s costs, including the costs of
two counsel where employed.

43 Biowatch Trust v Registrar Genetic Resources [2009] ZACC 14; 2009 (6) SA 232 (CC); 2009 (10) BCLR 1014
(CC).

For the Applicant:


For the First Respondent:


For the Fifth, Sixth, Seventh, Eighth and
Ninth Respondents:

For the Amicus Curiae
K Hardy and T Power instructed by
Power and Associates

N Stein instructed by Office of the State
Attorney, Cape Town

S Baloyi SC and N Seme instructed by
Kganare and Khumalo Incorporated

M Mbikiwa and E van Heerden (written
submission only) instructed by Bowman
Gilfillan Incorporated