CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 251/22; CCT 252/22 and CCT 299/22
Case CCT 251/22
In the matter between:
DEMOCRATIC ALLIANCE First Applicant
PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA Second Applicant
and
PUBLIC PROTECTOR OF SOUTH AFRICA First Respondent
SPEAKER OF THE NATIONAL ASSEMBLY Second Respondent
CHAIRPERSON OF THE SECTION 194
COMMITTEE Third Respondent
ALL POLITICAL PARTIES REPRESENTED
IN THE NATIONAL ASSEMBLY Fourth to Seventeenth Respondents
Case CCT 252/22
And in the matter between:
DEMOCRATIC ALLIANCE First Applicant
PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA Second Applicant
and
PUBLIC PROTECTOR OF SOUTH AFRICA First Respondent
SPEAKER OF THE NATIONAL ASSEMBLY Second Respondent
CHAIRPERSON OF THE SECTION 194
COMMITTEE Third Respondent
ALL POLITICAL PARTIES REPRESENTED
IN THE NATIONAL ASSEMBLY Fourth to Seventeenth Respondents
Case CCT 299/22
And in the matter between:
PUBLIC PROTECTOR OF SOUTH AFRICA Applicant
and
SPEAKER OF THE NATIONAL ASSEMBLY First Respondent
CHAIRPERSON OF THE SECTION 194
COMMITTEE Second Respondent
PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA Third Respondent
ALL POLITICAL PARTIES REPRESENTED
IN THE NATIONAL ASSEMBLY Fourth to Seventeenth Respondents
Neutral citation: Democratic Alliance and Another v Public Protector of
South Africa and Others [2023] ZACC 25
Coram: Maya DCJ, Baqwa AJ, Madlanga J, Majiedt J, Mathopo J,
Mbatha AJ, Mhlantla J, Rogers J, and Tshiqi J
Judgment: Maya DCJ (unanimous)
Heard on: 24 November 2022
Decided on: 13 July 2023
Summary: Section 194 of the Constitution — suspension of the Public
Protector — Apprehension of bias — Sub judice rule — conflict
of interest
ORDER
On direct appeal from the High Court of South Africa, Western Cape Division,
Cape Town:
1. The appeals by the Democratic Alliance (DA) and the President of the
Republic of South Africa in CCT 251/22 and CCT 252/22 against the
orders in paragraphs 187.5 and 187.6 of the Full Court’s judgment
delivered on 9 September 2022 (Part B judgment) are upheld.
2. The conditional application for confirmation of the said orders of
invalidity is dismissed.
3. The orders of the Full Court in paragraphs 187.5 and 187.6 of the Part B
judgment are set aside and replaced with the following order:
“The prayers in paragraphs 3.2, 3.3 and 4 of the amended Notice of Motion to
declare the decision to suspend the applicant issued on 9 June 2022 and the
decision of the Section 194 Committee to commence the section 194 removal
process to be irrational, unconstitutional and invalid and set aside in terms of
section 172(1)(f) of the Constitution are dismissed.”
4. The appeals by the DA and the President in CCT 251/22 and CCT 252/22
against the costs order in paragraph 187.7 of the Part B judgment are
dismissed.
5. The Public Protector’s conditional cross -appeals in CCT 251/22 and
CCT 252/22 are dismissed.
6. The Public Protector’s application fo r leave to appeal in CCT 299/22 is
dismissed.
7. In CCT 251/22 and CCT 252/22 there is no order as to costs.
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8. In CCT 299/22 the Public Protector shall pay the costs in her personal
capacity, such costs to include the costs of two counsel.
JUDGMENT
MAYA DCJ ( Baqwa AJ, Madlanga J Majiedt J, Mathopo J, Mbatha AJ, Mhlantla J,
Rogers J, Tshiqi J concurring):
Introduction
This matter co mprises three consolidated cases. The f irst is CCT 251/22, an
appeal, alternatively an application for leave to appeal directly to this Court, in terms of
section 172(2)(d)1 of the Constitution, section 152 of the Superior Courts Act 3 and
rule 164 of this Court’s Rules. The appeal is brought by the Democratic Alliance (DA)
1 Section 172(2)(d) states:
“Any person or organ of state with a sufficient interest may appeal, or apply, directly to the
Constitutional Court to confirm or vary an order of constitutional invalidity by a court in terms
of this subsection.”
2 This section, titled “Referral of order of constitutional invalidity to Constitutional Court”, in relevant part states:
“(1)(a) Whenever the Supreme Court of Appeal, a Division of the High Court or any
competent court declares an Act of Parliament, a provincial Act or conduct of the
President invalid as contemplated in section 172(2)(a) of the Constitution, that court
must, in accordance with the rules, refer the order of constitutional invalidity to the
Constitutional Court for confirmation.
(b) Whenever any person or organ of state with a sufficient interest appeals or applies
directly to the Constitutional Court to confirm or vary an order of constitutional
invalidity by a court, as contemplated in section 172(2)( d) of the Constitution, the
Court must deal with the matter in accordance with the rules.”
3 10 of 2013.
4 Rule 16 entitles a person or organ of state desirous of appealing against or applying for the confirmation of an
order of constitutional invalidity as contemplated in section 172 of the Constitution, within 15 days of the making
of such an order, to lodge a notice of appeal or an application for such confirmation with the Registrar and a copy
thereof with the Registrar of the court which made the order, whereupon the matter shall be disposed of in
accordance with directions given by the Chief Justice.
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challenging the orders contained in paragraphs 187.5 to 187.7 5 of the judgment of a
Full Court of the High Court of South Africa, Western Cape Division, Cape Town
(Part B judgment),6 in which the Full Court dealt with Part B of a review application
brought by the Public Protector of South Africa (Public Protector). In the alternative,
in the event that this Court decides that the High Court’s judgment is not subject to
confirmation in terms of sections 167(5)7 and 172(2) of the Constitution, the DA applies
in terms of rule 198 of this Court’s Rules for leave to appeal against the said orders.
The second matter, CCT 252/22, is an appeal, alternatively an application for
leave to appeal directly to this Court, brought by the President of the Republic of South
Africa, in which he challenges the same paragraphs of the Part B judgment impugned
by the DA in CCT 251/22. This appeal is also brought in terms of section 172(2)(d) of
the Constitution read with rule 16 of the Rules of this Court , with an alternative
application for leave to appeal in terms of rule 19 of this Court’s Rules.
The Public Protector has filed a conditional application for leave to cross-appeal
against a portion of the Part B judgment. She pleads that the Full Court erred in
dismissing certain relief she sought from that Court, as discussed hereunder. In addition
to the cross -appeal, the Public Protector brings a conditional application for
confirmation of the Full Court’s orders in her fa vour in the event that this Court finds
that section 172(2)(a) of the Constitution applies to such orders. In that application, she
5 These parts of the judgment declare the decision of the President to suspend the Public Protector invalid, set aside
the suspension effectively from the date of the order and order each party to pay its own costs.
6 The Public Protector of South Africa v The Speaker of the National Assembly [2022] ZAWCHC 180; [2022] 4
All SA 417 (WCC).
7 This section provides that—
“[t]he Constitutional Court makes the final decision whether an Act of Parliament, a provincial
Act or conduct of the President is constitutional, and must confirm any order of invalidity made
by the Supreme Court of Appeal, a High Court, or a court of similar status, before that order has
any force”.
8 This rule, inter alia, entitles a litigant who is aggrieved by the decision of a court on a constitutional matter, other
than an order of constitutional invalidity under section 172(2)(a) of the Constitution, and who wishes to appeal
against it directly to this Court, within 15 days of the order against which the appeal is sought to be brought and
after giving notice to the other party or parties concerned, to lodge with the Registrar an application for leave to
appeal.
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seeks this Court ’s confirmation of paragraphs 187.5 to 187.7 of the orders of the
High Court.
The third matter is CCT 299/22. In this application, the Public Protector brings
an urgent conditional application for leave to appeal directly to this Court against the
whole judgment and order of the Full Court of the High Court, in which that Court
dismissed her application in terms of section 18 of the Superior Courts Act for leave to
execute the review judgment.9
Parties
As indicated, the DA and the President are the applicants in CCT 251/22 and
CCT 252/22, respectively . The Speaker of the National Assembly (Speaker),
Chairperson of the Section 194 Committee 10 and All Political Parties Represented in
the National Assembly (Political Parties) are the second, third and fourth to seventeenth
respondents, respectively. The Pol itical Parties are cited merely as interested parties.
Of this cohort , only the tenth , eleventh and sixteenth respondents – the
United Democratic Movement (UDM), African Transformation Movement (ATM) and
the Pan Africanist Congress of Azania (PAC) , respectively – are participating in these
proceedings.
Background
The matters arise from the same set of facts and impugned decisions of the
President, the Speaker and the Section 194 Committee. On 4 February 2022, this Court,
in Speaker,11 declared rule 129AD(3) of the Rules adopted by the National Assembly
9 Public Protector of South Africa v Speaker of the National Assembly [2022] ZAWCHC 197
(section 18 judgment).
10 The Section 194 Committee is a committee established in terms of section 194 of the Constitution .
11 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 2.
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on 3 December 2019 (Rules)12 unconstitutional to the extent that the rule limited the
right to legal representation of a Chapter 9 institution office-bearer during proceedings
concerning their removal from office. This Court severed the offending part of the rule
to cure its invalidity and it now provides that the Section 194 Committee—
“must afford the holder of a public office 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.”13
Following the order of this Court in Speaker, on 22 February 2022 , the
Section 194 Committee resolved to proceed with the consideration of the motion for the
removal of the Public Protector. Subs equently, on 10 March 2022, the Speaker wrote
a letter to the President advising him of the latest developments in the matter. In the
letter, the Speaker informed the President that: (a) the Section 194 Committee had
previously paused its enquiry pending the outcome of the proceedings before the
Constitutional Court in Speaker; and (b) having considered the Constitutional Court’s
judgment in Speaker, it resolved to continue with its consideration of the motion for the
removal of the Public Protector.
On 17 March 2022, the President wrote a letter to the Public Protector informing
her of the Speaker’s letter. He invited the Public Protector to provide him with reasons
why he should not exercise his powers in terms of section 194(3)(a) of the Constitution
and suspend her pending the finalisation of the enquiry of the Section 194 Committee.
In response , on 18 March 2022, the Public Protector , through her attorneys ,
Seanago Attorneys Inc orporated (Seanago), wrote to the Speaker demanding a
retraction of the letter sent by the Speaker to the President on 10 March 2022. The
12 The Rules were passed to govern the removal of the heads and commissioners of institutions established in
terms of Chapter 9 of the Constitution , which establishes state institutions, including the Public Protector, to
strengthen constitutional democracy in the Republic . They were drafted pursuant to various motions submitted
by the DA to the Speaker to have the Public Protector removed from office.
13 Speaker above n 11 at para 3 of the order.
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Speaker refused to do so. On 22 March 2022, the Public Protector wrote a letter to the
President informing him that there were multiple instances of conflict of interest, which
precluded the President from personally suspending her. The alleged conflicts of
interest included various investigations that had b een recently conducted, or were
currently being investigated, by the Office of the Public Protector against the President.
In response, the President , through the State Attorney, informed the Public Protector
that he would act personally and did not consider himself to be disqualified from doing
so.
On the same day, Seanago wrote a letter to the Section 194 Committee
demanding the suspension of its enquiry pending the Public Protector’s application for
the rescission of the Speaker judgment.14 The Section 194 Committee considered the
14 In that application, the Public Protector unsuccessfully sought the resciss ion of this Court’s order in Speaker,
above n 11, in terms of rule 42 of the Uniform Rules of Court, alternatively section 172(1)(a) of the Constitution.
She argued that this Court had made patent errors by—
(a) ruling that a judge may perform non-judicial functions;
(b) enquiring into whether the appointment of a judge to the independent panel was prohibited,
instead of enquiring into whether the appointment of a judge to the independent panel was
authorised;
(c) failing to address the judicial reviewability of the decision to appoint a judge to the independent
panel in terms of the principle of legality;
(d) failing to address the allegations that the Democratic Alliance acted mala fide in engaging in
litigation against the Public Protector, and consider the allegation of mala fides in making its
cost order;
(e) omitting to explain why it departed from the precedent set in its judgments in South African
Association of Personal Injury Lawyers v Heath [2000] ZACC 22; 2001 (1) SA 883 (CC); 2001
(1) BCLR 77 (CC), NSPCA v Minister of Agriculture, Forestry and Fisheries [2013] ZACC 26;
2013 (5) SA 571 (CC); 2013 (10) BCLR 1159 (CC) and AmaBhungane Centre for Investigative
Journalism NPC v Minister of Justice and Correctional Services [2021] ZACC 3; 2021 (3) SA
246 (CC); 2021 (4) BCLR 349 (CC) ( AmaBhungane), and fostered ambiguity by not clearly
outlining whether it upheld or departed from these judgments; and
(f) fostering ambiguity when it failed to deal with the political nature of the nomination stage, not
the appointment stage, of the process of appointing a judge to the independent panel. The
alternative argument was that it would be in the interests of justice for this Court to rescind its
judgment to avoid the serious damage that could be caused to the separation of powers doctrine
and the independence of the judiciary if the ruling that a judge can be appointed to the
independent panel was sustained and that the outcome of the rescission application had
implications for the continuation and integrity of the impeachment proceedings and could open
the Public Protector up to an unfair suspension.
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demand and resolved to continue with its work. The Public Protector did not accept
this turn of events and approached the High Court for relief.
The High Court litigation
The Part B application
On 1 April 2022, the Public Protector launched application proceedings in the
High Court. She sought orders declaring certain conduct and decisions of the Speaker,
President and the Section 194 Committee irrational, unconstitutional and invalid. She
launched the application in Part s A and B. In Part A, she sought urgent interdictory
relief against the Section 194 Committee, the Speaker and the President. Part A is,
however, not the subject of these proceedings. Part B is, and in it she sought orders
declaring the conduct of the Speaker in writing the letter to t he President, the conduct
of the President in writing the letter initiating the suspension process , and the conduct
of the Section 194 Committee in proceeding with the section 194 enquiry, irrational,
unconstitutional and invalid.
On 6 May 2022, this Cour t dismissed the Public Protector’s application to
rescind the Speaker judgment. On 10 May 2022, the Public Protector launched another
rescission application in this Court, this time to have the order of 6 May 2022 refusing
rescission rescinded.
On 26 May 2022, Seanago addressed a letter to the President setting out the
Public Protector’s representations as to why she should not be suspended.
On 1 June 2022, while Part A of the High Court matter was still pending, a
former senior investigating officer and Deputy Director-General of Home Affairs ,
Mr Arthur Fraser, laid criminal charges against the President in relation to grave
allegations of criminal misconduct involving foreign currency allegedly stolen a t the
President’s Phala Phala farm . On 3 June 2022 , the Office of the Public Protector
received a complaint against the President from ATM’s president, Mr Vuyo Zungula,
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requesting an investigation into any part which the President m ight have played in the
commission of the allege d crimes, specifically breaches of the Executive Members
Ethics Act15 or the President’s oath of office.
On 7 June 2022 , the Public Protector wrote a letter to the President with the
heading “The investigation into allegations of a violation of the Executive Ethics Code
against the President of the Republic of South Africa, His E xcellency
Mr M C Ramaphosa”. The letter contained 31 questions in respect of the Phala Phala
incident. It required answers from him to be provided within 14 days. On 8 June 2022,
the Public Protector publicly announced her intention to launch an investigation into the
Phala Phala incident in terms of the law. The President submitted his reply to these
questions on 22 July 2022.
In the meantime, o n 9 June 2022, the President suspended the Public Protector
in terms of section 2A(7) of the Public Protector Act16 and the Deputy Public Protector
took over the functions of the Office of the Public Protector. On t he next d ay, the
High Court dismissed Part A of the Public Protector’s application (Part A judgment).17
As a result of the President’s decision to suspend her, the Public Protector filed a notice
to amend Part B of the original application . She now sought an order declaring the
decision to suspend her irrational, unconstitutional and invalid. She also sought an order
declaring all the decisions taken by the Section 194 Committee from 2 February 2022
null and void. Lastly, she sought an order decla ring the implementation of the old
version of rule 129AD(3) by the Section 194 Committee, without its amendment by the
National Assembly in accordance with this Court’s judgment in Speaker,
unconstitutional. The High Court granted the amendment, which was unopposed.
The issues before the High Court in relation to Part B were whether—
15 82 of 1998.
16 23 of 1994.
17 Public Protector of SA v Speaker of the National Assembly [2022] ZAWCHC 117.
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(a) the letter of 10 March 2022 written by the Speaker to the President was
unconstitutional;
(b) the enquiry of the Section 194 Committee and its acti vities conducted
from 22 February 2022 were permissible; and
(c) the impugned conduct of the President of suspending the Public Protector
ought to be declared irrational or inconsistent with the Constitution in
terms of section 172(1)(a) of the Constitution.
The Speaker’s letter of 10 March 2022
The Public Protector argued that the Speaker’s decision or conduct to write the
letter of 10 March 2022 to the President constituted illegal conduct or an illegal
decision. According to the Public Protector, this process was intended to trig ger the
suspension process and was based on an incorrect interpretation of section 194(3)(a) of
the Constitution. The Public Protector further argued that the Speaker was not
authorised by any empowering legislation to write the letter. She then referenc ed an
investigation by her office of the President concerning the private use of an official
aeroplane trip to Zimbabwe in September 2020 in which the Speaker, in her then
capacity as the Minister of Defence and Military Veterans , was implicated and
ultimately sanctioned. The suggestion was that in writing the letter , the Speaker was
not acting in good faith and was driven by a mala fide intention to unlawfully trigger
the process of the Public Protector’s suspension.
In her reply, the Speaker explained that in sending the letter to the President she
was merely informing him of the factual developments within the National Assembly
and, in particular, the Section 194 Committee. She stated that she wrote the letter in the
context o f the cooperative governance obligation imposed upon her by
section 41(1)(h)(iii) of the Constitution ,18 and in the light of the precedent set by her
predecessor who informed the President of the commencement of the enquiry of the
18 In terms of section 41(1)(h)(iii) of the Constitution all spheres of government and all organs of state within each
sphere “must . . . co-operate with one another in mutual trust and good faith by . . . informing one another of, and
consulting one another on, matters of common interest”.
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Section 194 Committee, which was later deferred pending the outcome of the judgment
in Speaker.
The High Court rejected the Public Protector’s argument . It endorsed the
Speaker’s reliance on section 41(1)(h)(ii) of the Constitution and held that the
proceedings envisaged in secti on 194 of the Constitution are a matter of common
interest between the Legislature and the Executive. Thus, so reasoned the High Court,
the Speaker, as a representative and leader of the National Assembly, is obliged to
inform the President when the secti on 194 proceedings begin and was, in this case,
obliged to inform the President of the decision of the Section 194 Committee to resume
its proceedings, in line with what the previous Speaker did in similar circumstances.
The Court dismissed the imputation that the letter was intended to trigger the
Public Protector’s suspension and said that it did no more than convey a correct factual
position, namely the decision of the Section 194 Committee to continue with its enquiry.
Regarding the Speaker ’s involvem ent in the saga of the private use of an official
aeroplane, the Court held that this did not detract from the obligations placed on her by
section 41(1)(h)(iii) of the Constitution and the fac t that what she conveyed to
the President was correct. She remained constitutionally obliged to inform the
President of developments within the Section 194 Committee. There was, therefore, no
basis for an order declaring the Speaker’s conduct unlawful, so held the Court.
The impugned conduct and decisions of the Section 194 Committee
The Public Protector submitted that the Committee’s decision and conduct in
pressing ahead with the enquiry breached rule 89 of the Rules which provides that “[n]o
member may reflect upon the merits of any matter on which a judicial dec ision in a
court of law is pending”.
According to the Public Protector, properly interpreted, the sub judice rule
should operate to render the current activities of the Section 194 Committee strictly
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prohibited by rule 89. This argument was made in light of the Public Protector’s
rescission application in Speaker, which was pending in this Court.19
The High Court found no merit in this submission . In its view , the
Section 194 Committee would not be reflecting on the substantive strengths and
weaknesses of the Public Protector’s rescission application or the challenge to the
constitutionality of the Rules . Instead, the Committee would be considering whether
the Public Protector committed misconduct or is incompetent for any of the reasons
alleged in the motion for her removal. The Court reiterated that the sub judice rule does
not preclude members of the National Assembly from carrying out their oversight
functions and holding Chapter 9 institutions accountable.20
The Court then considered whether the proceedings of the
Section 194 Committee were vitiated by the failure of the National Assembly to amend
rule 129AD(3) as enjoined by the order of this Court in Speaker. On this ground, the
Public Protector submitted that , despite this Court’s amendment of rule 129AD(3) of
the Rules, so as to cure its constitutional defect and make provision for full participatory
legal representation during removal proceedings, the rule still had to be amended by the
National Assembly following the order of this Court. Th is submission was also
dismissed by the High Court, which held that there was no need for the
National Assembly to amend the rule because this Court had already made the necessary
amendment.
The High Court also gave short shrift to the Public Protector’s argument that the
proceedings of the Section 194 Committee were vitiated by the unilateral determination
by its Chairperson of the 30 -day period she was afforded to respond to the allegations
19 Judgment in the rescission application was delivered a day after the Speaker had written to the President, on
11 March 2022.
20 It highlighted that this was an issue it had already decided twice in its judgments in Public Protector v Speaker
of the National Assembly 2020 (12) BCLR (WCC) at para 18 and in the judgment dealing with Part A of the
application which was refused.
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against her, and the Chairperson’s failure to accede to her requ est for an extension of
time within which to respond to the charges against her.
The Court pointed out that the section 194 enquiry was in progress when the
application was heard and it was thus open to the Public Protector to place before
the Court evide nce of the prejudice she suffered as a result of the unilateral
determination of the 30-day period and the refusal to extend it, which she had not done.
There was no evidence on record to support a finding that the enquiry was vitiated by
unfairness and the Public Protector had, in any event, been given an extension of two
weeks.
The impugned conduct and decisions of the President
The Public Protector relied on five grounds to attack the President’s decision to
suspend her, namely that—
(a) the President took the decision prematurely and the decision was ultra
vires because the proceedings envisaged in section 194(3)(a) of
the Constitution had not commenced by 17 March 2022 (when
the President invited her to give r easons why he should not suspend her)
or by 9 June 2022 (when the President suspended her) or at all;
(b) an agreement concluded by her counsel and the President’s counsel
precluded the President from exercising the power to suspend her when
he did;
(c) the President committed contempt of court and breached section 165 of
the Constitution when he suspended her whilst judgment was still pending
in respect of Part A of the application;
(d) the President breached section 96 of the Constitution by suspending her;
and
(e) a conflict of interest arising from six investigations of the President by her
precluded the President from acting personally in exercising the
suspension powers.
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Only ground (e) found favour with the High Court – namely that there was bias
or a reasonable apprehension of bias on the part of the President, which disqualified him
from personally exercising the power to suspend her. This claim was based on various
complaints the Public Protector had received or was investigating against the President.
The complaints included the: (a) BOSASA and CR17 investigations;21 (b) investigation
into allegations of judicial capture made by the Anti-Poverty Forum;22 (c) complaint
lodged by Mr Zungula, requesting an investigation into whether the President breached
the provisions of the Executive Members Ethics Act by undertaking remunerative work
in contravention of section 96(2)(a); and (d) investigation into the use of an official
aeroplane on a private trip to Zimbabwe.
The Court confined its assessment to events that occurred after the hearing of
Part A of the Public Protector’s application. It did so to avoid impermissibly sitting as
a court of appeal, reasoning that the Full Court that dealt with Part A of the application
had already found that the evidence presented by the Public Protector failed to establish
bias or a reasonable apprehension of bias on the part of the President.
Of relevance for present purposes, which was considered by the High Court, is
the Phala Phala incident which was investigated to establish whether the President
breached the Executive Members Ethics Act 23 by undertaking remunerative work in
contravention of section 96(2) of the Constitution.24
21 This investigation concerned a violation of the Executive Ethics Code through an improper relationship between
the Pres ident and African Global Operations , formerly known as BOSASA. One of the key findings in the
investigation report, which was released on 19 July 2019, was that the President had breached his duties under the
Code by failing to disclose donations that had been made to an internal party-political campaign which supported
his election as President of the African National Con gress, commonly known as the CR17 campaign . See also
AmaBhungane above n 14 at para 4.
22 The concept of judicial capture can be underst ood as the antithesis of judicial independence. In a broad sense,
it describes a situation where the institution of the judiciary has lost its independence. In a narrower sense, it
refers to a situation where individual judges have fallen under the contr ol of private interests , in violation of
section 165 of the Constitution.
23 82 of 1998.
24 Section 96(2) states that:
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In determining the applicable test for bias or a reasonable apprehension of bias
by a member of the Executive, the Full Court in the Part B judgment expressed doubt
as to whether the double reasonableness test is, as held by the Full Court in the Part A
judgment, applicable to a member of the Executive. 25 It assumed, without deciding,
that the principles of recusal that govern judges are the applicable standard. Applying
this standard, the Court found that there were a number of reasons why the President
would reasonably be perceived to be unable to bring an impartial mind to bear when
considering whether to suspend the Public Protector.
The High Court took into account that the Public Protector was previously found
by this Co urt to have not had an open and enquiring mind when investigating the
President and that she was unduly suspicious of him. The President had to contend with
responding, on fairly short notice, to the expansive 31 questions on an incident which
occurred two years previously. Suspending the Public Protector would, so the
Full Court reasoned, be a way of delaying the in vestigation into the Phala Phala
complaint. The President, in the Full Court’s view, might well have concluded that “he
was better off with any person but [Ms Mkhwebane].”26
The Court further found the chain of events leading to the suspension significant.
The particular facts in the Court’s view were that on 7 June 2022, the Public Protector
“Members of the Cabinet and Deputy Ministers may not—
(a) undertake any other paid work;
(b) act in any way that is inconsistent with their office, or expose themselves to any
situation involving the risk of a conflict between their official responsibilities and
private interests; or
(c) use their position or any information entrusted to them, to enrich themselves or
improperly benefit any other person.”
25 As is apparent from paragraph 100 of the Part A judgment, that Court understood, by double reasonableness,
that a reasonable apprehension of bias has two objective elements:
“(a) What a reasonable, informed and right -minded observer would co nclude, after having
obtained all the required information and having thought the matter through and, (b) whether
such a reasonable, objective and informed person would on the facts reasonably apprehend that
an impartial mind would not bear on the adjudication of the case.”
26 Part B judgment above n 6 at para 154.
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informed the President that she was investigating him , gave him 14 days to answer the
31 questions listed in her letter and, on 8 June 2022, announced this to the public. This
was followed by the President’s decision on 9 June 2022 to suspend her. And the Part A
judgment was delivered on 10 June 2022.
The Court’s evaluation of these events led it to the following conclusion:
“On these objective facts, it is reasonable to form the perception that the suspension of
the [Public Protector] was triggered by [her] decision . . . to institute an investigation
against the President. There was no other plausible or logical explanation for the
premature suspension of the [Public Protector] on the eve of a judgment meant to
determine the very lawfulness of the suspension.
[T]he hurried nature of the suspension of the [Public Protector] in the circumstances,
notwithstanding that a judgment was looming on the same subject mat ter, leads this
court to an ineluctable conclusion that the suspension may have been retaliatory and,
hence, unlawful. It was certainly tainted by bias of a disqualifying kind and perhaps
an improper motive. In our view, the President could not bring an unbiased mind to
bear as he was conflicted when he suspended the [Public Protector].”27
Accordingly, as the Full Court saw it, there was an objectively reasonable
apprehension of bias which prevented the President from exercising his powers under
section 194(3)(a) of the Constitution. This bias also meant that the President acted
contrary to section 96(2)(b) of the Constitution in terms of which members of the
Cabinet and Deputy Ministers may not act in any way that is inconsistent with their
office, or expose themselves to any situation involving the risk of a conflict between
their official responsibilities and private interests.
The Court found that , from the questions posed by the Public Protector to the
President in respect of the Phala Phala invest igation, it appeared that there was a risk
that, in suspending the Public Protector, the President acted in a manner which exposed
27 Id at paras 155 and 157.
MAYA DCJ
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him to a situation involving the risk of a conflict between his official responsibilities
and private interests. The Court f ound it reasonable to assume that the investigation
would relate to the President’s private interests, given the nature of the allegations made
against him regarding the Phala Phala incident which involved monies he earned in his
private capacity.
The High Court set aside the Public Protector’s suspension prospectively, so that
decisions taken in the interim by the Deputy Public Protector would not be invalidated,
and, in relevant part, made the following order:
“187.5 The decision of the President to suspend the Public Protector is declared invalid.
187.6 The suspension is set aside effectively from the date of the order.
187.7 Each party is to pay their own costs.”
Section 18 application
The DA took the view that the judgment was wrong and that the High Court
ought to have dismissed the challenge to the President’s decision to suspend the
Public Protector. Furthermore, paragraphs 187.5 and 187.6 of the High Court judgment
were ineffective in the absence of confirmation by this Court in terms of sections 167(5)
and 172(2) of the Constitution, because the two paragraphs are orders declaring that
“conduct of the President” is unconstitutional and unlawful . The DA noted an appeal
in terms of section 172(2)(d) of the Constitution, section 15(2)(b) of the
Superior Courts Act and rule 16 of the Rules of this Court . Alternatively, as a matter
of caution, it applied for leave to appeal directly to this Court in terms of rule 19(2).
The Public Protector disagreed with the DA and announced that she w ould resume
office with immediate effect.
The Public Protector then brought an application in the High Court , on an
extremely urgent basis in terms of section 18(1) and (3)28 of the Superior Courts Act, to
28 Section 18(1) and (3) provides:
MAYA DCJ
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render the Part B judgment operational and executable pending any appeal or
application for leave to appeal delivered in respect thereof.
The Public Protector argued that the Part B order was not made in terms of
section 172(2)(a) of the Constitution and was thus not subject to confirmatio n by this
Court. According to her, the order was executable in the interim, provided a successful
application was made in terms of section 18(1) and (3) of the Superior Courts Act. She
contended that the relevant parts of the order – the declaration of invalidity and the
setting aside of her suspension – were two self-standing orders and should be interpreted
separately. In her submission, it is only “conduct” and not “decisions” of the President
that must be referred to this Court for confirmation in terms of sections 172(2)(a) and
167(5) of the Constitution. The President’s decision to suspend her did not constitute
“conduct” of the President which, if declared invalid, would require confirmation by
this Court. The order in paragraph 187.5 refers to the President’s “decision” and not
his “conduct” and does not fall to be confirmed by this Court. She argued that the
President’s impugned decision was contested on the basis of the common law ground
of bias or reasonable apprehension of bias, and separately there was reliance on a
constitutional ground of a conflict of interest in terms of section 96(2)(b) of
the Constitution.
The Public Protector further argued that even if section 172(2)(a) of
the Constitution applied to the part of the order declaring the President’s decision
invalid, it did not follow that section 18 of the Superior Courts Act does not apply. This
was because section 18 applies to any decision that is the subject of an application for
(1) Subject to subsections (2) and (3), and unless the court under exceptional
circumstances orders otherwise, the operation and execution of a decision which is the
subject of an application for leave to appeal or of an appeal, is suspended pending the
decision of the application or appeal.
(2) . . .
(3) A court may only order otherwise as contemplated in subsection (1) or (2), if the party
who applied to the court to order otherwise, in addition proves on a balance of
probabilities that he or she will suffer irreparable harm if the court does not so order
and that the other party will not suffer irreparable harm if the court so orders.
MAYA DCJ
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leave to appeal. Moreover, if the order must still be confirmed by this Court that means
it is interim in nature and not final in effect. Therefore, it should be dealt with as an
interlocutory order under section 18(2) of the Superior Courts Act. The Public Protector
persisted with these arguments in this Court.
The Full Cour t (the same panel that decided the Part B review) referred to
Pharmaceutical Manufacturers Association,29 in which this Court held that the use of
the words “any conduct” of the President shows that section 172(2)(a) is to be given a
wide mean ing. The Cour t also cited Von Abo30 in which this Court he ld that
sections 167(5) and 172(2)(a) of the Constitution serve separate, but comple mentary
purposes: section 172(2)(a) confe rs jurisdiction on the Supreme Court of Appeal,
aHigh Court or a court of similar status, subject to this Court’s oversight, to make orders
concerning the constitutional validity of the President’s conduct (and Acts of Parliament
or provincial Acts), whilst section 167(5) delineates the power of this Court in rela tion
to the same class of orders of constitutional invalidity made by the High Court or the
Supreme Court of Appeal. Accordingly, this Court makes the final decision on whether
the conduct of the President is unconstitutional and no order to this effect has any force
until this Court has pronounced on the issue. Therefore, a High Court order declaring
the conduct of the President inconsistent with the Constitution must be confirmed by
this Court before it has any effect.
The Court found that the Presiden t’s decision to suspend the Public Protector
amounted to “conduct of the President” under sections 172(2)(a) and 167(5). It did not
accept the distinction sought to be drawn by the Public Protector between a “decision”
and “conduct” and found no merit in her argument that “conduct” had to be confirmed
by this Court, but not “decisions”. According to the Full Court, the High Court, having
declared the President’s conduct inc onsistent with the Constitution, then made a just
29 Pharmaceutical Manufacturers Association of South Africa: In re Ex Parte President of the Republic of South
Africa [2000] ZACC 1; 2000 (2) SA 674 (CC); 2000 (3) BCLR 241 (CC) at para 56.
30 Von Abo v President of the Republic of South Africa [2009] ZACC 15; 2009 (5) SA 345 (CC); 2009 (10) BCLR
1052 (CC) at para 31.
MAYA DCJ
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and equitable order in terms of s ection 172(1)(b). Thus, the order of the High Court
was to be interpreted as a composite one; the relevant orders were not self-standing and
did not exist separately and independently of each other as contended by the
Public Protector.
Regarding the application of section 18 of the Superior Courts Act to the Part B
order, the Full Court held that section 18 contemplates a binding decision. A decision
that is subject to confirmation by this Court has no force. Thus, the order of the
High Court ha d no independent existence but was instead conditional upon
confirmation by this Court. On this basis, the Court found that section 18 did not apply
to the application before it. In the result, the application was dismissed.
In this Court
Submissions in the appeal against paragraphs 187.5 to 187.7 of the Part B judgment
DA submissions
The DA submits that on the facts of the matter suspension was the only rational
decision for the President to take. The President would not gain anything from
suspending the Public Protector , because the investigation into his conduct at
Phala Phala would be continued by the Acting Public Protector regardless and her bias
against the President is no evidence that he would be biased against her. The suspension
was necessary in the circumstances to protect the integr ity of the Office of the
Public Protector and the effectiveness of the section 194 process while an investigation
into her removal was underway, to allow the Public Protector to defend herself and to
prevent interference in the enquiry . The DA submits that the President’s decision to
suspend the Public Protector was a necessary precaution and is not punitive as it is a
suspension with full pay. Its timing is no evidence of bias and fits perfectly wit h the
President taking the decision in the ordinary course, as he testified he did.
As to the standard for apprehendin g bias, the DA submits that the ordinary test
for bias or a reasonable apprehension of bias applies. Furthermore, the Public Protector
MAYA DCJ
23
never challenged the decision to suspend her on substantive grounds or irrationality,
and even her representations to the President focused on procedural obstacles.
On remedy, the DA submits that if this Court confirms the Part B order, the
appropriate remedy is to suspend the order of invalidity for 30 days so as to allow the
Deputy President to take a decision in terms of section 90(1)(a) of the Constitution.
The Court should also ensure that the de claration does not affect the validity of
decisions taken by the Acting Public Protector during the Public Protector’s suspension.
Regarding costs, the DA ask s that, if the appeal succeeds, the Public Protector
be ordered to pay the costs in her personal capacity. It submit s that this is warranted
because the Public Protector’s litigation was never to further the interest of the Office
of the Public Protector, but her own. But the DA does accept that it was reasonable for
her to defend the Part B judgment and thus does not seek costs on a punitive scale.
President’s submissions
The President’s submissions are, for the most part, very similar to those of the
DA and – to that extent – do not bear repeating. However, the following submissions
must be noted.
Regarding t he alleged conflict of interest in breach of section 96(2)(b),
the President submits that the High Court erred in its finding that because the
Public Protector had started an investigation against the President on 7 June 2022, he
risked a conflict of interest in making the decision whet her to suspend her, and was
therefore precluded from doing so. The President had already taken the first steps
towards a possible suspension of the Public Protector by way of his letter dated
17 March 2022, more than two months before the Public Protector initiated her
Phala Phala investigation.
The President argues that the exercise of official responsibilities while having
private interests is not prohibited. Further, a risk of a conflict of interest does not mean
MAYA DCJ
24
that the conflict has materialised, and section 96(2)(b) deals with real risks, not
hypothetical risks. Thus, there could only be a real risk of a conflict of interest if it was
shown that the President would benefit his private interests if he exercised his public
responsibility in a particu lar way . No such evidence ha d been shown, it is argued.
Furthermore, the Acting Public Protector, who filed an affidavit , indisputably
established that there had been no delay in the investigation and that its quality would
not be compromised. In the absence of a real risk of a conflict of interest,
section 96(2)(b) was not triggered, so goes the argument.
Regarding the issue of bias , the President submits that it raise s the questions
whether the prohibition against bias in the Promotion of Administra tive Justice Act31
(PAJA) forms part of the doctrine of legality in executive action, where bias is alleged
in respect of executive action; if it does, the test to be applied, where bias is alleged in
respect of executive action such as in this case; and whether, on the evidence, bias has
been demonstrated.
The President submits that PAJA does not apply because the decision of a
President to suspend a Public Protector does not constitute administrative action . The
doctrine of legality , however, applies to the exercise of the President’s power to
suspend. But if bias forms part of the doctrine of legality in the present context , it is a
very attenuated part. He argues that it is not necessary to debate the question of the test
of “double reasonableness ” and that it is sufficient to find that the test for an
apprehension of bias is whether it is reasonable. The President cannot shirk his
constitutional obligations by passing the task onto someone else on the basis of
discomfort or speculation.
The evidence demonstrates neither actual bias nor a reasonable apprehension of
bias, continue the submissions . And like the DA, the President also submits that his
decision to suspend must be viewed upon a consideration of the timeline of events in
31 3 of 2000.
MAYA DCJ
25
this matter. He points out that the history of the matter goes back to 2019 when the DA
submitted a request to Parliament for the removal of the Public Protector from office.
Following numerous events, on 17 March 2022, he invited the Public Protector to make
representations regarding whether or not he should suspend her. After giving her
several extensions, she finally submitted her representations on 26 May 2022. He then
took two weeks to consider the matter and consequently decided , on 9 June 2022, to
suspend her. Thus, it was incorrect for the High Court to make a finding that his
decision to suspend the Public Protector was made hurriedly or that it was prompted by
the Phala Phala investigation. This was p articularly so when the
Acting Public Protector was obligated to continue with th at investigation. The
precautionary suspension of the Public Protector would achieve nothing at all to the
benefit of the President.
Public Protector’s submissions
The Public Protector’s main contention is that there is no valid section 172(2)(d)
application before this Court. Accordingly, this Court cannot reach the grounds of the
direct appeal advanced by the DA and the President. The Public Protector submits that
paragraph 187.532 of the High Court’s order does not relate to the conduct of the
President as contemplated in section 172 (2)(a). Thus, no confirmation is required by
this Court.33 Furthermore, even if paragraph 187.5 of the order of the High Court fell
within the ambit o f section 172(2)(a), it is a stand -alone order issued in terms of
section 172(1)(b). This part of the order was issued, not to deal with a constitutional
issue, but to address the violation of the common law rule against bias known as the
nemo iudex in sua causa (no one should be a judge in their own case).
The Public Protector submits that not every action or conduct attributed to the
President amounts to “conduct of the President” within the ambit of section 172(2)(a).
32 In this part of the Part B judgment, above n 6, the High Court declared the President’s decision to suspend the
Public Protector invalid.
33 Id at para 12.
MAYA DCJ
26
Declarations of invalidity in respect of conduct falling outside the ambit of the section
do not require this Court’s confirmation.34 According to the Public Protector, neither
the breach of the rule against bias nor of section 96(2) amounts to conduct within the
ambit of section 172(2)(a).35
The Public Protector submits that conduct of the President may be categorised
into three separate classes, namely: (a) conduct falling within the ambit of
section 172(1) (which does not require confirmation); (b) conduct falling within the
exclusive jurisdiction of this Court in terms of section 167(4)(e); and (c) conduct of the
President which falls within the concurrent jurisdiction of the High Court and this Court
in terms of section 172(2)(a) (conduct that requires confirmation). The Public Protector
contends that, in the present case, the President’s conduct falls within the section 172(1)
category. Ultimately, so the argument goes, the orders of the High Court are
section 172(1) orders and not section 172(2) orders. This is so because : they do not
relate to “conduct” but to a suspension “decision”; they flow from findings of common
law breaches and not any orders of constitutional validity; even if it is conduct of the
President, it is not of the class which is confirmable, but of a class which falls within
the scope of section 172(1); and, in any event, no automatic appeals are competent in
the absence of valid confirmation proceedings , and qualifying appellants as defined in
section 172(2)(d).
Regarding the alternative rule 19 application s for leave to appeal , the
Public Protector contends that the rule’s peremptory provisions have not been met. The
first charge is that the DA did not indicate whether it had applied or intended to apply
for leave or special leave to appeal to any other court so as to enable this Court to assess
whether it is in the interest s of justice to grant leave when it is also being sought
elsewhere. She further contends for the dismissal of the applications on the merits on
the basis that they have no prospects of success.
34 Id at para 15.
35 Id at paras 17-9.
MAYA DCJ
27
The Public Protector agrees with the applicants ’ submission that bias does not
form part of the principle of legality and arg ues that this reinforces her point that the
orders were based on breaches of the common law rule against bias and not on the
principle of legality. In accordance with the supposed rule of avoidance,36 she argues
that a finding that the President’s conduct was tainted by actual bias or a reasonable
apprehension of bias dispenses with the need to consider whether the risk of conflict of
interest as provided in section 96(2)(b) has been establis hed. She argues that the
High Court’s determination of the question was thus an obiter dictum from which the
orders could not flow.
The Public Protector dismisses the “timeline” ground of appeal in respect of bias
as wrong on the basis that bias can occur at any point of a multi-stage decision-making
process to which fairness must be applied. She then challenges each of the applicants’
grounds of appeal as to why the evidence does not support the High Court’s findings in
respect of a conflict of interest and bias.
In response to the President’s submission that her bias against him referenced by
the High Court cannot be the basis for her perception of bias , she defends the
High Court’s finding. She argues that the hostility between her and the President is a
sufficient basis to ground a perception of bias; not reactive bias , but the President’s
inherent bias as the decision-maker.
She then turns to the President’s attacks on the High Court’s findings that: (a) her
suspension would delay the Phala Phala investigation; (b) the expansive nature of the
questions she had posed to him , to which he had to respond in a short space of time,
provided an inducement for him to remove her from her office; and (c) “in response” to
36 I say “supposed” because changes to this Court’s jurisdiction have resulted in the abandonment of its earlier
approach of avoidance of constitutional issues and the adoption of the opposite view, namely that “constitutional
approaches to rights deter mination must generally enjoy primacy”: Jordaan v City of Tshwane Metropolitan
Municipality; City of Tshwane Metropolitan Municipality v New Ventures Consulting and Services (Pty) Limited;
Ekurhuleni Metropolitan Municipality v Livanos [2017] ZACC 31; 2017 (6) SA 287 (CC); 2017 (11) BCLR 1370
(CC) at paras 6-8.
MAYA DCJ
28
the Public Protector’s questions and her p ublic announcement of the Phala Phala
investigation, he decided to suspend her . These attacks, she contends, are based on a
wrong premise. She argues that these findings and her corresponding submissions were
not based on the suggestion that her replacement, the Deputy Public Protector, would
compromise the investigation but rather on the President’s impermissible
forum-shopping bid to avoid being investigated by her.
She also argues that, in implementing the suspension, the President reneged on
his undertaking, supposedly made in a WhatsApp exchange between their respective
senior counsel, to indicate to her whether or not he would give her an undertaking not
to suspend her before delivery of the Part A judgment. She contends that the President’s
conduct entitles the Court to infer that he had an ulterior or improper motive by not
honouring his undertaking.
She rejects the President’s attack on the High Court’s finding that there was no
plausible or logical explanation other than an ulterior motive for her premature
suspension on the eve of a judgment meant to determine the very lawfulness of the
suspension and that the President knew that the judgment was pending. She argues that
the President’s denial falls flat , as he conceded that he was aware that the pending
judgment, which would be expedited, would have far-reaching implications. Indeed,
the President and the DA addressed this issue during argument in the High Court and in
the present proceedings. She argues that the President, by pre-empting the outcome of
the Part A judgment, was guilty of constructive contempt . That i s, improper and
unlawful conduct which is inconsistent with his other legal and constitutional
obligations and is prohibited by section 96(2)(b).
As to the DA’s appeal grounds, the Public Protector argues that the suspension
has no merit and denies the assertion that she did not challenge the reasons for the
suspension. She contends that she wrote a long letter in response to the President’s
invitation in which she raised substantive and procedural objections to the suspension .
Even if she had remained supine , so she argues, that would not validate the ultra vires
MAYA DCJ
29
actions of a disqualified decision-maker acting without authority. She contends that it
is irrelevant that the President stood to gain nothing from the suspension , as he was
acting out of vengeance and in pursuit of retaliation in breach of the law.
She insists that her suspension is prima facie punitive in light of the reputational
consequences. She challenges the DA’s reliance on Long37 on the basis that th e case
only applies in the labour law context and deals only with the issue of a hearing and not
the other substantive requirements for a suspension. She disputes the test for a breach
of section 96(2)(b) posited by the DA and argues that the provisions set a lower
threshold than the ordinary standard of bias , because it targets a particular category of
persons wielding executive power . She argues that a similar test for section 96(2)(b)
and common law bias makes no sense, given that the framers of the Constitution made
a special provision for conflicts of interest and the risks thereof, which apply only to
members of the Cabinet and Deputy Ministers. She disputes the contention that a breach
of section 96(2)(b) does not result in the invalidity of the accompanying decision or
conduct it taints, arguing that the provisions impose extra duties upon members of the
Executive so as to protect society and mitigate their overwhelming power which is
particularly susceptible to abuse and corruption.
The Public Protector seeks a dismissal or striking from the roll of the automatic
appeals, a dismissal of the applications for leave to appeal or resultant appeals and
personal costs on the scale as between attorney and client.
ATM, PAC and UDM’s submissions
These political parties support the Public Protector, in their words, to ensure “that
effect is given properly to the values of the Constitution in seeking to hold the
Public Protector accountable”. They stand by their submissions in the High Court and
argue that the Full Court declare d the suspension invalid under section 172(1)(a) and
set it aside under section 172(1)(b) ; and that the orders are self -standing and must be
37 Long v South African Breweries (Pty) Ltd [2019] ZACC 7; (2019) 40 ILJ 965 (CC); 2019 (5) BCLR 609 (CC).
MAYA DCJ
30
interpreted disjunctively. They argue that the order in paragraph 187.5 declaring the
President’s decision to susp end the Public Protector invalid is subject to confirmation
by this Court. They contend, however, that the order in paragraph 187.6 setting aside
the suspension was granted as a just and equitable order in terms of section 172(1)(b)
and is not subject to confirmation because it was granted to mitigate the effects of an
order of constitutional invalidity granted under section 172(1)(a) pending confirmation
of that order by this Court.
Submissions in the conditional cross-appeal
Public Protector’s submissions
The Public Protector accepts that if the DA and President’s appeals fail and the
Full Court decision accordingly stands, or the declaration of invalidity is confirmed, the
cross-appeal will fall away. The cross-appeal is brought on ten grounds grouped into
three clusters , as she describes it . The main ground relates to the interpretation of
section 194(3)(a) of the Constitution.38 She argues that the President acted prematurely,
ultra vires and in the absence of a jurisdictional pre-requisite for a val id suspension,
namely that the suspension may occur only “after the start of the proceedings of a
committee of the National Assembly for the removal of that person”. She argues that
the proceedings in question had not started by 17 March 2022 (when the Pr esident set
the suspension process in motion) nor by 9 June 2022 (when the suspension letter was
issued). The proceedings started only on 11 July 2022 , when the
Section 194 Committee first began to hear evidence. She criticises the Full Court for
finding that the proceedings “started” when the Committee notified her of the charges.
In any event, she contends that the Full Court failed to conduct a comparative analysis
between section 194 and section 177 of the Constitution, which deals with the removal
of a Judge.
38 Section 194(3)(a) reads:
“[The President] may suspend a person from office at any time after the start of the proceedings
of a committee of the National Assembly for the removal of that person.”
MAYA DCJ
31
The Public Protector then submits that what she describes as the
“Removal Committee”, namely the committee referred to in section 194(3)(a), is not
the same as what she calls the “Veracity Committee”, namely the committee envisaged
in section 194(1)(b),39 which is tasked only with making a finding as to the veracity of
the charges. She cites the EFF40 judgment of this Court, among others, as support for
this submission , which, she argues, is evident from the fact that the words “for the
removal of that person” are not used to describe the Section 194(1)(b) Committee and
that the section refers to “a” committee rather than “the” committee. The removal stage
therefore starts only after the determination of guilt, which has not yet occurred on a
proper reading of the above provisions.
The next cluster of grounds concerns the sub judice rule and the supposed
non-amendment of National Assembly rule 129AD(3) by the National Assembly in line
with this Court’s judgment in Speaker. The Public Protector argues that the Full Court
erred in gauging the applicability of the sub judice rule only against the alleged
“second rescission” application when it was also invoked in relation the Part B
application. She argues that as a result of this error a significant part of the pleaded
argument was not adjudicated, including the question whether it was lawful for the
Section 194(1) Committee to start when it did. She also argues that the
National Assembly should have amended the rules to align with the judgment and
orders of this Court in Speaker and that, because of this omission , the section 194(1)
enquiry is being conducted under the auspices of the original unconstitutional rules.
39 Section 194(1) provides:
“The Public Protector, the Auditor -General or a member of a Commission established by this
Chapter may be removed from office only on—
(a) the ground of misconduct, incapacity or incompetence;
(b) a finding to that effect by a committee of the National assembly; and
(c) the adoption by the Assembly of a resolution calling for that person’s removal from
office.”
40 Economic Freedo m Fighters v Speaker of the National Assembly [2018] ZACC 47; 2018 (2) SA 571 (CC);
2018 (3) BCLR 259 (CC).
MAYA DCJ
32
In the last cluster of grounds, the Public Protector contends that: (a) the President
breached an undertaking made by his senior counsel on his behalf not to suspend her
before indicating whether or not he was amenable to giving her time to mount a legal
challenge; (b) the conduct of the President in deliberately or recklessly pre -empting a
“looming” judgment was in breach of section 165(3) and (4) of the Constitution,
irrespective of whether it amounted to contempt of court; and (c) the Part B Full Court
erred in considering itself bound by the interim findings of the Part A Full Court in
respect of the alleged BOSASA conflict of interest.
With regard to (a) , it is argued that the Full C ourt misinterpreted the clear
WhatsApp exchange, which embodied the agreement between the parties. As to (b), it
is argued that the Full C ourt erred in failing to distinguish between section 165 of
the Constitution and common law contempt of court, which are not synonymous. It is
possible, the Public Protector submits, for conduct which does not satisfy all the
elements of the criminal offence of common law contempt of court, which governs the
consequences of undermining the authority of the courts, to still amount to a breach of
section 165(3) and (4) of the Constitution , which reinforce s the supremacy of
the Constitution. The result of the Full Court’s error is that section 165 was not
adjudicated on its own merits as a stand-alone ground of unlawfulness. Regarding (c),
it is argued that the President correctly stated under oath in the BOSASA incident that
it would have been in breach of his duties under section 96(2)(b) of the Constitution and
potentially undermine the integrity of his office for him to play any role in the
suspension of the Public Protector. But in the Phala Phala matter he inexplicably felt
entitled to suspend her without delegating the decision to another member of the Cabinet
who was not tainted by such conflict . This conduct , she argues, goes to intention ,
dolus eventualis and improper motives.
DA’s submissions
The DA opposes the cross-appeal. It submits that the sub judice rule does not
prevent the Section 194 Committee from proceeding with its work, as contended by the
Public Protector. It argues that the Section 194 Committee did not breach rule 89 of the
MAYA DCJ
33
Rules. If the Public Protector’s submission were correct, any person subject to
section 194 proceedings would be able to halt the process by bringing litigation related
to the process or the underlying allegations.
The DA argues that there is no need for rule 129AD(3) to be amended following
this Court’s judgment in Speaker in which this Court used the tool of severance to cure
the invalidity, thus altering the content of rule 129AD(3).41 Therefore, the section 194
enquiry is not proceeding under an unconstitutional rule.
The DA also disputes the Public Protector’s argument that the President’s
decision to suspend her was premature . It argues that, in determining when the
proceedings started, one must ask when the public will reasonably be concerned that
allowing an incumbent to remain in office could be inconsistent with the integrity of the
Office. It then submits that when the National Assembly has determined that the
proceedings are serious enough to be referred to a committee for investigation, and the
matter is referred to a committee, the proceedings have started. According to the DA,
here, section 194(3)(a) was triggered on 16 March 2021 when, following the report of
the Independent Panel, the National Assembly referred the DA’s complaint to a
committee as contemplated in section 194(3)(a) of the Constitution.
The DA challenges the Public Protector’s argument that section 194 of
the Constitution contemplates two committees . It criticises the argument for
inconsistency with the text and purpose of section 194 and highlights the absurdity of
an argument which postulates that a Public Protector may be removed following a
finding of on ly one committee but that there must be a second committee to trigger
suspension. The DA also contends that the argument violates the principle of
subsidiarity. This is so, it argues, because Part 4 of the Rules of the national Assembly
is the law that gives effect to section 194 and envisages that one committee determines
whether the Public Protector is incompetent, incapacitated or guilty of misconduct and
41 Id at paras 14-8.
MAYA DCJ
34
whether to recommend removal. Establishing another committee to consider the work
of the first co mmittee before the National Assembly deliberates upon and votes on its
report would be inconsistent with the Rules of the National Assembly. Since the
Public Protector did not challenge the Rules, they must stand as valid, so goes the
argument.
President’s submissions
The President also opposes the conditional cross-appeal and submits that it is not
in the interests of justice to allow it as it has no prospects of success. He does not deal
with the ground of appeal relating to the alleged infringement of the sub judice rule as
it does not implicate him. He argues that all the other grounds have no merit. He
challenges the contention that the Ful l Court erroneously considered itself bound by
distinguishable judgments and failed to apply binding decisions such as EFF.42
The President further challenges the ground of illegality based on the
National Assembly’s failure to amend its current Rules to reflect the order of this Court
in Speaker. He argues that: no relief was sought by the Public Protector in respect of
the Rules; this Court did not impose an obligation on the National Assembly to amend
its rules but instead issued a declaratory order setting out the amended rule; and, as the
Full Court observed, the Public Protector has not explained why it was necessary to
amend the rule.
The President supports the Full Court’s rejection of the Public Protector’s
“two-committees” argument. He submits that the finding that sectio n 194(3)(a) does
not require a separate committee for the determination of culpability or ascertaining the
veracity of the alleged grounds for dismissal accords with the text and context of section
42 Above n 40.
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194. He argues that the Public Protector’s reliance on decisions such as EFF and
Nxumalo43 is misplaced as they dealt with different sets of circumstances.
The President refutes the argument that the Section 194 Committee proceedings
had not started as envisaged in section 194(3)(a) when he took the decision to suspend
the Public Protector. He relies on the finding of the Part A Full Court that the
proceedings started when the Section 194 Committee informed the Public Protector of
the allegations against her , and invited her to respond withi n a period of 30 days.
Delaying the power to suspend until evidence is heard would, he argues, be inconsistent
with the constitutional purpose for which the power is designed. He also challenges
this ground on the basis that the Public Protector sought leave to appeal agains t the
judgment of the Part A Full Court on the same issue and argues that this Court cannot
entertain it while it is under consideration by another court.
The President contends that the Public Protector impermissibly , in her written
submissions, raises a new challenge not made in her affidavits or as a ground of appeal.
This new submission is that the suspension decision was invalid because the
Section 194 Co mmittee proceedings had not started as of 17 March 2022 , when the
President initiated the suspens ion process by inviting the Public Protector to give
reasons as to why she should not be suspended. Her case on the papers , which the
Full Court rejected, was that the jurisdictional facts in section 194(3)(a) of
the Constitution had not been me t because the Section 194 Committee’s proceedings
had not started when the President made his decision on 9 June 2022 . The President
also argues that this new ground fails on a reading of section 194(3) as to when he may
suspend and that the Public Protector’s reliance on Speaker is misguided as the findings
there arose in a different context – the right to legal representation.
The President dismisses the argument concerning the alleged failure of the
Full Court to give a proper interpretation to the What sApp communication between
43 Nxumalo v President of the Republic of South Africa [2014] ZACC 27; 2014 (12) 1457 (CC); 2014 (12) BCLR
1457 (CC).
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senior counsel as resting on inadmissible hearsay . He further points out that the
Full Court correctly assessed the messages and that in any event there was no interdict
preventing him from taking a decision. He denies committi ng contempt of court or
breaching section 165(3) and (4) of the Constitution in respect of which the
Public Protector relied on the same facts . He argues that there was no agreement in
place and no order precluding him from taking the decision. Lastly, he submits that the
Full Court correctly held that it was bound by the findings of the Part A Full Court and
that the Public Protector failed to establish that any of that Court’s findings were clearly
wrong.
Speaker and Section 194 Committee’s submissions
These parties oppose the relief sought by the Public Protector in the cross-appeal
to the extent that, if two questions are answered in the Public Protector’s favour, that
may interfere with or halt the section 194 proceedings. The two questions are whether
the enquiry conducted by the Section 194 Committee infringes rule 89 of the Rules of
the National Assembly and whether the Section 194 Committee’s enquiry is
impermissible because the National Assembly has not amended its rule to give effect to
the order of this Court in Speaker. Like the DA, the se parties argue that : (a) the
Section 194 Committee has not considered the merits of any of the litigation concerning
the Public Protector’s impeachment; (b) the sub judice rule, understood in conformity
with the Constitution, does not preclude mem bers of the National Assembly from
carrying out their oversight functio ns and holding office -bearers of
Chapter 9 institutions accountable in terms of section 194 of the Constitution and the
related Rules; and (c) there was no need for the National Assembly to amend the rule.
Section 18 appeal
Following the dismissal of the Public Protector’s application in the High Court
under section 18 of the Superior Courts Act, to put the Part B order into effect pending
the appeal in this Court, she filed an urgent application for leave to appeal to
the Supreme Court of Appeal against that decision. That application too was dismissed
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and she was ordered to pay the costs of the DA and the President personally. She seeks
leave from this Court to appeal that decision with the support of the ATM, PAC and
UDM.
The parties presented various opposing arguments and the opposing parties each
sought a personal costs order against the Public Protector. I do not propose to
summarise these arguments44 as I ultimately find that the application has become moot
and that I can conceive of no interests of justice considerations for this Court to entertain
it for the reasons set out later in this judgment.
Issues
The core issues to be decided are whether: (a) in suspending the Public Protector,
the President acted in breach of section 96(2)(b) of the Constitution; (b) the
President’s decision to suspend the Public Protector was shown to have been biased,
alternatively the Public Protector’s apprehension that the President would not bring an
open mind in deciding whether to suspend her was reasonable; and (c) if the appeal is
successful, whether the Public Protector should pay costs in her personal capacity.
In the cross-appeal they are whether (a) the enquiry being conducted by the
Section 194 Committee infringes rule 89 of the Rules; (b) the enquiry is impermissible
because the National Assembly has not amended its Rules to give effect to the order of
this Court in Speaker declaring the proviso to rule 129AD(3) unconstitutional and
invalid; (c) the section 194 enquiry had started when the President suspended her ; (d)
sections 194(1)(b) and 194(3)(a) envisage two committees to make a finding as to the
veracity of the charges and the removal of the person concerned, respectively; (e) the
High Court failed to give a proper interpretation to the WhatsApp exchange between
the parties’ counsel concern ing whether the President had undertaken not to suspend
her before giving her notice so she could mount a legal challenge against the suspension;
and (f) the President committed contempt of court by suspending her.
44 These arguments are, in any event, the same ones that were raised in the High Court and are discussed
extensively earlier in the judgment.
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Analysis - DA and President’s appeals
The rationality of the suspension
The Constitution in section 181 establishes a group of state institutions for the
purpose of strengthening constitutional democracy in the country . These institutions
are independent and subject only to the Constitution and the law, and must be impartial
and exercise their powers and perform their functions without fear, favour or prejudice.
One of them is the Office of the Public Protector.45
In Economic Freedom Fighters, this Court described the institution as follows:
“The Public Protector is thus one of the most valuable constitutional gifts to our nation
in the fight against corruption, unlawful enrichment, prejudice and impropriety in
State affairs and for the betterment of good governance. Litigation is prohibitiv ely
expensive and therefore not an easily exercisable constitutional option for the average
citizen. For this reason, the fathers and mothers of our Constitution conceived of a way
to give even to the poor and marginalised a voice and teeth that would bite corruption
and abuse excruciatingly. And that is the Public Protector. She is the embodiment of
a biblical David, that the public is, who fights the most powerful and very well
resourced Goliath, that impropriety and corruption by government officials are. The
Public Protector is one of the true crusaders and champions of anti-corruption and clean
governance.
Hers are indeed very wide powers that leave no lever of government power above
scrutiny, coincidental ‘embarrassment’ and censure.”46
However, the power that comes with public office comes with responsibilities ,
and public office-bearers who occupy positions of high authority must be held
45 Section 181 in relevant part provides:
“(1) The following state institutions strengthen constitutional democracy in the Republic:
(a) The Public Protector.”
46 Economic Freedom Fighters v Speaker of the National Assembly; Democratic Alliance v Speaker of the
National Assembly [2016] ZACC 11; 2016 (3) SA 580 (CC); 2016 (5) BCLR 618 (CC) at paras 52-3.
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39
accountable in the exercise of their powers. 47 And, as this Court pointed out in
United Democratic Movement:
“Since State power and resources are for our common good, checks and balances to
ensure accountability enjoy pre -eminence in our governance syste m. This is all
designed to ensure that the trappings or prestige of high office do not defocus or derail
the repositories of the people’s power from their core mandate or errand. For this
reason, public office-bearers, in all arms of the State, must regularly explain how they
have lived up to the promises that inhere in the offices they occupy.”48
The Constitution has a built -in checks and balances mechanism for a
Public Protector who does not live up to the responsibilities that come with her office.
In terms of its section 194(1) and (2), she may be removed from office by a two -thirds
majority of the National Assembly for misconduct, incapacity or incompetence. And
as the process of her removal unfolds, the President is empowered to take steps to ensure
that she does not remain in office and exercise the wide powers that inhere in it. Thus,
in terms of section 194(3)(a), the President may suspend the Public Protector from
office at any time after the start of the proceedings of a committee of the
National Assembly for her removal.
These provisions vest the President with the power to impose a precau tionary
suspension to protect and preserve the office during an enquiry. In deciding whether to
suspend, he is required t o consider the need to uphold the integrity of the office, the
need to prevent interference in the disciplinary enquiry and the need to allow the
incumbent to defend themselves.
In Long49 this Court affirmed the principle that where the suspension is
precautionary, there is no need to afford the employee an opportunity to make
47 United Democratic Movement v Speaker of the National Assembly [2017] ZACC 21; 2017 (5) SA 300 (CC) ;
2017 (8) BCLR 1061 (CC) at paras 7-8.
48 Id.
49 Above n 37 at paras 24-5.
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representations, as it is not punitive and d oes not materially prejudice the employee.
This Court then held that in determining whether the precautionary suspension is
permissible, the fairness of the suspension is determined by assessing whether there is
a fair reason for the suspension and whether it prejudices the employee. A suspension
for an investigation to take place is a fair reason and where suspension is on full pay,
cognisable prejudice will be ameliorated.
The President invoked the provisions of section 194(3)(a) in this matter and
suspended the Publi c Protector pending the conclusion of the section 194 process.
The DA and the President argue that her suspension was not a punishment but a
necessary precaution in the light of credible allegations of misconduct and
incompetence against her and the ongoing process to remove her. Allowing a person
who is potentially dishonest and incompetent to continue to exercise the wide powers
of the Office of the Public Protector threatens democracy and accountability . The
purpose of the suspension was to protect the integrity of the office and the effectiveness
of the section 194 process while the allegations of misconduct or incompetence are
investigated.
It does appear that the justifications for a precautionary suspension existed in this
matter. For a start, this Court has made gravely adverse credibility findings against the
Public Protector. In South African Reserve Bank, it was held that she had “acted in bad
faith and in a grossly unreasonable manner”; 50 had “not been candid” 51 and “was not
honest” with the courts;52 had advanced a number of falsehoods in litigation;53 and that
her conduct fell far short of the high standards required of her office. 54 Following this
decision, the National Prosecuting Authority publicly announced t hat it would charge
50 Public Protector v South African Reserve Bank [2019] ZACC 29; 2019 (6) SA 253 (CC); 2019 (9) BCLR 1113
(CC) at para 205.
51 Id at para 216.
52 Id at para 207.
53 Id at para 237.
54 Id.
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her with perjury for her conduct. In President of the Republic of South Africa 55
this Court said that “[t]he nature and number of errors committed by the
Public Protector here call into question her capacity to appreciate what the law requires
of her when she investigates complaints” .56 The Court also said that she had failed to
display an “open and enquiring mind”, made findings that were not supported by the
facts and it appear ed that she was “unduly suspicious” of the person she was
investigating.57
Moreover, an independent panel 58 found prima facie evidence of incompetence
on her part based on a number of repeated instances, including what it described as
grossly overreaching and exceeding the bounds of her powers in terms of
the Constitution by unconstitutionally trenching on Parliament’s exclusive authority
when she directed it to initiate a process to amend the Constitution; incorrect
interpretation of the law ; failure to take relevant information into account; failure to
provide affected persons with a right to be heard ; incorrect factual analysis; and
sustained lack of knowledge to carry out her duties or ability or skill to perform the
duties of the Public Protector effectively and efficiently.
The independent panel also foun d prima facie evidence of misconduct in the
sense of an intentional or gross ly negligent failure to meet the standard of behavior
expected of a holder of public office in a number of instances, including her insistence
on compliance with a subpoena and bullying the targets of a moot investigation despite
a court challenge having been instituted. The independent panel concluded t hat the
charges required investigation and could, if established, lead to the removal of the
Public Protector.
55 Public Protector v President of the Republic of South Africa [2021] ZACC 19; 2021 (6) SA 37 (CC); 2021 (9)
BCLR 929 (CC) at para 138.
56 Id.
57 Id at para 140.
58 An independent panel c haired by retired Justice Nkabinde, established in terms of section 194 following a
motion from Mrs NWA Mazzone, MP to initiate an enquiry in terms of section 194(1) of the Constitution for the
removal of Adv Mkhwebane from the office of the Public Protector on grounds of misconduct and/or
incompetence. The panel submitted its report on 24 February 2021.
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These allegations which are, inter alia, based on the judicial findings of no less
than this Court, would undoubtedly cause grave public concern about the integrity of
the Office of the Public Protector were the incumbent to remain in office while they are
being investigated.
It must be taken into account too that , at the time the President decided upon
suspension, the Public Protector was facing a section 194 enquiry which would likely
take a long time to conclude, as has indeed proved to be the case. If the Public Protector
remained in office for the duration of the section 194 enquiry, she would have had to
manage the office she leads whilst simultaneously preparing for and attending the
enquiry. Quite obviously, she would not be able to both carry out her du ties as
Public Protector and defend herself in the enquiry effectively. The suspension therefore
allows her to centre her attention on her defence in the enquiry and benefits both her
and her office.
The suspension also eliminates the risk of interference in the section 194 enquiry.
It is well established that where a high ranking official has access to potential witnesses
and documents in the workplace which may be used in a disciplinary enquiry, there is
a real r isk that they may use their power to influence the witnesses and conceal the
documents. In this case , the Section 194 Committee needs to hear evidence from,
among others, employees in the Office of the Public Protector, and access documents
under the Office’s control.
The cumulative effect of all these factors makes clear that a decision to suspend
the Public Protector was, on the merits, the only possible rational outcome. At any rate,
it cannot be said that the President’s decision to suspend her was irrational, even if there
were other rational courses open to him. And it is telling that she has not challenged
the suspension on substantive grounds, contrary to her protestations that she did. This
is not s urprising considering that the President’s reasons were based mainly on the
findings of the independent panel and provided a compelling basis why the suspension
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43
was necessary. She largely relied on the arguments that the President’s power to
suspend had not yet been triggered and that he was biased or reasonably apprehended
to be biased. The substantive reasons which formed part of her representations to
the President, which she sought to incorporate in her supplementary founding affidavit
on the promise that she would rely on them to argue that the President’s decision to
suspend her was irrational, were ultimately not used. In any event, they do not appear
to have any objective evidence.
The Public Protector stated that her suspension would disrupt the work of her
Office, and that the chances of a guilty finding in the section 194 enquiry, and of the
DA motion for her removal receiving a two-thirds majority in the unlikely event of such
a finding, were remote. Relying on an alleged short message service (SMS) leak of the
outcome of her second rescission application in this Court before the order was issued,
the Public Protector further contended that her suspension would play into the hands of
alleged criminals and sinister forces in civil society and possibly in the judiciary , who
seek her illegal suspension and impeachment.
As I have said, none of these reasons seem to be supported by objective evidence.
Her lieutenant, the Deputy Public Protector, would stand in for her as
Acting Public Protector in her absence in terms of section 2A(7) of the Public Protector
Act and in fact has done so quite effectively according to her undisputed affidavit. It is
also not possible to predict the outcome of the section 194 proceedings, especially in
view of the findings of the independent panel, or the outcome of any vote which may
take place in the National Assembly. In the face of the information available to the
President, it would not have been proper for him to allow speculation on such matters
to influence the suspension decision. There was also no substantiation for the existence
of the alleged sinister forces and an investigation by the Chief Justice and ,
subsequently, by retired President of the Supreme Court of Appeal, Judge Mpati, found
no proof to bolster the purported SMS leak.
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Does the decision to suspend constitute “conduct” of the President that is subject
to confirmation by this Court?
The question to be determined here is whether the President’s exercise of the
power afforded to him in section 194(3)(a), to suspend the Public Protector from office,
constitutes “conduct” as envisaged in sections 167(5) and 172(2)(a) of the Constitution.
If it is such conduct, then the declaratory order of the High Court is subject to
confirmation by this Court and the DA and the President may appeal to this Court as of
right in terms of section 172(2)(d) of the Constitution.
Section 167(5) reads, in relevant part:
“The Constitutional Court makes the final decision whether . . . conduct of the President
is constitutional, and must confirm any order of invalidity made by the
Supreme Court of Appeal, the High Court of South Africa, or a court of similar status,
before that order has any force.”
This section must be read with section 172(2)(a) , which provides that “[t]he
Supreme Court of Appeal, a High Court or a court of similar status may make an order
concerning the constitutional validity of . . . any conduct of the President, but an order
of constitutional invalidity has no force unless it is confirmed by the
Constitutional Court.”
In Von Abo,59 this Court held that these two sections are “two sides of the same
coin”, serving separate but complementary purposes, mapping out the respective areas
of jurisdiction of th e Supreme Court of Appeal and the High Court, on the one hand,
and of this Court, on the other. This Court further described the provisions as follows:
“[S]ection 172(2)(a) forms part of a collection of provisions that confer constitutional
jurisdiction on the Supreme Court of Appea l and High Courts subject to the express
oversight of this Court in relation to orders on the constitutional validity of national
59 Von Abo above n 30.
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and provincial legislation and conduct of the President. On the other hand,
section 167(5) delineates the power of this Court in relation to the same class of orders
of constitutional invalidity made by the Supreme Court of Appeal and the High Court.
This suggests that the ‘conduct of the President ’ envisaged in the two provisions
ordinarily bear the same meaning. In other words, if particular conduct of the President
is liable to be confirmed under the one provision, ordinarily it should also be so under
the other provision. Both provisions serve the vital purpose of ensuring that orders of
invalidity directed at the appropri ate class of the President’s conduct have no force
unless confirmed by this Court.”60
The meaning of “any conduct” of the President was discussed by this Court in
Pharmaceutical Manufacturers,61 where it held:
“The use of the words ‘any conduct’ of the President shows that the section is to be
given a wide meaning as far as the conduct of the President is concerned. The apparent
purpose of the section is to ensure that this Court, as the highest court in constitutional
matters, should control de clarations of constitutional invalidity made against the
highest organs of state. That purpose would be defeated if an issue concerning the
legality of conduct of the President, which raises a constitutional issue of considerable
importance, could be characterised as not falling within section 172(2)(a), and thereby
removed from the controlling power of this Court under that section.”62
Not every dispute about the conduct of the President falls within the scope of
sections 167(5) and 172(2)(a) . For exampl e, there is conduct of the President in the
form of a failure to fulfil a constitutional obligation as envisaged in section 167(4)(e),
which is within the exclusive jurisdiction of this Court. However, the present does not
fall among those exclusions.
This Court has , in a number of varied cases, determined that a decision of
the President constituted conduct which required confirmation. One such example is
60 Id at para 32.
61 Pharmaceuticals Manufacturers above n 29.
62 Id at para 56.
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DA v President of the RSA ,63 which concerned the President’s decision to appoint the
National Director of Public Prosecutions in terms of section 179 of the Constitution
read with sections 9 and 10 of the National Prosecuting Authority Act.64 There, the DA
successfully sought a declaration in the High Court that the President’s decision was
inconsistent with the relevant provisions . The declaration was found to be subject to
confirmation by this Court. Another example is, Corruption Watch NPC ,65 which
concerned orders of constitutional invalidity granted by the High Court in respect of a
settlement agreement concluded by the President and other persons terminating the
tenure of the National Director of Public Prosecutions. The settlement agreement was
determined to be conduct of the President which was subject to confirmation by this
Court. The Public Protector has not been able to distinguish these analogous cases,
which both dealt with decisions that were set aside for constitutional invalidity and were
subject to confirmation by this Court within the ambit of sections 167(5) and 172(2)(a).
Conflict of interest
The Public Protector submits that the President was disqualified by
section 96(2)(b) of the Constitution from suspending her due to conflict s of interest
allegedly arising from various complaints involving serious and impeachable condu ct
against him, which had been or were still being investigated. According to her, the fact
of those investigations disqualified the President from being involved in a decision to
suspend her because of the conflict of interest or the risk of a conflict b etween his
official responsibilities and private interests. And the mere risk of a conflict suffices to
render his decision unlawful, even if there is no reasonable apprehension of bias.
Section 96(2)(b) of the Constitution provides that members of the Cabinet and
Deputy Ministers may not—
63 Democratic Alliance v President of the Republic of South Africa [2012] ZACC 24; 2013 (1) SA 248 (CC); 2012
(12) BCLR 1297 (CC).
64 32 of 1998.
65 Corruption Watch NPC v President of the Republic of South Africa [2018] ZACC 23; 2018 (2) SACR 442 (CC);
2018 (10) BCLR 1179 (CC).
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47
“act in any way that is inconsistent with their office , or expose themselves to any
situation involving the risk of a conflict between their official responsibilities and
private interests.”
In this regard, the High Court found:
“The official responsibilities relied upon by the applicant relate to the exercise of the
suspension powers. On the issue of private interests, the applicant relies on her
investigation of the President. The investigation by the applicant also relates to the
President’s official responsibilities, namely, a breach of the Executive Members Ethics
Act and the Executive Ethics Code. It certainly appears from questions posed by the
applicant in respect of the Phala Phala incident that there is indeed a risk that the
President, in suspending the applicant, acted in a manner which exposed him to a
situation involving the risk of ‘a conflict between (his) official responsibilities and
private interests’.”66
Without determining the meaning of a risk of a conflict of interest , the Court
concluded:
“Given the nature of the allegations made against the President with regard to the
Phala Phala incident, involving as it does monies not earned by the President in his
official capacity, it is reasonable to assume that the investigation will relate to the
President’s private interests as well; hence, there is a strong argument to be made that
the Phala Phala incident involves a risk of conflict between the President’s official and
private interests.”67
The essential elements of a conflict between official responsibilities and private
interests are: “(a) official responsibilities; (b) private interests; (c) the risk of a conflict
between (a) and (b); and (d) a member’s conduc t that exposes him to that risk” .68
Applying this to the present matter, the official responsibility at issue here is the exercise
66 Part B judgment above n 6 at para 170.
67 Id at para 171.
68 President of the Republic of South Africa above n 55 at para 66.
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of the power of suspension under section 194(3)(a). Based on the contentions by the
Public Protector, the private interests would be the President’s desire to thwart the
investigation by her against him. In the face of the existence of this desire, the prospect
of the exercise of the section 194(3)(a) power would give rise to the risk of a conflict
between the exercise of the power and the desire. Of these elements, one that I need
focus on is whether here there is, indeed, a risk of conflict.
This Court has observed that “[t]o find oneself on the wrong side of section 96,
all that needs to be proven is a risk . . . [i]t does not even have to materialise. ”69 The
Court also usefully attached the adjective “real” to the risk;70 the risk must be real. This
means the risk must not be imaginary, flimsy or far-fetched. What then is the standard?
At the risk of sounding as if I am importing the test for bias, for the risk to be real, it
must – as the DA argued – be of such a nature that it would reasonably be apprehended
by a reasonable person. A standard lower than the reasonableness standard would result
in the exercise of execu tive power being hamstrung; even if remote, with no room for
apprehension by a reasonable person, the risk would be capable of inhibiting executive
action. And a standard requiring more, from the person asserting the risk of a conflict,
than the reasonabl eness standard would not be appropriate because it would
unnecessarily shield the executive from the necessary public scrutiny; public scrutiny
that helps ensure that members of the Executive do not place private interest s above
official responsibilities.
Having established the standard, on the facts of this matter is there a basis for
holding that the President exposed himself to a situation involving the risk of a conflict
between his official responsibilities and private interests? In this regard, I wi ll focus
only on whether – employing the above standard – there was exposure to the risk
envisaged in section 96(2)(b). If there was not, that is the end of the matter.
69 EFF above n 40.
70 Id at para 9.
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The Public Protector stated that the Phala Phala investigation had been unduly
delayed because of her suspension and that her continued suspension inevitably
destabilised and delayed it. But the Acting Public Protector’s detailed affidavit about
the progress of the investigation, which the Public Protector did not dispute, leaves no
doubt that the investigation was anything but delayed by the suspension and in fact
progressed well and in accordance with the requirements of the Constitution and the
Public Protector Act. Furthermore, the President co-operated with that process.
The only basis on which the High Court found that the President could be biased
was that he had suspended the Public Protector shortly after she initiated an
investigation into allegations about his conduct at Phala Phala. However, it is necessary
to understand that whether the President’s decision to suspend the Public Protector was
biased depends on the assumption that he stood to gain a benefit from the decision. The
mere fact that the Public Protector is investigating him cannot create a reasonable
apprehension of bias or, on the approach I take, expose him to a risk of conflict between
his official responsibilities and private interests.
As the DA rightly argue s, the suspension of the Public Protector is not a power
that the President can exercise without safeguards; it is a tightly constrained power with
no practical impact on investigations by the Office of the Public Protector. There are
indeed a number of l egal constraints. The High Court pointed out that the President
cannot exercise the power to suspend the Public Protector “on a whim or for flimsy
reasons” and can only do so after a committee of the National Assembly commences
proceedings for her removal. Importantly, before the National Assembly can convene
a committee, an independent panel must determine whether there is a prima facie case
for removal and the National Assembly must vote to establish a section 194 committee.
These are not insignificant constraints.
The President neither determines the duration of the suspension nor decide s
whether there are credible allegations against the Public Protector. That depends on the
National Assembly and its processes. His role is confined to imposing a precautionary
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50
suspension to protect the Office of the Public Protector which achieves nothing for his
benefit because it does not delay , let alone end , the investigation against him. The
Acting Public Protector must continue with the investigation. Moreover, the President
has no power to choose who will replace the Public Protector or to influence them as
this is governed by section 2A(7) of the Public Protector Act.
In my view , the evidence does not show that the President acted in a manner
which exposed him to a situation involving the risk of a conflict between his official
responsibilities and private interests. First, as appears above, the President stood to gain
nothing from suspending the Public Protector. There is no support on the record for the
submission that the President suspended the Public Protector to influence the outcome
of the Phala Phala investigation and benefit from the delay that the suspension would
cause. The Acting Public Protector, who has not been shown to be incompetent or to
lack independence, continued with the investigation diligently and insisted on a
response to the 31 questions posed by the Public Protector to the President, which were
then furnished.
Secondly, the President did not suspend the Publ ic Protector to prejudice her.
The suspension is only a precautionary one and does no harm to her as she remains on
full pay and has time to properly attend to her defence in the section 194 enquiry. It
also does not cause her reputational harm as she is already subject to a highly public
enquiry in which the allegations leading to her suspension have been (and continue to
be) ventilated.71
Thirdly, the evidence of the Public Protector’s bias against the President, which
was correctly pointed out by the High Court’s finding: (a) that she had previously been
found not to have acted with “an open and enquiring mind” when investigating the
71 Democratic Alliance v South African Broadcasting Corporation Limited [2014] ZAWCHC 161; 2015 (1) SA
551 (WCC) at para 101; and Ntlemeza v Helen Suzman Foundation [2017] ZASCA 93; 2017 (5) SA 402 (SCA);
[2017] 3 All SA 589 (SCA) at para 46.
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President and (b) that she was unduly suspicious of him, militates against the possibility
of a risk of conflict and detracts from the idea that the President is disqualified from
suspending her. In an analogous setting, this Court decisively rejected the notion of the
so-called “reactive bias” in Turnbull-Jackson.72 There, the applicant had insulted the
official deciding whether to approve his neighbour’s building plans by accusing him of
bias, corruption and incompetence and had then contended that the official ought to
have recused himself as the decision-maker as he was not impartial.
This Court said:
“This would b e the easiest stratagem for the unscrupulous to get rid of unwanted
decision-makers. If I insult you enough – whatever enough may be – you are out. This
is without substance . It proceeds from an assumption that officials with decision -
making power would respond the same way to insults. It ignores the following: the
training of the officials; their experience; possibly eve n their exposure to abuse and
insults – from time to time – and the development of coping skills; and other personal
attributes, all of which may render them impervious to, or tolerant of, insults. A finding
of bias cannot be had for the asking. There must be proof; and it is the person asserting
the existence of bias who must tender the proof.”73
And, describing the obligations that c ome with the office of President under
section 83 of the Constitution, this Court stated that “[t]he President is expected to
endure graciously and admirably and fulfil all obligations imposed on him, however
unpleasant”.74 So the mere fact that the President was one of the subjects of the
Public Protector’s investigations could be no bar to his exercise of the constitutional
responsibility of suspending her.
The timeline of the President’s decision to suspend on which the High Court
squarely based i ts finding of bias is also relevant. The High Court reasoned that on
72 Turnbull-Jackson v Hibiscus Court Municipality [2014] ZACC 24; 2014 (6) SA 592 (CC); 2014 (11) BCLR
1310 (CC).
73 Id at paras 31-2.
74 Id at para 26.
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7 June 2022, the Public Protector informed the President that she was investigating him
in relation to Phala Phala; on 9 June 2022, the President decided to suspend her; and on
10 June 2022, the High Court handed down its judgment in Part A, a judgment which
the President knew was pending and would be delivered shortly.
In the High Court’s view these facts inexorably led to one conclusion, which it
articulated as follows:
“[I]t is reasonable to form the perception that the suspension of the [Public Protector]
was triggered by [her] decision to institute an investigation against the President. There
was no other plausible or logical explanation for the premature suspension . . . on the
eve of a judgment meant to determine the very lawfulness of the suspension.
. . .
In our view, the hurried nature of the suspension of the [Public Protector] in the
circumstances, notwithstanding that a judgment of the full court was looming on the
same subject matter, leads this court to an ineluctable conclusion that the suspension
may have been retaliatory and hence, unlawful. It was certainly tainted by bias of a
disqualifying kind and perhaps an improper motive. In our view, the President could
not bring an unbiased mind to bear as he was conflicted when he suspended the
[Public Protector].”
It may well be asked why the President could not have waited for an impending
court judgment which sought to restrain him from suspending the Public Protector and
which would have judicially determined, albeit on an interim basis, the lawfulness of
the very decision he was about to make. When confronted with this question during the
oral argument in this Court , his counsel, in his words, conceded that the “optics are
awkward”. Not to wait for the imminent judgment could be seen as imprudent and
showing a lack of caution on the part of the President. But, whatever the case, that is
not the legal test and the High Court’s reasoning is wrong.
Its judgment , which inexplicably isola ted the events of 7 to 9 June 2022,
overlooked critical evidence that amply shows that the suspension was long in the
making; that the President became aware that the Full Court’s judgment in Part A would
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be delivered on 10 June 2022 only after he had already issued the suspension letter; and,
importantly, that the Public Protector’s suspension would in any event not stop the
investigation, as the complaint had already been lodged with her office.
The saga of the Public Protector’s impeachment began in May 2019 when
the DA submitted a request to Parliament for her removal from office. That request
evolved over many months and went through the relevant processes stipulated by the
rules of the National Assembly until, in February 2021, the independent panel submitted
its report recommending that charge s of incompetence and misconduct, in respect of
which it found prima facie evidence, be referred to a committee of the
National Assembly. In March 2021, the National Assembly considered the independent
panel’s report and resolved that an enquiry in terms of section 194 should take place.
The National Assembly established the Section 194 Committee in April 2021 and it
held its first meeting in July 2021. The work of the Committee was, however, delayed
by the Public Protector’s application which culminated in this Court’s judgment in
Speaker in February 2022. The Committee then decided to resume its work.
On 17 March 2022 , the President started communicating with the
Public Protector and gave her ten days to furnish him with her written reasons on why
he should not suspend her. So he was giving consideration to a suspension several
weeks before the Public Protector, on 31 March 2022, launched the review application
which is now before us, and about two and half months before the Phala Phala
allegations surfaced . After his letter of 17 March 2022, and through the months of
March, April and May 2022, the President granted the Public Protector no less than four
extensions and undertakings not to make a decision.
On 12 May 2022, the State Attorney notified Seanego that the Public Protector’s
representations had been due by 4 May 2022, that no further extension had been agreed,
but that the President was now willing to afford the Public Protector until 20 May 2022
to make representations. Ultimately, on 20 May 2022, a final line was drawn in the
sand when the President’s senior counsel informed the Public Protector’s senior counsel
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that the Public Protector could file her written representations by 26 May 2022.
The President would then consider her representations carefully before taking any
decision whether or not to suspend her; and would advise her as to whether he was
prepared to provide her with any undertaking in regard to a decision about her
suspension and , if so, the terms of the undertaking. There was, at this stage,
unequivocally no undertaking by the President to refrain from deciding on her
suspension, a fact which was brought to the High Court’s attention. The
Public Protector submitted her representations by 26 May 2022. It was only after all of
these events that the Phala Phala allegations came to light and a complaint in that regard
against the President was lodged with the Public Protector. T he decision to suspend
followed shortly thereafter.
These facts clearly do not support the High Court’s finding of a “hurried” or
“retaliatory” decision. This is part icularly so in the light of the President’s evidence
that the suspension letter had been prepared over several days and that a revised draft
thereof was finally sent to him for consideration on the evening of 8 June 2022. But for
the late emergence of the Phala Phala complaint, nobody could have suggested anything
sinister about the timeline. If anything, there might have been a complaint that
the President should have acted sooner to suspend the Public Protector. Indeed, that is
a view which the DA , through its attorneys, expressed in letters to the State Attorney ,
but the President declined to be pressured into acting. These facts tend to suggest an
intent to afford the Public Protector further time to make representations. The late
emergence of the P hala Phala allegations cannot taint a process which was neither
hurried nor irrational.
Neither is there any merit in the High Court ’s other finding of further evidence
of bias. That Court held that when the President made the decision to suspend, he was
dealing with an investigation by the Public Protector concerning allegations the
substance of which, unlike her other investigation s into his conduct , he could not
discuss. By “discuss”, the High Court presumably meant that the President could not
ventilate in court papers his version of events in the Phala Phala matter. In the
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High Court’s view, this was a critical time for the President to assess whether it was
still tenable for him to exercise the suspension powers. But the record shows that
the President was willing to make his response to the 31 questions available to the
High Court and that the Office of the Public Protector requested that it not be made
public. The Public Protector did not seek to have it disclosed in these proceedings.
It is also clear on the record that the President did not know , when he took the
decision to suspend the Public Protector , that the High Court was going to deliver
judgment in the Part A matter on the following day. Notice of the judgment only
reached his office after he had sent the suspension letter to the Public Protector, a fact
which the High Court judgment acknowledged but puzzlingly accorded no weight.
It bears mention that in any event , a pending judgment does not preclude a
decision-maker from taking a l awful decision. This Court in City of Tshwane75 held
that the Supreme Court of Appeal ’s decision in Gauteng Gambling Board 76 is not
authority for the proposition that “an apparently lawful decision may not be
implemented purely because an application has be en launched either to interdict
implementation or to have the underlying decision set aside”. This Court continued:
“It needs to be stated categorically, that no aspect of our law requires any entity or
person to desist from implementing an apparently la wful decision simply because an
application, that might even be dismissed, has been launched to hopefully stall that
implementation. Any decision to that effect lacks a sound jurisprudential basis and is
not part of our law. It is a restraining order, as opposed to the sheer hope or fear of one
being granted, that can in law restrain. To suggest otherwise, reduces the actual grant
of an interdict to a superfluity.”77
75 City of Tshwane Metropolitan Municipality v Afriforum [2016] ZACC 19; 2016 (6) SA 279 (CC); 2016 (9)
BCLR 1133 (CC) at paras 73-4.
76 Gauteng Gambling Board v MEC for Economic Development, Gauteng Provincial Government [2013] ZASCA
67; 2013 (5) SA 24 (SCA) at para 51.
77 City of Tshwane above n 75 at para 74.
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In all the circumstances, there was therefore no exposure on the President’s part
to the risk envisaged in section 96(2)(b). Having reached this conclusion, it becomes
unnecessary to decide the question of bias. At the level of facts (that is, whether there
was a reasonable apprehension of bias), the conclusion would plainly be the same as
the one I have reached in discussing the facts under section 96(2)(b).
Conclusion on the DA and President’s appeals
Subject, therefore, to the Public Protector’s cross -appeal, the DA and
the President’s appeals must succeed, and the orders in paragraphs187.5 and 187.6 must
be set aside.
Analysis – the Public Protector’s cross-appeal
Alleged infringement of the sub judice rule
The Public Protector argues that rule 89 of the National Assembly Rules
prevented the Section 194 Committee from proceeding with the enquiry because the
Committee was required to reflect upon the merits of her rescission applications in
this Court and of her application in the High Court to stop the enquiry and set aside her
suspension. In terms of rule 89, “[n]o member may reflect upon the merits of any matter
on which a judicial decision of a court of law is pending”.
Regarding the Public Protector’s bid to interdict the section 194 proceedings, the
Full Court held that the National Assembly’s obligation to hold her accountable would
have been stultified if the sub judice rule was applicable. Indeed, this must be so as
otherwise any person subject to the section 194 process would be able to stop the
proceedings by simply bringing litigation related to the process or the underlying
allegations. In any event, the Section 194 Committee is not required to determine the
merits of any of the claims she made in the Part B application. The Committee is solely
concerned with whether she is incompetent or has committed misconduct.
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Supposed failure of the National Assembly to amend the Rules
With regard to t he Public Protector ’s submission that the Full Court erred in
dismissing the ground of illegalit y based on the failure of the National Assembly to
amend its current Rules to reflect the order of this Court in Speaker, I agree with that
Court’s view that this Court had “amended rule 129AD(3) and that there is no need for
the National Assembly to still amend it again ” and that “ [t]he failure of the
National Assembly to amend the rule which has been amended cannot vitiate the
proceedings of the Section 194 Committee”.
This Court in Speaker rejected the Public Protector’s prayer that the Rules should
be remitted to the National Assembly for redrafting and described her request as a tactic
to delay the proceedings. It then crafted a remedy which would not delay or impede the
National Assembly proceedings by using the tool of severance to cure the invalidity. It
severed the offending words “provided that the legal practitioner or other expert may
not participate in the committee” and pertinently declared : “[t]he amended rule now
provides that the Section 194 Committee: ‘must afford the holder of a public office 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’”. Undoubtedly, the effect of this order was to immediately
alter the content of rule 129AD(3). The reading which the Public Protector ascribes to
it is inconsistent with its clear meaning and has no merit.
The section 194 proceedings had allegedly not started
The Full Court in the Part A application held that the proceedings of the
Section 194 Committee started, for purposes of section 194(3)(a), when the complaint
was referred to it .78 This, it held, was in March 2021, when the National Assembly
resolved that there should be a section 194 enquiry or perhaps in April 2021, when the
Committee was established to conduct that enquiry. The Full Court’s alternative finding
was that, “on a liberal interpretation ” (that is in favour of the Public Protector) , the
Committee’s proceedings started at the latest in April 2022 when the Committee
78 Part A judgment at paras 107-110.
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informed the Public Protector of the allegations against her and invited her to respond
thereto within a period of 30 days. 79 It is unnecessary to decide in this case which of
these views is right. I am satisfied that the Full Court’s alternative view is the latest
date by which the Committee’s proceedings started. It follows that when the President
took the decision to suspend the Public P rotector on 9 June 2022, the
Section 194 Committee’s proceedings had already started.
The contention about two-committees
The Full Court found it to be clear from the text of section 194 that the removal
of the public office -bearers it affects , involves: (a) a committee of the
National Assembly which must make a finding of the existence of one of the grounds
of removal; (b) the National Assembly which must adopt a resolution calling for the
removal; and (c) the President who must remove the office-bearer upon the occurrence
of the events referred to in (a) and (b). They are the three actors and there is no further
committee. The High Court concluded that “it would be absurd, to interpret section 194
as requiring two committees of the National Assembly . . . when the involvement of the
National Assembly is to determine the existence of the grounds of removal.”80
In my view, this interpretation of section 194 accords with the text, purpose, and
structure of section 194. Section 194(3)(a) of the Constitution confers a power on the
President to suspend a person from office at any time after the start of the proceedings
of a committee of the National Assembly for the removal of that person and he must in
terms of section 194(3)(b) remove a person from office upon adoption by the Assembly
of a resolution calling for that person’s removal under section 194(2)(a). I do not see
how the words “for the removal of that person” in section 194(3)(a) can be read to refer
to a committee of the National Assembly other than the “committee of the
National Assembly” that may by “a finding to that effect” trigger a National Assembly
79 Part A judgment at para 120.
80 Part B judgment above n 6 at paras 115-6.
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vote to remove th e Public Protector from office under section 194(2)(a) of the
Constitution.
The Public Protector argues that, because section 194(3)(a) refers to
“a committee” and not “the committee”, it must be a different committee from the one
envisaged in section 194(1)(b). This reading is, however, not supported by the text and
structure of these provisions , as both refer to “a committee ”. Further, her reliance on
Economic Freedom Fighters ,81 is indeed ill-conceived, as that decision dealt with a
different matter – the impeachment of the President under section 89(1) of
the Constitution, which is completely different from section 194(3)(a) since it makes no
provision for suspension or committees. The passage relied upon by the
Public Protector relates to a view expressed in the context of determining whether the
National Assembly required rules to give meaning to section 89. The passage merely
states that the Na tional Assembly cannot impeach unl ess it concludes that a
section 89(1) criterion is present. The decision is clearly distinguishable.
Alleged failure to give a proper interpretation to the WhatsApp exchange
In the Full Court’s view , the discussions which took place on 20 May 2022
between the parties’ counsel via the WhatsApp instant messaging application conveyed
the following:
“[T]he President gave an indication that he would consider the representations after
which time he would be in a position t o decide whether he was amenable to any
undertaking and, if so, the terms thereof. As it is clear from the conduct of the President
that he was not amenable to any undertaking, the fact that he had given an indication
that he would revert in the event he was amenable to giving an undertaking does not
assist the [Public Protector].”82
81 Economic Freedom Fighters above n 46.
82 Part B judgment above n 6 at para 152.
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As I understand it, the Public Protector ’s interpretation is that there was an
agreement that there would be an intermediate step – the President would give her notice
even if he was not amenable to giving an undertaking so that “legal and other steps
could be taken”. But it seems to me that whatever meaning one ascribes to the message
is six of one and half a dozen of the other and does not assist the Public Protector.
One w onders what the purpose of the notice would have been when the
Public Protector had already made her submissions to the President, and she had already
brought an application for an interdict in respect of which judgment was pending. But,
of importance is that, even on the Public Protector’s interpretation, the President’s
failure to give her notice that he would not wait for the judgment before deciding
whether to suspend her would not affect the legality of his decision to suspend, as there
was no interdict to prevent him from taking a decision.
The alleged breach of section 165 of the Constitution
Needless to say, since there was no order preventing the President from taking a
decision when he decided to suspend the Public Protector , he could not have been in
contempt of court, a fact which the Public Protector appears to concede. Nothing more
need be said on this aspect. But this finding has a direct effect on the question whether
the obligations in section 165 of the Constitution were violated.
The Full Court held that “the applicant’s failure to make out a case for contempt
of court must necessarily mean that she had failed to make out a case for a breach of
section 165”.83 This is correct, because there is no evidence that the President interfered
with the functioning of the courts or that his conduct undermined the independence,
impartiality, dignity, accessibility, or effectiveness of the courts. And, significantly, the
Full Court found that the President was entitled to suspend the Public Protector. There
is no merit in this ground of appeal.
83 Part B judgment above n 6 at para 139.
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Conclusion on the application for leave to cross-appeal
I have not discerned merit in any of the grounds of cross-appeal. In all the
circumstances it would not be in the interests of justice to grant leave in the conditional
application for leave to cross -appeal. It must accordingly fail. The result is that the
success of the DA and President’s appeals must lead to the non-confirmation and setting
aside of orders 187.5 and 187.6. The Full Cour t should have dismissed the
Public Protector’s application in its entirety.
Analysis – the section 18 application for leave to appeal
I turn to deal with the section 18 application. I do so briefly, because, as already
alluded to above, it is rendered moot by the success of the DA and the President’s
appeals and the dismissal of the Public Protector’s application for leave to cross-appeal
in the main case. The first objection to the application is that it is not competent and is
premature and irregular. This application was filed in this Court on 18 October 2022,
when the application to the High Court for leave to appeal the section 18 judgment was
still to be argued. It was therefore launched in anticipation of what the High Court
might decide and was an anticipatory proceeding. As counsel for the President pointed
out, our court procedures make no provision for anticipatory appeals. The reason is
obvious. Courts of appeal would be overwhelmed by overlapping appeals , to the
prejudice of the established scheme of appeals and the procedures which apply to them.
This Court frowns upon the practice of litigants approaching it for relief where
there are proceedings pending in another court concerning the very issues brought to i t
and there has been no suggestion that there was an unreasonable delay in the other court
in dealing with the proceedings. In University of Witwatersrand Law Clinic,84
this Court dealt with a matter in which an application was lodged in the High Court for
leave to appeal to the Supreme Court of Appeal. Two weeks later, while that application
84 University of Witwatersrand Clinic v Minister of Home Affairs [2007] ZACC 8; 2008 (1) SA 447 (CC); 2007 (7)
BCLR 821 (CC).
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was pending in the latter court, an application for leave to appeal directly was lodged
with this Court without mention of the application lodged in the High Court.
In its judgment dismissing the application, this Court held:
“[T]he application, contrary to the Constitutional Court rule 19(3)(d), does not indicate
that an application is pending in the High Court and the status of that application. The
purpose of this rule is to avoid the duplication of proceedings and more importantly to
enable this Court to determine whether it is in the interests of justice to consider the
matter while an application for appeal is pending in another court. It is not in the
interests of justice to have two courts consider applications for leave to appeal at the
same time without each knowing that another court is considering an application for
leave to appeal in the same matter.
We accept that the matter is one whi ch evokes public interest. This in itself, does,
however, not justify a departure from the rules relating to applications for leave to
appeal. An application for leave to appeal is presently pending in the Pretoria
High Court. There is no suggestion tha t there has been an unreasonable delay in
dealing with the application for leave to appeal. In all the circumstances it is not in the
interests of justice to grant the application for leave to appeal at this stage.”85
It is not insignificant that this app lication was heard simultaneously with the
main appeals, which would determine whether the Public Protector’s suspension was
lawful. That decision would render the correctness or otherwise of the section 18
judgment irrelevant. This application was , therefore, unnecessary. Furthermore, the
risk that granting it would open the floodgates for similar applications is not far-fetched.
Thus, it is not in the interests of justice to hear it and it must fail. This finding dispenses
with the need to deal with the merits of the application.
Costs
In the main appeals and application for leave to cross -appeal, the DA and the
President seek costs orders against the Public Protector in her personal capacity if their
85 Id at paras 7-9.
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appeals are upheld. The DA acknowledges that it was reasonable for her to defend the
order of the High Court but the only concession it is prepared to make is not to seek
punitive costs. The Public Protector has not conducted herself in a manner that wou ld
justify mulcting her with costs. In my view, the nature of these proceedings warrant the
application of the Biowatch86 principle and I would thus make no order as to costs.
As to the costs of the section 18 application for leave to appeal, the DA and
the President sought costs order s against the Public Protector personally in these
proceedings as well. It is highly regrettable that this Court and the other parties were
burdened with an entirely unnecessary application. There is no indication that it w as
authorised by the Office of the Public Protector, which had undertaken to settle her legal
costs in the appeal proceedings, even after the President’s invitation in his answering
affidavit to the Public Protector to produce proof of such authorisat ion. In that case ,
there is no basis to hold the Office of the Public Protector liable for the costs. She must,
therefore, pay the costs of this application in her personal capacity.
Order
The following order is made:
1. The appeals by the Democratic Alliance (DA) and the President of the
Republic of South Africa in CCT 251/22 and CCT 252/22 against the
orders in paragraphs 187.5 and 187.6 of the Full Court’s judgment
delivered on 9 September 2022 (Part B judgment) are upheld.
2. The conditional application for confirmation of the said orders of
invalidity is dismissed.
3. The orders of the Full Court in paragraphs 187.5 and 187.6 of the Part B
judgment are set aside and replaced with the following order:
“The prayers in paragraphs 3.2, 3.3 and 4 of the amended Notice of Motion to declare
the decision to suspend the applicant issued on 9 June 2022 and the decision of the
86 Biowatch Trust v Registrar, Genetic Resources [2009] ZACC 14; 2009 (6) SA 232 (CC); 2009 (10) BCLR 1014
(CC).
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Section 194 Committee to commence the section 194 removal process to be irrational,
unconstitutional and invalid and set aside in terms of section 172 (1)(f) of the
Constitution are dismissed.”
4. The appeals by the DA and the President in CCT 251/22 and CCT 252/22
against the costs order in paragraph 187.7 of the Part B judgment are
dismissed.
5. The Public Protector’s c onditional cross -appeals in CCT 251/22 and
CCT 252/22 are dismissed.
6. The Public Protector’s application for leave to appeal in CCT 299/22 is
dismissed.
7. In CCT 251/22 and CCT 252/22 there is no order as to costs.
8. In CCT 299/22 the Public Protector shall pay the costs in her personal
capacity, such costs to include the costs of two counsel.
For the Applicant in CCT 251/22 and
Fifth Respondent in CCT 299/22:
For the Applicant in CCT 252/22 and
Third Respondent in CCT 299/22:
For the First Respondent in CCT 251/22
and C CT 252/22 and Applicant in
CCT 299/22:
For the Tenth, Eleventh and Sixteenth
Respondents in CCT 251/22 and
CCT 252/22:
For the First and Second Respondents in
CCT 299/22:
S Budlender SC, M Bishop and
M Seti-Baza instructed by Minde
Shapiro & Smith Attorneys
G Budlender SC, K Pillay SC,
M Adhikari and N Luthuli instructed by
State Attorney, Cape Town
D Mpofu SC, B Shaba lala and
B Matlhape instructed by Seanego
Attorneys Incorporated
V Ngalwana SC, T Masuku SC and
M Simelane instructed by Mabuza
Attorneys
A M Breitenbach SC, U K Naidoo and
A Toefy instructed by State Attorney ,
Cape Town