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IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE DIVISION, CAPE TOWN)

Case No: 2107/2020

In the matter between:

THE PUBLIC PROTECTOR                                                                                  Applicant

and

THE SPEAKER OF THE NATIONAL ASSEMBLY                                   First Respondent

THE PRESIDENT OF THE REPUBLIC OF

SOUTH AFRICA                                                                                  Second Respondent

THE SOUTH AFRICAN HUMAN RIGHTS COMMISSION                      Third Respondent

THE COMMISSION FOR THE PROMOTION AND

PROTECTION OF THE RIGHTS OF CULTURAL,

RELIGIOUS AND LINGUISTIC COMMUNITIES                                  Fourth Respondent

THE COMMISSION FOR GENDER EQUALITY                                      Fifth Respondent

THE AUDITOR-GENERAL OF SOUTH AFRICA                                    Sixth Respondent

THE INDEPENDENT ELECTORAL COMMISSION                           Seventh Respondent

THE INDEPENDENT COMMUNICATIONS AUTHORITY

OF SOUTH AFRICA                                                                              Eighth Respondent

ALL POLITICAL PARTIES REPRESENTED IN THE

NATIONAL ASSEMBLY                                                Ninth to Twenty 2^nd Respondents

 

JUDGMENT DELIVERED: 9 OCTOBER 2020

 

SALDANHA J:

[1] The legal integrity of the process for the removal of office bearers of Chapter 9 Institutions[1] in terms of the Constitution Act 108 of 1996 is central to the determination of this application. In these proceedings, characterised as Part A, the Public Protector as the applicant seeks an interim interdict against the respondents (other than those who are also Chapter 9 institutions and cited only as interested parties) and in particular, the Speaker in the National Assembly (NA) the first respondent, from taking any further steps in a process in the NA that could result in her impeachment in terms of the provisions of Section 194 of the Constitution[2] and conducted in terms of newly adopted Rules(the new Rules) that the applicant seeks to have set aside[3]. The applicant also seeks various forms of alternative relief. The relief sought by the applicant in Part A is supported by the sixteenth respondent, the African Transformation Movement (ATM) while the first respondent and the tenth respondent the Democratic Alliance (the DA) oppose the relief. The President of the Republic, the second respondent abides the decision of this court and filed an explanatory affidavit.

[2] In Part B that is to follow, the applicant seeks, amongst other relief, a declaratory order in respect of the legality and constitutionality of the new Rules which governs the removal process in the National Assembly for office bearers of Chapter 9 Institutions in terms of Section 194 of the Constitution. She also seeks a declaratory order that the new Rules do not operate with retrospective effect in respect of conduct prior to 6 December 2019, the date on which the new Rules were adopted in the National Assembly. She further seeks to review and set aside the adoption of the new Rules by the National Assembly and a decision of the first respondent in approving a motion for the removal of the applicant brought by the chief whip of the tenth respondent in Parliament.

[3] The applicant has styled her relief in the Notice of Motion as follows:

“PART A

Pending the final outcome of the main relief set out in Part B below, this court hereby grants an order:

1. Dispensing with the normal rules and hearing this application as one of urgency in terms of Rule 6(12) (a);

2. Interdicting and prohibiting the first respondent from taking any further steps in the implementation of the processes envisaged in section 194 of the Constitution and conducted in terms of the impugned Rules; Alternatively to Prayer 2 above:

3. Interdicting those respondents, and/or their members, who have a conflict of interest from voting and/or participating in any way in the processes carried out in terms of Section 194 of the Constitution and the Rules;

4. Directing the conflicted persons referred to in Prayer 3 to declare such interests to the Speaker of the National Assembly;

5. Directing the Speaker to furnish the applicant with the requested reasons for the approval decision made/announced on 24 January 2020;

6. Ordering only the respondents who have entered a notice to oppose to pay the costs of the application;

7. Leave to supplement the papers in respect of the Part B application; and;

8. Such further, alternative, just and/or equitable relief as the court may deem appropriate.

PARTS

1. Declaring the Rules for the removal to be unlawful, unconstitutional, invalid, null and void;

Alternatively to Prayer 1 above:

2. Declaring that the Rules do not operate with retrospective effect against the applicant;

3. Reviewing and setting aside the decision of the National Assembly in adopting the Rules; alternatively, the decision of the Speaker in approving the motion for the removal of the applicant;

4. Such further, alternative, just and/or equitable relief as the court may deem appropriate;

5. Costs of opposition.”

[4] In the course of oral argument in reply, the counsel for the applicant also sought relief in terms of Section 172 (1)(b) of the Constitution. In their written notes on argument they referred to the Section with the following emphasis (as underlined):

“(1) When deciding a constitutional matter within its power, a court:

(a) Must declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of its inconsistency; and

(b) May make any order that is just and equitable, including:

(i) An order limiting the retrospective effect of the declaration of invalidity; and

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

(2)(a) The Supreme Court of Appeal, a High Court or a court of similar status may make an order concerning the constitutional validity of an Act of Parliament, a provincial Act, or any conduct of the President, but an order of constitutional invalidity has no force unless it is confirmed by the Constitutional Court.

(b) A court which makes an order of constitutional invalidity may grant a temporary interdict or other temporary relief to a party, or may adjourn the proceedings, pending a decision of the Constitutional Court on the validity of that Act or conduct.”

In this regard, the applicant sought to rely on the separate and concurring judgment of Japhta J in the matter Economic Freedom Fighters v PJ Gordhan & Others [2020] ZACC 10 (hereinafter referred to as the Gordhan decision.) I will revert to the basis of this relief later.

[5] The applicant raised two points in limine. The first related to her opposition to applications for condonation by both the first and tenth respondent's (conveniently referred to “the respondents”) for the late filing of their answering affidavits. At the commencement of the proceedings, the court indicated that it was inclined to condone the late filing of the answering affidavits and granted the applications for condonation. The reasons and the costs arising in respect of those applications will be dealt later in the judgment. The second point in limine raised by the applicant was that of an application in terms of High Court Rule 6 (15) for the striking out of several paragraphs in affidavits filed by the respondents. The merits of the strike out application will likewise be dealt with in the course of this judgment, though I should indicate at this stage that there was really no merit in the application.

[6] The application as indicated was brought by way of urgency and was initially set down for 26 and 27 March 2020. As a result of the Covid-19 pandemic, the matter was postponed sine die and subsequently set down and heard on 12 and 13 August 2020. The hearing took place virtually and was eventually finalised several days later as a result of technical problems. At the behest of the court, the parties also settled an agreed timetable for the filing of further affidavits and the hearing of Part B in November 2020 subject to the approval of the Judge President.

 

THE LEGAL FRAMEWORK ON WHICH THE RELIEF IS SOUGHT

[7] The applicant relies on a number of provisions of the Constitution and the values underlying it, together with various statutory provisions, principles of the common law and the Rules of the National Assembly. Amongst other rights, the applicant relies on the right to human dignity (S10) to fair labour practices (S23) and access to justice (S34). She also invokes the values set out in Sections 1[4] and 2[5] of the Constitution. She also relies on other provisions of the Constitution such as the interpretation clause in S39, the limitations clause S36, the requirements of co­ operative governance in terms of S41, the duty of cabinet ministers to avoid conflicts of interests in S96[6] and more importantly on the provisions of Section 181[7] and 182[8] which establishes the Chapter 9 Institutions and which provides for their accountability. The removal of office bearers of Chapter 9 Institutions are dealt with in the provisions of Section 194 and are commonly referred to as the impeachment provisions. The applicant and the sixteenth respondent also rely on the provisions of the Public Protector Act No. 23 of 1994 and the Basic Conditions of Employment Act 75 of 1997, in the assertion of a right to fair labour practices. The Rules of the National Assembly are also invoked by the applicant as well as the sixteenth respondent and in particular the provisions Rules 88[9] and 89[10] and the impugned new Rule 129[11].

[8] The various principles of common law on which the applicant relies are those that relate to the audi alteram partem rule, the rule against bias or nemo iudex in sua causa, the nulla poena sine lege rule and to what the applicant referred to as the rule against retrospectivity.

[9] The applicant is one of several state institutions established under Chapter 9 of the Constitution that supports and strengthens constitutional democracy in South Africa. Section 181 (2) provides that the Public Protector and the other institutions are independent and subject only to the Constitution and the law, must be impartial and exercise their powers and performs their functions without fear, favour or prejudice.

[10] The applicant as with the other Chapter 9 Institutions, are in terms of Section 181 (5) of the Constitution accountable to the National Assembly and they are required to report on the activities and on the performance of their functions to the NA at least once a year. In terms of Section 55(2) (b) (ii)[12] of the National Assembly for its part is required to provide for mechanisms to maintain oversight over organs of state such as the applicant.

[11] Central to the first and tenth respondents opposition to the relief and which is not disputed by the applicant, is the contention that the provisions of Section 194 of the Constitution are the ultimate mechanism of the accountability of office bearers of Chapter 9 Institutions which provides for the National Assembly to remove any such office bearers on the basis provided therein[13]. Section 194 provides:

“Removal from office

(1) 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.

(2) A resolution of the National Assembly concerning the removal from office of-.

(a) the Public Protector or the Auditor-General must be adopted with a supporting vote of at least two thirds of the members of the Assembly; or (b) a member of a Commission must be adopted with a supporting vote of a majority of the members of the Assembly.

(3) The President-

(a) 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; and

(b) must remove a person from office upon adoption by the Assembly of the resolution calling for that person's removal”.

[12] Inasmuch as the National Assembly is required to exercise its responsibilities for the removal of an office bearer of a Chapter 9 Institution, it is required in terms of Section 57(1) to create mechanisms for overseeing organs of state and amongst others it empowers the National Assembly to make Rules for that purpose[14].

[13] The respondents' contend with reliance on the decision of the majority of the Constitutional Court in the matter of Economic Freedom Fighters and Others v Speaker of the National Assembly and Another 2018 (2) SA 571 (CC) (referred to hereafter as the EFF, Impeachment matter) and with reference to the provisions of Section 89(1) of the Constitution which similarly deals with the removal of a President from office by the National Assembly that “it is evident that the drafters left the details relating to these grounds (of impeachment) to the Assembly to spell out”. It was therefore both necessary and incumbent on the National Assembly itself, as the institution charged with these responsibilities to make Rules which define and give meaning to the grounds of removal for office bearers of Chapter 9 Institutions (referred to as “the institutional pre-determination” of the grounds for removal)[15]. The first respondent contended and correctly so in my view, that uniformity engenders certainty and so too does clarity.

[14] The institutional responsibility for the making of rules for the removal of an office bearer of a Chapter 9 Institution lay with the National Assembly in terms of its own internal rules process which therefore had to deal with both the details of the grounds for removal and the provision of an entire process for the removal of an incumbent in accordance with the provisions of Section 194 premised on all of the protections provided for under the Constitution and any relevant law. On 6 December 2019, the National Assembly unanimously adopted the set of new Rules in terms of which a removal in terms of Section 194 is to be undertaken. It is the lawfulness of the process and the content of the new Rules that are the subject of the applications under both Part A and Part B.

 

THE NATURE OF THESE PROCEEDINGS

[15] Inasmuch as these are interim proceedings for urgent relief to prohibit any further processes to be undertaken by the National Assembly in terms of the New Rules, this court is particularly mindful that it is no more than a precursor to the final relief sought under Part B and that it should not anticipate or make any substantive findings on the merits of the final relief. More so, the court may not anticipate the outcome of the removal process. All of the parties have nonetheless dealt elaborately with the grounds pleaded by the applicant for the invalidity of the new Rules and this court will do no more than express a tentative view on the prospects of success of the grounds as pleaded in the affidavits, when considering the requirements for interim interdictory relief.

[16] With regard to the requirements for an interim interdict, the applicant contended that; “...departure point is that, on reflection, this is not a matter in which the OUTA[16] test applies but one in which the court ought to apply the usual Setlogelo test”. In this regard, the applicant made common cause with the approach adopted by the sixteenth respondent.

[17] When considering the applicable test for an interim interdict in this matter, the context of the provisions of Section 194 in the Constitution and the new Rules that are part of the constitutional scheme that gives effect to one of the primary constitutional responsibilities of the NA to maintain oversight over organs of state (Section 52(2)(b)(1) above) and the accountability of the applicant are both instructive and relevant. Section 194 of the Constitution is the ultimate mechanism for ensuring accountability of the incumbent to the National Assembly. The respondents contend that the test for interim interdicts as set out in the matter of Opposition to Urban Tolling Alliance and Others (OUTA) and the important considerations therein are therefore pre-eminently applicable to the relief sought by the applicant under Part A of the relief. I could not agree more.

[18] The well-known requirements for the granting of an interim interdict were authoritatively crystallised by the Constitutional Court in the matter of OUTA, both with reference to the test pronounced in Setlogelo v Setlogelo 1914 AD 221 and refined 34 years later in Webster v Mitchell 1948 (1) SA 1186 (W). The test requires that an applicant who seeks interim relief must establish (a) prima facie right even if it is open to some doubt; (b) a reasonable apprehension of irreparable and imminent harm to the right if an interdict is not granted; (c) the balance of convenience must favour the grant of the interdict and (d) the applicant must have no other remedy. The court in OUTA pointed out that the test in Setlogelo had been developed nearly a 100 years ago and long before the normative scheme of our democratic Constitution and was initially fashioned and ideally suited in matters between private parties. Nonetheless, courts had to confront claims for interdicts against the exercise of statutory power. In this regard, the court in Outa referred to the decision of Gool v Minister of Justice 1955 (2) SA 682 (C) where the court was called upon to grant an interdict restraining the Minister pendente lite from exercising certain powers vested in him by statute. Ogilvie-Thompson J who wrote unanimously for the court considered the requirements for an interim restraining order as set out in Setlogelo and remarked as follows:

“The present is however not an ordinary application for an interdict. In the first place, we are in the present case concerned with an application for an interdict restraining the exercise of statutory powers. In the absence of any allegation of ma/a tides, the court does not readily grant such an interdict '

And later the learned judge observed:

'The various considerations which I have mentioned lead, in my opinion, irresistibly to the conclusion that the Court should only grant an interdict such as that sought by the applicant in the present instance upon a strong case being made out for that relief. I have already held that the Court had jurisdiction to entertain an application such as the present, but in my judgment that jurisdiction will, for the reasons I have indicated, only be exercised in exceptional circumstances and when a strong case is made out for relief '

The court in OUTA remarked that the common law annotation to the Setlogelo test was that the court grants interim interdicts against the exercise of statutory power only in “exceptional cases and when a strong case for the relief has been made out”. Of particular significance that beyond the common law, the “separation of powers is an even more vital tenant of our constitutional democracy”. In this regard, the Constitution requires that courts ensure that all branches of government act within the law and more importantly that courts must refrain from entering the exclusive terrain of the executive and legislative branches of government unless the intrusion is mandated by the Constitution itself. Inasmuch as the Setlogelo test as adapted by the case law remains, the court instructively pronounced, “however now the test must be applied cognisant of the normative scheme and democratic principles that underpin our Constitution”. This means that when a court considers whether to grant an interim interdict it must do so in a way that “promotes the objects, spirit and purport of the Constitution”.

[19] In OUTA, the court emphasised that when a court weighs up where the balance of convenience rests “it may not fail to consider the probable impact of the restraining order on the constitutional and statutory powers and duties of the state functionary or organ of state against which the interim order is sought”. In the enquiry as to where the balance of convenience now lies, a court is required to carefully probe whether and to what extent the restraining order will probably intrude into the exclusive terrain of another branch of government. The enquiry must “alongside with other relevant harm have proper regard to what may be called separation of powers harm”. Courts are therefore urged to remain mindful that a temporary restraint against the exercise of power well ahead of the final adjudication of a claimant's case may be granted only in “the clearest of cases and after careful consideration of separation of powers harm.”

[20] In Gordhan (above), the Constitutional Court explained that in respect of the requirement of the “clearest of cases”:

“...before a court may grant an interim interdict, it must be satisfied that the applicant for an interdict has good prospects of success in the main review. The claim for review must be based on strong grounds which are likely to succeed. This requires the court adjudicating the interdict application to peek into the grounds of review raised in the main review application and assess their strength. It is only if a court is convinced that the review is likely to succeed that it may appropriately grant the interdict. The rationale is that an interdict which prevents a functionary from exercising public power conferred on it impacts on the separation of powers and should therefore only be granted in exceptional circumstances”.

[21] In OUTA, unlike in Gool, the court stated that “before granting interdictory relief pending a review a court must, in the absence of ma/a tides, fraud or corruption, examine carefully whether its order will trespass upon the terrain of another arm of government in a manner inconsistent with the doctrine of separation of powers”. The significance hereof is that it is not a mere “allegation” of mala fides or fraud or corruption but in fact the proof thereof that is necessary.

[22] Counsel for the applicant contended that the test as set out in OUTA did not apply “primarily” in this matter because of what he contended were the following disqualifying factors contained in the OUTA judgment itself:

1. “That the main relief in Part B constitutes declaration of unconstitutionality (prayer 1) and a separate declaration of retrospectivity (prayer 2) and not necessarily the review proceedings (prayer 3). (The latter he contended could “theoretically be abandoned and Part B would still remain very much intact') The review relief he submitted was superfluous or complementary and added “it is crucially important to correctly characterise these proceedings for what they are and what they are not.”

2. “The matter therefore does not concern how the National Assembly should perform its duties but whether, in doing so, it has acted consistently with the Constitution or not. That function falls within the exclusive domain of the judiciary.”

3. ''This matter concerns a challenge to the validity of the empowering instrument. Such proceedings are not envisaged in OUTA.”

4. “Reliance in the present matter is placed not on Section 33 of the Constitution (or PAJA) but directly on other fundamental rights, notably Sections 10, 23 and 34 of the Constitution (maybe also Section 22); and

5. “OUTA does not apply only where ma/a tides have been alleged or proved[17]“.

Moreover, counsel for the applicant contended in his heads of argument that the OUTA test “was not applicable as the separation of powers was not implicated” and relied on an extract of Sutherland J in the matter of Amabhungane Centre for Investigative Journalism NPC and Another v Minister of Justice and Others 2020 (1) SA 9 (GP) where the following was stated:

“The critique is about the statute and its inadequacies. Either the provisions are compatible with the Constitution or they are not. Interim relief to ameliorate the unconstitutionality of a statute is no trespass onto the legislature's terrain.”

[23] These contentions raised by the applicant as to why the test as set out in OUTA are not applicable, is wholly without any merit and can in my view not find any justification in the judgment of the Constitutional Court. There could not, in my view be a clearer case where the rigour required in OUTA applies. The applicant contended though that if the court were to find that the test in OUTA was applicable that she had in any event fully met the requirements for interim relief as set out in OUTA.

[24] In respect of the relief sought under Section 172(1)(b) and raised for the first time in argument in the reply by counsel for the applicant, he submitted “we also commend the alternative approach taken by Japhta J in his concurring judgment. He basis his nuanced reasoning or the true nature of the relief namely an order for the interim suspension of the implementation of the remedial action (the rules) pending the final relief sought in B”. I will revert to this contention.

 

THE CONTEXT OF THE APPLICANT'S COMPLAINTS

[25] The applicant appears to have launched these proceedings for urgent interim relief to interdict the impeachment process on the basis that she believes that the impugned new Rules will seriously undermine the independence of the office of the Public Protector and that she may be subject to no more than an “interrorem” process by the National Assembly. The founding affidavit abounds with not only trenchant criticism of the manner in which the National Assembly adopted the new Rules and its content but also virulent criticism of the tenth respondent in particular, who the applicant accuses of harbouring a long standing vendetta against her from the very inception of her appointment to the office of Public Protector. She pointed out that the tenth respondent was the only political party who was dead set against her appointment, voted against it and had made false allegations against her that she was a “spy”. She refuted the allegation as defamatory and explained that she has launched separate court proceedings in challenging the tenth respondent's claim of her having being “a spy”, which she maintained were “palpably false”. She claimed that when the tenth respondent realised that the allegations of her having being a “spy” did “not work” it then sought her removal from office on the “grounds of incompetence”. She disputed such ground which she claimed was to the exclusion of “the independently determined excellent job” that she has otherwise performed since taking office, coupled with what she pointed out as her office having obtained successive unqualified audits from the Auditor-General under her tenure. Such performance, she claimed contradicted the allegations of incompetence and attached to her affidavit an extract of an u audited document of statistics for the period October 2016 to September 2019. The document reflected the number of complaints received by her office, complaints finalised, pending investigations, reports that have been reviewed by the courts, those that have been successfully defended, those that were currently before the courts on review, those that remain unchallenged and those that were already before the courts prior to her tenure. She claims that if she were to be judged on such statistics her performance was “clearly above board and excellent “. She therefore disputed any allegation of incompetence made against her, particularly by the tenth respondent.

[26] The applicant goes on to point out that the tenth respondent “has since changed its tune” and claimed that she had not only being a “spy” and “incompetent” but that she was also “guilty of misconduct”. She claimed though not to have been surprised by this development. She disputed the claims of misconduct as no more than “revised and recycled allegations” that are based on findings on the merits of her investigative reports some of which had still been pending before the courts.

[27] She also singled out the role played by members of the Justice and Constitutional Portfolio Committee of the National Assembly in what she described as “unlawful, bigoted and pejorative” in their attacks on her when she was called upon to appear before the Committee. She claimed that comments made by the chairperson and members of that Committee had unlawfully prejudged and predetermined the very issue of her removal from office. The attacks were also highly “publicised political attacks on her”, when the Committee was well aware that appeals against the orders against her by the courts were before the Supreme Court of Appeal and the Constitutional Court.

[28] The applicant pointed out that she has been the subject of successive requests by the erstwhile chief whip of the tenth respondent to the first respondent to institute processes in terms of Section 194 of the Constitution for her removal from office. She has had to defend herself against these attacks at the Portfolio Committee and pointed out in her correspondence to them that she was guided by no more than the Constitutional principles including her accountability to the National Assembly and more importantly to that which related to her institutional independence. She had pointed out to the Committee that it was undermining the decisions of the Constitutional Court in particular Economic Freedom Fighter v Speaker of the National Assembly and Others: Democratic Alliance Speaker of the National Assembly and Others 2016 (5) BCLR 618 and in particular what she described as her decisional independence. She decried what she regarded as the conduct of the first respondent and the Portfolio Committee that had adopted a view that the judicial review of her decisions could be used as a basis to “threaten her with removal for alleged incompetence”. She claimed that she remained steadfast against any personal interest, parties and affiliations or fear of public reprisal that could cloud her decisional processes. She reiterated that she remained committed to the process of conducting herself “without fear, favour or prejudice” ordained by constitutional precept. She claimed that the Committee and the National Assembly were driven by a political desire “to dictate to the Public Protector as to what allegations of maladministration to investigate, how to investigate them and what remedial action to order'. That, she claimed amounted to nothing more than the undermining of her constitutional powers by politicians on the Committee and that it was unlawful. She relied on an exclusive “free hand to fulfil the mandate of the Constitution” and that she could not be “impeded, second guessed or interfered with” in the performance of her duties. She claimed that the track record of the Committee in the launching of unbridled and thinly veiled political attacks on her showed a “dogged determination by some members of Parliament to undermine the office of the Public Protector”. She described those members as “delinquent” and who have prejudged the process of removal in terms of Section 194.

[29] In the same vein, the first respondent was not spared the applicant's chagrin. She claimed that the first respondent had “unlawfully and unjustifiably entertained” the tenth respondent's request to have her removed from office. She had to point out to the first respondent that the initial requests to her by the tenth respondent to initiate processes for her removal were unlawful as the NA had failed to adopt rules for the removal of an office bearer of a Chapter 9 Institution. She claimed that when she did so it was “in the spirit of constructive engagement, co-operative governance that is meant to exist amongst organs and institutions of state”. She claimed that she was mindful that in a young democracy there was much to be learnt in the processes of an impeachment and that she accepted that other older democracies were equally grappling with the complex process of the exact standards for an impeachment. She claimed therefore, that the Speaker had taken an unwarranted ''posture” that the impugned rules were “perfect and beyond reproach”. She claimed that the Speaker ought to have awaited the outcome of the scrutiny of the new Rules by the court. It is in that spirit that she claimed to have engaged the Speaker with the request that the proceedings against her be halted pending a decision of the court in Part B.

[30] The applicant also criticised the National Assembly who on 3 December 2019 adopted the new Rules. She claimed that the new rules were drafted “in a manner' that created the potential to undermine and compromise the independence and proper functioning of the office of the Public Protector. She claimed that although the new Rules were couched in general terms to deal with heads of Chapter 9 Institutions, it was nothing more than a direct product of “the permanent vendetta” of the tenth respondent against her appointment and the new Rules were therefore targeted against her personally. She also claimed that the new Rules had been drafted by means of “a cut and paste job” from what had recently been adopted as the rules for the impeachment of a President. The applicant claimed that the tenth respondent's request to the Speaker to consider her removal, merely three days after the adoption of the new Rules and to do so on an urgent basis was nothing more than the tenth respondent's attempt “to reduce the Chapter 9 institutions to advance their narrow political narrative”. That notwithstanding, her appointment was as a result of what she termed, a gruelling open, transparent and democratic process.

She pointed out that at the time of launching the application, she had not had sight of the charges against her despite having requested the first respondent to provide her with it. She understood from anecdotal evidence and media reports that the charges were brought against her by the tenth respondent and related to incompetence and misconduct as defined in the new Rules. She claimed that inasmuch as the tenth respondent had opposed her appointment even before she had conducted any investigation, was self-evident that the views of the tenth respondent with regard to her alleged unfitness to hold office was not “causally or logically connected to any report subsequently issued by her'. She contended that the claim of incompetence by the tenth respondent was nothing more than a “plainly contrived and a smoke screen designed to deceive”. She also noted “with alarm” what she regarded as the glaring resemblance of the new Rules for the removal of office as proposed by the tenth respondent and the rules eventually adopted by the National Assembly in particular with regard to its sequence and structure. She claimed that a reasonable inference was that the rules proposed by the tenth respondent were adopted “ho/us bolus” by the National Assembly. In this regard, she claimed that the first respondent and the National Assembly had “dismally failed to uphold the Constitution by failing to be impartial in their execution of their duties”. She claimed that given the similarities between the draft Rules and that which the tenth respondent had prepared and the eventual Rules adopted by the National Assembly was indicative that neither the Speaker nor the National Assembly had applied their minds when adopting the New Rules. She claimed “that the National Assembly simply swallowed hook, line and sinker the shoddy cut and paste job of the DA which was known to have been carrying out an unrelenting vendetta to get rid of me from even before the proverbial day one”. She also claimed that she strongly doubted that the views of other political parties which differed to that of the tenth respondent's “hurried draft were taken into account”. She railed against the tenth respondent for its unrelenting pursuit against her by use of the parliamentary process. She also claimed that she was not aware of a single instance where the first respondent had sought to “intervene to protect my office and reprimand the tenth respondent's Chief Whips” for “their unconstitutional behaviour '. She was also not surprised by what she referred to as the collusion between the office of the first respondent and the chief whip of the tenth respondent by the first respondent's approval of the motion to initiate the impeachment process against her. She continued in her founding affidavit to describe what she claimed as the conduct in January 2020 by the tenth respondent and the first respondent with the lodging of a fourth motion for her impeachment (the first under the New Rules) as further evidence of the unlawful and “collusive” conduct between them against her.

[31] The first and tenth respondents for their part claimed that they at all times acted in terms of the Constitution and lawfully and vigorously disputed the claims made by the applicant about their partiality and motives.

 

THE RELEVANT EVENTS LEADING UP TO THE ADOPTION OF THE NEW RULES

[32] The background facts in this application, much of which are common cause, stretches from the very inception of the applicant's appointment process by the National Assembly right up to the setting down of the application in March 2020. It is not necessary for the purposes of this application to set out in any detail the chronology of such events save to give no more than a thumbnail sketch of events relevant to the relief sought.

[33] The tenth respondent has since the appointment of the applicant requested no less than five times for the Speaker to institute proceedings for the removal of the applicant in terms of Section 194 of the Constitution. The first attempt having been referred by the then Speaker to the Justice and Constitutional Portfolio Committee appeared to have ran aground for not having garnered support from the majority of its members. The majority of the members in the National Assembly likewise did not support the request and decided not to institute proceedings based on the report from the Portfolio Committee. It appeared that the majority in the Committee were sympathetic to the applicant and were of the view that she had learnt from her mistakes which she had acknowledged. The second attempt which had also been referred by the then Speaker to the Portfolio Committee was also unsuccessful, largely on the basis that the Committee was of the view that it was premature having been based on adverse comments made in judgments of courts. The matters were at that stage still in appeal processes and it appeared that the Committee did not wish not to pre-empt the court processes. On the third attempt, the applicant raised with the first respondent that there were in fact no Rules in place by the National Assembly to properly deal with an impeachment process as contemplated in the judgment of the Constitutional Court in EFF, the impeachment judgment.

[34] The first complaint by the tenth respondent was based on adverse findings made by the North Gauteng High Court in a review application of what has become known as the CIEX report of the applicant. On 19 June 2017, the applicant published a report on an investigation into allegations of public funds and the failure by the South African government to implement the CIEX report. The applicant made various remedial orders against, amongst others, the Chairperson of the Portfolio Committee with regard to initiating proceedings to amend Section 224 of the Constitution, to alter the mandate of the South African Reserve Bank. A remedial order was also made against the South African Reserve Bank with regard to the reopening of enquiries by the Special Investigative Unit to recover in excess of a billion rand of misappropriated public funds allegedly given unlawfully to ABSA Bank and to recover them. Several legal challenges arose out of this report, the first being by the South African Reserve Bank in the North Gauteng High Court in which the remedial action was challenged. The Reserve Bank joined the then Speaker of the National Assembly and the Chairperson of the Portfolio Committee as respondents in the proceedings. Inasmuch as the remedial actions made by the applicant impacted on the terrain of Parliament, the Speaker and the Chairperson of the Portfolio Committee supported the South African Reserve Bank's challenge and successfully applied to be admitted as co­ applicants. After initially opposing the proceedings, the applicant filed an answering affidavit in which she conceded the merits and consented to all of the relief sought. On 17 August 2017, Murphy J in the North Gauteng High Court upheld the challenge to the remedial action. The findings are made in the judgment, SARB v PPI and Others 2017 (6) SA 198 (GP).

[35] There was no appeal against the judgment of Murphy J nor against any of his orders. The South African Reserve Bank also challenged the remedial action in the CIEX Report, which required the President to re-open enquiries by the Special Investigating Unit for the recovery of in excess of R1,125 billion allegedly misappropriated public funds allegedly given to ABSA Bank unlawfully and to recover it. ABSA launched its own review proceedings against the applicant's adverse remedial action and so too did the Minister of Finance and Treasury. These three matters were consolidated and were also dealt with by a full bench, the North Gauteng High Court.

[36] As indicated, the first request by the chief whip of the tenth respondent was based on the adverse findings of Murphy J. The tenth respondent also alleged that the applicant's conduct had over the preceding ten months demonstrated that she was not fit to hold office.

[37] On 16 February 2018, the Full Court set aside the remedial action by the applicant and made several and scathing adverse findings against her. She was also ordered to personally pay 15% of the South African Reserve Bank's costs on an attorney and client scale. The applicant thereafter sought leave to appeal directly to the Constitutional Court who on 22 July 2019 handed down its judgment[18].

[38] The majority of the Constitutional Court severely criticised the CIEX report and the applicant's conduct. The criticism included the following:

“58.1 In this Court, the Public Protector has contended that the adverse findings made against her by the High Court were based on innocent errors on her part. The Public Protector's persistent contradictions, however, cannot simply be explained away on the basis of innocent mistakes. This is not a credible explanation. The Public Protector has not been candid about the meetings she had with the Presidency and the State Security Agency before she finalised the report. The Public Protector's conduct in the High Court warranted a de bonis propriis (personal) costs order against her because she acted in bad faith and in a grossly unreasonable manner';

58.2 ' The Public Protector's entire model of investigation was flawed. She was not honest about her engagement during the investigation. In addition, she failed to engage with the parties directly affected by her new remedial action before she published her final report. This type of conduct falls far short of the high standards required of her office';

58 .3 ' There is no merit in any of the grounds of appeal advanced by the Public Protector to justify this Court's interference in the High Court's exercise of its true discretion to order that the Public Protector pay 15% of the Reserve Bank's costs in her personal capacity' ; and

58.4 ' Regard must be had to the higher standard of conduct expected from public officials, and the number of falsehoods that have been put forward by the Public Protector in the course of the litigation. This conduct included the numerous “misstatements”, like misrepresenting, under oath, her reliance on evidence of economic experts in drawing up the report, failing to provide a complete record, ordered and indexed, so that the contents thereof could be determined, failing to disclose material meetings and then obfuscating the reasons for them and the reasons why they had not been previously disclosed, and generally failing to provide the court with a frank and candid account of her conduct in preparing the report. The punitive aspect of the costs order therefore stands'.

[39] The second legal challenge of particular significance was that related to the report of the applicant titled “Report and Allegations against the Maladministration” against the Free State Department of Agriculture-Vrede Integrated Dairy Farm (Vrede Dairy Report). The report related to allegations of wide-spread corruption, maladministration and impropriety in respect of the Free State Department of Agriculture, The Vrede Integrated Dairy Project which included that appointment by the Department of Estina Pty Ltd to manage the project and the payment of substantial amounts of money to Estina. The report was initiated with investigations conducted by the applicant's predecessor in office. In the report that the applicant had taken over, she was alleged not to have properly investigated the detailed complaints about the Vrede Dairy Project or the roles played and apparent kickbacks received by senior politicians in the Free State. The report was also the subject of judicial review proceedings brought by the tenth respondent and the Council for the Advancement of the South African Constitution(CASAC.)In May 2019, Tolmay J of the North Gauteng High Court upheld the review proceedings but postponed a decision on the appropriate cost order as the applicant's had sought a personal cost order against the applicant. Tolmay J awaited the outcome of the decision of the Constitutional Court in the CIEX matter.

[40] On 15 August 2019, Tolmay J handed down her judgment on the costs in the review proceedings and ordered that the applicant in her personal capacity pay 7.5% on an attorney client scale of the costs of both the tenth respondent and CASAC. Tolmay J likewise levelled severe criticism of the Vrede Dairy Report and the applicant's investigations and in particular, her conduct in the review proceedings:

“The failures and dereliction of duty by the Public Protector in the Estina matter are manifold. They speak to her failure to execute her duties in terms of the Constitution and the Public Protector Act. In my view her conduct in this matter is far worse, and more lamentable, than that set out in the Reserve Bank matter. At least there her failures impacted on institutions that have the resources to fend for themselves. In this instance her dereliction of her duty impacted on the rights of the poor and vulnerable in society, the very people, for whom her office was essentially created. They were deprived of their one chance to create a better life for themselves. The intended beneficiaries of the Estina project were disenfranchised by the very people who were supposed to uplift them. Yet the Public Protector turned a blind eye, did not consult with them and did not investigate the numerous irregularities that allegedly occurred properly and objectively. She even completely failed to investigate the third complain.t In the judgment on the merits this Court dealt in detail with the failures of the Public Protector to properly investigate and to propose an appropriate remedial action. What was said there stands and requires no repetition. Her conduct during the entire investigation constitutes gross negligence. She failed completely to execute her constitutional duties in the ways illustrated in the judgment on the merit”.”

[41] The applicant appeared before the Justice Portfolio Committee on various occasions since her appointment. On 5 October 2017, at a meeting of the Portfolio Committee concerns were raised with her about the court action in the SARB v PPI (the first CIEX matter) which the Committee claimed had affected public confidence and trust in the applicant. On 6 March 2018 as already indicated, the applicant appeared before the Committee to brief it on the Vrede Dairy Report, the CIEX report and the litigation in the High Court. The applicant was subjected to serious criticism by the Portfolio Committee and as indicated is one of her own grievances against the Committee for the way she was dealt with. The applicant also appeared on other occasions before the Committee where, amongst other matters discussed, she was requested to attain a higher standard in her reports and where concerns were raised about stability in her offices. She also raised with the Committee the inadequate financial resources in her offices and the fact that as a result of the status of remedial orders as held by the Constitutional Court there had been an increase in legal challenges to her reports.

 

THE DRAFTING AND THE ADOPTION OF THE NEW RULES

[42] In response to a request by the Portfolio Committee, the first respondent requested the Rules Committee of Parliament meet to consider and draft rules for the removal of an office bearer of a Chapter 9 Institution in terms of Section 194 of the Constitution. It was the view of the Portfolio Committee that Rules were necessary to ensure fairness of the process. It also appreciated the importance of the matter and the urgency with which it had to be addressed. It therefore requested that the Speaker make the referral with some urgency. She did so.

[43] On 2 September 2019, the chief whip of the tenth respondent submitted a draft set of proposed Rules to the first respondent. In a covering letter to the first respondent, reference is made to the process of removal of “the Public Protector from office”. The reference to the “Public Protector” in the letter was raised by the applicant in these proceedings as evidence of the tenth respondent's apparent vendetta and bad faith against her and in support of the claim that the new Rules have been specifically targeted at her removal.[19]

[44] Between the 10 September and the 29 November 2019, the Rules Committee and its Subcommittee met on several occasions in which it discussed and debated the Rules to regulate the removal of office bearers of Chapter 9 institutions. A discussion document by the Secretary of the National Assembly was presented in the early stages of the proceedings and as result of lengthy discussions that ensued the Rules Committee delegated the development of new Rules to a Subcommittee. The discussion document outlined four stages for the removal of an office bearer of a Chapter 9 Institution in terms of Section 194. They were: (i) the initiation process; (ii) the preliminary assessment of evidence (prima facie); (iii) an enquiry by the Committee and (iv) a decision by the National Assembly. Inasmuch as Rule 88 of the National Assembly concerned substantive motions[20] it required of the first respondent to assess whether there were sufficient grounds for a process of such a nature to be initiated.

[45] When the new Rules were adopted on 3 December 2019, the National Assembly also decided to amend Rule 88 to exclude the underlined words, “which, if true. would in the opinion of the Speaker prima facie warrant such a decision.” In the course of the Secretary of Parliament’s presentation, reference was also made to the draft rules prepared by the tenth respondent. It was pointed out that most but not all of the proposals of the tenth respondent had found their way into the discussion document. The gravity of the process for the removal of an office bearer of a Chapter 9 Institution was emphasised in the ensuing discussions and that the rules had to be fair, open, and transparent and had to guard against arbitrariness. More importantly, the Rules had to comply with the provisions of Section 194 of the Constitution and address each of the grounds for the removal of office, such as incompetence, misconduct and incapacity. The process had also to be prioritised and completed as expeditiously as possible.

[46] The Subcommittee met on three occasions and it appears from the minutes of its meetings that they discussed at length and with great detail the processes to be adopted under the Rules, the imperative of defining the grounds for removal, to ensure that it covered all office-bearers of Chapter 9 institutions and not just the applicant, the involvement of legal experts in the process and the consideration of an independent panel been part of the sifting process as well as the appointment of a special committee by the National Assembly for an inquiry under section 194(1)(b) of the Constitution. The Subcommittee also considered various proposals from different members representing the various parties in the National Assembly relating to amongst other issues; whether the independent panel should be able to receive additional evidence, whether it should be empowered to reach conclusions of fact and law, definitions of the grounds for removal and whether the independent panel should include a judge and whether the independent panel should merely make recommendations and not findings and also the proportion of representation of political parties in the Section 194 Committee.

[47] What was apparent from the minutes of the deliberations was that most if not all of the political parties participated in the discussions and in the drafting process of the new Rules. The sixteenth respondent contributed no less to the discussions in the Committee. Counsel for the applicant in his heads of argument sought to dismiss the inclusion of the details of this process as cumbersome, unnecessary and irrelevant. To the contrary, the details of this process and the reflection of the full participation of all of the political parties severely undermined the applicant's very contention that the new Rules were simply a foisted product of the tenth respondent on the rest of the parties in the National Assembly. The Subcommittee having synthesised all of the proposals and recommendations prepared a draft set of Rules which were subsequently adopted by the Rules Committee and thereafter tabled in the National Assembly and introduced by the majority party. It was adopted by the National Assembly without debate.

 

THE IMPEACHMENT PROCESS UNDER SECTION 194 OF THE CONSTITUTION AND THE NEW RULES

[48] What follows is no more than a truncated version of the procedures relevant to this part of the relief sought by the applicant and provided for in the New Rules for the removal of an office bearer of a Chapter 9 Institution in terms of Section 194[21].

[49] The first respondent delineated seventeen steps as comprising the full course of the impeachment process together with several definitional clauses. Only the first five steps of the process are directly relevant to the relief under Part A.

49.1 The first step is the submission by a member of the NA of a notice of a substantive motion in terms of Rule 129(6) requesting the NA to initiate proceedings for an inquiry to remove an incumbent from a Chapter 9 office in terms of section 194 ('the motion') (see Rule 129R (1), read with the definition of ' section194 enquiry' in the New Rules).

The motion must be limited to a clearly formulated and substantiated charge relating to an action performed by or conduct of an incumbent which, if established by the evidence, showed that the incumbent committed misconduct (i.e. the intentional or grossly negligent failure to meet the standard of behaviour or conduct expected of a person appointed in terms of Chapter 9 of the Constitution), is incapacitated (i.e. as including a permanent or temporary condition that impairs the incumbent's ability to perform her work, and any legal impediment to employment) or is incompetent (i.e. as including a demonstrated and sustained lack of knowledge to carry out, and of ability to skill to perform, her duties effectively and efficiently) (see paras (a) and (b) of the proviso to Rule 129R(1), read with the definitions of ' misconduct,' holder of a public office' , ' incapacity' and ' incompetence' in the New Rules and with Rule 129R(2)).

The motion must be consistent with the Constitution, the law and the Rules, and in particular the New Rules (see para (d) of the proviso to Rule 129R(1)).

All evidence relied upon in support of the motion must be attached to it (see the proviso to Rule129R (1)).

49.2 The second step is an assessment by the Speaker as to whether the motion is in order, i.e. compliant with the criteria set out in Rule 129R. The Speaker may consult with the member to ensure the motion is compliant (see Rule 129S,read with the opening words of Rule 129T).

49.3 The third step is the giving by the Speaker to political parties represented in the NA ('the political parties') of a reasonable opportunity to put forward nominees for consideration for appointment to the independent panel to conduct the preliminary assessment into the motion described in Rule 129X ('the panel' and 'the preliminary assessment ') (see Rule 129V (2)).

49.4 The fourth step is the establishment by the Speaker of the panel, its appointment and the appointment by the Speaker of one of the panelists as its chairperson. The panel must be independent. It must consist of three fit and proper South African citizens, which may include a judge, and who collectively possess the necessary legal and other competencies and experience to conduct the preliminary assessment. If the Speaker appoints a judge to the panel, that must be done in consultaiton with the Chief Justice. When appointing the members of the panel, the Speaker must give due consideration to all persons nominated by the political parties (see Rules 129U, 129V, 129W and 129X(1)(a)).

49.5 The fifth step is the referral by the Speaker to the panel of the motion and any supporting documentation provided by the member. Without delay after the referral to the panel, the Speaker must inform the NA and the President of the referral (see Rule 129T).

 

THE RELEVANT FACTS FOLLOWING THE ADOPTION OF THE NEW RULES

[50] Following the adoption of the New Rules by the National Assembly, the tenth respondent made a new request for the removal of the applicant but this time in terms of the New Rules. That led to the institution of these proceedings and before answering affidavits were to be filed the tenth respondent removed its fourth request and substituted it with another substantive motion for the removal of the applicant. That sparked off a flurry of correspondence between the parties and their legal representatives. The answering affidavits and replies were subsequently filed. The application was thereafter set down.

 

THE CURRENT CHARGES AGAINST THE APPLICANT

[51] On the 6 December 2019, the new chief whip of the tenth respondent withdrew the previous (third request) for the removal of the applicant from the office of the Public Protector. She submitted a new request in terms of the New Rules. She repeated the grounds earlier sought for the removal by the pervious chief whip (in a request dated 23 May 2019.) Further grounds based on the judgment of the majority of the Constitutional Court in the matter of PPI v SARB 2019 (6) SA 253 (CC) were added, with particular reference to the finding that the applicant had acted in bad faith by not being honest about her investigation process. Copies of the Constitutional Court's judgment was also attached together with documents previously submitted by the tenth respondent in the other complaints.

[52] On 24 January 2020 after considering the motion, the first respondent claimed that she was satisfied that it had complied with the form requirements of new Rule. She announced to the NA her receipt of the notice of motion, and invited the political parties to nominate candidates for appointment to the independent panel by 7 February 2020.

[53] On 25 January 2020, Parliament released a media statement to that effect and indicated that the panel would have 30 days in which to finalise its preliminary assessment and to make its recommendations.

[54] On 28 January 2020, the applicants attorneys addressed correspondence to the first applicant in which they disputed the validity to the new Rules and their purported retrospective application. They complained about the conduct of the first respondent in making the public announcement without having even informed the applicant of the decision and demanded amongst other things, reasons for the approval of the motion, sought an indication from the first respondent as to how the applicant would be protected from a process of removal that may be tainted by the participation of individuals “ too many to mention by name at this stage,” who will have a lot to gain from the applicant's unlawful removal as well as those who have long prejudged the issues under investigation. They also sought an undertaking that the process for the removal of the applicant be suspended until all the issues that the applicant had raised were adequately dealt with either by agreement or a court.

[55] On 30 January 2020, the first respondent responded to the applicant's attorneys and outlined the National Assembly's constitutional obligation to oversee the applicant's performance of her functions, advised that the motion received from the chief whip of the tenth respondent complied with the form requirements of the New Rules, advised that no prima facie assessment had been made by the Speaker as that was the function of the independent panel, advised that the applicant would be invited to make representations to the panel, and advised that the parliamentary process was designed to ensure fairness of the enquiry process, and lastly, that the implementation of the New Rules would not be suspended.

[56] The applicant's attorneys in response indicated that the applicant was not satisfied with the response and that they would institute legal proceedings.

[57] On 2 February 2020, Parliament issued a further media release informing the public of the engagement with the applicant's legal representative and that the first respondent had complied with the new Rules. The first respondent also indicated that the motion would be referred to an independent panel, explained in detail the role and function of such panel. The media statement also explained that the first respondent had called upon political parties to submit nominees by 7 February 2020 and the statement also drew attention to the fact that the parliamentary rules would ensure the fairness of the process.

[58] On 4 February 2020, the applicant launched this application and required the respondents to file their answering papers by 17 February 2020.

[59] On 5 February 2020, the sixteenth respondent (the ATM) requested the Speaker to extend the time period for nominations. On 7 February 2020, the first respondent informed all the chief whips that the deadline had been extended to 12 February 2020. On 10 February 2020, the first respondent delivered her notice of intention to oppose the application. The State Attorney acting on behalf of the first respondent requested an extension for the delivery of the answering affidavit due to it not being practical for the first respondent to prepare the affidavit between 6 and 17 February 2020 because of her particularly busy schedule at that time of the year with the State of the Nation Address by the President and the Minister of Finance's budget speech and the scheduled debates in the National Assembly.

[60] On 17 February 2020, the applicant's attorneys refused to grant an extension unless the first respondent gave an undertaking that she would suspend processing the tenth respondent's motion pending the determination of Part B. In effect what the applicant sought was that the first respondent gives an undertaking in terms of paragraph 2 of the relief sought in Part A.

[61] The second respondent on 17 February 2020 indicated that he abided the decision of the court and filed an explanatory affidavit. He referred to the application that he had instituted against the applicant in the Gauteng High Court for a judicial review of a report by the applicant entitled “Report on an investigation into a/legations of a violation of the Executive Ethics Code through an improper relationship between the President and the African Global Operations (AGO), formerly known as BOSASA”. In the President's affidavit he stated that inasmuch as he was involved in litigation, he accepted that there was a “potential conflict of interest” which had risen as he may be called upon to suspend the applicant from office under Section 194(3) of the Constitution while the litigation was pending. He stated that if the need arose for him to consider whether to exercise such power of suspension he would delegate the exercise of the power under Section 194(3) to another member of cabinet who did not have a similar conflict of interest.

[62] On 21 February 2020, the chief whip of the tenth respondent wrote to the first respondent and withdrew the notice of her substantive motion of 6 December 2019 and simultaneously submitted a new substantive motion for the removal of the applicant in terms of the new Rules. On 25 February 2020, the state attorney informed the applicant's attorneys that there had been a material development which required further instructions from the first respondent. Shortly thereafter, Parliament issued a media statement to the effect that the chief whip of the tenth respondent had withdrawn her notice of motion of 10 December 2019 and had substituted it with a new motion which was to be considered by the first respondent. The media statement also indicated that the process initiated by the December 2019 motion had been terminated.

[63] On 26 February 2020, the first respondent considered the second notice of motion of the new chief whip in terms of the new Rule 129R and claimed that she was satisfied that it conformed with the provisions of the new Rules. She stated her reasons as follows:

63.1 That the motion had called on the NA to initiate an enquiry in terms of Section 194(1) of the Constitution for the applicant's removal from office.

63.2 That the motion contained five clearly formulated and substantiated charges set out in an annexure thereto relating to actions of conduct by or ascribed by the applicant:

63.1.1 the first charge related to one of misconduct by the applicant in the investigation and the report into the allegations of failure by the Government to implement the CIEX Report and to recover public funds from ABSA and the litigation challenging the Report;63.1.2 the second charge related to one of misconduct in respect of the applicant's investigation and report into allegations of maladministration against the Free State Department of Agriculture in the Vrede Dairy Report.63.1.3 The third charge related to one of incompetence ascribed to her based on (i) her investigation and report into the matter that is the subject of the first charge and her conduct in the ensuing litigation to review that report; (ii) her investigation and report into the matter that is the subject of the second charge and her conduct in the ensuing litigation to review that report; (iii) her investigation and report into allegations of maladministration, abusive power and improper conduct by the former Executive Officer of the Financial Services Board, Dr. D.P. Tshidi, as well as systematic corporate governance deficiencies at the Financial Services Board (Public Protector Report No. 46 of 2018/19) and her conduct in the ensuing litigation to review that report.63.1.4 The fourth charge related to one of misconduct based on her alleged intimidation, harassment and/or victimisation of staff in the Office of the Public Protector, alternatively her alleged failure to prevent the alleged intimidation, harassment and/or victimisation of staff in her office by the erstwhile Chief Executive Office, set out in detail in the Annexure to the motion.63.1.5 The fifth charge of misconduct and/or incompetence by her or ascribed to her was particularized in the Annexure.

[64] The first respondent claimed that prima facie:

(i) the charges of misconduct, -if established by the evidence, will constitute misconduct as defined by the new Rule (i.e. the intentional or gross negligent failure by the applicant to meet the standard of behaviour or conduct expected of a holder of public office);

(ii) the charges of incompetence, if established by the evidence, will constitute incompetence as so defined (i.e. as including a demonstrated and sustained lack of knowledge by her to carry out, and or ability and skill by her to perform, her duties effectively and efficiently);

(iii) all the evidence relied upon in support of the motion (i.e. the evidence particularised in paragraphs 2, 5, 8 and 12 of Annexure A to the motion) was attached to the motion and

(iv) the motion was consistent with the Constitution (especially section 194), the law (it related to functions performed by the PP in terms of the Public Protector Act 23 of 1994, as amended) and the Rules of the NA (especially the new Rules).

[65] The applicant also contended that the content of the second notice of motion in terms of the new Rules materially differed from that of the first notice of motion inasmuch (of the 6th December 2019) as the tenth respondent had relied on additional grounds for the removal on misconduct and relied on additional facts to support the new charges. The first respondent contended that the second notice of motion having been withdrawn was moot and that the second notice of motion was evaluated on its own merits in terms of the new Rules.

[66] In the light of her acceptance of the second motion under the new Rules, the first respondent informed the chief whips in Parliament and requested them to nominate members for the independent panel in terms of Rule 129U. They were given to 6 March 2020 for that purpose.

[67] The first respondent wrote directly to the applicant on the same day, informed her of the events of 21 February 2020, and provided her with copies of the chief whips initial motion of 6 December 2019 and the new motion of 21 February 2020 and her memorandum to the political parties.

[68] She also informed the applicant that she had decided that the new motion was in order and had consequently asked the political parties to submit their nominations for the appointment of an independent panel. She advised her that upon the appointment of a panel, they were required in terms of Rule 129X to conduct and finalise their assessment and to provide a report to the NA within 30 days of appointment.

[69] An exchange of correspondence between the parties' attorneys ensued thereafter. The legal representative of the applicant was requested to advise whether the applicant would amend her founding affidavit in the light of the withdrawal of the previous motion of 6 December 2019 and its replacement with that of 21 February 2020. The legal representative of the applicant declined to do so and indicated that their client reserved their right to deal with any new matter arising therefrom from the new motion and from the answering affidavits of the respondents in their affidavit in reply. The legal representatives of the respondents indicated that they would not countenance any new matter raised by the applicant in reply and that she was urged to properly consider whether she needed to amend her founding papers. The legal representatives of the applicant remained steadfast in their view that it was not necessary to do so as the relief sought in Part B remained pertinent.

[70] On 27 February 2020, the tenth respondent delivered its answering papers whilst the first respondent did so on 30 March 2020. On 9 March 2020, the sixteenth respondent delivered their answering affidavit in support of the applicant. The applicant thereafter replied and further papers were exchanged in respect of the claims made in the affidavits by the sixteenth respondent.

[71] On 20 March 2020, by agreement the application was postponed sine die in the light of the Covid-19 restrictions. On 8 June 2020, the first respondent decided to resume the processing of the motion for the impeachment of the applicant and informed her and the other parties in the application. The matter was thereafter set down for hearing by agreement to 12 and 13 August 2020.

 

THE REQUIREMENTS FOR INTERIM RELIEF

[72] In a vain attempt at seeking to resist the application of the requirements as set out in the OUTA decision, the applicant levelled several allegations of ma/a tides against both the first and tenth respondents. The applicant complained that as far back as May 2019 when entertaining the tenth respondent's third request for her removal despite their not being any Rules in place was evidence of ma/a fide conduct on the part of the first respondent. In my view, that could hardly be so as the first respondent appropriately referred the matter to the Justice Portfolio Committee who thereupon arrived at the view of the need for Rules and did so too after having been engaged by the applicant herself with the need for such Rules. Moreover, the first respondent on receipt of a report and request by the Justice Portfolio Committee for the need for Rules promptly referred such request to the Rules Committee which thereupon undertook the extensive processes in the drafting of the New Rules.

[73] The applicant also complained that the first respondent had failed to reprimand not only the members of the tenth respondent but also members of the Portfolio Committee for the manner in which they had dealt with her and their utterances in the committee meetings referred to earlier. In particular, she claimed that the first respondent sought to excuse their conduct by referring to it as acceptable and robust discussion and debate in committee meetings where organs of state are routinely held accountable. Firstly, the chief whips of the tenth respondent were fully entitled as member of the National Assembly to engage the office of the first respondent with a request to initiate an impeachment process against the applicant. Any member in the National Assembly may do so if they have cause in terms of Section 194 of the Constitution and the New Rules to move for the removal of any office bearer of a Chapter 9 Institution. The applicant, however, contends that the tenth respondent did so out of no more than vengeance and as part of a longstanding vendetta against her. The tenth respondent has not hidden its lack of confidence in the applicant since her appointment but that does not in my view necessarily mean that its motion against the applicant is ma/a fide. If in fact they are found to have acted without any basis for the motion (including that of mere spite) the motion will not survive the rigors and requirements of the New Rules, the relevant provisions of the Constitution and our law. Moreover, when carrying out their functions, members of the National Assembly exercise protected freedom of speech, debate robustly as appears to be publically apparent but may only do so within the strictures of Parliament's Rules.

[74] The applicant also raised as a ground of ma/a tides, the fact that the first respondent refused to accede to her request to suspend the processes initiated under the New Rules for her removal from office. The first respondent has pointed out, and correctly so in my view, that it was incumbent on her to proceed with the processes which she is required to process in her capacity as the Speaker and in terms of the new Rules that had been adopted by the National Assembly. The provisions of the New Rules also provide for the process to be dealt with both expeditiously and fairly, considerations which both the first and tenth respondents repeatedly raised in their responses to the complaints raised by the applicant.

[75] The applicant also contends that the failure by the first respondent to have allowed her to participate in the stage of the process where she considered the motion as been “in order ' was further evidence of her having acted ma/a fide. The first respondent pointed out that the New Rules did not require that at that stage of the process the applicant was to be provided with a copy of the motion made by the chief whip of the tenth respondent and neither did the new Rules provide that the applicant at that stage make any submissions on the formal compliance of the motion with the new Rules, the Constitution and the law. The first respondents' compliance with the provisions of the New Rules could hardly be construed as mala fides on her part. She had nonetheless provided the applicant with a copy of the motion and attachments on the 26 February 2020 even before the process envisaged by the independent panel began. She explained that she did so as to provide the applicant with the opportunity of considering whether she wished to file a supplementary founding affidavit and more time for her to consider the charges prior to the process of the independent panel. There was nothing sinister about her having done so nor evidence of ma/a fides on her part.

[76] The applicant also complained that the first respondent refused to provide her with reasons for her decision in accepting the tenth respondent's first notice of motion under the new Rules as being “in order.” The first respondent was of the view that it was not necessary for her to do so. This complaint also relates to one of the substantive grounds for relief under Part B. Suffice to say that the applicant was in fact provided with reasons for her decision in respect of the current motion in the answering affidavit and the applicant has moreover abandoned her relief on that ground under Part A.

[77] The applicant also complained that the first respondent had issued out media statements with regard to the motion for her removal by the tenth respondent without at that stage having even notified her. The first respondent explained that she had done so to ensure that the public was properly informed as to the nature of the request for the removal of the applicant and the processes involved under the new Rules. The applicant further complained that the first respondent had taken up the cause on behalf of the members of the tenth respondent and that she had literally acted in cahoots with them. The applicant also contended that further evidence of ma/a tides by the first respondent was that she accepted the withdrawal of the tenth applicant's first motion under the New Rules and its substitution with the second motion.

[78] In my view and having considered the complaints raised by the applicant, I am not persuaded that the conduct of the first respondent could in any way be construed as ma/a fide. I am equally not persuaded of the complaints of ma/a tides by the applicant against the tenth respondent are either relevant to the application of the OUTA requirements or for that matter sustainable.

[79] Counsel for the applicant in argument submitted that the first respondent had in these proceedings “seemingly embraced the view that it is unlikely that the process will terminate in the removal of the applicant from office”. He stated that the first respondent was therefore pursuing a process with an ulterior motive and outside the intended constitutional purpose of Section 194.

[80] There is nothing in the answering affidavits of the first respondent nor at any stage in the argument presented on her behalf of any indication that she “embraced ' a view that the applicant was unlikely to be removed from office in the proceedings under the new Rules. What the first respondent repeatedly stated in her affidavit and in the argument made on her behalf was that it was the proceedings under the new Rules that may eventually yield a political decision by the National Assembly about an impeachment of the applicant. The did however did not anticipate the outcome. Furthermore, there was nothing to suggest that the first respondent had acted with an ulterior purpose in the processing of the tenth respondent's notice of motion for the removal of the applicant.

[81] As indicated, the applicant contended that in the alternative, even if the requirements in OUTA applied, she had “exceedingly met such requirements”. Counsel for the applicant[22] suggested that the decision of the Constitutional Court in the Gordhan on the application of the OUTA test “had not only simplified the test but had also lowered, refined and redefined the test to the advantage of the applicant such as the present one”. I am unable to discern how exactly the Constitutional Court in the Gordhan had in any way “ lowered, redefined' or for that matter “simplified or refined' the test as set for interim relief in OUTA. If anything, the Constitutional Court did no more than reiterate the longstanding requirements and its application in proceedings where interim relief is sought against the legislature or executive and where the principle of the separation of powers is implicated.

 

THE REQUIREMENT OF A PRIMA FACIE RIGHT

[82] The applicant relied on what she described as ten separately pleaded grounds of invalidity of the New Rules. She tabulated them as follows:

1.1 The audi alteram partem rule (and procedural irrationality);

1.2 Deviations from established procedure;

1.3 The right to legal representation;

1.4 Unlawful and premature referral (prior assessment of prima facie guilt);

1.5 The rule against retrospectivity;

1.6 Recusal and right to be protected;

1.7 The right to decisional and institutional independence;

1.8 The interpretation of section 194(1) read with the Rules;

1.9 One-size-fits-all; and

1.10 The Separation of powers.

[83] In Gordhan, the Constitutional Court restated that an interim interdict is to be granted only in the clearest of cases. Where the relief would impact on the powers and functions of a state functionary or as in that matter the executive and legislature the court would have to be satisfied that the applicant had “good prospects of success in the main review. The claim for review must be based on strong grounds which are likely to succeed”. The court adjudicating the interdict application is required to “peek into” the grounds of the main review and assess its strength. An exercise undertaken when having to assess the strength of grounds of review, where necessary. It is only if the court is convinced that the review is likely to succeed, with all the other requirements that it may properly grant the interdict. Counsel for the tenth respondent submitted that inasmuch as the applicant had not met any of the remaining grounds for an interim interdict such as evidencing irreparable harm, that the balance of convenience favoured her or that she was not possessed of alternative remedies, it was therefore not necessary for this court to consider any of the prodigious grounds of review asserted by the applicant. There is, in my view, merit in the submission as would appear from a very brief discussion of the grounds and the consideration of the remaining requirements. Moreover, this court must remain astute not to pre-empt the findings of the review court in Part B. It is, nonetheless necessary to set out in the briefest of terms the various grounds that the applicant sought to assert.

[84] The applicant accepted that the review of the new Rules adopted by the National Assembly are to be subjected to the standard of rationality review and not on the grounds of Promotion of Administration of Justice Act 3 of 2000 (PAJA). Counsel for the first respondent contended though that the applicant failed to properly apply the test of rationality and at times conflated the requirements and its application with that of a review under PAJA. Nothing further need be said in these proceedings about that debate.

[85] The applicant grouped the first four and six of its grounds (above) under the rubric of fairness and referred to various provisions of the Constitution in particular Sections, 1,2, 9,10 23, 33 and 34 and in particular the common law principles of natural justice of audi alteram partem and nemo sua iudex in causa sua protections and as well as what she referred to as the procedural irrationality in both the content and procedures envisaged under the New Rules. Counsel for the first respondent pointed out and correctly so, that there is a material difference on the one hand between the audi alteram rule (with the requirements of procedural fairness) and on the other hand procedural irrationality and that compliance with the former was not necessarily a requirement for the validity of the new Rules. Needless to say they do at times overlap and may well produce the same result.[23]

[86] The applicant contended that the failure and the refusal on the part of the first respondent to give her prior notice and the opportunity of making representations prior to the decision made by her that the motion was “in order” was in breach of her right of audi alteram. As already pointed out the first respondent contended that it was not necessary for the applicant to be given prior notice of the motion or that any representations are to be received by the first respondent prior to the ruling that the motion was “in order”. The motion is subjected to a two phase sifting process, the first by the first respondent for compliance with the formal requirements of the new Rules and in the second instance an assessment and determination by the independent panel as to whether there is prima facie evidence to support the charges. The applicant must be provided by the panel with copies of the motion on which the charges are based and all the evidence attached thereto. She would be entitled to make written representations to the independent panel in respect of the charges against her. These are separate and distinct sifting processes with the first not attracting a level of scrutiny that requires the subject person of the charge(s) to make any representations. Counsel for the applicant sought to compare this two stage sifting process to that of a prosecutor assessing and deciding whether to prefer charges against a person and a court subsequently making a determination of a prima case against an accused person. The comparison in my view is not appropriate. Firstly, the Speaker is neither qualified to act as a prosecutor nor does she purport to act in such a capacity. The legal expertise lies in the independent panel which is established and so comprised for the very purpose of establishing whether there is prima facie evidence to sustain the charges. Moreover, the investigation into the charges and the establishment of its veracity is conducted in a Section 194 Committee, if the National Assembly so elects to proceed with such an enquiry after having received a report from the independent panel. In the first phase of the sifting process, the first respondent makes no determination on the merits or otherwise of the substantive grounds of the charges, (that is, misconduct and incompetence (or incapacity where so charged). I am also satisfied that the first respondent has not misconstrued her responsibilities under this stage of the new Rules as contended for by the applicant.

[87] The applicant claimed that the impeachment proceedings were “quasi-judicia f' in nature and she was therefore entitled to all of the protections under Section 34 of the Constitution. In response, counsel for the respondent pointed out that an impeachment process in terms of section 194 provides for the removal of a head of a Chapter 9 Institution only upon the finding of either misconduct, incapacity or incompetence by a committee of the National Assembly after conducting an investigation in terms of the new Rules that included a fair hearing that provides for the subject to personally respond to the charges. The finding by a Section 194 committee albeit necessary is not sufficient for the removal from office. The removal may only take place upon a resolution of no less than two thirds of the members of the National Assembly (in respect of the Public Protector and the Auditor-General and the majority of members of the other Commissions.) In effect, the decision for removal is essentially political as opposed to a judicial or quasi-judicial determination as provided for in Section 34 of the Constitution. This appears, in my view to be a crucial distinction in the nature of the proceedings under Section 194 of the Constitution and that contemplated under Section 34. Moreover, it was contended that Section 34 could conceivably not apply to the applicant when the assessment occurs as to whether the motion complied with the form requirements of the new Rule.

[88] Where the enquiry proceeds before a section 194 committee, it must be conducted in a procedurally fair manner and the applicant is afforded the right to be heard in her own defence and to be assisted by a legal representative of her choice or other expert provided that such legal representative or expert may not participate in the Committee. The applicant would therefore have two opportunities to answer to the charges against her.

[89] The applicant contended that she is entitled to full legal representation in the process whereas the new Rules limits her assistance only to proceedings before the Section 194 Committee and bars her legal representative from fully participating in the Committee. There is of course nothing in the new Rules that precludes the applicant from consulting with and taking advise from her legal representative from the very outset of been provided with the motion and other documents from the independent panel nor from been assisted in making written representations to the panel.

In her founding affidavit the applicant claimed that the provisions of the new Rule with regard to legal representation appeared to be “vague” and added that it stood to be properly clarified in the proceedings under Part B. Counsel for the tenth respondent submitted that the provision could well be interpreted to allow for a full level of legal representation in the proceedings of the Section 194 Committee depending on the particular circumstances and the nature of the evidence before the Committee especially where evidence may be in dispute. He submitted the Section 194 Committee, would be guided by the precepts of fairness provided for in the new Rules. Counsel for the first respondent emphasised though that inasmuch as the proceedings for removal related directly to an office bearer of a Chapter 9 Institution the new Rules provided for such person be personally heard by the Section 194 Committee in defence against the charges. He contended further that the provision with regard to participation of a legal representative or expert in the committee was sufficiently clear. In my view, as the applicant herself suggested, this is a matter which will more appropriately be clarified in the Part B process and it is not necessary for this court to express any view thereon. The Section 194 Committee must be guided though by the very principle of fairness contained in the new Rules.

[90] The applicant contended that the NA “acts as the employer” of the Public Protector”. She claimed that the new Rules introduced new terms of conditions into her employment “and/or disciplinary rules” that affected all heads of Chapter 9 Institutions which were not part of the initial terms and conditions at the time of their employment. It was therefore incumbent on the National Assembly to have consulted or as she put it “even merely inform me and the other heads of their introduction” or “their finalisation” prior to learning about it in the media. This in my view, can hardly be construed as any measure of consultation required for by the applicant. Nonetheless, the sixteenth respondent went further and contended that the applicant enjoyed a legitimate expectation to be consulted about the new terms and condition of her employment. The respondents claimed that the applicant misconceived her status as an employee of the National Assembly and that the accountability mechanisms in the Constitution does not render the relationship as one of employee and employer. The applicant is independent and subject only to the Constitution, a special relationship in terms of Chapter 9 of the Constitution. The respondents also contended that the applicant's and the sixteenth respondent's reliance on the Public Protector Act was wholly misplaced and pointed out that following an amendment to the Determination of Remuneration of Office-Bearers of Independent Constitutional Laws Amendment Act 22 of 2014 (with effect from 1 April 2019), none of the references in the Public Protector Act as an employee and her terms and conditions of employment remain.

[91] The applicant also invoked the rule against bias based on the principle of nemo sua iudex in causa sua. In this regard, she claimed that the new Rules did not provide a mechanism to ensure that those persons who have expressed or displayed a bias against a subject of an impeachment process under Section 194 or those who had prejudged the charges were precluded from participating in the process. She referred very specifically to the first and tenth respondent's as well as the second respondent and to unnamed members of the National Assembly against whom she had (or still is) apparently conducting investigations against and unnamed Cabinet Ministers against whom she made remedial findings.

[92] The respondents pointed out that Rule 30[24] of the National Assembly and the Code of Ethical Conduct and Disclosure of Members Interest for Assembly and Permanent Council Members (the Ethics Code referred in Rule 30 and a Schedule to the Joint Rules of Parliament) is applicable to all members of the National Assembly participating in the impeachment process. The first respondent also contended that when members of the National Assembly are called upon to vote they are required to put the public interest ahead of their personal interest. In this regard, they referred to what was stated in the decision of the EFF (impeachment):

“The fact that members of the Assembly assume office through nomination by political parties ought to have a limited influence on how they exercise the institutional power of the Assembly. Where the interests of the political parties are inconsistent with the Assembly's objectives, members must exercise the Assembly 's power for the achievement of the Assembly's objectives. For example, members may not frustrate the realisation of ensuring a government by the people if its attainment would harm their political party. If they were to do so, they would be using the institutional power of the Assembly for a purpose other than the one for which the power was conferred. This would be inconsistent with the Constitution.”

[93] The first respondent moreover pointed to the oath of office taken by all members of Parliament which specifically provides that they are required to ' take decisions solely in terms of the public interest and without regard to personal financial or other material benefits for themselves, their immediate family, their business partners, or their friends' , they must ' declare private interests relating to public duties and resolve any conflict arising in a way that protects public interest and must 'discharge their obligations, in terms of the Constitution, to Parliament and the public at large, by placing the public interest above their own interests.[25]

[94] The applicant also claimed that the first respondent and her deputy had also unnecessarily taken sides in the court action by the second respondent against her in the so called Bosasa matter by siding with the second respondent instead of maintaining her independence. The first respondent denied that she took sides unnecessarily. She applied to intervene as a co-applicant in the matter as in her view certain of the remedial action and monitoring measures (paragraphs 8.1.1, 8.1.2, 8.1.3, 9.1, 9.2 and 9.3 of the report) and pointed to impermissible prescriptions to the NA on the manner in which it exercised oversight over the executive, were incompatible with the Ethics Code (which does not apply to the second respondent), the Executive Ethics Code, infringed the doctrine of the separation of powers and impermissibly extended to subjecting the NA to monitoring by the applicant

[95] The complaint about any possible conflict of interest by the second respondent has already been dealt with by reference to the undertaking in his explanatory affidavit. Moreover, section 96 of the Constitution specifically provides that the President and members of Cabinet may not “.. .(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...” The applicant also contended that like the second respondent so too should the first respondent and the tenth respondent recuse themselves from the processes under the new Rules because of their involvement in litigation with the applicant. The first respondent is not litigating against the applicant in her personal capacity in the Bosasa matter but as she has explained did so to uphold the “integrity and constitutional autonomy of Parliament' The tenth respondent was sued by the applicant for allegations made that she was a “spy.” The “spy” allegation does not form the subject matter of any of the charges against the applicant and is the subject of incomplete court proceedings. The tenth respondent and each of its members are moreover subject to all of the disclosure and ethical Rules of Parliament and the Ethics Code and moreover forms part of the NA that is charged with the institutional function under Section 194 of the Constitution.

[96] For further support of the applicant's contention, counsel for the applicant sought to rely on the views expressed in the minority judgment of Zondo DCJ in Economic Freedom Fighters (impeachment judgment)[26]. It was pointed out that the majority in that matter had not endorsed the views of the minority. In reply, he then sought to rely on the decision in De Lille and Another v Speaker of the National Assembly 1998 (3) SA 430 at paragraphs 15 and 117 as binding authority for their contention.

[97] The applicant also contended that the New Rules adopted on 3 December 2019 were in “blatant violation of the presumption against retrospectivity”. In support of this contention, the sixteenth respondent claimed that it was never envisaged by it that when voting for the approval of the New Rules in the National Assembly, that it would apply retrospectively.

[98] The first respondent pointed out that with the exception of criminal trials with reference to Section 35(3)(1) of the Constitution[27] there is no rule against retrospectivity in our law. There is a presumption which can be rebutted expressly or by necessary implication by the provision of indications to the contrary in the enactment itself,( see in this regard the decision of Smalberger J in Workmen's Compensation Commissioner v Jooste [1997] ZASCA 58; 1997 (4) SA 418 (SCA) 424G)The first respondent also relied on the decision of Friedman J in Lek v Estate Agents Board 1978(3) SA 160 (C) at paragraph 169F-G;

“... The presumption against retrospectivity does not apply when it must be inferred from the provisions of the Act that the Legislature intended the Act to be retrospective. Such an inference can be drawn when the consequences of holding an Act to be non-retrospective would lead to an absurdity or practical injustice.”

[99] The first respondent contended that it would also be absurd to interpret the new Rules as applying only to events after its adoption. That would leave a lacuna inasmuch as the National Assembly could not validly impeach a Chapter 9 officer or Commission member for anything done or not done prior to 3 December 2019, no matter how serious.

[100] Inasmuch as the applicant relied on the definitions of incapacity, incompetence and misconduct in the new Rules as imposing a higher threshold for impeachment than the ordinary meaning of such grounds, it was pointed out that the definition of the grounds in the new Rules inured to the benefit (or at least not to the detriment) of the applicant or any office bearer of a Chapter 9 Institution. Moreover, the first respondent pointed out the new Rules “mainly regulate the procedure” (my emphasis) to be followed for the removal process under section 194, a provision long part of the Constitution and well before the appointment of the applicant.

[101] The applicant also relied on the fact that the definition of incapacity in the new Rules now included that of temporary incapacity. The applicant is not charged with temporary incapacity in the motion and the complaint is therefore not relevant to the proceedings against her in the National Assembly. Moreover, a court in Part B could invoke the provisions of Section 171(1)(a) and sever that part of the new Rules that it may find unlawful[28].

[102] The applicant also asserted to what she referred to as her “decisional and institutional independence”. In this regard, she contended that as with judges who arrive at incorrect decisions and which are routinely overturned on appeal, so too her remedial findings if overturned by courts could not form the basis of a finding of incompetence against her. In this regard, she contended “that remarks of Judges are opinions of that Judge, therefore the Judges remarks on the applicant's findings cannot be used to determine the competence and/or misconduct of the applicant.”

The tenth respondent however referred to the various findings against the applicant by the courts and the Constitutional Court in particular, that relate not only to her remedial findings but more importantly to her conduct, her honesty and her methodology in the conduct of her investigations. Importantly, the tenth respondent accepted that such findings did not necessarily mean that the applicant would be removed in the processes before the National Assembly but that it nonetheless constituted crucial evidence of the complaints of misconduct and incompetence against the applicant.

[103] The applicant also contended that the new Rules fail to make a distinction between the Office of the Public Protector and the Auditor-General on the one hand whose removal is dependent on a resolution supported by at least two-thirds of members of the National Assembly and on the other hand that of other heads of Chapter 9 institutions whose removal requires no more than a majority of members of the National Assembly.

[104] The first respondent correctly contended that the new Rules do not distinguish between the classes of Chapter 9 institutions as there is no valid basis for doing so in terms of Section 194 other than the voting requirements which are specifically provided for.

[105] In asserting the principle of the separation of powers, the applicant contends that the new Rules unlawfully provide for a judge to be part of the independent panel. In this regard, counsel for the applicant relied on various decisions in which the question arose about the role of judicial officers in extra judicial office and their appointment , such as South African Association of Personal Injury Lawyers v Heath & Others [2000] ZACC 22; 2001 (1) SA 883 (CC) and the Amabhungane Centre for Investigative Journalism NPC and Another v Minister of Justice and Others 2020 (1) SA 9 (GP). The applicant moreover claimed that there is no empowering provision in the Constitution that enables the Speaker to make such an appointment to the independent panel. In response, the respondents claimed that the context of the role that the intended judicial officer is to play in the independent panel is sufficiently compatible with the office of a judge and would not be harmful to the institution and central to the very mission of the judiciary. The function of the independent panel is focused on the determination as to whether there is prima facie evidence to demonstrate that the head of the Chapter 9 Institution committed misconduct, is incapacitated or incompetent. Moreover, the appointment of a judicial officer to the independent panel is to be done in consultation with the Chief Justice. In a related complaint, the applicant claimed that it was both improper and impermissible for the tenth respondent to rely on the findings of judges as a basis for her removal from office. Needless to say, the adverse findings of the courts especially that of the Constitutional Court against the applicant are indeed relevant to the proceedings under Section 194 of the Constitution albeit not necessarily determinative.

[106] During the course of argument, counsel for the applicant raised two further grounds of attack on the charges brought by the tenth respondent under the new Rules, that of double jeopardy and res judicata. Double jeopardy was raised in the replying affidavit of the applicant and appeared to have related to the fact that she had already been penalised by the Constitutional Court in the SARB matter with a personal costs order against her. Other than in the context of criminal proceedings there is certainly no principal of double jeopardy of general application as the applicant contends. She need look no further than then the very remedial action that she herself orders.

[107] Equally so, the applicant's reliance on the principle of res judicata has no application in respect of the charges brought against her by the tenth respondent. The proceedings in terms of Section 194 and the new Rules are entirely different to the court matters in which her remedial orders and conduct have been the subject of review.

[108] The ATM contended that the new Rules are in conflict with the sub judice rule 89 of the National Assembly which provides:

“No member may reflect upon the merits of any matter on which a judicial decision in a court of Jaw is pending”.

The ATM also contended that the new Rules impermissibly permit the submission and processing of motions under Section 194 based on allegations, as the tenth respondent has done, which form the subject matter of un-concluded proceedings in courts. The first respondent dealt fully with these complaints in her answering affidavit and in the supplementary affidavit to that of the ATM. She claimed, correctly so in my view, that the sub judice rule and Sections 165 and 166 of the Constitution, that deals with the judicial authority in the Republic and structure of the courts do not preclude members of the National Assembly from carrying out their oversight functions and the holding of office bearers of Chapter 9 Institutions accountable in terms of section 194 and the new Rules. The responsibility of the National Assembly in holding an office bearer of a Chapter 9 Institution accountable in term of Section 194, would as the first respondent correctly pointed out, be stultified if the sub judice rule was applicable. Members of Parliament like everybody else are nonetheless precluded from interfering with the functioning of courts.

[109] As already indicated, it is not necessary for this court to express itself on the merits of the review in Part B. Having undertaken no more than a peek into some, if not most (my emphasis as there appears to be much overlap) of the grounds advanced by the applicant, I am nonetheless of the view that the applicant has, on the papers before this court, not made out the clearest of cases nor has she demonstrated strong prospects of success in asserting the rights that she seeks protected in these proceedings.

 

A REASONABLE APPREHENSION OF IRREPARABLE HARM

[110] In her founding affidavit, the applicant contended that the impugned Rules have “a negative impact upon me” in that they interfere with her obligations and mandate to investigate and report cases “ without favour, fear or prejudice” which are the essential prerequisites for the discharge of her duties. She further claimed that the potential impact of the new Rules “assuming they are indeed unconstitutional will be devastating not only to me and other heads of Chapter 9 institutions but the public at large, unless interim relief sought is granted.” She also claimed that the refusal by the first respondent to suspend the implementation of the removal process has caused her reasonably to apprehend that unless the interim relief is granted there is a clear intention to proceed with the immediate implementation of the new Rules even before its legal status can be determined in terms of Part B. She also feared that as a result of “the conflict of interest” that the second respondent was faced with because of the adverse findings she had made against him that he “will suspend me from office”. She continued that as soon as the first respondent informed the second respondent that she had accepted the motion she reasonably feared that “the President may have a perverse interest in removing me before the hearing of the BOSASA matter”. She claimed that if the interdict was not granted “she may be removed from office due to a few cases that I have lost or are still pending before courts of law”. She added that she would not be able to restore her “status even though a court decision may ultimately be made in her favour'. She also pointed out that the new Deputy Public Protector had (at the stage at which she deposed to the founding affidavit) only been appointed a few days ago to strengthen the office and “any destabilisation of her crucial orientation and intended team building activities will only amount to a reversal of the gains made in her appointment with the public as the ultimate loser '. She claimed that her subsequent vindication and non-removal will be cold comfort to the consumers of services of her offices who are “mostly poor and vulnerable people who have no interest in the political gamesmanship being played out in this ill-fated removal bid.”

[111] She added that, “on the topic of de-stabilisation and the nuisance value of the alleged motion I need to make it clear that the harm which I, members of my staff and the public is likely to suffer is not really so much my intended removal. That is very unlikely to happen given the fact that the DA which is championing this politically lacks both the numerical strength and credibility to obtain the requisite two-thirds majority for my removal, based particularly on such opinions and incompetent grounds which it has constantly and unsuccessfully trumpeted since my interview for my current position”. She then proceeded to tally the numbers of potential votes which the tenth respondent may garner against that of which she was confident the tenth respondent would not achieve the “requisite magic number of 267 votes”. She added” Such an outcome cannot be reasonably apprehended' which she further described as “miraculous”. She also claimed that the process was no more than an intention to “intimidate me and instil fear of reprisals, a very futile exercise as I am not in any fear whatsoever but I am anxious not to be distracted from the important task of protecting the public from wrongdoing and corruption”. She continued “that the destabilisation and diversion of the Public Protector was sufficient cause” for the court to grant the relief sought. She feared that the “campaign to destabilise the Office of the Public Protector if not stopped in its tracks will have a devastating effect on me personally by stinting my ability to do my work and also in the employees of the office of the Public Protector and the public at large”. She continued and stated that “well­ knowing that my ultimate removal is a numerical and political improbability I am advised and believe that the highest prize and probable outcome which might be sought by the combination of my detractors is to visit me with embarrassment of an unlawful suspension”. She also claimed that a suspension in the process would remove her at a time when she was dealing with sensitive cases involving members of the executive, the second respondent personally and “his alleged political allies.” She claimed that her participation in such litigation as the author of the reports was of crucial national importance and her temporary absence may provide them (her detractors) with an unfair advantage. She claimed that even if a suspension did not materialise she would have to work under “a dark cloud of suspicion” and reiterated that such would have dire consequences on not only her but would impact on the public.

[112] The respondents contend that the applicant made a fatal concession as referred to above, that her removal from office pursuant to the Section 194 process could not be “reasonably apprehended”. In respect of her claims of an unlawful suspension by the second respondent, that was discounted as the President himself had accepted there existed a potential conflict of interest and that he would delegate his powers to another member of Cabinet for as long he was still involved in litigation with the applicant.

[113] In argument, counsel for the applicant placed much reliance on the decision in Gordhan in respect of the reputational damage that the applicant would suffer in an ensuing impeachment process that may be held to be unlawful under Part B. In this regard, he compared the situation in that matter as indicative of the harm that the applicant would suffer. He referred to the following paragraphs in the decision:

“[66] There is no foreseeable irreparable harm that the Public Protector would suffer. The interim interdict would not thwart her constitutional mandate and it would not offend any of her powers and functions as set out in the Constitution. The investigation into SARS has been completed and the SARS Report has been published. There are no findings by the High Court in its order that would be considered as causing irreparable harm to the Office of the Public Protector, nor would the effect of the findings cause irreparable harm.

[67] On the other hand, Mr Gordhan may suffer discernible irreparable harm and prejudice should the interim interdict not be granted. The reasonable apprehension of irreparable harm to Mr Gordhan lies in the fact that, if the remedial action is not suspended, he would be disciplined by the President, appear before the Parliamentary Ethics Committee, and be criminally investigated by the Commissioner of Police, all of which could have serious consequences for him. According to the High Court, the SARS Report maligned him as being untruthful and a spy. It is therefore a reasonable apprehension that the remedial action contained in the SARS Report would impact his political career and his personal circumstances. These fears are not misplaced, and the full effect of these potential consequences should be held in abeyance until the review application is completed.”

[114] Counsel for the applicant also relied on the decision of Hanekom v Zuma [2019] ZAKZDHC 16 (6 September 2019) at paragraph (9):

“To call persons who hold high office spies, imputes to them that they lack 'the qualities that are required to be entrusted with the confidences of high office'. This 'would indeed tend to lower them in the estimation of people straddling all sectors of our society'. This is defamatory,”

He contended it would be inconceivable for “another South African Court faced with the same issues could now ask where is the irreparable harm.?11 He further contended that if justice was indeed blind it could not be one law for Mr Gordhan and Mr Hanekom and another law for the applicant. He moreover distinguished them as being career politicians as opposed to the applicant who is head of an independent Constitutional institution.

[115] Besides the distinctions to be made between the matters of Gordhan and Hanekom, with this matter counsel for the applicant failed to consider all the separation of powers harm referred to in the very decisions of Gordhan and OUTA. Counsel for the applicant simply and rather glibly stated that there was “zero harm and prejudice” to be suffered by the respondents as against that which would be suffered by the applicant if the interim interdict was not granted. In doing so, it is apparent that the applicant completely lost sight of the responsibilities of the National Assembly in carrying out its Constitutional mandate in holding the applicant to account through the provisions of Section 194 and the processes under the new Rules. Moreover, the applicant fails to take into account the public interest in ensuring that the proceedings under the New Rules are proceeded with in the light of the serious charges which have been preferred against the applicant. While I am particularly mindful of the ongoing and new investigations (as urged to do so by the applicant's counsel in the light of serious allegations against officials and high ranking members of political parties of corruption during the Covid 19 pandemic) the office of the Public Protector with its staff can pursue such investigations and work notwithstanding the proceedings under Section 194 and the new Rules against the applicant. There is nothing to indicate and neither has the applicant made out a case that she, in person, is indispensable to that office. Moreover, any legal proceeding or that impending by the applicant (or against her) should not be affected by a Section 194 process. Courts will be alive to such a process and ensure that any proceedings (involving the applicant or her office) are not compromised of affected by it and more importantly that the applicant is dealt with fairly.

[116] The respondents also point out that the Section 194 process is at its early stages. The first respondent has taken the 3rd of 17 steps in a process set out in the new Rules, and while the process continues (i) there is a possibility that the National Assembly after considering the report and recommendations of the independent panel may resolve that a Section 194 enquiry not be proceeded with, (ii) that if such an enquiry ensues there is also the possibility of a Section 194 Committee deciding at the end of the enquiry that none of the charges levelled against the applicant have been established, (iii) that if the Section 194 Committee decides that the applicant has misconducted herself or is incompetent for the reasons as set out in the charges there is the possibility as the applicant herself envisages that less than two-thirds of the members of the National Assembly would support a resolution for the applicant's removal from office. The respondents moreover point out that in the event of the applicant being ultimately successful in obtaining the relief in Part B on the grounds contended by her there would be nothing that precludes her from seeking her reinstatement if found to have been unlawfully removed.

[117] I am more than satisfied that the applicant has failed to make out a case that she, let alone her office or the public as she claims would suffer irreparable harm in the event of the proceedings resuming against her.

 

THE BALANCE OF CONVENIENCE

[118] In OUTA, the Constitutional Court held:

“[26] A court must also be alive to and carefully consider whether the temporary restraining order would unduly trespass upon the sole terrain of other branches of Government even before the final determination of the review grounds. A court must be astute not to stop dead the exercise of executive or legislative power before the exercise has been successfully and finally impugned on review. This approach accords well with the comity the courts owe to other branches of Government, provided they act lawfully. . .

[65] When it evaluates where the balance of convenience rests, a court must recognise that it is invited to restrain the exercise of statutory power within the exclusive terrain of the Executive or Legislative branches of Government. It must assess carefully how and to what extent its interdict will disrupt executive or legislative functions conferred by the law and thus whether its restraining order will implicate the tenet of division of powers. Whilst a court has the power to grant a restraining order of that kind, it does not readily do so except when a proper and strong case has been made out for the relief and, even so, only in the clearest of cases”.

[119] The applicant correctly contends that in these proceedings when considering the balance of convenience, the ''public interest must feature” as it did in the assessment when considering the requirement of irreparable harm. It is moreover not only the public interest but of equal importance are considerations by this court of not unduly intruding into the terrain of the National Assembly that is constitutionally mandated of holding the applicant accountable. Such a function by the National Assembly is principally and constitutionally in the public interest.

[120] The first respondent contends and correctly so in my view, that an interim interdict in favour of the applicant would amount to a serious restriction of a critical feature of the National Assembly's oversight powers enshrined in Section 194 of the Constitution as operationalized under the new Rules. It would effectively arrest the exercise of that power before it has even begun and in circumstances where any unlawful exercise of power could be challenged on review. Moreover, the first respondent contends that the applicant failed to demonstrate a strong case for the relief sought with reference to any of the ten or more grounds advanced. The grant of an interdict would amount to a serious intrusion into the separation of powers in restraining it from carrying out its constitutionally sanctioned oversight functions. In this regard, the first respondent referred once again to the serious adverse findings made against the applicant by the Constitutional Court in Public Protector v SAAB on which the current charges are predicated and that the public interest in the continuation of the Section 194 process remains a counterveiling factor.

[121] Central to this consideration, including amongst others ,that of the public interest and the strength (or lack thereof) of the grounds of review and the crucial concern of the separation of powers harm that overrides the reputational harm that the applicant may suffer and with due consideration of the sustainability and efficiency of the functions and ongoing investigations by the office of the Public Protector, I am equally satisfied that the balance of convenience favours the National Assembly in having to proceed forthwith with the carrying out its functions in terms of Section 194 and the new Rules.

 

AN ALTERNATIVE REMEDY

[122] In her founding affidavit, the applicant claims that the nature and extent of the envisaged harm is such that if it ensues and unless interim relief is granted “it would be incapable of quantification, recovery or vindication by any other legal means”. She goes on to state that “the indeterminate number of third parties will be adversely affected if the relief is not granted also serves as proof that no other adequate remedy can appropriately address the harm which is reasonably apprehended in this matter.” She therefore asserts that there is no satisfactory remedy available for her and that a claim for damages would be impractical and inconsequential in the present context. She reiterated that she repeatedly made informal overtures to the first respondent to suspend this process but was rebuffed.

[123] The contention by the applicant with regard to the harm that she, amongst others, would suffer is clearly contradicted by her own claim that she did not envisage her removal by a vote in the National Assembly as “miraculously” arising.

[124] The first respondent contends that there are at least three alternative remedies open to the applicant:

i. The applicant could participate in the process and raise all and any of her defenses to the merit of the charges in the two occasions provided for in the new Rules, that is, before the independent panel and assuming the process reaches the stage of the Section 194 Committee she could also do so at that stage;

ii. Part B of her application remained a viable alternative for her to raise her claims of unlawfulness of the New Rules and

iii. In the event (although most unlikely as envisaged by the applicant), the National Assembly adopts a resolution for the applicant's removal of office with the requisite two-thirds majority and she is so removed by the second respondent it would be open to her to challenge that decision if she remains of the view that the process was unlawful. Moreover, if she is ultimately successful in obtaining relief under Part B nothing would preclude her from seeking an order for reinstatement if she was removed through an unlawful process.

[125] Counsel for the applicant dismissed the proposed alternative remedies as no more than “illogical and nonsensical” but failed to persuade exactly how that was so. The applicant clearly has very real options of alternative remedies and has likewise failed to meet this requirement for interim relief.

[126] The applicant has over and above her challenges to the alleged unlawfulness of the new Rules confidently asserted the absolute lack of merit in the charges against her.

[127] The applicant has in my view failed to meet any of the requirements for interim relief. Even if she had done so, I would have exercised my discretion in refusing such relief given the severity of the charges that had been preferred against her and which have been based on trenchant findings by none higher than the Constitutional Court with regard to her conduct, her honesty and her methodology of investigation. Moreover, a process for the impeachment of an office bearer of a Chapter 9 institution is not lightly taken and is a serious mechanism for the accountability of the office bearers of Chapter 9 Institutions under the Constitution. A court should not lightly interfere with such processes unless an applicant has demonstrated exceptional circumstances which in my view the applicant has failed to do. Moreover, the relief would not only impact the position of the applicant but may (as counsel for the applicant advanced that these proceedings were not just about the Public Protector but interim relief pending a declaratory order to set aside the New Rules as invalid) prevent the National Assembly from holding any one of the other office bearers of the Chapter 9 Institutions from been held accountable under Section 194 of the Constitution. Such consequences could not be countenanced and would literally prevent a constitutionally ordained process of accountability against any of the heads or members of a Chapter 9 Institutions in terms of Section 194.

 

RELIEF IN TERMS OF SECTION 172(1)(8)

[128] Japhta J writing on behalf of the majority in the matter of EFF (impeachment) was of the view that that remedial power of courts are not limited to declarations of invalidity. He regarded such power as much wider and without any restriction or conditions, inasmuch as Section 172(1)(b) empowers courts to make any order that is just and equitable. In this regard, he referred to the decision in Head of Department: Mpumalanga Department of Education and Another v Hoerskool Ermelo and Another 2010 (3) BCLR 177 (CC) with regard to the just and equitable remedy:

“The power to make such an order derives from s172(1)(b) of the Constitution. First, S172(1)(a) requires a court, when deciding a constitutional matter within its power, to declare any law or conduct that is inconsistent with the Constitution invalid to the extent of its inconsistency. Section 172(1)(b) of the Constitution provides that when this court decides a constitutional matter within its power it “may make any order that is just and equitable”. The litmus test will be whether considerations of justice and equity in a particular case dictate that the order be made. In other words the order must be fair and just within the context of a particular dispute.”

[129] Japhta J goes on to state that the power to grant a just and equitable order was wide and flexible and that it allowed the court to formulate an order that did not follow the prayers in the notice of motion or some other pleading. The power enables a court to address the real disputes between the parties by requiring them to take steps aimed at making their conduct consistent with the Constitution.

[130] In Gordhan, which counsel for the applicant urged this court to follow, he pointed to what he referred to as the “nuanced approach” of Japhta J in the second and concurring judgment with that of the majority. Japhta J expressed his full agreement with the findings of the majority on the interim interdict. I am mindful though, that the Constitutional Court was dealing with a direct application for leave to appeal. Japhta J explained though that his judgment was to give “additional reasons” as to why it was not in the interest of justice to grant leave to appeal. He pointed out that the lack of prospects of success was not limited to the question whether the High Court was right to issue an interim interdict. He was of the view that even if it were to be said that there were prospects against the granting of an interdict, that the applicants were still required to show why they had reasonable prospects against the suspension order issued by the High Court. He pointed out that the orders made by the court a quo in that matter, was other than the interdict, an order that suspended the remedial orders in the Public Protector's Report pending the final determination of Part B of that application. He thereupon proceeded to consider the basis of the suspension order made in terms of Section 172(1)(b) of the Constitution.

The applicant in this matter has not sought a separate prayer for the “suspension” of either the process or the New Rules adopted by the National Assembly. In argument and in reply only, counsel for the applicant referred to various statements made in a letter by the first respondent that she would not “suspend” the process of implementing the New Rules and where her refusal to “suspend” the process was referred to in the various affidavits as support of the contention that this court as Japhta J did, consider relief in terms of Section 172(1)(b).

[131] A determination of a just and equitable order as pointed out by Japhta J of necessity requires a careful consideration of the interests of the parties on both sides of the litigation. The order must be fair and just when all relevant factors are taken into account. He added that what is just and equitable in any given case depends on the facts of the particular case. The enquiry entails a flexible approach in pursuit of justice and equity in every manner. In that regard, he pointed out that the remedial action in that matter which was the subject of review would be prejudicial to the applicant. That meant that he would be punished in terms of the remedial action which he had successfully “demonstrated was likely to be set aside and does not meet the requirements of the Constitution and the relevant legislation”. He added, that would be the position where the record “shows no potentiality of prejudice to the Public Protector should the enforcement of the remedial action not be put on hold until the finalisation of the review application. Its immediate execution would serve no purpose other than the short term expedience”. Counsel for the applicant contended there was likewise no more than short term expedience to be gained if the processes under the New Rules ensued given the reputational prejudice to the applicant. In my view that is but just one side of the considerations to be taken into account as the respondents have shown that there is serious prejudice to the public interest coupled with the separation of powers harm to the National Assembly if the process does not ensue. Moreover, the applicant has on the papers before this court, neither made out a clear nor strong case for the relief under Part B. I am satisfied that it is just and equitable that the process for the removal of the applicant in terms of the New Rules not be suspended and that the applicant has likewise not made out a case for relief in terms of Section 172 (1)(b) of the Constitution.

 

THE FINAL INTERDICT SOUGHT UNDER PRAYERS 3 AND 4

[132] The respondents submitted that the applicant effectively sought a final interdict against the respondents and/or their members who she alleges has a conflict of interest from voting and participating in any way in the processes to be carried out in terms of Section 194 of the Constitution and the new Rules. She also sought a related final order directing that the conflicted persons declare their interests to the Speaker. Counsel for the respondents pointed out that the relief sought was final in nature as it was not subject to re-consideration in Part B of the application. They submitted that the applicant had in any event not met any of the requirements for a final interdict (let alone that for interim relief) as set out in Setlogelo (above) which requires “... (i) a clear right; (ii) an injury actually committed or reasonably apprehended; and (iii) the absence of an alternative remedy”. More importantly, the applicant has not named any of the persons affected other than the first, second and tenth respondents, against who she requires of this court to interdict from participating and/or voting in the ensuing process. Such persons have neither been given notice of the specific complaint(s) against them in respect of the relief sought nor have they been able to respond to any such accusations of bias or conflict of interest. It would in my view be patently unfair to any of the unnamed members of the political parties in the National Assembly to make such an order. More importantly, there are sufficient mechanisms in the Rules of the National Assembly such as Rule 30, the Ethics Code and the Oath of Office that would preclude any member or respondent who has a personal interest or is conflicted from participating in the proceedings. It is therefore all the more unnecessary for this court to intercede by invoking a final interdict where sufficient mechanisms already exist in the Rules of the National Assembly.

 

Concluding Remarks

[133] At the commencement of this judgment, I referred to the integrity of the legal process for the removal of an office bearer of a Chapter 9 institution being central to the determination in the matter. There also arises in the very process of removal, the integrity of the political processes and decisions which members of the National Assembly would be called upon to exercise when carrying out their responsibilities and in which they may eventually have to cast their vote (if it came to that) and where they are enjoined to do so only in the greater public interest. That, of course, is a terrain beyond the reach of this court. It is perhaps appropriate to refer to the Concluding Remarks by the Constitutional Court in Gordhan[29] the very decision that the applicant so embraced in this matter. There the Constitutional Court pointed to the public interest evinced in the matter and emphasized that the courts owe fidelity only to the text, the values and aspirations of the Constitution. It may not ignore the law and the Constitution merely to please the public. More importantly, I may add, courts may not exercise their discretion by unfairly discriminating between litigants in different proceedings as the applicant sought to imply (albeit rhetorically) through her counsel. The Rule of Law enjoins the judiciary as well as everyone else in the Republic to function and operate within the bounds of the law. Courts must act impartially and likewise apply the law to the prevailing set of facts without fear, favour or prejudice.

[134] With that said, the courts are not immune from public scrutiny. Similarly, the court in Gordhan emphasized that “the Public Protector is a constitutional servant like the courts and her office should be afforded respect”. That office is of fundamental constitutional significance and the powers of the Public Protector are “not only desirable but necessary” for the purpose of amongst others, of holding public office bearers accountable. The office the Public Protector in our constitutional democracy cannot “be gainsaid”. While she may be criticized, such comments should not be perceived as undermining her office and its constitutional powers as that would “amount to a bad faith attack on her office which surely were to undermine the constitutional project of the Republic”. Equally so, in this matter, the President as second respondent, despite the object of unnecessary innuendo on the part of the applicant, demonstrated a commitment to ensuring that his office is not compromised and has respectfully abided the decision of this court. He has accepted that there exists a potential conflict of interest in the ensuing proceedings under Section 194 for as long as he remains involved in the current litigation against the applicant.

[135] In the processes envisaged under the New Rules, the fidelity of the members participating therein to the principles and values underpinning the Constitution and their Oath of Office remains paramount. So too is the critical role of the Speaker of Parliament in the process, who at all times is required to act fairly and impartially and must uphold all of the tenets of the Constitution, the Rules of Parliament and relevant laws. It is in that broader context that I have considered the far reaching and crucial implications of the relief sought by the applicant in this matter and more importantly my decision at refusing it. Indeed, while “Justice is blind'' the eyes of the courts remain wide open and so too does its doors to ensure that a process as profound, unprecedented and solemn as that of a removal in terms of Section 194 of a head or officer bearer of a hallowed Chapter 9 Institutions is not reduced to a platform for gratuitous vilification or the unlawful action against any person. The public looks also to the Speaker in the National Assembly to ensure and maintain both the credibility and respectability of the entire process.

 

THE CONDONATION APPLICATON

[136] It is apparent from the correspondence that flowed between the applicant's attorneys and that of the first and tenth respondents after the second motion was moved that the applicant adopted an unreasonable position with regard to the request for an extension for the filing of their answering affidavits. The requests made were on reasonable grounds and more importantly the late filing of the answering affidavits had not prejudiced the applicant in the least. The applicant contended that the tenth respondent had shown its contempt to the court by only filing an application for condonation on the brink of the hearing of the matter. I am not persuaded that evinced conduct that requires any punishment by this court inasmuch as the tenth respondent had filed its answering affidavit well before the date in which the matter was initially set down to be heard. I am unable to find that the first and tenth respondent were unnecessarily deleterious in the filing of the answering affidavits and condonation was therefore granted. The costs thereof are to be costs in the cause of this part of the application.

 

THE STRIKING OUT APPLICATION

[137] The merits of the striking out application was dealt with in detail in the submissions by the respondents in opposition thereto. In respect of the striking out of paragraphs in the answering affidavit of the first respondent that related to the background to both the CIEX and Vrede Reports, there was clearly no basis for the striking out. The background to the application and the review applications of the Reports was relevant and moreover the Reports had been raised by the applicant herself in her founding affidavit. She moreover demonstrated an inexplicable inconsistency in respect of matters in the answering affidavits of the respondents that she sought to be struck out. Likewise, there was no merit in the application for the strike out of the various paragraphs and annexures referred to in the answering affidavit of the tenth respondent and the supplementary answering affidavit to that of the sixteenth respondent. There was furthermore nothing vexatious about the inclusion of the paragraphs sought to struck out in the affidavits. The applicant also misconstrued the rule against hearsay evidence in seeking to have struck out an affidavit by a deponent in a personal complaint against her.

[138] The strike out application was moreover not pursued with any vigour in argument by counsel for the applicant and is dismissed. Costs will likewise be costs in the dismissal of the relief under Part A

 

COSTS

[139] Counsel for the first respondent submitted that in the event of success, costs should follow the cause against the applicant. The respondents accepted however that the position with regard to the sixteenth respondent was different and did not seek a cost order against it in the event of success by them.

[140] The tenth respondent though, argued strongly for a punitive order of costs against the applicant based largely on what was regarded as the intemperate tone and gratuitous allegations made against the tenth respondent in not only the founding affidavit but echoed by her in reply.

[141] I have carefully considered whether a punitive order of costs on an attorney client scale against the applicant as sought by the tenth applicant would be appropriate given what did appear to be unnecessary and at times intemperate language used by the applicant in her affidavits. However, and without condoning such language and tone in pleadings before a court of law, I am of the view that it would not be appropriate to mulct the office of the applicant with a punitive order of costs. Needless to say, another court in Part B may not share my view on this issue.

[142] The following order is made;

142.1 The application under Part A is dismissed.

142.2 The applicant is ordered to pay the costs of the first and tenth respondents including the costs of two or three counsel, where so employed.

142.3 No order of costs is made against the sixteenth respondent.

 

 

 

______________________

VC Saldanha

Judge of the High Court

 

 

______________________

ET Steyn

Judge of the High Court

 

I agree and it is so ordered.

 

 

______________________

Ml Samela

Judge of the High Court

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