Democratic Alliance and Another v Public Protector of South Africa and Others (CCT 251/22; CCT 252/22 ;CCT 299/22 ;CCT 251/22 ;CCT 252/22; CCT 299/22) [2023] ZACC 25; 2023 (11) BCLR 1281 (CC); 2024 (3) SA 1 (CC) (13 July 2023)

Democratic Alliance and Another v Public Protector of South Africa and Others (CCT 251/22; CCT 252/22 ;CCT 299/22 ;CCT 251/22 ;CCT 252/22; CCT 299/22) [2023] ZACC 25; 2023 (11) BCLR 1281 (CC); 2024 (3) SA 1 (CC) (13 July 2023)

The Constitutional Court held that the President's decision to suspend the Public Protector constituted 'conduct' within the meaning of sections 167(5) and 172(2)(a) of the Constitution and was thus subject to confirmation. On the merits, the Court found that the President did not act in breach of section 96(2)(b),...

Source-derived case information.

Citation
[2023] ZACC 25
Parties
Applicant: Democratic Alliance; Applicant: President of the Republic of South Africa; Respondent: Public Protector of South Africa; Respondent: Speaker of the National Assembly; Respondent: Chairperson of the Section 194 Committee; Respondent: All Political Parties Represented in the National Assembly; Respondent: United Democratic Movement; Respondent: African Transformation Movement; Respondent: Pan Africanist Congress of Azania
Court
Constitutional Court
Jurisdiction
South Africa
Judgment Date
13 July 2023
Case Number
CCT 251/22; CCT 252/22; CCT 299/22
Procedural Posture
Civil Appeal / Appeal and Cross Appeal From High Court Judgment; Confirmation Proceedings Under Section 172(2)(a) of the Constitution
Outcome
Appeals by the Democratic Alliance and the President upheld; High Court orders declaring the suspension invalid set aside; Public Protector's cross-appeal and application for leave to appeal dismissed.
Judges
Maya, Baqwa, Madlanga, Majiedt, Mathopo, Mbatha, Mhlantla, Rogers, Tshiqi
Legal Topics
Presidential Conduct, Conflict of Interest, Precautionary Suspension, Section 194 Removal Process, Sub Judice Rule, Confirmation of Invalidity Orders
Constitutional Law Administrative Law Civil Procedure Presidential Conduct Conflict of Interest Precautionary Suspension Section 194 Removal Process Sub Judice Rule +1 more

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Summary, issues, holding and outcome

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Parties

Democratic Alliance

Applicant

President of the Republic of South Africa

Applicant

Public Protector of South Africa

Respondent

Speaker of the National Assembly

Respondent

Chairperson of the Section 194 Committee

Respondent

All Political Parties Represented in the National Assembly

Respondent

United Democratic Movement

Respondent

African Transformation Movement

Respondent

Pan Africanist Congress of Azania

Respondent

Procedural Posture

Civil Appeal / Appeal and Cross Appeal From High Court Judgment; Confirmation Proceedings Under Section 172(2)(a) of the Constitution

Legal Issues

  1. 1 Whether the President's decision to suspend the Public Protector constituted unconstitutional conduct subject to confirmation by the Constitutional Court.
  2. 2 Whether the President acted in breach of section 96(2)(b) of the Constitution due to a conflict of interest.
  3. 3 Whether the President's decision was tainted by bias or a reasonable apprehension of bias.

Ratio Decidendi

The Constitutional Court held that the President's decision to suspend the Public Protector constituted 'conduct' within the meaning of sections 167(5) and 172(2)(a) of the Constitution and was thus subject to confirmation. On the merits, the Court found that the President did not act in breach of section 96(2)(b), as there was no real risk of a conflict between his official responsibilities and private interests. The evidence did not support a finding of bias or a reasonable apprehension of bias; the suspension was precautionary, rational, and necessary to protect the integrity of the office and the section 194 process. The Section 194 Committee's proceedings did not infringe the sub...

Court Disposition

Appeals by the Democratic Alliance and the President upheld; High Court orders declaring the suspension invalid set aside; Public Protector's cross-appeal and application for leave to appeal dismissed.

Orders

  • The appeals by the Democratic Alliance and the President in CCT 251/22 and CCT 252/22 are upheld.
  • The conditional application for confirmation of the High Court's orders of invalidity is dismissed.