Public Protector and Others v President of the Republic of South Africa and Others (CCT 62/20) [2021] ZACC 19; 2021 (9) BCLR 929 (CC); 2021 (6) SA 37 (CC) (1 July 2021)

Public Protector and Others v President of the Republic of South Africa and Others (CCT 62/20) [2021] ZACC 19; 2021 (9) BCLR 929 (CC); 2021 (6) SA 37 (CC) (1 July 2021)

The Constitutional Court held that the Public Protector misconstrued the Executive Ethics Code by equating inadvertent misleading with wilful conduct, which is not supported by the Code’s wording. There was no evidence that the President personally benefitted from the CR17 campaign donations, and thus no duty to disclose arose under the Code. The Public Protector exceeded her jurisdiction by investigating matters not covered by the complaints and by relying on evidence not disclosed to the President, violating the audi alteram partem principle. The remedial actions taken were found to be unlawful, vague, and beyond the Public Protector’s statutory powers. The High Court’s refusal to...

Citation
[2021] ZACC 19
Parties
Applicant: Public Protector; Applicant: Economic Freedom Fighters; Applicant: AmaBhungane Centre for Investigative Journalism NPC; Respondent: President of the Republic of South Africa; Respondent: Speaker of the National Assembly; Respondent: National Director of Public Prosecutions; Respondent: National Commissioner of Police; Respondent: Financial Intelligence Centre; Appellant: Freedom Under Law
Court
Constitutional Court
Jurisdiction
South Africa
Judgment Date
1 July 2021
Case Number
CCT 62/20
Procedural Posture
Direct Appeal / Constitutional Court Judgment on Direct Appeal From High Court
Outcome
Leave to appeal granted; appeal dismissed except for AmaBhungane’s constitutional challenge, which is remitted to the High Court.
Judges
Mogoeng, Jafta, Madlanga, Mathopo, Mhlantla, Theron, Tshiqi, Victor
Legal Topics
Executive Members Ethics Act, Public Protector Powers, Remedial Action, Audi Alteram Principle, Disclosure of Campaign Donations, Constitutional Invalidity
Constitutional Law Administrative Law Executive Members Ethics Act Public Protector Powers Remedial Action Audi Alteram Principle Disclosure of Campaign Donations Constitutional Invalidity

Case Brief

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Parties

Public Protector

Applicant

Economic Freedom Fighters

Applicant

AmaBhungane Centre for Investigative Journalism NPC

Applicant

President of the Republic of South Africa

Respondent

Speaker of the National Assembly

Respondent

National Director of Public Prosecutions

Respondent

National Commissioner of Police

Respondent

Financial Intelligence Centre

Respondent

Freedom Under Law

Appellant

Procedural Posture

Direct Appeal / Constitutional Court Judgment on Direct Appeal From High Court

Legal Issues

  1. 1 Whether the Public Protector correctly found that the President had misled Parliament in breach of the Executive Ethics Code.
  2. 2 Whether the President had a duty to disclose donations made to the CR17 campaign.
  3. 3 Whether the Public Protector was competent to investigate the affairs of the CR17 campaign.

Ratio Decidendi

The Constitutional Court held that the Public Protector misconstrued the Executive Ethics Code by equating inadvertent misleading with wilful conduct, which is not supported by the Code’s wording. There was no evidence that the President personally benefitted from the CR17 campaign donations, and thus no duty to disclose arose under the Code. The Public Protector exceeded her jurisdiction by investigating matters not covered by the complaints and by relying on evidence not disclosed to the President, violating the audi alteram partem principle. The remedial actions taken were found to be unlawful, vague, and beyond the Public Protector’s statutory powers. The High Court’s refusal to...

Court Disposition

Leave to appeal granted; appeal dismissed except for AmaBhungane’s constitutional challenge, which is remitted to the High Court.

Orders

  • Leave to appeal is granted.
  • Save to the extent mentioned below, the appeal is dismissed.