South Africa: Parliament On Constitutional Court Leave to Appeal Application

Public Protector Busisiwe Mkhwebane (file photo).
press release

Constitutional Court leave to appeal application to review high court findings on public protector's Bosasa report

Tomorrow, the Constitutional Court is scheduled to hear an application from Public Protector Advocate Busisiwe Mkhwebane and others on: "Report on an investigation into allegations of the Executive Ethics Code through an improper relationship between the President and African Global Operations (AGO), formerly known as Bosasa".

The High Court in March set aside the remedial action of the Public Protector's Report 37 (BOSASA Report), in which she instructed the Speaker of the National Assembly (NA), Ms Thandi Modise, to take action against the President. The Speaker of the NA joined the proceedings as the second applicant in that matter to oppose the Public Protector's remedial actions that were so directed at Parliament.

The Speaker of the NA is not opposing the application for leave to appeal the High Court judgment. However, if the Constitutional Court grants the leave to appeal, the Speaker, as the second respondent in this matter, has given notice that she will oppose the issues raised by the Public Protector concerning Parliament in this appeal.

To read the Speaker's heads of argument, please click https://collections.concourt.org.za/handle/20.500.12144/36655?show=full and scroll down to Second Respondent's Heads of Argument

The High Court, in setting aside the remedial action of the Public Protector's report, among other things, found the remedial actions directed at Parliament to be inappropriate, ineffective, encroaching on Parliament's constitutional functions and responsibilities, contrary to the doctrine of separation of powers and, therefore, inconsistent with the Constitution.

For example, directing the Speaker to instruct President Cyril Ramaphosa to disclose interests and donations in Parliament's Register of Members' Interests was founded on a flawed understanding of Parliament's Ethical Code of Conduct and Disclosure of Members' Interests. The Code and the Register apply only to serving Members of Parliament. President Cyril Ramaphosa ceased to be a member of Parliament when he was elected President - on 15 February 2018 and, again, on 22 May 2019.

The Public Protector's directive that Parliament consider implementing her observations, including amending the NA rules dealing with questions and answers, was also inappropriate as an "unwarranted encroachment on the Speaker's discretionary powers", the High Court found.

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