Parliament welcomes the decision of the North Gauteng High Court to set aside the report of the Public Protector’s report which, among others, ordered Parliament to amend section 224 of the Constitution and, therefore, encroached on the exclusive authority of the Legislature.
Parliament also welcomes the decision of the Public Protector not to defend the court review of her report, a move which augurs well for our continued efforts to advance our democracy, in keeping with our Constitution.
Key points in Parliament’s affidavit to the court were that the order was unconstitutional, not a remedy, encroached on Parliament’s exclusive domain, was undemocratic and negates section 74 of the Constitution which sets out the special requirements for amending the Constitution. Parliament also contended that the Public Protector’s amendment perverted the separation of powers.
The court found, amongst others, that the Public Protector’s recommendations encroached unconstitutionally and irrationally on Parliament’s exclusive authority, as she does not have the power to prescribe to Parliament how to exercise its legislative power.
It also found that the order to amend the Constitution to strip the Reserve Bank of its primary function of protecting the value of the currency was also entirely unrelated to the improper conduct that the Public Protector found to have been committed.
The Public Protector’s order was unconstitutional as it went beyond the scope of the Public Protector’s mandate. This is strictly confined to the parameters set by the Constitution, of which the Public Protector is a creation and from which she derives her remedial powers. This would be so even if the Public Protector intended no more than to order the Chairperson of the Portfolio Committee to introduce a motion for amending the Constitution - because that is also an exclusive function of Parliament.
The order was also undemocratic and profoundly contrary to the values of a democratic government - accountability, responsiveness and openness - and also negates the special requirements to amend the Constitution.
Issued by Parliament of the Republic of South Africa