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Legal certainty about the powers of the Public Protector, and the force and effect of remedial action taken by the Public Protector, are vital to the successful functioning of our constitutional democracy. That is why the Democratic Alliance (DA) took the SABC and the Minister of Communications to court when they disregarded the remedial action ordered by the Public Protector to suspend Mr Hlaudi Motsoeneng, and to institute disciplinary proceedings against him.
This case was heard in 2014, and while Mr Justice Ashton Schippers granted the order the DA was seeking – forcing the SABC to suspend Mr Motsoeneng and to subject him to disciplinary proceedings – this judgment was appealed. The Supreme Court of Appeal (SCA) will hear the matter this Friday 18 September, but whichever side is unsuccessful will almost certainly appeal to the Constitutional Court.
Simultaneously, the DA will tomorrow file a founding affidavit seeking direct access to the Constitutional Court in a matter which has already been enrolled in the Western Cape High Court relating to the Public Protector’s report on Nkandla. While the DA’s contentions are similar to those of the EFF, they are not identical.
Specifically, the DA argues that President Zuma’s failure to engage rationally with the Public Protector’s findings and remedial action pertaining to him was manifestly irrational, illegal and unconstitutional. We furthermore contend that the President’s decision to substitute the remedial action ordered by the Public Protector with a decision that the Police Minister report on whether he was liable for any of the costs was illegal and unconstitutional.
Moreover, the DA argues that the National Assembly’s Ad Hoc Committee’s endorsement of the Police Minister’s report was similarly irrational and should be set aside, as should the decision of the National Assembly to accept the report of the Ad Hoc Committee.
We hope that the Constitutional Court will consider all three cases in order to provide legal certainty about the Public Protector’s powers. The law has been developed in some degree in the Schippers judgment. We trust that the SCA will further develop it, and that the Constitutional Court will rule definitively on the matter.
Issued by DA