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[1]           Society has always been concerned about the accountability of persons or institutions who operate the levers of power.  In recognising this, our Constitution provides for state institutions that are mandated with the task of supporting our constitutional democracy.  But all powers have limits, and even the officers employed to support accountability must be held accountable in a state that propagates accountability and governance based on the will of the people.

 

[2]           The two applications, which were brought on an urgent basis, concern the constitutionality of the Rules adopted by the National Assembly on 3 December 2019 (the Rules).  These Rules were passed to govern the removal of the guardians and promoters of our constitutional democracy – these being the heads and commissioners of institutions established in terms of Chapter 9 of the Constitution. In the first application, the Speaker of the National Assembly (Speaker) is the applicant and in the second application, the Democratic Alliance (DA) is the applicant.[1]  Advocate Busisiwe Mkhwebane, the Public Protector, is the only respondent opposing the applications.[2]  In both matters, this Court admitted two amici curiae (friends of the court) – Council for the Advancement of the South African Constitution and Corruption Watch.  The Public Protector also filed a conditional application to cross appeal.

 

[3]           The applicants seek leave to appeal directly to this Court against the judgment and order of the High Court of South Africa, Western Cape Division, Cape Town (High Court).[3]  The High Court first held that it was not desirable to appoint a Judge to the independent panel mandated to consider whether there is prima facie evidence for the removal of a Chapter 9 institution office-bearer.  That appointment, according to the High Court, offends the principle of separation of powers.  The High Court thus severed, from rule 129V of the Rules, the words “which may include a judge”.[4]  Second, it held that the limitation of legal representation in rule 129AD(3) of the Rules, was irrational and consequently severed the proviso limiting legal representation.