28/07/2021
The Public Protector welcomes today’s judgment of the Full Court of the Western Cape High Court, which declared certain sections of the current Rules for the removal of Heads of Chapter 9 Institutions to be unconstitutional.
The Public Protector and her legal team are in the process of studying the judgment and a full statement will be released in due course about the way forward.
However, it is already clear that two of the most important findings of unconstitutionality relate to the denial of legal representation before a Section 194 Committee established in terms of section 194 of the Constitution as well as the unconstitutionality of the appointment of a judge to form part of an Independent Panel, which makes the trigger decision of the existence of a prima facie case.
That means the Independent Panel which was chaired by Justice Bess Nkabinde was illegally appointed. It was only because of the findings of the Panel that the present Parliamentary Committee was consequentially appointed after the tabling of the Panel report in the National Assembly.
It follows therefore that the present process must be halted with immediate effect. To continue on the basis of the old unamended and partly unconstitutional Rules, as if nothing has happened, would constitute an attack on the authority of the courts, the rule of law and the constitutional rights of the Public Protector.
A call is accordingly made to the National Assembly to do the right thing and allow for the inevitable process of amending the Rules before their lawful implementation.
The National Assembly should take the opportunity to rectify other weaknesses identified and criticised by the court including those which may not necessarily have been declared unconstitutional at this stage. Any rushed process can only result in another wasteful, flawed and illegal outcome.
