National Assembly Speaker appeals Western Cape judgment

7 November 2021

The Constitutional Court of South Africa will tomorrow hear an application by the Speaker of the National Assembly (NA), Ms Nosiviwe Mapisa-Nqakula, for direct appeal against a judgement of the Western Cape Division of the High Court (Cape Town) with respect to the validity of certain National Assembly rules for the removal of the office-bearers of Chapter 9 Institutions.

The hearing which is scheduled to take place virtually at 10 am will be heard together with a similar challenge by the Democratic Alliance (DA).

The Speaker is asking the Constitutional Court for leave to appeal the Western Cape High Court judgement which found fault with two of the rules of the NA. She seeks leave to appeal directly to the Constitutional Court against the findings of unconstitutionality with respect to the denial of full legal representation during the inquiry and the inclusion of a Judge in the Independent Panel. The Western Cape High Court found that the inclusion of a Judge violated the principle of the separation of powers.

The Speaker brought this urgent application for leave to appeal directly to the apex court in terms of section 167(6)(b) of the Constitution of the Republic of South Africa and Rule 19 of the Constitutional Court.
The Speaker has submitted four reasons why it is in the interest of justice for the ConCourt to grant Parliament leave to appeal directly to it. The Speaker cites, among other things, the following:

The nature of the constitutional issues raised that implicate the doctrine of the separation of powers in several ways. The appeal will therefore concern sensitive aspects of the separation of powers between the judiciary and Parliament. The Concourt is best placed to take decisions on issues which have crucial and sensitive political implications.

The Speaker stated that these issues are legal. Their resolution will not require the ConCourt to address any factual disputes. The legal issues are also solely of a constitutional nature and do not concern common law and especially its development, on which the opinion of the Supreme Court of Appeal (SCA) would ordinarily be necessary.

The Speaker says the proceedings in the NA with regard to Ms Mazzone’s second motion, (DA member of the National Assembly) for the removal of the incumbent Public Protector have now proceeded to the stage where a section 194 committee has been appointed. There remains a live dispute and there is urgency in having the issues raised in this appeal decided finally because of the public importance of the impeachment process in the NA.

The Speaker further stated that if this matter was first to proceed to the SCA, it is highly likely that a further application to the ConCourt for leave to appeal, will ensue as the issues are constitutional and the public interest will be served by their prompt resolution.

In her submission, the Speaker further provided reasons why the High Court erred in its judgement on the two rules of the NA.

The papers for the Speaker will be loaded on the Parliament website in due course.

Issued by Moloto Mothapo, Media Officer, Parliament, 7 November 2021