Thread by @BrendaWardle

Had time to read the judgment of the Western Cape High Court and here is a short thread. #PublicProtector

2/ The Court was dealing with Part B of the application and they did so on an urgent basis in terms of Rule 6(12) and based on Supplementary papers filed by the PP. The Court agreed that the supplementary papers were necessitated by the events which unfolded post her suspension.

3/ Another point in limine was that of the Deputy Public Protector directing the Attorneys for the Applicant to withdraw as the litigation had not been sanctioned by the office of the PP but by Adv Mkhwebane in her personal capacity. Reliance was placed on Rule 7 of the UROC.

4/ The Court dismissed the contentions by the DPP and held that 1. She was not the Public Protector. 2. That it was clear from the PPs founding papers that she was acting in both her personal and official capacities and that the DPP was not the PP as envisaged in s1A of the PPA.

5/ In dismissing the challenge by Advocate Gcakeka the Court essentially found that she lacked locus standi and that the attorneys of record for the Public Protector were there in compliance with Rule 7 of the Uniform Rules of Court.

6/ Next the Court dealt with the challenge to the constitutional validity of the letter by the speaker and allegations of bias. The Court found that the speaker couldn't be faulted & had she not written to the President then she would've flouted the Constitution.

7/ The Court then dealt with the alleged constitutional 'repugnancy' [my word],
of the Parliamentary enquiry into the fitness of the PP to hold office and whether 1. it violated the sub judice rule and 2. Whether her suspension was premature. The Court dismissed the challenge.

8/ The Court held that the suspension followed the commencement of the hearings, further that those proceedings did not violate the sub judice rule. The PP was unsuccessful on that ground.

9/ On the development of the common law in respect of s18 of the Superior Courts Act, the Court found that doing so, in the absence of an application challenging its constitutional validity would be unsound in law and would violate the doctrine of separation of powers.

10/ In this regard the Public Protector had asked the Court to interpret the section to include rescission applications. So that ground was dismissed without much further ado.

11/ It is important to add that whilst the Court found that there were sound reasons for the Office of the Public Protector to be concerned about being mulcted with adverse costs orders, such challenge could not emanate from someone not having the authority to do so.

12/ As far as the President's conduct is concerned, the Court found that the averment that he was a contemnor who had suspended the PP on the eve of the Judgment in Part A, was unsustainable on the facts & that similarly, the Court dismissed the ground that he had violated s165.

13/ On parliament's failure to amend the Rule and the 30 day notice period given to the PP to prepare for the hearing, the Court found against the PP. They held that there was already a Con Court judgment which had that effect & that she was afforded an additional 14 days, anyway

14/ Then there were submissions by the ATM and the UDM which spoke to the basis for the perceived bias of the President and with the #Glencore matter, the Court held that it could not place reliance thereon. This was also the case with the allegations around the flight/plane.

15/ The WhatsApp msg from Counsel for the President was also found not to have created any legitimate or reasonable expectation that he would revert to her prior to making a decision on her suspension. However, the 31 ?s from the PP on the Phala Phala debacle were problematic.

16/ It was clear that the president moved with haste, a day or two after the he had been given the questions to suspend the PP under circumstances where he was clearly biased and he did so in violation of the Constitutional obligations placed on him.

16/ That decision was thus set aside by the Court. It merits mention that the Public Protector had approached the Court in terms of s172(1) of the Constitution and its clear ex facie the judgment. This is critical and I'll conclude with a reference to the DA appeal or CC app.

17/ The nub hear lies in the fact that when a high court or the SCA declares certain provisions of an Act of parliament or the conduct of the president invalid, such order of invalidity must be confirmed by the Constitutional Court. The DA has taken a cautious approach.

18/ So the DA is appealing in terms of s172(2)(d) of the Constitution, which is an automatic right alternatively, they are applying for leave to appeal. The decision is thus held in abeyance and the PP then has a right to approach the HC for urgent, interdictory relief.

The DA challenges all the findings against the President, however, they are of the view that if the Court had set aside the decision, deferring it another person to make, that would've been a competent exercise of the Court's discretion. I hear murmurs of a cross-appeal by the PP

18.2/

*Gcaleka