Corruption Watch (RF) NPC v Speaker of the National Assembly and Others

Court: Constitutional Court of South Africa

Date of hearing: TBC

Status: Ongoing

Last updated: 14 November 2024

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Case overview:

Corruption Watch (RF) NPC, a non-profit company that works to advance principles of transparency and accountability in an effort to build a society that is just and free from corruption, filed an application in the Constitutional Court for an order declaring that Parliament, comprising of the National Assembly’s Portfolio Committee on Women, Youth and Persons with Disabilities (“the Committee”), failed to fulfil its constitutional obligation to facilitate reasonable public involvement in its recommendation process to appoint members of the Commission for Gender Equality (“the Commission”). The Speaker of the National Assembly, the President of the Republic of South Africa, the Commission for Gender Equality, and the Information Regulator are cited as respondents in this matter. Corruption Watch is represented in this matter by Power & Associates.

In June 2022, the Committee embarked on a public participation process to fill vacancies at the Commission. A member of the Commission is required to be a fit and proper person with a record of commitment to, and experience in, the promotion of gender equality. During the public participation process, members of the public were given 10 working days to comment on shortlisted candidates and were provided access to a link containing information about the shortlisted candidates, which included their full names and qualifications, but no further details. Submissions were limited to 2000 characters (~285 to 500 words). Corruption Watch raised its concerns with the Committee, arguing that the process curtailed the ability of members of the public to meaningfully participate and provide adequate comment on candidates due to inadequate information about the candidates, curtailed timeframes, and arbitrary limits on the written representations. In response, the Committee relied on the Protection of Personal Information Act 3 of 2013 (“POPI Act”) to justify the limited information about the candidates, holding the view that they were safeguarding the personal information of candidates, and continued with the appointment process. Despite Corruption Watch raising its concerns throughout the process, the appointments of new Commissioners were made in February 2023.

Corruption Watch submits that the National Assembly paid lip service to the need for public participation in the recommendation process and failed to fulfil its constitutional obligation to afford members of the public a reasonable and meaningful opportunity to participate in the recommendation process. Corruption Watch argues that the failure to comply with its constitutional obligation undermines the Commission and its important constitutional mandate in a society fraught with gender-based violence and gender inequality.

In its founding papers, Corruption Watch argues:

• There was no reasonable opportunity to participate in the recommendation process due to the limited access to relevant information.
• The Committee’s interpretation and application of the provisions of the POPI Act is incorrect and fails to balance the right to privacy against other rights, particularly the right of access to information.
• The Committee’s self-imposed urgency did not justify the unreasonably truncated timeframes for public participation process.
• The format of submissions unnecessarily curtailed members of the public and interested organisations’ ability to meaningfully participate and provide adequate comment on candidates.

As a result, Corruption Watch seeks a declaration that Parliament failed to comply with its constitutional obligation to facilitate public involvement before recommending persons to be appointed as members of the Commission for Gender Equality, that the appointment of recent Commissioners is therefore declared invalid, but the declaration of invalidity be suspended for a period of 18 months to enable the Parliament to reconduct the appointment process in a manner that is consistent with the Constitution.

Kathleen Hardy and Tina Power are on brief in this matter.

Directions:

• Directions from the Constitutional Court (8 October 2024)
• Directions from the Constitutional Court (29 January 2024)

Court papers:

• Notice of Application and Founding Affidavit (5 December 2023)
• Answering Affidavit of the First Respondent (Speaker of the National Assembly) (28 February 2024)
• Notice to Abide and Explanatory Affidavit of the Fourth Respondent (Information Regulator of South Africa) (14 March 2024)
• Replying Affidavit (3 April 2024)
• Written Submissions on behalf of the Applicant (Corruption Watch) (14 November 2024)