The Constitutional Court’s finding that parliament failed in its constitutional obligation when it interviewed candidates vying for the Commission for Gender Equality’s top jobs shows legislatures are sleeping on the job, says civil rights organisation Corruption Watch.
The organisation launched a legal showdown directly in the top court challenging parliament’s processes when it interviewed candidates for the gender commission’s commissioner jobs.
Corruption Watch accused parliament of failing to fulfil its constitutional obligations by not affording a “meaningful and sufficient” public participation process when it interviewed candidates for the Chapter 9 institution.
The court, in its unanimous judgment delivered on Friday, found parliament breached the law after acting on legal advice that they should not publish redacted CVs of candidates because of the Protection of Personal Information Act (Popia).
This meant the commission appointments were invalid. But the court suspended the order to allow parliament to restart the process of interviewing commissioners within 12 months. It allowed the affected commissioners to continue working for a year while parliament rectifies the anomalies it raised.
Parliament’s decision effectively made Ramaphosa appoint commissioners Nthabiseng Sepanya-Mogale, Thando Gumede, Bongani Ngomane, Prabashni Subrayan Naidoo and Leonashia Leigh-Ann van der Merwe invalid after a legally tainted process.
“The right of members of the public to participate meaningfully in democratic governance is a hallmark of our constitutional democracy,” acting judge Glenn Goosen said.
“Public involvement in the legislative and other processes of all three spheres of government is not merely a fashionable accessory; it is a thread woven into the fabric of our democracy.”
The reliance on Popia was also not sustainable in law because the act makes provision for publication of information when there is a requirement to fulfil a public law duty.
“The failure to take reasonable steps to ensure effective public involvement in the appointment of commissioners to the CGE served to undermine the legitimacy of the appointments to a crucial state institution charged with serving as the guardians and protectors of our democracy,” Goosen said.
He said the appointments were tainted by procedural irregularity, but it did not suggest the commissioners did not, objectively, meet the criteria for appointment.
The court was also not convinced the 14 days allowed by parliament for public comments was enough.
“The National Assembly suggested that the 14-day period it allowed for comments was in keeping with similar time periods provided on other occasions such as the appointment of the public protector and the appointment of commissioners to the South African Human Rights Commission.
“Such comparators do not, per se, establish the reasonableness of the time allowed for comments,” Goosen said.
Corruption Watch attorney Nkululeko Conco told Business Day parliament’s failure in its constitutional obligations essentially put democracy at risk.
“The processes requiring public participation are to support the democratic, open, transparent and accountable exercise of state power,” he said. “Where conducted effectively these processes could curb disillusionment and prevent the abuses of power that resulted in state capture.
“With specific reference to Chapter 9 institutions, parliament’s failure [to ensure public participation] severely limits citizens’ role in securing the appointment of the right people to serve as the guardians and protectors of our democracy
Conco said there was little evidence that showed parliament took public participation seriously.
“There is scant evidence that parliament takes public participation seriously enough. This is apparent when the public receives the least possible information and is deprived of adequate opportunities to be heard. The court’s judgment represents a critical milestone for transparent and legitimate appointment processes.”
Lack of public participation has come at a high cost for government. The Gauteng government has to pay R15.9bn debt for the scrapped e-toll system.
The e-toll system was one of the adopted projects without sufficient public participation.
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