From Monday 7 June 2021 to Friday 11 June 2021 the Full Bench of the Western Cape High Court (that is, a Court comprising three judges) heard argument in two applications, one by the Public Protector and another by an organisation called Democracy In Action.

This website was conceived in order to inform the public on law-related matters in a way that leaves room for the reader to draw his or her own conclusions. When an opinion is expressed, that is made clear.

This is not an opinion. The idea is to inform the reader of the purpose of the applications and then arm the reader with all the written arguments placed before Court by all the various Counsel. What the reader does with these, or makes of them, is the reader’s choice.

The Public Protector has asked the Court to

• declare unconstitutional the rules devised by the National Assembly for the removal of the Public Protector, the Auditor-General and members of Commissions established in terms of Chapter 9 of the Constitution for the strengthening of South Africa’s constitutional democracy
• declare, in the alternative, that the rules do not apply retrospectively (in other words, that the rules do not apply to conduct that occurred before the date of their adoption, 3 December 2019)
• review and set aside the rules
• review and set aside the National Assembly’s adoption of the rules
• review and set aside the Speaker’s decision to approve the motion for the removal from office of the Public Protector

Read the Public Protector’s Heads of Argument here –> HoA – Public Protector

Democracy In Action has asked the Court to

• declare that the National Assembly has failed to pass legislation in order to give effect to a power conferred on it by the Constitution
• declare that 5 Chapter 9-related pieces of legislation, including the Public Protector Act, are unconstitutional for failing to make provision for the removal of the Public Protector, the Auditor-General and members of Commissions established in terms of Chapter 9 of the Constitution for the strengthening of South Africa’s constitutional democracy
• declare that the rules adopted by the National Assembly are unconstitutional
• declare that adoption of the rules by the National Assembly without inviting the input of the affected parties is unlawful and unconstitutional
• direct Parliament to amend the 5 Chapter 9-related pieces of legislation within 2 years so as to provide for appropriate circumstances in which the Public Protector, the Auditor-General and members of Commissions established in terms of Chapter 9  may be removed for office

Read the Democracy In Action’s Written Argument here –> DEMOCRACY IN ACTION HEADS OF ARGUMENT – 28 May 2021 Clean

Read Democracy In Action’s Oral Argument subsequently submitted in writing here –> Court Address – 10 June 2021

Read Democracy In Action’s Reply to Respondents’ Arguments here –> IN REPLY – Democracy in Action

Both applications are opposed by the same parties. The written argument can be accessed here:

Speaker’s Heads in Public Protector application –> HoA – Speaker in PP Application

Speaker’s Supplementary Heads in Public Protector application –> Part B Mkhwebane v Speaker – Speaker Suppl Heads – Final

Speaker’s Oral Argument Note –> PP v Speaker_Part B_Oral argument

Speaker’s Heads in Democracy In Action application –> Heads of Argument – Speaker

Speaker’s Oral Argument Note in Democracy In Action application –> DIA v Speaker_Oral argument

DA Heads of Argument in Public Protector application –> HoA – DA

DA Heads of Argument in Democracy In Action application –> DA Heads of Argument

DA Oral Argument in Democracy In Action application –> DA Note for DIA argument FINAL

DA Oral Argument in Public Protector application –> DA Note for PP argument

ATM Heads of Argument in Public Protector application –> ATM- HoA – ATM

Min of Justice Heads in Democracy In Action application –> Heads of Argument – Min of Justice

Min of Justice Oral Argument in Democracy In Action application –> Oral Argument – Minister of Justice FINAL

President Heads of Argument in Democracy In Action application –> HOA – President of SA

CASAC & Corruption Watch Oral Argument in Democracy In Action –> ARGUMENT NOTE ON BEHALF OF THE AMICI 11 June 2021

Final Report of the Panel on the Prima Facie case for Removal of the Public Protector –> FINAL REPORT OF THE INDEPENDENT PANEL EST i.t.o. NA RULE 129U AND Sect. 194 OF CONSTITUTION