Heidi Barnes SC and Lucelle Buchler acted for the successful applicant
Botha v Commission For Gender Equality and Others (58057/2021) [2023] ZAGPJHC 149; [2023] 6 BLLR 598 (GJ); (2023) 44 ILJ 1796 (GJ) (15 February 2023): – Landmark judgment by the High Court holds that only the President can suspend a Commissioner of a Chapter 9 institution and then, too, only once section 194 removal proceedings have commenced
Download the full Judgement (PDF).
On 6 August 2021, the chairperson of the first respondent (the Commission for Gender Equality, a “Chapter 9” State Institution Supporting Constitutional Democracy, established in terms of S181 and 187 of the Constitution) suspended the applicant, a full time commissioner of the CGE, for allegedly making disparaging remarks about some of his fellow commissioners.
The applicant launched an application in terms of the Promotion of Administrative Justice Act No. 3 of 2000, alternatively in terms of the principle of legality, to have the decision to suspend him declared unconstitutional and invalid, and reviewed and set aside. The primary basis for the review application was that the powers to suspend a commissioner vest exclusively in the President, as conferred on him by S94(3)(a) of the Constitution, and that the respondents thus acted ultra vires their powers in purporting to suspend the applicant. S194(3)(a) of the Constitution provides that “The President – (a) may suspend a person from office at any time after the start of the proceedings of a committee of the National Assembly for the removal of that person”.
The applicant sought as further relief that the section of the Commissioner’s Handbook adopted by the CGE that purported to confer on the chairperson of the CGE the authority to suspend a commissioner, also be declared unconstitutional and unlawful as it was in direct violation of S194(3)(a) of the Constitution.
The respondents argued in the main that the Handbook that empowered the chairperson of the CGE to suspend a commissioner, was lawfully adopted in order to fill a lacuna in the law and that it did not usurp the President’s powers – in other words, the chairperson could suspend a commissioner immediately after an alleged transgression in order that the commissioner may be prohibited from carrying out his duties while proceedings seeking his removal were being arranged with the Speaker. It was then, said the respondent, upon the commencement of such proceedings, that the President could nevertheless still exercise his power to suspend the commissioner.
Justice Dlamini upheld with costs the application, and declared as unlawful, unconstitutional, invalid, and null and void both the suspension of the applicant and the section of the Handbook that purported to confer on the chairperson of the CGE the power to suspend a commissioner. The court held that the principles of statutory interpretation are by now well established and referred to various authorities for the trite proposition that the court must consider whether there is a sensible interpretation that can be given to the relevant statutory provisions that will avoid anomalies. The approach advocated for by the respondents would give rise to insensible results, in terms of which the CGE suspends a commissioner (before the commencement of S194 impeachment proceedings), and then once impeachment proceedings had begun and the President could suspend a commissioner, the commissioner was already suspended, with the result that the President’s powers were usurped. Read in context, said the court, S194(3)(a) sought to insulate commissioners of Chapter 9 institutions from potential arbitrary conduct of the executive and government. The court thus concluded that on a sensible reading of the language of S194(3)(a) of the Constitution, the only interpretation that could be drawn is that the power to suspend a commissioner rests with the President alone and then, too, only after proceedings for the removal of the commissioner had commenced in terms of S194.
Counsel for the applicant were Heidi Barnes SC and Lucelle Buchler of the Bridge Group. Counsel for the CGE were Tembeka Ngcukaitobi SC and Nompumelelo Seme.
Download the full Judgement (PDF).