ERROR OF JUDGMENT OP-ED: High court was guilty of judicial overreach when overturning Ramaphosa’s suspension of Public Protector

The Public Protector of South Africa v The Speaker of the National Assembly and Others

I assume some readers will at first find my contention startling. This would not be surprising, given that so many disputes about the exercise of political power end up being resolved by the courts, and given that a bevy of lawyers has popularised the idea that decisions and processes of the political branches of government had to comply with the exacting standards of impartiality and with the elaborate rules of fairness applicable to adversarial proceedings in criminal trials.

In brief, the high court held that Ramaphosa’s decision to suspend Public Protector Busisiwe Mkhwebane was unconstitutional and invalid because he could “reasonably be perceived to be unable to bring to bear an impartial mind when considering whether or not to suspend” Mkhwebane.

However, the judgment strayed far beyond the question of whether a reasonable apprehension of bias existed, making factual findings about the President’s state of mind seemingly based on suspicions rather than facts.

The Constitutional Court will, hopefully, also decline to endorse the high court view that courts have the power to review and set aside decisions of the President merely because of a reasonable apprehension that the President was not impartial when he made the decision.

pierredevos Basically, the Gauteng High Court and the High Court in Cape Town made the same decision regarding the principle of apprehension of bias. The difference is that Zuma was the president then and Ramaphosa is the president now. Prof, did Zuma case go on appeal to CC?

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