The Constitutional Court on Thursday heard arguments in Corruption Watch’s bid to have President Cyril Ramaphosa’s appointment of the Commission for Gender Equality (CGE) chairperson and commissioners from March 2023, declared invalid.

The civil society organisation also wants the apex court to declare that Parliament, comprising of the National Assembly’s portfolio committee on women, youth and persons with disabilities, failed to comply with its constitutional obligation to facilitate reasonable public involvement before recommending persons to be appointed as members of the chapter-nine institution.

Judgment has been reserved.

Corruption Watch also asked the declaration of invalidity of the CGE commissioners suspended for a period of 18 months to enable National Assembly speaker Thoko Didiza to reconduct the appointment process in a manner that is consistent with the Constitution.

In 2023, Ramaphosa appointed chairperson Advocate Nthabiseng Sepanya-Mogale and commissioners Advocate Thando Gumede, Bongani Ngomane, Prabashni Subrayan Naidoo and Leonashia Leigh-Ann van der Merwe until the end of December 2027 and February 2028.
However, Corruption Watch was unhappy with the manner in which Parliament failed to facilitate reasonable public participation including not publishing the full CVs of the 24 shortlisted candidates.

To justify its decision, the portfolio committee relied on the Protection of Personal Information Act (Popia) and it also refused to provide either redacted copies of the CVs of shortlisted candidates or additional information on their knowledge, experience and record.
The Information Regulator also suggested that the committee must redact information such as ID numbers and contact details before publishing the CVs as the Popia strikes a balance between the right to privacy against other rights particularly the right of access to information.

The five commissioners also pleaded with the Constitutional Court to consider their sacrifices and personal circumstances when deciding the matter.

Sepanya-Mogale told the Constitutional Court that after her appointment she suspended her practice and she did not support the order sought by Corruption Watch for its impact on her personal life.
"I am not responsible for the decisions of Parliament and stand as a victim and casualty of the challenge to its processes by Corruption Watch. My practice has been dormant for a while and it will take time for me to rebuild it as those who normally briefed me have developed relationships with other advocates, owing to my unavailability," she explained.

Gumede and Ngomane said they did not oppose Corruption Watch's application, however, she did not support its bid to suspend the order of constitutional invalidity and commencing the parliamentary process of appointing commissioners anew as it would have adverse personal impact against them.
"There are no guarantees that I will be appointed again in the new recruitment process; yet, I have readjusted my life and foregone many opportunities, following my acceptance of the position as a full-time commissioner at the commission," they explained.

Attorney Subrayan Naidoo said to show her commitment to the CGE’s work she would no longer be fully present at her legal practice and hired a legal advisor/practice manager to manage her practice in her absence and to brief counsel in all matters ripe for litigation.

Van der Merwe indicated to the apex court that personally and at home she was a mother with financial responsibilities.

"This would deeply impact me as I have a daughter at university and my hours covered at the commission mean I could provide an education to my daughter," she said, adding that she takes care of her siblings who are not in good health and reside with her.

Ramaphosa did not oppose Corruption Watch’s application but Parliament denied it was entitled to the relief it sought and that the national legislature’s process adopted was reasonable and in compliance with its constitutional and statutory mandate.

loyiso.sidimba@inl.co.za

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