ConCourt sets aside five appoinments to the gender commission

CAPE TOWN - Parliament’s public participation process has been found wanting by the Constitutional Court, which has set aside five appointments to the Commission of Gender Equality on Friday, including its chairperson and her deputy.

Although the appointments were made more than two years ago and their suitability for the posts was not in dispute on Friday, the court said it could not allow the appointments to stand, given the flawed process followed.

Parliament has now been given a year to restart the process.

In 2022, Corruption Watch challenged the process by the Portfolio Committee on Women, Youth and Persons with Disabilities for inviting public comment on the shortlisted candidates to serve as commissioners on the Commission for Gender Equality.

The watchdog complained that 14 days was not enough time to make submissions, which were limited by length and could only be submitted online.

The committee also refused to publish detailed information from candidates’ CVs, such as their work experience, citing the Protection of Personal Information Act.

However, the Constitutional Court said this interpretation of the act was incorrect and rendered the committee’s conduct unreasonable.

It added that had parliament published the candidates’ CVs, the committee would have provided the type of information upon which meaningful and effective public participation could be based.

“Furthermore, even though the commissioners may have met the criteria for appointment, they were not necessarily the only candidates who did so or the most suitable candidates for selection. It follows that the appointment process is unconstitutional and that the appointments of the commissioners are invalid,” reads the unanimous judgment.

The court said that although parliament’s failures were procedural, with no suggestion that the commissioners did not meet the criteria for appointment, the public interest in a lawful appointment process outweighs the personal interests of the commissioners.

The Commissioners could thus have their terms cut short within the next 12 months once a new process has been carried out.

The five commissioners affected by this ruling include the chairperson, Advocate Nthabiseng Sepanya-Mogale, deputy chairperson Prabashni Naidoo, Thando Gumede, Bongani Ngomane, and Leonashia van der Merwe.

They were appointed by the president on the recommendation of Parliament, for a five-year term from 1 March 2023.