CAPE TOWN ConCourt- In a landmark decision that underscores the importance of transparent governance, the ConCourt (Constitutional Court) has declared the appointments of five commissioners to the Commission for Gender Equality unconstitutional due to a flawed public participation process. Parliament now has exactly one year to restart the selection process from scratch.
The ConCourt ruling, handed down on Friday, invalidates the appointments of several high-profile commissioners, including the chairperson Advocate Nthabiseng Sepanya-Mogale and her deputy, Prabashni Naidoo. Although their competence or qualifications were not in question, the court found that the public consultation process leading to their appointment was procedurally deficient and unlawful.
The ConCourt found that Parliament had failed to uphold its constitutional duty to ensure meaningful public participation in the appointment process. This judgment followed a 2022 legal challenge launched by anti-corruption NGO Corruption Watch, which argued that the selection process for commissioners lacked sufficient transparency and accessibility.
ConCourt Criticises Parliament’s Public Participation Process
The Portfolio Committee on Women, Youth and Persons with Disabilities, responsible for managing the process, provided only 14 days for public comment on a shortlist of candidates. Submissions were strictly limited in length and could only be made online. In addition, Parliament refused to publish key details from candidates’ CVs, citing the Protection of Personal Information Act (POPIA).
However, the ConCourt found this interpretation of POPIA to be legally incorrect, ruling that the Act does not prohibit the publication of professional experience or qualifications, which are necessary for informed public input.
In its unanimous ruling, the ConCourt stated that Parliament’s failure to publish candidates’ CVs “rendered the public participation process ineffective and unreasonable.” The judgment emphasized that while the candidates appointed may have met the eligibility criteria, they were not necessarily the best-qualified or only suitable individuals.
“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,” the judgment reads. “It follows that the appointment process is unconstitutional, and that the appointments of the commissioners are invalid.”
The court acknowledged that the procedural irregularities did not suggest wrongdoing by the appointed individuals themselves. However, it stressed that the public interest in having a constitutionally sound and transparent appointment process outweighed the personal interests of the commissioners who were appointed through flawed procedures.
The ConCourt judgment affects the following five commissioners, whose appointments were made on the recommendation of Parliament and confirmed by the President in March 2023 for a five-year term:
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Advocate Nthabiseng Sepanya-Mogale – Chairperson
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Prabashni Naidoo – Deputy Chairperson
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Thando Gumede
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Bongani Ngomane
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Leonashia van der Merwe
These commissioners may continue serving in the interim, but their terms will be cut short within the next 12 months once Parliament carries out a new appointment process, as mandated by the ConCourt.
The legal challenge by Corruption Watch has been hailed as a victory for civil society and participatory democracy. The organization argued that the committee’s limited timeframe and refusal to release detailed candidate information obstructed genuine public scrutiny—a view now endorsed by the highest court in the land.
“This ruling by the ConCourt reinforces the idea that transparency and meaningful public input are not optional—they are fundamental components of democratic governance,” said a spokesperson for Corruption Watch following the judgment.
Legal experts note that the ruling could set a precedent for other parliamentary appointment processes across Chapter 9 institutions, especially those intended to protect and promote democracy, such as the Public Protector, Human Rights Commission, and the Electoral Commission.
Parliament has acknowledged the ConCourt ruling and said it will abide by the judgment’s instructions. In a brief statement, the legislature committed to initiating a new public participation process that ensures greater transparency and accessibility.
“We take the court’s findings seriously and will work to correct the deficiencies identified in the public participation process,” said a spokesperson from the Parliamentary Communications Service.
With 12 months to redesign and relaunch the selection process, Parliament now has the opportunity to rebuild public confidence in how key appointments are made. The ConCourt ruling sends a clear message: procedural shortcuts and opaque practices will not be tolerated when it comes to upholding the constitutional rights of citizens to participate in democratic decision-making.
As Parliament prepares to act on the judgment, civil society organizations and watchdog groups are expected to remain vigilant, ensuring that the new process meets the standards set by the ConCourt.
For now, the ruling stands as a powerful reminder of the essential role of judicial oversight in holding government structures accountable—and ensuring that the spirit of the Constitution is not just respected, but actively practiced.
Source- EWN
