Introduction

On 1 August 2025, the Constitutional Court handed down judgment in Corruption Watch v Speaker of the National Assembly and Others. The case asked whether Parliament’s first house, the National Assembly, had given the public a real chance to take part in choosing commissioners of the Commission for Gender Equality (“CGE”).

Background

The CGE is one of the institutions supporting South Africa’s democracy created in Chapter Nine of the Constitution. The Constitution mandates the CGE to promote respect for gender equality and the protection, development and attainment of gender equality. Furthermore, the Commission for Gender Equality Act, 1996 empowers the CGE to monitor and evaluate the policies and practices of public and private bodies (section 11(1)(a)) and mandates the CGE to investigate any gender-related issues (section 11(1)(e)) etc. It thus fulfils a very important function in a state founded on non-sexism.

At the end of October 2022, six commissioner posts would be vacant. Parliament began the process of choosing new commissioners for the CGE by inviting the public to nominate candidates at the end of June. In August, it shortlisted candidates and in September, it called for the public to comment on the shortlisted candidates.

Importantly, the comment period on the shortlisted candidates was only two weeks (14 calendar days). These candidates’ CVs were not shared with the public. Comments were to be made online and limited to roughly 500 words. Despite objections regarding the above limitations, the National Assembly did not extend the comment period, remove the word limit or share the shortlisted candidates’ CVs (which it believed it could not share due to privacy laws).

By the end of September, Parliament was interviewing the shortlisted candidates and by the end of October it made its selection. On the 1 November, Parliament recommended several candidates to the President who appointed them at the end of February 2023.

Corruption Watch took the matter directly to the Constitutional Court under section 167(4)(e) of the Constitution. This section allows only the Constitutional Court to decide whether Parliament has failed to carry out a constitutional duty (i.e. the Constitutional Court has exclusive jurisdiction to hear this type of matter). It asked the Constitutional Court to declare that the commissioners’ appointments were invalid.

Questions Before the Court

Corruption Watch challenged the way Parliament handled the public participation process. It argued that Parliament had failed to fulfil the constitutional imperative to facilitate public participation, because it did not give the public:

• Adequate information (i.e. the CVs);
• Reasonable opportunity (i.e. only 14 days to comment); and
• Unreasonably restricted public involvement, because comments had to be online and only approximately 500 words.

As a result, Corruption Watch believed that the public participation process was both unreasonable and ineffective.

The Constitutional Court had to decide if Parliament had fulfilled its constitutional obligation to facilitate meaningful and effective public participation in the CGE members’ appointment process. If Parliament had not, the Court had to decide what the consequences of that failure should be.

The Law

Constitution:

South Africa is a participatory democracy. The Constitution expressly places Parliament under an obligation to facilitate public participation.

Section 59(1)(a) of the Constitution mandates the National Assembly to facilitate public involvement in its law-making and other processes (i.e. when it appoints members of Chapter Nine institutions such as the CGE).

Importantly, section 193(6) of the Constitution explicitly allows civil society to participate in the recommendation process for the appointment of CGE members, in line with section 59(1)(a).

Case law:

Parliament has broad discretion in determining what the process for public participation should look like. However, the process it adopts must be objectively reasonable, taking into account factors such as the nature, purpose, and importance of the matter under consideration, as well as considerations of urgency, practicality, and efficiency. Importantly, where Parliament fails to facilitate meaningful public participation, its actions may be held to be unconstitutional, struck down and declared invalid.

The Court’s Decision

Did the National Assembly give the public adequate information?

The Court said that public participation is a central and integral part of South Africa’s democracy: “Public involvement in the legislative and other processes of all three spheres of government is not merely a fashionable accessory; it is a thread woven into the fabric of our democracy.” And, again “[m]embers of the public are, as of right, co-participants in decisions which concern matters that affect them.”

Parliament did not publish the full CVs of the shortlisted candidates, because it argued that the Protection of Personal Information Act, 2013 (“POPIA”) prevented it from doing so. The Court disagreed, because POPIA expressly allows for the publication of personal information if it is required to fulfil a public law duty. It found that Parliament’s constitutional duty to provide sufficient information to facilitate public participation is exactly this type of public law duty. Thus POPIA allowed Parliament to publish the shortlisted candidates’ CVs. As a result of Parliament’s decision to withhold the CVs, the public could not properly assess the candidates’ commitment to gender equality and/or experience etc. This meant that the public did not have access to adequate information, and the public participation process was not meaningful or effective.

Did the National Assembly give the public reasonable opportunity?

The 14-day period for public comments was motivated by the urgent need to appoint commissioners to allow the CGE to continue with its work. But, as the Court pointed out, Parliament knew well in advance that the commissioners’ terms would expire and that the arising vacancies would need to be filled. Despite knowing this, it did not begin the appointment process early enough. Any urgency was thus self-created.

Importantly, the Court also said that just because a 14-day window for public comments had been used in appointments to other Chapter Nines, did not automatically make that time period a reasonable one. Part of the reason for this was that one cannot consider the period in isolation, but must consider it together with the fact that the public were also not given access to adequate information. The result is that the short period to comment was a further impediment to effective and meaningful public participation.

Did the National Assembly unnecessarily restrict public involvement?

The Court pointed out that Parliament must take reasonable steps to ensure that whatever mode of public participation it chooses, that mode does not inhibit or exclude people from taking part. When the Court considered that the public could only make submissions online and that those submissions were limited to approximately 500 words (2 000 characters to be precise), it concluded that this inherently excludes participation.

Together, the above meant that the public could not participate in a meaningful way and that Parliament had failed to take reasonable steps to ensure effective public participation in the appointment of CGE commissioners. The Court held that Parliament had not fulfilled its constitutional duty and that, because the commissioners’ appointments rest on the outcome of a lawful process, the legitimacy of their appointment was undermined. As a result, the appointment process was declared unconstitutional and the appointment of the commissioners invalid.

Conclusion

The Court suspended the declaration of invalidity for 12 months. During that time, Parliament was ordered to conduct a new appointment process, one that meets the Constitution’s requirements.

This judgment shows that public participation is a key part of South Africa’s democracy and that the legitimacy of appointments to Chapter Nine institutions is undermined when Parliament treats public participation as a tick box exercise. Parliament cannot simply ask for public comments and move on. It must give people enough information, enough time and a fair chance to take part.