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[2014] ZAGPJHC 218
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Poswa v President of the Republic of South Africa and Others (2013/30021) [2014] ZAGPJHC 218; 2015 (2) SA 127 (GJ); [2014] 4 All SA 722 (GP) (15 September 2014)
REPUBLIC
OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, PRETORIA
CASE
NO: 2013/30021
DATE:
15 SEPTEMBER 2014
In
the matter between:
JUSTICE
NTSIKELELO MANDLENKOSI POSWA
….......................
Applicant
And
THE
PRESIDENT OF THE REPUBLIC OF
SOUTH
AFRICA
........................................................................
First
Respondent
THE
MINISTER OF JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT
..............................
Second
Respondent
THE
CHIEF JUSTICE OF THE
REPUBLIC
OF SOUTH AFRICA
.........................................
Third
Respondent
THE
JUDICIAL SERVICE COMMISSION
.......................
Fourth
Respondent
JUSTICE
BESS NKABINDE
..................................................
Fifth
Respondent
THE
PREMIER OF GAUTENG PROVINCE
.......................
Sixth
Respondent
THE
JUDGE PRESIDENT, NORTH GAUTENG
DIVISION
OF THE HIGH COURT OF
SOUTH
AFRICA
................................................................
Seventh
Respondent
JUDGMENT
C.
J. CLAASSEN J
:
INTRODUCTION
[1]
This
full bench court was specially constituted to hear two review
applications coupled with certain declaratory orders. There are
certain overlapping legal issues which arise in both cases. It is,
however, more convenient to issue separate judgments in each
case.
[2]
In
this matter several preliminary issues arose which had to be dealt
with from the outset. It is necessary to record the outcome
of these
preliminary issues.
The
Composition of the Court
[3]
In
chambers a concern was raised whether it was appropriate for this
court consisting of three judges from the same division as
the
applicant, to hear the matter. Counsel for the respective parties
were offered an opportunity to take instructions from their
clients,
but when the hearing commenced, the court was informed that neither
party objected to the matter being heard by the current
judges
constituting this court.
Leave
to grant a further Replying Affidavit by the Applicant
[4]
At
a very late stage prior to the hearing of this matter, the applicant
sought leave to file a further replying affidavit wherein
he sought
to correct certain information about undelivered judgments that he
had placed before the fourth respondent, the Judicial
Service
Commission (“JSC”). Initially there was opposition from
the fourth respondent’s counsel, but after some
debate in
court, such opposition disintegrated and the court granted the
applicant leave to file such further affidavit.
[5]
The
application for granting leave to file such affidavit was accompanied
by a notice of motion dated 11 August 2014, seeking condonation
for
the late filing of such further affidavit. Attached to this notice of
motion, was an affidavit deposed to by the applicant
to which certain
annexures were attached. In Annexure FA 1(b) the applicant supplied
dates upon which he delivered four of the
outstanding judgments that
were regarded as still outstanding when the matter was heard before
the fourth respondent.
[6]
The
significance of this further affidavit will be dealt with at a later
stage in this judgment.
Extension
of Time to launch this Review Application
[7]
In
terms of section 7(1) of the Promotion of Administrative Justice Act
3 of 2000 (“PAJA”), proceedings for judicial
review must
be instituted not later than 180 days after the date upon which the
proceedings sought to be reviewed had been concluded.
It was common
cause that the applicant launched the review proceedings long after
the lapse of 180 days after the decisions sought
to be reviewed were
made. Hence, the applicant brought an application to extend the
period of 180 days in order to permit the launching
of these review
proceedings.
[8]
None
of the respondents objected to the aforesaid relief sought by the
applicant. Although the court is not bound by the absence
of
opposition of the opposing parties, we were of the view that it was
in the interests of justice to proceed and hear the review
application. The issue at stake, namely the appropriate powers of the
fourth respondent, is of material import to the judiciary
and the
public at large. A definitive judgment on the issue was required
expeditiously in view of the fact that there are other
pending cases
that are dependent upon the outcome of this review application. For
the aforesaid reasons, the application was granted.
Late
Amendment to the Applicant’s Notice of Motion
[9]
During
argument, counsel for the applicant sought leave to amend the notice
of motion by the inclusion of further prayers. The additional
prayers
sought to be included, read as follows:
“
(a)
Declaring that the third and fourth respondents are barred from
instituting and/or proceeding with impeachment proceedings against
the applicant pursuant to a late reserved judgment; and
(b)
Directing the fourth respondent to pay costs of the application,
including costs consequent upon the engagement of three counsel.”
[10]
After
some initial resistance from the court to allow such a substantial
amendment, it was ultimately granted. In granting such
amendment to
the notice of motion, no order as to costs was made in favour of the
applicant. In my view, no such order for costs
is required as the
matter was not of great moment. Furthermore, in the absence of
objection by the respondents, it would be inappropriate,
in my view,
to burden the respondents with these costs caused by the applicant’s
own dilatoriness in getting his papers in
order for purposes of a
proper hearing.
[11]
In
my view, the appropriate order regarding the application to amend the
notice of motion in the main application for review is
as follows:
No
order as to costs is made.
THE
MAIN APPLICATION
[12]
The
applicant was appointed a judge of this division in January 2005. It
is common cause on the papers that the applicant delayed
in
delivering several judgments for periods in excess of twelve months
after he heard the cases. The delays in doing so extended
in certain
instances to between two and six years after the matters were heard.
It is not the purpose of this judgment to rule
on the reasonableness
or otherwise for such delays other than to state the general
principle that the delivery of judgments, constitutes
one of the core
functions of a judge. Such core function forms part and parcel of the
entrenched rights of access to courts contained
in section 34 of our
Constitution Act 108 of 1996. This section provides:
“
34.
Everyone has the right to have any dispute that can be resolved by
the application of law decided in a fair public hearing before
a
court or, where appropriate, another independent and impartial
tribunal or forum.”
[13]
It
goes without saying that the right to have a dispute resolved before
a court includes the right to have judgment pronounced upon
such
dispute. Without the latter, the entrenched right would be
meaningless and ineffective.
[1]
[14]
But
the right to have disputes resolved by a court also implies that
judgment be delivered without undue delay and within a reasonable
time. The law in this regard was succinctly stated by Harms JA
[2]
as follows:
“
There
are some who believe that requests for ‘hurried justice’
should not only be met with judicial displeasure and
castigation, but
the severest censure and that any demand for quick rendition of
reserved judgments is tantamount to interference
with the
independence of judicial office and disrespect for the judge
concerned. They are seriously mistaken on both counts. First,
parties
are entitled to enquire about the progress of their cases and, if
they do not receive an answer or if the answer is unsatisfactory,
they are entitled to complain. The judicial cloak is not an
impregnable shield providing immunity against criticism or reproach.
Delays are frustrating and disillusioning and create the impression
that judges are imperious. Secondly, it is judicial delay rather
than
complaints about it that is a threat to judicial independence because
delays destroy the public’s confidence in the
judiciary.
There
rests an ethical duty on judges to give judgment or any ruling in a
case promptly and without undue delay and litigants are
entitled to
judgment as soon as reasonably possible.
Otherwise the most quoted legal aphorism, namely that ‘justice
delayed is justice denied’ will become a mere platitude.
Lord
Carswell recently said:
‘
The
law’s delays had been the subject of complaint from litigants
for many centuries, and it behoves all courts to make proper
efforts
to ensure that the quality of justice is not adversely affected by
delay in dealing with the cases which are brought before
them,
whether in bringing them on for hearing or in issuing decisions when
they have been heard.’
In
Goose
v Wilson Sandford and Co
[3]
the Court of Appeal censured the judge for his delay in delivering
his reserved judgment and said:
‘
Compelling
parties to await judgment for an indefinitely extended period …
weakened public confidence in the whole judicial
process. Left
unchecked it would be ultimately subversive of the rule of law.’”
(Emphasis added)
[15]
The
aforesaid “ethical duty” of a judge to render reserved
judgments timeously has been encapsulated in ethical guidelines
that
were adopted by all Heads of Court in South Africa and apply to all
judges.
[4]
The guidelines
relevant to the present enquiry, contain the following:
“
14.
A judge should give judgment or any ruling in a case promptly and
without undue delay. Litigants are entitled to judgment as
soon as
reasonably possible. The ideal is to deliver all reserved judgments
before the end of term, failing which shortly after
the beginning of
the next term.
17.
Upon resignation, ceasing to be on active service or expiry of an
acting appointment, a judge is obliged to complete all part-heard
cases and to deliver all reserved judgments as soon as possible and
to do such work at the applicable rate.”
[5]
HISTORY
OF THIS CASE
[16]
In
several cases heard by the applicant, the litigants and/or their
attorneys acting on their behalf, lodged written complaints
against
the applicant for undue delays in rendering reserved judgment. These
complaints were contained in letters written to the
then Judge
President
[6]
of the division.
Initially he approached the applicant for explanations regarding the
delays in rendering the judgments, but eventually
when satisfactory
responses were not forthcoming, he passed these complaints on to the
Judicial Service Commission.
[7]
[17]
It
is common cause that the fourth respondent dealt with these matters
as constituting delayed judgments. As stated previously,
the
applicant at a very late stage sought to ameliorate his record of
undelivered judgments in a further affidavit by stating that
he had
in fact delivered some of them at the time of the hearing before the
fourth respondent. However, in Annexure FA4 to the
further affidavit,
it is recorded that at least two of the judgments were outstanding at
the time of the first and the second hearing
of the matter by the
fourth respondent. The significance of the further affidavit is,
therefore, substantially reduced in that
it does not detract from the
common cause fact that extensive delays in rendering judgments by the
applicant prevailed which led
the fourth respondent to make a
decision in this regard. Furthermore, it is impermissible for the
applicant to seek to review the
fourth respondent’s decisions
in this regard and simultaneously seek to correct wrong information
that he supplied to the
fourth respondent when it was called upon to
render decisions in regard to the complaints. The review of the
fourth respondent’s
decisions has to be decided on the basis of
the evidence before it at the time of making its decision. Its
decisions are in any
event preliminary in nature with the result that
incorrect information supplied by the applicant can always be
rectified once a
final and definitive hearing concerning the
applicant’s delays, is conducted. But for purposes of this
judgment, it must
be accepted that at the time of the relevant
decisions made by the fourth respondent, there were at least five
judgments still
outstanding for periods in excess of twelve months.
[18]
The
complaints were referred to the fourth respondent during December
2008 and January 2009.
[8]
[19]
The
fourth respondent requested the applicant to respond to the
complaints during January and February 2009.
[9]
Thereafter correspondence flowed between the fourth respondent and
the applicant. This correspondence discloses that in one of
the
matters the litigants had actually settled as they could not wait any
longer for the judgment. In another, the applicant could
not locate
the appropriate files and/or could not remember the case and
requested the litigants to supply heads of argument in
order to
assist him to finalise the matter.
[20]
During
June 2009 a further letter of complaint regarding a delayed judgment
was directed at the fourth respondent by the litigant’s
attorney of record. The applicant was requested to comment
thereon.
[10]
[21]
The
fourth respondent then directed the then Judge President to provide
it with a list of judgments outstanding for more than twelve
months
which list was provided on 9 March 2010.
[11]
The fourth respondent addressed two letters to the applicant
requesting a response to the list of outstanding judgments with a
request to finalise such judgments within one month.
[12]
The applicant responded in writing and attached a memorandum prepared
by Southwood J that referred to certain systemic difficulties
experienced by judges in the North Gauteng High Court.
[13]
In the main, the applicant explained his delays as resulting from
these systemic difficulties mentioned in the Southwood J memorandum,
the difficulty of the Afrikaans language being utilised in judicial
processes, his illness (diabetes, cholesterol and high blood
pressure) and the Judge President’s failure to afford him
special “off-time” to write his reserved judgments.
[22]
Up
to this point in time, being March 2010, the complaints against the
applicant were being dealt with in terms of section 177
[14]
of the Constitution. It must be remembered that the JSC is a
constitutional institution established in terms of section 178 of
the
Constitution with the exclusive powers to entertain, investigate and
report on complaints lodged against judges. In terms of
section
178(4) the “
Judicial
Service Commission has the powers and functions assigned to it in the
Constitution and national legislation.
”
The national legislation contemplated here was promulgated as the
Judicial Service Commission Act 9 of 1994
that commenced on 13 July
1994.
Section 178(6)
provides that the “
Judicial
Service Commission may determine its own procedure, but decisions of
the Commission must be supported by a majority of
its members”.
Pursuant hereto certain rules were issued
[15]
which laid down procedures to deal with any complaints against
judges. I will refer to these as the “Old Rules”.
The
Old Rules
[23]
Clause
2 of the Old Rules deals with complaints against judges, Clause 3
with the consideration of complaints, Clause 4 with the
preliminary
investigation and enquiry and Clause 5 with a formal enquiry.
[24]
Summarised,
Clause 2 provides for any complaint received from any source alleging
incapacity, gross incompetence or gross misconduct
on the part of a
judge to be considered by the JSC. The JSC may require that such
complaint be on oath but shall be entitled to
act on any complaint,
whether on oath or not, or in writing or reported to it orally. Such
complaint is then to be referred to
the judge concerned for a
response in writing. The judge’s response shall then be
referred to the complainant (if any) who
shall be entitled to reply
in writing or otherwise. Such reply may also be referred to the judge
concerned. Clause 2.5 of the Old
Rules provides as follows:
“
2.5
The JSC shall be entitled to appoint a sub-committee which shall be
responsible for dealing with complaints in accordance with
the above
procedure when the JSC is not in session.”
[25]
The
consideration of the complaint under the Old Rules contemplates a
two-stage enquiry prior to a formal enquiry. This much is
evident
from Clauses 3 and 4 of the Old Rules. Clause 3 provides as follows:
“
3.1
On receipt of a complaint and the responses referred to above, the
JSC shall consider
the relevant documentation and decide whether
prima
facie
the conduct complained of would, if established, amount to such
incapacity, incompetence or misconduct as may justify removal of
the
judge in terms of section 177(1) of the Constitution.
3.2
In the event of the view of the JSC being that the conduct complained
of would not constitute grounds for removal from office, the matter
shall be treated as finalised and the complainant and the judge
notified accordingly.
3.3
In the event of the JSC resolving that the pertinent conduct, if
established,
may justify removal from office, the matter shall be
dealt with further as provided below.”
[26]
Clause
4 deals with a preliminary investigation or enquiry in the following
terms:
“
4.1
The JSC shall be entitled to appoint a sub-committee consisting of
one or more of
its members to investigate and report to the full
Commission. Such sub-committee shall be entitled to hear evidence if
necessary
and to report back to the full Commission orally or in
writing with recommendations as to the future conduct of the matter.
4.2
The provisions of 5.4 below shall apply
mutatis mutandis
to an
enquiry conducted by a sub-committee under 4.1.
4.3
On receipt of such report from the sub-committee appointed for such
purpose,
the JSC shall resolve whether or not to accept the
recommendation of such sub-committee and to proceed to a hearing of
the issues.
4.4
Where the JSC resolves that, on the basis of the documentation before
it [it] does not need to have any evidence-gathering or investigative
committee report to it, it may resolve, to proceed straight
to a
formal enquiry as provided below.
4.5
…”
[27]
The
formal enquiry contemplated under the Old Rules is governed by Clause
5 in the following terms:
“
5.
In the event of the JSC proceeding to a formal enquiry, whether in
terms
of 4.3 or 4.4 above, the following procedures shall apply:
5.1
A pro-forma charge sheet shall be prepared particularising the
conduct in question to which
the judge must respond and such document
shall be served on the judge together with notice to appear at an
enquiry at a set time,
date and place.
5.2
The notice to appear at the enquiry shall give the judge sufficient
time to prepare his/her
defence.
5.3
At the commencement of the hearing, the judge concerned shall be
asked to plead to the charges.
5.4
The JSC may appoint an attorney and/or counsel to act as pro-forma
prosecutor and to undertake
any or all of the following tasks: to
prepare a charge sheet, to lead evidence, to cross-examine witnesses,
to present argument
and to do all other things that may be necessary
to assist the JSC in fulfilling its task under section 177(1)(a) of
the Constitution.
5.5
The JSC shall notify the complainant of the venue, time and date of
the enquiry to be held
and the complainant shall be entitled to
attend the enquiry.
5.6
The JSC shall be entitled to permit the media and public subject to
such restrictions as
may be considered appropriate to attend any
enquiry unless good cause is shown for their exclusion.
5.7
The judge shall be entitled to legal representation by an attorney or
advocate and shall
have the right to call evidence, to cross-examine
witnesses and present argument.
5.8
If, during the course of the enquiry, it shall appear that the judge
may have been guilty
of any gross misconduct other than as alleged in
the charge sheet, the JSC may permit the charges contained in the
charge sheet
to be amended or supplemented, in which event it shall
inform the judge of the amended or additional charges and grants such
adjournment,
if any, as may be reasonably necessary to enable the
judge to prepare his/her defence.
5.9
Any witnesses testifying before the enquiry shall be required to take
the oath or affirm
the truth of their testimony.
5.10
Proceedings before the enquiry shall insofar as possible, be recorded
and a transcript of such proceedings
shall be prepared by the JSC.
5.11
All documents filed by the parties in support and rebuttal of the
complaint shall form part of the
record of the enquiry, together with
a transcript of proceedings, if any, including the documentation
produced, before any sub-committee.
5.12
Any member of the JSC shall be entitled to ask questions of the
witnesses and counsel with the consent
of the chair of the JSC.
5.13
In the event of the judge failing to appear before the JSC pursuant
to any notice without good reason,
the JSC may proceed with the
enquiry in the absence of the judge concerned.
5.14
After considering the evidence and argument, the JSC shall make a
finding as to whether or not the
judge suffers from incapacity or is
grossly incompetent, or is guilty of gross misconduct as envisaged by
section 177(1). Such
decision shall be recorded in writing and the
judge and complainant, if any, shall be notified in writing of such
decision together
with reasons therefor.
5.15
If the finding is adverse to the judge, the written decision of the
JSC, together with reasons, shall be forwarded to the Speaker
of the
National Assembly as soon as possible for further action in terms of
section 177 of the Constitution, as well as to the
President,
advising him as to whether the JSC recommends the suspension of the
judge, pending the decision of the National Assembly
in terms of
section 177(1)(b).”
[28]
It
is evident from the Old Rules that complaints need not necessarily be
on oath. In fact, the complaints levelled against the applicant
in
this case were not on oath, but contained in letters written by the
litigants’ attorneys of record.
[29]
The
Old Rules contemplate a protective measure of finalising spurious and
frivolous complaints without subjecting the judge to any
further
enquiry. Only if the evidence, if established, would
prima
facie
amount to an adverse finding against the judge, will the JSC appoint
a sub-committee consisting of one or more of its members to
investigate the complaints and then report to the full JSC. Such a
sub-committee may appoint an attorney or advocate as a pro-forma
prosecutor to assist it by compiling a charge sheet, collecting
evidence, cross-examining witnesses and submitting argument. The
sub-committee will thereafter file a report containing a
recommendation to the Commission as to whether or not it should
proceed
to a formal enquiry. The formal enquiry is a full scale
hearing before the full Commission save for the politicians
designated
in terms of sub-sections 178(1)(h) and (i) of the
Constitution, i.e. six persons designated by the National Assembly
and four permanent
delegates from the National Council of Provinces.
The
Amendment
[30]
Such
was the regime until the Judicial Services Commission Act was amended
by section 9 of Act 20 of 2008 that came into operation
on 1 June
2010. In terms of this amendment
inter
alia
Chapter 2, Parts I, III and IV and Chapter 3, Parts I and II, were
included dealing with complaints against judges. The lodging
of such
complaints is dealt with in section 14 of the amended
Judicial
Service Commission Act which
reads as follows:
“
14.
Lodging of Complaints
(1)
Any
person may lodge a complaint about a judge with the Chairperson of
the Committee: Provided that the Chairperson may refer the
complaint
to the Deputy Chief Justice to deal with in terms of the provisions
of the Act, and the Deputy Chief Justice assumes
the role of the
Chairperson in respect of that complaint.
(2)
When
a complaint is lodged with the Chairperson in terms of subsection
(1), the Chairperson must deal with the complaint in accordance
of
section 15, 16 or 17, but in the event of the complaint falling
within the parameters of section 15, the Chairperson may designate
a
head of court to deal with the complaint, unless the complaint is
against the head of court.
(3)
The
complaint must be –
(a)
based
on one or more of the grounds referred to in subsection (4); and
(b)
lodged
by means of an affidavit or affirmed statement,
specifying
–
(i)
the
nature of the complaint; and
(ii)
the
facts on which the complaint is based.
(4)
The
grounds upon which any complaint against a judge may be lodged, are
any one or more of the following:
(a)
Incapacity
giving rise to a judge’s inability to perform the functions of
judicial office in accordance with prevailing standards,
or gross
incompetence, or gross misconduct, as envisaged in section 177(1)(a)
of the Constitution;
(b)
Any
wilful or grossly negligent breach of the Code of Judicial Conduct
referred to in section 12, including any failure to comply
with any
regulation referred to in section 13(5);
(c)
Accepting,
holding or performing any office of profit or receiving any fees,
emoluments or remuneration or allowances in contravention
of section
11;
(d)
Any
wilful or grossly negligent failure to comply with any remedial step,
contemplated in section 17(8), imposed in terms of this
Act; and
(e)
Any
other wilful or grossly negligent conduct, other than conduct
contemplated in paragraph (a) to (d), that is incompatible with
or
unbecoming the holding of judicial office, including any conduct that
is prejudicial to the independence, impartiality, dignity,
accessibility, efficiency or effectiveness of the courts.”
(Emphasis added)
[31]
Section
15 of Part III includes a protective procedure similar to that under
the Old Rules, in terms whereof lesser complaints may
be summarily
dismissed. Such lesser complaints are enumerated in section 15(2) and
specify the following:
“
15(1)(a)
If the Chairperson or Head of Court designated in terms of section
14(2) is of the view that the complaint falls within
the parameters
of the grounds set out in subsection (2), he or she must dismiss the
complaint.
(b)
If the Head of Court designated in terms of section 14(2) is of the
view that the complaint should not be dismissed under paragraph
(a),
he or she must refer the complaint to the Chairperson to be dealt
with in terms of section 16 or 17.
(2)
A complaint must be dismissed if it –
(a)
does
not fall within the parameters of any of the grounds set out in
section 14(4);
(b)
does
not comply substantially with the provisions of section 14(3
);
(c)
is
solely related to the merits of a judgment or order;
(d)
is
frivolous or lacking in substance; or
(e)
is
hypothetical.” (Emphasis added)
[32]
Section
16 contemplates the appointment of a tribunal in respect of
impeachable complaints comparable to the sub-committee contemplated
under Clause 4 of the Old Rules. Section 16 provides as follows:
“
16(1)
If the Chairperson is satisfied that, in the event of a valid
complaint being established, it is likely
to lead to a finding by the
Commission that the respondent suffers from an incapacity, is grossly
incompetent or is guilty of gross
misconduct, as envisaged in section
14(4)(a), the Chairperson must –
(a)
refer
the complaint to the committee in order to consider whether it should
recommend to the Commission that the complaint should
be investigated
and reported on by a tribunal; and
(b)
in
writing, inform the respondent of the complaint.
(2)
If
a complaint is referred to the committee in terms of subsection (1)
or section 15(1)(b) or section 17(4)(c) or 17(5)(c)(iii),
the
Chairperson must determine a time and a place for the committee to
meet in order to consider a recommendation envisaged in
subsection
(1)(a) and must inform the complainant and the respondent in writing
that he/she may –
(a)
submit a written representation for consideration by the committee at
that meeting; and
(b)
with the leave of the Chairperson, address the committee at that
meeting.
(3)
For
the purpose of the meeting referred to in subsection (2), the
committee may request such further information from the complainant
or any other person as it deems fit.
(4)
At
the meeting referred to in subsection (2), the committee must
consider whether the complaint, if established, will
prima
facie
indicate incapacity, gross incompetence or gross misconduct by the
respondent, whereupon the committee may –
(a)
refer
the complaint to the Chairperson for an enquiry referred to in
section 17(2); or
(b)
recommend
to the Commission that the complaint should be investigated by a
tribunal.
(5)
The
committee must inform the complainant, the respondent and the
Commission in writing of any decision envisaged in subsection
(4) and
the reasons therefor.
(6)
The
meeting referred to in subsection (2) must be attended by at least
three members of the committee.”
[33]
The
“committee” referred to in section 16 refers to a
Judicial Conduct Committee established in terms of section 8.
In
terms of section 8(1) the Judicial Service Commission is vested with
a Judicial Conduct Committee comprising the Chief Justice
as its
chairperson, the Deputy Chief Justice and four judges, at least two
of whom must be women, designated by the Chief Justice
in
consultation with the Minister. For ease of reference, reference to
the Judicial Conduct Committee in future will be referred
to as
“JCC”.
[34]
In
terms of section 17, the tribunal established by virtue of section 16
is to be conducted in an inquisitorial manner “
and
there is no onus on any person to prove or to disprove any fact
during such investigation
.”
By virtue of section 17(5)(b)(ii) the formal tribunal hearing is also
subject to the provisions of sections 24, 26 to 32.
In section 26(3)
the tribunal has to determine the merits of any allegations against a
judge “
on
a balance of probabilities
”.
In section 17(8) it furthermore provides for several remedies that
may be imposed upon an offending judge such as “
apologising
to the complainant, in a manner specified, a reprimand, a written
warning, any form of compensation”
and subject to subsection 17(9), “
appropriate
counselling, attendance to a specific training course, any other
appropriate corrective measure”.
[35]
It
stands to reason that the fourth respondent henceforth after the
amendment had to decide whether current matters were to be dealt
with
under the Old Rules or in terms of the amended Act after 1 June 2010.
Acting prudently, the fourth respondent sought legal
advice from
senior counsel in this regard. According to this advice the fourth
respondent was to conduct all complaints lodged
before and after 1
June 2010 according to the new procedures set out in sections 14, 15,
16 and 17 of the amended Act.
[36]
Pursuant
to the aforesaid legal advice, the fourth respondent addressed a
letter to the applicant on 4 February 2011 advising him
that the
third respondent appointed a Judicial Conduct Committee to consider
whether it should recommend to the Commission that
the complaints
against the applicant be investigated and reported on by a Judicial
Conduct Tribunal as envisaged in section 17
of the amended Act. The
applicant was advised that the JCC will meet on 19 March 2011 to
consider any recommendation it ought to
make to the Commission. The
applicant was invited to submit written representations for
consideration by the JCC and with leave
of the Chairperson to address
the JCC at such meeting.
[37]
In
an e-mail dated 28 February 2011 the applicant responded by setting
out his defences to the complaints reiterating those he referred
to
earlier.
The
First Decision (19 March 2011)
[38]
On
19 March 2011 a hearing was conducted by the JCC of the complaints
against three judges who included the applicant.
[16]
Throughout this meeting the members of the JCC were at pains to
explain to the applicant that the meeting was intended to establish
whether or not there was a
prima
facie
case against the applicant to be investigated by the appointment of a
Judicial Tribunal Committee (“JCT”). The applicant
sought
to counter this suggestion by insisting upon adjudication by the JCC
of his defences, in particular those relating to the
systemic
problems experienced by judges in the North Gauteng High Court when
writing their judgments. This request was denied.
[39]
Towards
the end of that, the JCC resolved to defer their decision on the
making of any recommendation pending the receipt from the
then Judge
President of a structural plan in terms whereof the outstanding
judgments were to be completed. The applicant is recorded
as having
cooperated with this proposal by undertaking to revert to the JCC by
the end of the week as to when the outstanding judgments
will be
completed.
[40]
The
applicant provided his further response to the JCC on 25 March 2011
wherein he required approximately six weeks to write his
outstanding
judgments. In the same breath he indicated that his secretary had
found further outstanding judgments that had to be
completed by him.
The
Second Decision (14 May 2011)
[41]
At
a further meeting held on 14 May 2011, the JCC resolved to refer the
complaints to the fourth respondent in terms of section
16(4)(b)
recommending that a tribunal be appointed by the fourth respondent to
investigate the complaints against the applicant.
This resolution was
taken in the absence of the applicant. He was, however, informed in a
letter dated 17 May 2011 of the JCC’s
recommendation to the
fourth respondent.
The
Third Decision (25 June 2011)
[42]
In
line with section 178(1)(k) of the Constitution, the fourth
respondent informed various premiers of the intended meeting of the
fourth respondent to decide on the recommendations received from the
JCC to appoint a tribunal. These letters were sent on 23 May
2011. At
the meeting on 28 May 2011 the fourth respondent recorded that the
commissioners would be provided with all the documentation
that was
exchanged between it and the various judges and the deliberation of
the JCC’s recommendation was deferred for the
commissioners to
peruse the documents. Thereafter, a second set of letters was sent to
the various premiers advising them of the
fact that the next session
will be held on 25 June 2011. The applicant was invited to make
further submissions for consideration
at that meeting.
[43]
At
the meeting on 25 June 2011 two of the four premiers were present.
The fourth respondent was, therefore, able to deal with the
recommendations of the JCC. At this meeting the fourth respondent
resolved to recommend that a tribunal be appointed to investigate
and
report on the complaints against the applicant and that suspension of
the applicant pending such investigation would not be
recommended.
[44]
The
applicant was then boarded on medical grounds and discharged from
active service pursuant to
section 3(2)(c)
of the
Judges’
Remuneration and Conditions of Employment Act 47 of 2001
, with
retrospective effect from 1 August 2011.
[17]
[45]
The
President was informed about the need to appoint a tribunal and such
tribunal was appointed.
[46]
Thereafter
the applicant launched the review application to set aside the
aforesaid decisions and recommendations.
THE
REVIEW APPLICATION
[47]
The
relief sought by the applicant in his notice of motion (as amended),
is in the following terms:
“
1.
That there was no complaint entitling the Third Respondent to appoint
a Judicial Conduct Committee (JCC);
2.
That the Third Respondent’s appointment of the JCC, in respect
of the applicant, was irregular and that it be reviewed
and set
aside;
3.
That the proceedings in the JCC, on 19 March 2011, in respect of
alleged complaints against the applicant, be declared irregular
and
unlawful and that they be reviewed and set aside;
4.
That the recommendation by the JCC in respect of alleged complaints
against the applicant, be declared unlawful, and it be reviewed
and
set aside;
5.
That the proceedings of the Fourth Respondent, on 25 June 2011, to
the extent that they were related to the JCC’s ‘recommendation’
in respect of the applicant, be declared unlawful and that they be
reviewed and set aside;
6.
That the endorsement of the JCC’s recommendation, by the fourth
respondent, on 25 June 2011 and in respect of the applicant,
be
declared irregular and unlawful and that it be reviewed and set
aside;
7.
That the appointment of the tribunal, to investigate the report on
the [alleged] complaints against the [applicant] regarding
[the
applicant’s] failure to deliver [his] reserved judgments, be
declared irregular and unlawful and that it be reviewed
and set
aside;
8.
That the tribunal has no authority to require the applicant to appear
before it;
9.
Declaring that the third and fourth respondents are barred from
instituting and/or proceeding with impeachment proceedings against
the applicant pursuant to alleged reserved judgments; and
10.
Directing the fourth respondent to pay costs of the application,
including costs consequent upon the engagement of three counsel.”
[48]
In
the heads of argument of the applicant’s counsel, his review
grounds are set forth as follows:
“
5.
The application is predicated on the following grounds, namely:
5.1
that, in the light of the inordinate delay in the prosecution of the
alleged complaints against the applicant, the third, fourth,
fifth
and seventh respondents ought to be barred from subjecting the
applicant to any impeachment process pursuant to the alleged
complaints;
5.2
that the JSC had no authority to effect the retrospective application
of the amended JSC Act to alleged complaints made at a
time when the
JSC Act had not been amended;
5.3
that, in the event that a retrospective application of the JSC Act is
permitted –
5.3.1
the purported complaints were not made by a complainant as defined in
section 1 of the JSC Act;
5.3.2
the purported complaints were neither on affidavit nor on affirmed
statements as prescribed by section 14(3)(b) of the amended
JSC Act;
5.4
that procedural unfairness was meted out to the applicant in that:
5.4.1
the
in limine
point raised by the applicant concerning
systemic or administrative problems was not taken into account; and
5.4.2
the applicant was not afforded the opportunity of being heard when
the JSC sat to consider the recommendation of the JCC concerning
the
appointment of the tribunal;
5.5
that the JSC was not properly constituted in terms of section
178(1)(k) of the Constitution in that neither the then Premier
of
Gauteng nor her alternate was present when the decision was taken to
establish the tribunal;
5.6
that it is not legally possible to set in motion an impeachment
process against the applicant in respect of alleged delayed
judgments
attracted at a time when the applicant was on active service, after
his discharge from such service in terms of section
3(2) of the
Remuneration Act due to “permanent infirmity of body”;
and
5.7
that the applicant is under no obligation to write judgments after 18
June 2010.”
[49]
I
shall now deal with these issues, not necessarily in the order
contained in the review grounds as set out in paragraph 5 of the
applicant’s heads of argument.
Barring
due to Inordinate Delay (5.1)
[50]
For
the applicant to complain about the delay in prosecuting the
complaints lodged against him, after he had delayed in rendering
judgments for up to six years, smacks of impertinence which should
cause this court to show its displeasure in an appropriate way.
At
best for the applicant there were two delaying periods of inaction on
the part of the fourth respondent. The first related to
the period
between 26 March 2010 and 4 February 2011, a period of approximately
ten months. On the aforesaid date the fourth respondent
wrote a
letter to the applicant requesting reasons for the delay in rendering
judgments in three matters. Thereafter the Amendment
Act followed
which was only put into operation on 1 June 2010. On 4 February 2011,
the fourth respondent informed the applicant
that the complaints laid
against him were referred to the JCC in terms of section 16 of the
new Act and that a hearing would be
held on 19 March 2011. In my
view, the delay of ten months is not inordinate at all and does not
justify any censure of the conduct
of the fourth respondent in regard
to the complaints against the applicant.
[51]
A
further delay occurred during the period 28 June 2010 to 19 October
2012, a period of approximately fifteen months. On 28 June
2011 the
fourth respondent informed the applicant of its intention to inform
the President of the decision to request the Chief
Justice to appoint
a tribunal. Such request to the President occurred only on 19 October
2012. Thereafter correspondence ensued
indicating the processes
required for the appointment of the tribunal and matters related
thereto. The applicant responded to this
process in an e-mail dated
24 February 2013.
[52]
Although
there has been no express explanation for the delay of fifteen
months, that, in itself, could not have entitled the applicant
to
assume that the prosecution of the complaints against him came to a
halt. The fourth respondent’s explanation for the
delay is
indicated in paragraphs 75 to 84 of the answering affidavit wherein
it is pointed out that in terms of the new Act the
Chief Justice was
called upon to make rules regulating the procedures before a
tribunal. These rules were only promulgated on 18
October 2012 in
terms of Government Notice R864 as published in Government Gazette
35802. The very next day the President was informed
by the Chief
Justice that he intended appointing a tribunal to investigate this
matter. The members of the tribunal were appointed
on 28 January
2013, some three and a half months later. The terms of reference of
the tribunal were set on 18 February 2013 where
after the applicant
was informed of these events by letter dated 21 February 2013.
[53]
In
my view, the fourth respondent’s contention in paragraph 82 of
the answering affidavit that “
prior
to the promulgation of the rules for the conduct of the tribunal,
such a body could not be appointed”
adequately
explains the delay of 15 months between 28 June 2011 and the action
of the fourth respondent on 19 October 2012. I am,
therefore, of the
view that the alleged delay relied upon by the applicant was neither
inordinate nor unreasonable and cannot be
regarded as an “affront
to his dignity and calling as a judge” as contended by the
applicant.
[54]
Even
if the delay was inordinately long, it would not entitle the
applicant to the relief sought in the notice of motion to bar
the
respondents from pursuing impeachment processes arising from the
alleged complaints. What the applicant is seeking is in effect
an
interdict prohibiting the respondents from executing their statutory
duty in regard to the complaints lodged against the applicant.
No
authority was cited for this rather extraordinary proposition and I
could find none within the short period of time available
for
research.
[55]
Having
found that the delay was not inordinate or unreasonable, there is no
justification to issue any type of order in the nature
of barring the
respondents from pursuing their statutory duties against the
applicant. For this reason it would not be competent
to grant the
prayer contained in paragraph 9 of the amended notice of motion.
The
Prospective/Retrospective Application of the Amended JSC Act
(5.2 and 5.3)
[56]
In
my view, the crux of the entire matter boils down to answering the
question: Was the fourth respondent correct in applying the
new
procedural provisions of the amending Act to complaints lodged
against the applicant prior to the amendment coming into force
on 1
June 2010?
[57]
Counsel
for the applicant submitted that the complaints should have been
dealt with by the fourth respondent under the Old Rules
since the
procedures against the applicant had commenced in terms thereof prior
to the amending Act coming into force. In the alternative
it was
submitted that if it was proper and lawful for the fourth respondent
to implement the further impeachment proceedings against
the
applicant in terms of the new Act, then compliance thereof had not
been proved as the complaints were not made under oath or
affirmed.
Emphasis was placed on section 15(2)(b) of the new act which
expressly requires that complaints which did not substantially
comply
with the statutory demand to be on oath or affirmed, should be
dismissed. In effect counsel’s argument is a two-edged
sword
which suggests that the fourth respondent must fail either because it
did not deal with the complaints under the Old Rules
alternatively
could not do so under the new Act because of non-compliance with the
statutory demand for complaints to be on oath
or affirmed.
[58]
In
support of the argument that the Old Rules were still applicable and
should have been utilised for purposes of carrying through
the
complaints against the applicant, counsel relied on the judgment of
Olivier JA
[18]
in the
Unitrans
case where paragraph [19] states the following:
“
[19]
What is the correct approach in cases such as the present, where the
action was instituted or the application
was initiated
before
the amending legislation came into being?
The
rule is that
unless a contrary intention
appears from the
amending legislation, the existing (old) procedure remains intact.”
(Emphasis added)
[59]
The
aforesaid passage must, however, be read in conjunction with the
postulate in paragraph [23] of the judgment. There, Olivier
JA states
the following:
“
[23]
Of course, there may be cases where an amending statute introduces
new procedural provisions which may,
on
a proper interpretation
,
leave intact the steps that have already been taken and operate
prospectively only. But that will not be the position where the
prospective operation would render abortive the steps taken in the
past – unless such was the clear intention of the legislator.
To apply the statute to the pending application in the present case
would extinguish there and then.”
[60]
The
answer posed in paragraph [56] above is, therefor, dependent upon a
proper construction of the effect of the amending statute.
Such
construction depends on the intention of the legislature as
determined from the language used and the context and setting
in
which the legislation was passed. Both the quoted passages from the
Unitrans
case, i.e. paragraphs [19] and [23] confirm this proposition.
Proper
construction of the Amending Act
[61]
It
has been said that “context is everything” when it comes
to the interpretation of statutes, contracts and documents.
What are
the background facts that affect the proper interpretation of the new
Act?
[62]
First
of all, one should remind oneself that it is trite that there is a
presumption against the retrospective operation of any
amending Act.
Retrospectivity is defined as the taking away or impairing of vested
rights under existing laws.
[19]
[63]
The
new statutory provisions regarding the
lodgement
of
complaints against judges (section 14) must be distinguished from the
new procedures for their
investigation
(sections
16 and 17). I am fortified in the aforesaid interpretation by the
preamble to the new
Judicial Service Commission Act that
distinguishes between the lodgement of complaints against judges and
the investigation thereof. It states:
“
And
since it is necessary to create procedures, structures and mechanisms
in terms of which –
·
complaints
against judges could be
lodged
and
dealt with appropriately;
·
allegations
that any judge is suffering from an incapacity, is grossly
incompetent or is guilty of gross misconduct could be
investigated
;
and
·
…”
(Emphasis
added)
[64]
Under
the Old Rules the investigation component was to be initiated by the
appointment of a subcommittee. After 1 June 2010 and
by the time the
first hearing took place on 19 March 2011, the Old Rules requiring
the appointment of a subcommittee no longer
existed. They were
impliedly repealed by the new Act. As at 19 March 2011 the only
authority capable of investigating complaints
in any kind of hearing
was indeed the JCC.
[65]
As
previously stated, the lodgement of complaints occurred prior to the
amending Act taking effect on 1 June 2010. As at that date,
the
complainants had lodged valid complaints even though they were not on
oath and were to be dealt with by the JSC. The amending
Act in
section 14(3)(b) refers to the manner in which a complaint is to be
lodged and requires it to be on affidavit or in an affirmed
statement. The Legislature must have known that several complaints
against several judges had been lawfully lodged under the Old
Rules
when section 14(3)(b) came into force. Applying the presumption
against retrospectivity to this new section would simply
mean that
the lodgement of unsworn complaints
prior
to 1 June 2010 would be regarded as having been validly lodged. All
complaints lodged after 1 June 2010 would have to be either
affirmed
or made under oath. The amending Act contains no express provision
for section 14(3)(b) to operate retrospectively to
the extent that it
would nullify unsworn claims that were validly lodged prior to 1 June
2010. In my view, no such intention can
be inferred from the language
of or context in which the amending Act was passed.
[66]
It
can also be cogently argued that the Legislature intended the
provision in section 15(2)(b) nullifying complaints that are not
on
oath to operate in regard to lesser complaints only. This would be
consonant with the attitude that judges should not be burdened
with
spurious or frivolous complaints. Thus interpreted, the summary
dismissal of complaints will only apply to such frivolous
or spurious
complaints and not to impeachable complaints. In the case of
impeachable complaints, their lack of having been sworn
to under oath
ought not to make any difference and should be dealt with by the JSC
under sections 16 and 17. This conclusion is
further borne out by a
proper reading of sections 16 and 17. A careful reading of these two
sections clearly evince an intention
to deal with complaints that
fall into a category where “
the
Chairperson is satisfied that, in the event of a valid complaint
being established, it is likely to lead to a finding by the
Commission that the respondent suffers from an incapacity, is grossly
incompetent or is guilty of gross misconduct, as envisaged
in section
14(4)(a), …”
In
such instance the Chairperson is obliged to refer the complaint to
the JCC. The object of the Act to deal with the constitutional
injunction to remove seriously offending judges will be manifestly
undermined by any interpretation of sections 16 and 17 which
would
prevent them being implemented. This consideration further
strengthens the conclusion that the Legislature could never have
intended section 14 to act retrospectively.
[67]
Another
feature that bears upon the proper interpretation of the Act
presently under consideration is the fact that the amending
statute
establishes new internal procedures of the same forum or authority,
namely the fourth respondent. In the
Unitrans
case the amendment completely abolished one forum in favour of
another. In the present case, the Old Rules provided for a
subcommittee
to do the investigations of complaints against judges.
Under the new Act a distinction is drawn between lesser complaints
and impeachable
complaints. Lesser complaints may be summarily
dismissed by the Chief Justice or a Head of Court.
[20]
Impeachable complaints are dealt with by the Judicial Complaints
Committee (“JCC”).
[21]
The JCC is established in terms of section 8. Comparing the two
schemes contemplated, the composition of the subcommittee
investigating
a complaint under the Old Rules consisted of one or
more of the members of the fourth respondent (in the absence of the
political
members) whereas under the new Act the investigating
authority, the JCC, comprises the Chief Justice, the Deputy Chief
Justice
and four judges. The investigative procedure in both
instances resorted under the JSC i.e. the fourth respondent and it is
the
latter body that ultimately has to make the recommendation for
the institution of a formal hearing. The new Act does not establish
a
completely different forum for dealing with complaints against
judges. Such complaints are still within the jurisdiction of the
only
lawful authority entitled under the Constitution, to deal with
complaints against judges. The Legislature’s intention
in doing
so can only be to keep the process “in-house” within the
constitutionally selected body authorised to deal
with such
complaints. In the present instance the applicant did not seek to
establish any prejudice or breach of his substantive
rights should
the investigation be carried out by the JCC under the new
dispensation. In any event, one cannot obtain vested rights
in a
procedure.
[68]
The
applicant’s contention that the complaints should have been
heard under the Old Rules is met with a further stumbling
block. It
is common cause that the Old Rules were never published pursuant to
section 5 of the old Act. Knowledge of this fact
must be imputed to
the Legislature when it passed the new legislation. It, therefore,
stands to reason that the Legislature intended
to rectify this
lacuna
by
the passing of the new Act which incorporates the new procedures for
investigating complaints against judges, both lesser as
well as
impeachable complaints. This, to my mind, constitutes a contextual
surrounding fact which ineluctably leads to a conclusion
that the
Legislature intended the investigatory sections in the new Act to
operate retrospectively in order for the complaints
validly lodged
prior to 1 June 2010 not to evaporate into thin air but to be
responsibly dealt with by the JSC and its structures.
[69]
The
scheme of the new Act also distinguishes between the lodging of
complaints under section 14 on the one hand and the investigation
of
serious
complaints under section 16 on the other. In my view, the intention
of the Legislature is clearly to strengthen both the procedure
of
lodging complaints and the procedure of investigating complaints, to
prevent spurious complaints against judges being made to
the
detriment of the judiciary.
[70]
Thus
construed, all complaints validly lodged prior to the amending
statute taking effect on 1 June 2010 had to be investigated
by the
appropriate authority that existed at the time after 1 June 2010 and
that, in this case, was the JCC. To my mind, this interpretation
accords with the intention of the Legislature. It makes common sense,
prevents unnecessary delays in finalising complaints that
were lodged
prior to 1 June 2010 and allows those complaints to be properly
adjudicated by the appropriate authorities in existence
at the time
when such hearings had to take place. To interpret it in any other
way would mean that valid complaints which were
not under oath or
affirmed, would be nullified if section 14(3)(b) is to operate
retrospectively to such claims. In my view, such
nullification would
conflict with the intention of the Legislature. The interpretation
contended for above would therefore not
render abortive complaints
validly lodged prior to 1 June 2010. In my view, it was correct for
the first preliminary hearing to
be held under the new procedures by
the JCC and no other.
[71]
The
effect of the above interpretation is that section 14 of the new Act
dealing with lodgement of complaints does
not
act retrospectively but section 16 dealing with the hearing of valid
complaints does act retrospectively. I find authority for
such a
bifurcated interpretation in the case of
Yew
Bon Tew v Kenderaan Bus Mara
[1982] 3 All ER 833
(C) at 836b – d where Lord Brightman said:
“
A
statute is retrospective if it takes away or impairs a vested right
acquired under existing laws, or
creates
a new obligation, or imposes a new duty,
or attaches a new disability, in regard to events already passed.
There is, however, said to be an exception in the case of a statute
which is purely procedural, because
no
person has a vested right in any particular course of procedure
,
but only a right to prosecute or defend a suit according to the rules
for the conduct of an action for the time being prescribed.
But
these expressions ‘retrospective’ and ‘procedural’,
though useful in a particular context, are equivocal
and therefore
can be misleading. A statute which is
retrospective in relation to
one aspect of a case
(e.g. because it applies to a pre-statute
cause of action) may
at the same time be prospective in relation
to another aspect of the same case
(e.g. because it applies only
to the post-statute commencement of proceedings to enforce that cause
of action); and an Act which
is procedural in one sense may in
particular circumstances do far more than regulate the course of
proceedings, because it may,
on one interpretation, revive or destroy
the cause of action itself …
(and
further at 839d – f)
Whether
a statute has a retrospective effect cannot in all cases safely be
decided by classifying the statute as procedural or substantive…the
Lordships consider that the proper approach to the construction
of…(an Act)…is not to decide what label to apply
to it,
procedural or otherwise, but to see whether the statute, if applied
retrospectively to a particular type of case, would
impair existing
rights and obligations.” (Emphasis added)
[72]
The
aforesaid quoted passage from the
Yew
Bon Tew
case was approved by Marais JA in
Minister
of Public Works v Haffejee N.O.
[1996] ZASCA 17
;
1996 (3) SA 745
(AD) at 752C – G and in
Euromarine
International of Nauren v The Shipburg and Others
1986 (2) SA 700
(A) at 710E – H and in
Transnet
Ltd v Ngcezula
[1994] ZASCA 192
;
1995 (3) SA 538
(A) at 549G – I.
[73]
In
my view, the context of the amending Act in the present case was not
to deny complainants who have already lodged their claims
purely
because they were not under oath. Such a conclusion would, in my
mind, be contrary to the intention of the Legislature by
necessary
implication. Section 15(2)(b) expressly states that a complaint must
be dismissed if it does not comply substantially
with the provisions
of section 14(3). It could never have been the intention of the
Legislature to have this provision apply to
serious impeachable
complaints as contemplated in the new section 16. One example to
illustrate this proposition will suffice.
If, for example, a serious
complaint against a judge, such as having taken a bribe, was validly
lodged prior to 1 June 2010 in
a letter and not under oath, would
that mean that such serious complaint is nullified because it did not
comply with section 14(3)(b)?
Would it mean, as the applicant
contends, that such serious impeachable complaint must be dealt with
under the Old Rules and not
section 16? To my mind, the intention of
the Legislature in carefully elaborating and strengthening the
provisions dealing with
the process of hearing impeachable complaints
in sections 16 and 17 admit of no other interpretation but that these
should apply
retrospectively to complaints that had been validly
lodged prior to the new Act coming into force. I say this for the
following
reasons:
1.
The
new procedures contemplated in sections 16 and 17 include beneficial
provisions such as clause 17(2) which require the enquiry
to be
conducted in an inquisitorial manner where neither party is burdened
with an onus to prove or disprove any fact during such
investigation.
It could not have been intended to deny a judge this benefit in
regard to complaints validly lodged prior to 1 June
2010.
2.
Section
17 of the new Act also includes beneficial provisions for enlarging
the remedial steps that may be imposed by a JCT under
section 17(8).
This subsection states:
“
(8)
Any one or a combination of the following remedial steps may be
imposed in respect of the respondent:
(a)
Apologising
to the complainant, in a manner specified;
(b)
A
reprimand;
(c)
A
written warning;
(d)
Any
form of compensation;
(e)
Subject
to subsection (9), appropriate counselling;
(f)
Subject
to subsection (9), attendance of a specific training course;
(g)
Subject
to subsection (9), any other appropriate corrective measure.”
It
makes little sense to deny a judge who has committed an impeachable
offence these benefits when adjudicating and deciding the
correct
remedy to be applied to complaints lodged prior to 1 June 2010.
3.
Section 18 includes an additional appeal process that would be
beneficial to any judge found to have committed an impeachable
offence. It would be absurd to deny a judge this benefit against whom
a complaint was lodged prior to 1 June 2010.
4.
Section 19(1)(b) of the amended Act is not subject to the provisions
dealing with the lodging of complaints in terms of section
14 and the
investigatory procedures under sections 15, 16, 17 or 18. In
particular, it is not subject to the provisions of section
15(2)(b).
Section 19(1)(b) stands on its own. It enlarges the powers of the
Commission to request the Chief Justice to appoint
a tribunal under
section 21 and harks back to section 177(1)(a) of the Constitution
for such empowerment. The context of this provision
can only mean
that the Legislature intended to give the Commission the widest
powers possible to act as the watchdog over misbehaving
judges
concerning their past and future conduct. In fact, this provision
grants the Commission powers to act
mero motu
without the
necessity of any complaint being laid, to call for the appointment of
a tribunal to investigate the conduct of a judge.
This is also
consistent with an intention that section 19(1)(b) was intended to
operate retrospectively to cover
all
instances of complaints
against judges howsoever they were committed.
[74]
None
of the aforesaid additional provisions formed part of the Old Rules.
It would lead to an absurdity if unsworn complaints validly
lodged
prior to 1 June 2010 cannot be heard subject to these beneficial
provisions and such a result could never have been intended
by the
Legislature.
[75]
In
my view, this interpretation falls squarely within the postulate
stated by Olivier JA in the first sentence of paragraph [23]
of the
Unitrans
case
referred to above. My conclusion therefore on this issue is that the
JSC had authority to appoint the JCC to commence a preliminary
hearing of the complaints on 19 March 2010 validly lodged against the
applicant prior to 1 June 2010 although not under oath or
affirmed.
This conclusion renders it unnecessary to deal with the review ground
stated in paragraph 5.3 of the applicant’s
heads of argument.
Procedural
Unfairness (5.4)
[76]
In
paragraph 5.4 of the applicant’s heads of argument it complains
of procedural unfairness in that his point
in
limine
dealing with systemic problems in the North Gauteng High Court were
not taken into account when the JCC arrived at its conclusion
and
that he was not afforded an opportunity of being heard when the JSC
considered the recommendation of the JCC that a tribunal
should be
appointed. It is common cause that the meeting held on 19 March 2011
was constituted in terms of section 16(2) of the
new Act. In
accordance therewith, the applicant was invited to submit written
representations for consideration and was granted
leave to address
the committee at its meeting. In terms of section 16(4) the purpose
of the meeting is to establish whether or
not the complaint, if
established, will
prima
facie
indicate incapacity, gross incompetence or gross misconduct by the
applicant. After hearing the applicant, the JCC concluded that
a
prima
facie
case against the applicant entitling the JCC to recommend to the
Commission that a tribunal be appointed, was established. However,
they deferred that decision to a later date at which the applicant
was not present and they expressly refused to entertain his
defences
regarding the alleged systemic shortcomings in the North Gauteng High
Court.
[77]
The
applicant criticises this decision
inter
alia
on the basis that such a decision was not made in respect of the
other judges appearing before the committee on the same occasion.
This defence is totally untenable. The complaints against each judge
had to be investigated separately and independently of one
another
according to the circumstances in each case. The outcome of the JCC’s
decision in regard to other judges is
res
alios inter acta
and cannot therefore be equated to the circumstances surrounding the
case of the applicant.
[78]
Furthermore,
section 16(4) does
not
contemplate
a full hearing or a finding on all the relevant facts. Such duty is
specifically left to an enquiry in terms of section
17. In the event
of a section 17 enquiry being instituted, the applicant will have a
comprehensive opportunity of establishing
his defences. This much is
plain from the provisions of section 17(3) which states the
following:
“
17(3)
For the purpose of an enquiry referred to in subsection (2), the
Chairperson or member concerned –
(a)
must
invite the respondent to respond in writing or in any other manner
specified, and within a specified period, to the allegations;
(b)
may
obtain in the manner that he or she deems appropriate, any other
information which may be relevant to the complaint; and
(c)
must
invite the complainant to comment on any information so obtained and
on the response of the respondent within a specified period.”
[79]
It
is plain to see that the scheme envisaged by the Legislature excludes
the complainant from appearing before the committee at
the section
16(4) stage. It is only at the stage of the final enquiry in terms of
section 17 that both the applicant and complainant
will be afforded a
full hearing in which all relevant aspects will be examined and
covered by oral and/or documentary evidence.
It is at this stage that
the defences of systemic shortcomings should be disclosed to the
tribunal conducting the enquiry for a
decision or finding.
[80]
In
any event, the systemic shortcomings referred to by the applicant
were indeed placed before the JCC in his written submissions.
It
would not, however, be appropriate for a preliminary hearing to delve
into the merits or demerits of such a defence at that
stage. The duty
to make a
prima
facie
conclusion necessarily indicates an element of one-sidedness. At that
stage, the JCC had not yet been afforded an opportunity to
hear both
sides to the complaints. It is, however, trite that any
prima
facie
conclusion can always be put right or altered once a full scale
hearing is conducted. For these reasons I am of the view that there
was no procedural unfairness by not considering the so-called point
in
limine
in full.
[81]
No
basis in fact or in law has been established by the applicant
entitling him to be heard when the JSC sat to consider the
recommendation
of the JCC to establish or appoint a tribunal. The
facts are that the applicant was again invited to make written
submissions before
the JSC sat to consider such recommendation but he
had no right to appear personally at such meeting nor does he
establish in his
founding affidavit in paragraph 83 any basis for
such right of appearance. For these reasons I hold that the alleged
procedural
unfairness in this regard has also not been established.
Improper
Composition of the JCC in terms of Section 178(1)(k) (5.5)
[82]
The
applicant takes the point that the Premier of Gauteng or her
alternate was not present at the time when the decision was taken
to
establish a tribunal. In paragraphs 101 to 114 of the answering
affidavit the fourth respondent explains that all the premiers
involved were notified to attend the meeting and that the Member of
the Executive Council, Mr Creecy, attended the meeting as a
representative of the Premier of Gauteng on 28 May 2011. At the
deferred meeting two of the relevant premiers, i.e. of Mpumalanga
and
Limpopo were present. As such there is no substance in this complaint
and it is rejected.
No
Duty or Obligation to Complete Judgments after his Discharge from
Active Service (5.6 and 5.7)
[83]
This
allegation, to say the least, is quite outstanding. At no stage
anywhere in the proceedings or in the applicant’s affidavits
is
any allegations made that he is not competent to complete the
judgments that are still outstanding. There is no medical evidence
indicating that he is not
compos
mentis
to do so. Hence the allegation that he is under no obligation to
write further judgments after 18 June 2010 is without substance.
The
applicant‘s contentions in this regard fly in the face of the
ethical duties of a judge, whether before or after discharge
or
retirement, to render judgments.
[22]
[84]
In
terms of section 3(2)(c) the President may discharge a judge from
active service on account of permanent infirmity of mind or
body that
renders him/her incapable of performing his/her official duties.
That, however, does not discharge such judge from obligations
to
render judgments that were outstanding at the time of such discharge.
To interpret this section any other way would fly in the
face of the
core duty of a judge to render judgments and also fly in the face of
the constitutional imperative in section 34 for
access to justice.
CONCLUSION
[85]
For
all the reasons aforesaid I am of the view that the applicant’s
application should be dismissed.
COSTS
[86]
In
a separate memorandum prepared by counsel acting on behalf of the
applicant a request was made for the costs occasioned by three
counsel. That will only apply, of course, if the applicant was
successful in the application. Once the application has been
dismissed,
the extent of an appropriate costs order remains to be
decided.
[87]
As
far as the first respondent is concerned no costs are requested or
are to be awarded against the President.
[88]
In
my view, the matter was of sufficient complexity and length to
entitle the fourth respondent to employ two counsel and it would
be
fair and reasonable to include such an order in the costs order.
[89]
For
the aforesaid reasons the following order is made:
The
application is dismissed with costs that are to include the costs
occasioned by the employment of two counsel.
DATED
AND SIGNED
THIS
26TH DAY OF SEPTEMBER 2014
AT
JOHANNESBURG
C.
J. CLAASSEN
JUDGE
OF THE HIGH COURT
I
agree
N.
F. KGOMO
JUDGE
OF THE HIGH COURT
I
agree
H.
MAYAT
JUDGE
OF THE HIGH COURT
Counsel
for the Applicant: Adv S. M. Mbenenge SC
Adv
M. Mphaga SC
Adv
S. Poswa-Lerotoli
Counsel
for the First Respondent: Adv H.S. Gani
Counsel
for the Fourth Respondent: Adv I. Jamie SC
Adv
A. L. Platt
Attorney
for the Applicant: Poswa Incorporated
Attorney
for the Respondents: The State Attorney, Pretoria
The
case was argued on Monday 15 September 2014.
[1]
It
is, however, unnecessary to consider the extent to which this right
may be limited by the provisions of section 36 of the Constitution
Act 108 of 1996 , as no argument was addressed on this aspect.
[2]
See
Pharmaceutical Society of South Africa and Others v
Tshabalala-Msimang and Another
NNO
2005 (3) SA 238
(SCA) 260H – 262C
[3]
The
Law Times Reports (Feb 19, 1998) 85 at 86
[4]
See 117(2000) SALJ 403 at 406 – 418
[5]
See
further "The Judiciary in South Africa" by Hoexter and
Olivier, paragraph 7.7 at pp. 232 – 235
[6]
Ngoepe
JP. Prior to the applicant’s appointment and on 10 June 2004 a
Practice Directive was issued by the Judge President
applicable to
the High Court judges in Pretoria and Johannesburg stating: “
An
enquiry by an attorney wanting to know when a reserved judgment will
be delivered is to be directed to the Deputy Judge President
of each
Division. In the case of an unrepresented party such request shall
be similarly directed.”
See
further 2004 (6) SA 84
[7]
The
chronology of these cases heard by the applicant, the period of
delays in rendering judgments, the letters of complaints addressed
to the Judge President, the applicant’s responses thereto and
the referral to the Judicial Services Commission, are all
contained
in the Answering Affidavit of the fourth respondent, paragraph 6 –
10
[8]
See
the Fourth Respondent’s Answering Affidavit p. 240 par 10.4.4;
the Record pp. 93 – 96; Answering Affidavit p.
228 par 8.2;
Record pp. 223; Answering Affidavit p. 230 par 9.6 and the Record
pp. 15 – 19; Answering Affidavit p. 234
par 10.2.7 and Record
pp. 38 – 52; Answering Affidavit p. 237 par 10.3.6 and Record
pp. 74 – 82
[9]
Answering
Affidavit p. 240 par 10.4.5 and Record p. 97; Answering Affidavit p.
234 par 10.2.8 and Record p. 53; Answering Affidavit
p. 228 par 8.3
and Record p. 4
[10]
See
Answering Affidavit p. 238 par 10.3.9 and Record p. 88
[11]
See
Answering Affidavit p. 240 par 12 and Record pp. 137 – 142
[12]
Answering
Affidavit p. 242 par 13 – 14 and Record pp. 143-4 and pp.
145-6
[13]
Answering
Affidavit p. 243 par 15 and Record pp. 147 – 153
[14]
Section
177 reads as follows:
“
(1)
A judge may be removed from office only if –
(a)
the
Judicial Service Commission finds that the judge suffered from an
incapacity, is grossly incompetent or is guilty of gross
misconduct;
and
(b)
the
National Assembly calls for that judge to be removed, by a
resolution adopted with a supporting vote of at least two thirds
of
its members.
(2) The President must
remove a judge from office upon adoption of a resolution calling for
that judge to be removed.
(3) The
President, on the advice of the Judicial Services Commission, may
suspend a judge who is the subject of a procedure
in terms of
subsection (1).”
[15]
These
rules were supposed to be published in the Government Gazette in
terms of s 5 of the unamended
Judicial Service Commission Act No 9
of 1994
. However, this did not occur
[16]
See
Record pp. 179 – 219
[17]
See
Record p. 298, paragraph 2.3 of Applicant’s email dated 24
February 2013
[18]
See
Unitrans
Passenger (Pty) Ltd t/a Greyhound Coach Lines v Chairman, National
Transport Commission, and Others; Transnet Ltd (Autonet
Division) v
Chairman, National Transport Commission, and Others
1999 (4) SA 1 (SCA)
[19]
See
Unitrans
case
supra
at paragraph [12]
[20]
See
section 14(2)
as read with
section 15(1)
and (2) and the definition
of “Chairperson” in
section 1
[21]
See
section 15(1)(b)
as read with
section 16(1)
and the definition of
“Committee” in
section 7(1)(d)
[22]
See
paragraphs [12] to [15] above