Nkabinde and Another v Judicial Service Commission President of the Judicial Conduct Tribunal and Others (13/39093) [2014] ZAGPJHC 217; 2015 (1) SA 279 (GJ); [2014] 4 All SA 637 (GJ); 2014 (12) BCLR 1477 (GJ) (26 September 2014)

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[2014] ZAGPJHC 217
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Nkabinde and Another v Judicial Service Commission President of the Judicial Conduct Tribunal and Others (13/39093) [2014] ZAGPJHC 217; 2015 (1) SA 279 (GJ); [2014] 4 All SA 637 (GJ); 2014 (12) BCLR 1477 (GJ) (26 September 2014)

REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
LOCAL DIVISION, JOHANNESBURG)
CASE
NO: 13/39093
DATE:
26 SEPTEMBER 2014
In
the matter between:
BAAITSE
ELIZABETH
NKABINDE
...................................................
First
Applicant
CHRISTOPHER
NYAOLE JAFTA
.................................................
Second
Applicant
And
THE
JUDICIAL SERVICE COMMISSION
....................................
First
Respondent
PRESIDENT
OF THE JUDICAL
CONDUCT
TRIBUNAL
............................................................
Second
Respondent
MINISTER
OF JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT
.........................................
Third
Respondent
XOLISILE
KHANYILE
N.O
........................................................
Fourth
Respondent
JUDGMENT
H MAYAT J
INTRODUCTION
[1]
The unprecedented events giving rise to the present application
before the full bench of this court have their roots in four
related
cases, which were heard by the Constitutional Court during March
2008, more than six years ago. These four cases, which
involved
companies named Thint (Pty) Limited and Thint Holdings (South Africa)
(Pty) Ltd as well as Mr J.G. Zuma, are conveniently
referred to in
this judgment as “the Zuma/Thint cases”. Both the first
applicant, Justice Nkabinde, as well as the
second applicant, Justice
Jafta, (who was an Acting Judge of the Constitutional Court at the
time) heard argument in the Zuma/Thint
cases as part of the
Constitutional Court hearing these cases at the time.
[2]
After judgment in the Zuma/Thint cases was reserved, Judge President
Hlophe of the Western Cape High Court separately communicated
with
each of the applicants in their respective chambers at the
Constitutional Court. As set out more fully in this judgment, the

separate communications between Hlophe JP and the applicants were the
subject matter of a joint complaint by Judges of the Constitutional

Court (including the Chief Justice and the Deputy Chief Justice) to
the first respondent, the Judicial Service Commission
(“the
Commission”) in May and June 2008.
[3]
The joint complaint submitted to the Commission in 2008 resulted in
various proceedings initiated by the Commission as well
as a number
of court skirmishes in the High Court and the Supreme Court of Appeal
(“the SCA”). These proceedings and
court skirmishes
culminated in a Judicial Conduct Tribunal, established by the
Commission, with retired Judge Labuschagne as Tribunal
President.
The said Tribunal, which commenced proceedings in October 2013, is
referred to in this judgment as “the
Labuschagne Tribunal”.
[4]
The present application for review was instituted in October 2013.
In terms of the amended notice of motion (dated the
17
th
of March 2014), the applicants seek to review and set aside two
decisions taken by the Commission on the 18
th
of April
2012 and on the 17
th
of October 2012.
[5]
The applicants further seek a declaratory order to the effect that
section 24(1)
of the
Judicial Service Commission Act 9 of 1994
as
amended, is unconstitutional and accordingly invalid. It may be
mentioned in this respect that the said Act was amended by the
Judicial Service Commission Amendment Act 20 of 2008
.  The
latter Act introduced certain amendments, including
section 24(1)
,
referred to above. These amendments were assented to on the 22
nd
of October 2008, but only subsequently came into force on the 1
st
of June 2010. The previous Act, prior to the amendments effected from
the 1
st
of June 2010, is conveniently referred to in this
judgment as the “JSC Act” and the amended JSC Act, which
came into
force on the 1
st
of June 2010, is conveniently
referred to in this judgment as the “Amended JSC Act”.
[6]
The declaratory relief sought by the applicants in relation to
section 24(1) of the Amended JSC Act is premised primarily upon
an
averment that it is unconstitutional for a Tribunal (such as the
Labuschange Tribunal) established in terms of the Amended JSC
Act to
appoint a member of the National Prosecuting Authority (“NPA”),
after consulting the third respondent, the Minister
of Justice and
Constitutional Development (“The Minister”) as well as
the National Director of Public Prosecutions
(“NDPP”),
for the purpose of collecting evidence on behalf of the said
Tribunal, as envisaged in section 24(1).
[7]
The application to review the two decisions of the Commission taken
in April 2012 and October 2012 is opposed by the Commission.
The
further application relating to the constitutional validity of
section 24(1) of the Amended JSC Act is opposed by the Commission
as
well as the Minister.
[8]
It may be mentioned that the time limits specified in
section 7(1)
of
the
Promotion of Administrative Justice Act 3 of 2000
relating to
review proceedings were not in issue before us. The court accordingly
condoned the late institution of review proceedings
by the applicants
to the extent that it was necessary to do so.
RELEVANT
FACTUAL MATRIX
[9]
The chain of events giving rise to the present application appear
largely common cause on the papers, which incorporate all
relevant
statements and documents referred to in the affidavits as well as a
record of previous proceedings in this matter before
the Commission.
The said record, which was compiled by the Commission for the
purposes of the present review application, included
proceedings
before the Labuschagne Tribunal.
[10]
It appears from the papers on record that after judgment in the
Zuma/Thint cases was reserved in March 2008, Hlophe JP visited
the
chambers of Jafta AJ (as he then was) at the Constitutional Court
towards the end of March 2008, without invitation.
[1]
During
the course of such visit, Hlophe JP raised for discussion (again
without invitation) with Jafta AJ, the Zuma/Thint cases.
Hlophe JP
then conveyed to Jafta AJ inter alia that the SCA had made a wrong
finding in this context and that he (Jafta AJ) was
“sesithembele
kinina” (roughly translated to mean “you are our last
hope”).
[2]
[11]
Jafta AJ subsequently reported to the Chief Justice and the Deputy
Chief Justice that he had known Hlophe JP for many years
as a
colleague and a friend and that in this capacity, he was not inclined
to breach the confidence of all the communications to
him by Hlophe
JP at the time. Be that as it may, whilst Jafta AJ indicated that he
did not wish to divulge the confidential part
of the communications
between him and Hlophe JP at the time, he nevertheless confirmed in
general terms the reports, which were
subsequently made by Nkabinde J
to the former Chief Justice Langa (now deceased) after May 2008.
Therefore, as already indicated,
Jafta AJ subsequently confirmed that
Hlophe JP had conveyed to him at the end of March 2008 words to the
effect that he (Jafta
AJ) was the last hope.
[12]
It is also not in dispute on the papers that a few weeks later, on
the 23
rd
of April 2008, Hlophe JP telephoned Nkabinde J
requesting to see her in her chambers in the Constitutional Court on
Friday, the
25
th
of April 2008 by indicating to her that
he had a “mandate” to act. She acceded to his request to
meet and Hlophe JP
subsequently visited her on the 25
th
of
April 2008, as agreed. Nkabinde J, who is a friend of Jafta J,
subsequently informed him that she had agreed to meet Hlophe
JP,
whereupon Jafta AJ warned her by way of response, to be careful as
Hlophe JP might wish to discuss the Zuma/Thint cases.
[13]
It is not in dispute on the papers that Hlophe JP raised certain
matters pertaining to privilege with Nkabinde J during the
course of
his discussion with her on the 25
th
of April 2008, in relation to the Zuma/Thint cases. Nkabinde J
rebuffed the matters raised by Hlophe JP as “hogwash”
and
she stated that she reprimanded him for raising these matters with
her. She also stated that she made it clear to Hlophe JP
at the time
that he was not entitled to discuss the Zuma/Thint cases with her.
She accordingly conveyed to him that he should not
interfere with the
workings of the Constitutional Court. Nkabinde J subsequently stated
that her discussion with Hlophe JP at the
time did not influence her.
[14]
Even though Nkabinde J was initially unwilling to furnish a written
statement regarding her discussion with Hlophe JP, she
subsequently
reported her communications with Hlophe JP to the Chief Justice and
the Deputy Chief Justice.  She stated in
this respect that she
had wrestled in her mind the communications made to her and Jafta AJ,
and she eventually decided to approach
Mokgoro J for advice in early
May 2008.  Both the applicants then provided an account of their
respective discussions with
Hlophe JP to Langa CJ and Moseneke DCJ.
[15]
Against this background, the Judges of the Constitutional Court
(including Jafta AJ and Kroon AJ) lodged a joint complaint
from the
“JUDGES OF THE CONSTITUTIONAL COURT” dated the 30
th
of May 2008 stating inter alia in this respect that:
“
8
Any attempt to influence this or any other Court outside proper court
proceedings
therefore not only violates the specific provisions of
the Constitution regarding the role and function of courts, but also
threatens
the administration of justice in our country and indeed the
democratic nature of the state. Public confidence in the integrity of

courts is of crucial importance for our constitutional democracy and
may not be jeopardised.”
9
This Court – and indeed all courts in our country – will
not yield
to or tolerate unconstitutional, illegal and inappropriate
attempts to undermine their independence or impartiality. Judges and

other judicial officers will continue – to the very best of
their ability – to adjudicate all matters before them in

accordance with the oath or solemn affirmation they took, guided only
by the Constitution and the law.”
[16]
On the 2
nd
of June 2008, the Commission requested further
details of the above complaint and on the 6
th
of June
2008, the Commission issued a media statement in which it was stated
inter alia that it would meet on the 5
th
of July 2008 to
consider whether there was a
prima facie
case of gross
misconduct against Hlophe JP, as envisaged in section 177(1)(a) of
the Constitution.  Thereafter, Howie JA, in
his capacity as
Acting Chairperson of the Commission, requested a statement from each
of the complainant judges in a letter to
Langa CJ dated the 6
th
of June 2008. In a further letter dated the 12
th
of June
2008, Howie JA also requested Langa CJ to set out the complaint
against Hlophe JP with more particularity.
[17]
The applicants state that when the letter dated the 6
th
of
June 2008 was brought to their attention, they both sent a joint
statement to the Commission dated the 8
th
of June 2008
stating at the time as follows:
“
For the record
we wish to state that we have not lodged a complaint and do not
intend to lodge one and consequently, we are not
Complainant
Judges.
”
[18]
Some five days later, by way of a response to the above letter from
the Commission dated the
12
th
of June 2008, pursuant to at
least two meetings of Constitutional Court Judges, the Chief Justice
informed the Commission in a
letter dated the 17
th
of June
2008 as follows:
“
In response to
your letter of 12 June 2008, I can now inform you as follows: on 16
June the Judges of the Constitutional Court,
including Nkabinde J and
Jafta AJ met. Their response is:
1.
The judges
do pursue their complaints against Hlophe JP that was lodged on 30
May 2008;
2.
We attach a
set of statements in support of the complaint. The main consolidated
statement on behalf of the judges is made by me.
Statements
confirming the correctness of my statement insofar as it relates to
them are furnished by Moseneke DCJ, Jafta AJ, Mokgoro
J, Nkabinde J
and O’Regan J. If the Commission requires confirming statements
by other judges, they will be furnished.”
[19]
Langa CJ states in paragraph 1 of his main statement, which is
described in the heading as “The
Statement in Support of
Complaint to the Judicial Service Commission by Judges of the
Constitutional Court made on 30
May 2008”, and which
forms part of the founding papers that:
“
I am the Chief
Justice of South Africa. This statement is made in my capacity as
Chief Justice and Head of the Constitutional Court.
This is a
consolidated statement made on behalf of all the Judges of the court
containing key information relevant to the complaint.
My colleagues
Moseneke DCJ, Jafta AJ, Mokgoro J, Nkabinde J and O’Regan J
have made confirming statements insofar as the
contents of this
statement relates to them. The other Judges of the court are willing
to make confirmatory statements as well should
the Commission so
require.
”
[20]
As indicated in his covering letter, dated the 17
th
of
June 2008, Langa CJ reiterated in paragraph 3 of his statement:
“
At the outset,
I confirm that the complaint having been collectively lodged by the
judges of the Court is being pursued by them.
Those judges are
myself, Moseneke DCJ, Jafta AJ, Kroon AJ; (Jafta AJ and Kroon AJ were
appointed to act as judges of the Constitutional
Court for the period
15 February 2008 till 31 May 2008); Madala J, Mokgoro J, Ngcobo J,
Nkabinde J, O’Regan J; (O’Regan
J acted as ADCJ for the
period 15 February to 31 May 2008 and is sometimes referred to as
O’Regan ADCJ in this statement);
Skweyiya J, van der Westhuizen
J and Yacoob J. The basis of that complaint is set out in this
statement, and confirmed in the attached
statements by Moseneke DCJ,
Jafta AJ, Mokgoro J, Nkabinde J and O’Regan J. The judges do
not presume to advise the JSC as
to the manner in which the complaint
should be investigated, including the manner in which it should
receive evidence. Should the
JSC so require, judges who have not made
confirmatory statements are willing to furnish them.
”
[21]
The statement by Langa CJ was followed by “confirming
statements” by the relevant
Judges.  It appeared from each
“confirming statement” that the Judge concerned had read
the statement of Langa
CJ and had confirmed its contents as being
true and correct insofar as the said main statement related to the
Judge concerned.
The applicants also gave confirming statements at
the time to support the joint complaint.
[22]
The reasons for the complaint by the Judges of the Constitutional
Court are reflected in paragraphs
53 and 54 of the statement
submitted to the Commission are inter alia as follows:
“
The attempt to
influence Nkabinde J and Jafta AJ in the manner described above –
(a)
was
calculated to have an impact not only on the individual decisions of
the judges concerned but on the capacity of the Constitutional
Court
as a whole to adjudicate in a manner that ensures its independence,
impartiality, accessibility and effectiveness as required
by Section
165(5) of the Constitution;
(b)
constituted a
breach of Section 165(3) of the Constitution which prohibits any
person or organ of state from interfering with the
functioning of the
courts.
”
[23]
Langa CJ further indicated in paragraph 49 of his statement that
after the initial communication
to the Commission from the
Constitutional Court Judges, counsel for the applicants proposed that
the following further detail be
included in the joint statement of
the Constitutional Court in the context of the discussion between
Hlophe JP and Nkabinde J:
“
In the course
of that conversation, Hlophe JP said he wanted to talk about the
question of “privilege”, which in his
words formed the
gravamen of the National Prosecution Authority’s case against
Mr J.G. Zuma. He further said the manner in
which the case was to be
decided was very important as there was no case against Mr Zuma
without the “privileged” information
and that Mr Zuma was
being persecuted just like he (Hlophe JP) had also been
”
.
[24]
Langa CJ also stated in paragraph 9(c) of the joint complaint
submitted that during the course
of the conversation between Hlophe
JP and Jafta AJ towards the end of March 2008:
“
Hlophe JP
sought improperly to persuade Jafta AJ to decide the Zuma/Thint cases
in a manner favourable to MR J.G. Zuma.”
He
further stated in paragraph 10(c) that during the course of the
conversation between Hlophe JP and Nkabinde J in April 2008:
“
Hlophe JP
sought improperly to persuade Nkabinde J to decide the Zuma/Thint
cases in a manner favourable to Mr J.G. Zuma.
”
[25]
On the 30
th
of June 2008, Hlophe JP responded to the
complaint against him and lodged a counter-complaint against Judges
of the Constitutional
Court on the basis of the publication of a
media statement by the Constitutional Court Judges. To the extent
that it is relevant
in this context, the said counter-complaint has
since been withdrawn and is not pertinent to the present application.
[26]
Against this background, it is not in dispute on the papers that the
complaint in this matter
was validly lodged by the Justices of the
Constitutional Court in terms of the rules of the Commission, which
prevailed in 2008.
The said rules are referred to in this judgment as
“the Old Rules.” It is also not in dispute on the papers
that the
said complaint was not submitted in the form of an affidavit
or affirmation, as contemplated in section 14(3) of the Amended JSC

Act. It is further not in dispute on the papers that no provision is
made in the Old Rules for the appointment of a Tribunal, such
as the
Labuschagne Tribunal.  Instead, the Old Rules provide for the
appointment of a sub-committee consisting of members
of the
Commission to fulfill the same investigatory function as that of a
Tribunal under the Amended JSC Act.
[27]
As already indicated, to the extent that it is relevant in this
context, it appears from the
papers that Hlophe JP admitted that he
had discussed the Zuma/Thint cases with the applicants on separate
occasions. He also stated
in relation to his discussion with Jafta AJ
that he had conveyed to Jafta AJ with respect to the Zuma/Thint cases
that it was a
“very important” matter and that the issue
of privilege was “a very concerning one”, which had to be
dealt
with “properly”.
[3]
[28]
The Commission, chaired by Howie JA, then met on the 5
th
of July 2008 and the central issue at that meeting, apart from the
recusal of certain members, was whether a
prima
facie
case of misconduct
had been made out against Hlophe JP. After the said meeting, the
Commission released a media statement in which
it stated that:
“
The Commission
unanimously decided that in view of the conflict of facts on the
papers placed before it, it was necessary to refer
both the complaint
by the Constitutional Court and the counter-complaint by the Judge
President to the hearing of oral evidence
on a date to be arranged by
the Commission.
”
[29]
In due course, the hearing of oral evidence took place between the
1
st
to the 8
th
of April 2009. Six
Constitutional Court Judges testified
under oath
before the
Commission namely, Langa CJ, Moseneke DCJ, Mokgoro J, O’Regan J
as well as the two applicants. Each of the said
six Judges, confirmed
in their testimony that they were complainants in the joint complaint
submitted on the 17
th
of June 2008. Thus, for example, the
transcript relating to the testimony of Moseneke DCJ, which forms
part of the record of the
Commission in the present application,
reflects as follows:
[Chairperson]:
Deputy Chief Justice is it correct
on the 17
th
of June you
deposed a confirmatory affidavit…oh, a statement, not an
affidavit, but a statement…a confirmatory statement
that the
contents of the statement that was signed by the Chief Justice on
that day is correct?
[Moseneke
DCJ]:          That is
correct, President.
[Chairperson]:
And also in a further statement
that the Chief Justice signed in
response to the complaint by the Judge President of the Cape against
the Judges of the Constitutional
Court. Do you remember if you signed
a confirmatory statement in response to that statement?
[Moseneke
DCJ]:          Yes, I
did. It was part of the main statement of the 17
th
of
June.”
Similarly,
the other Justices testified
under oath
confirming that the
statement submitted by Langa CJ on the 17
th
of June 2008
was correct. The evidence of none of the Judges of the Constitutional
Court at the time was tested by cross-examination.
[30]
The Commission initially decided to hold a formal enquiry into the
complaint in this matter in
terms of the Old Rules, but reversed its
decision to do so on the 20
th
to the 22
nd
of
July 2009 and held a preliminary enquiry instead. A sub-committee
appointed by the Commission then conducted interviews on the
30
th
of July 2009 and the former Chief Justice, the Deputy Chief Justice
as well the two applicants were all interviewed by the sub-committee.

In essence, all the Constitutional Court Judges interviewed confirmed
the evidence, which they had already given to the Commission.
The
enquiry was adjourned to the 15
th
of August 2009 and the
appointed sub-committee reconvened on the 15th of August 2009, when
it was decided on the basis of the interviews
conducted that:
“
-
The evidence in respect of the complaint did not justify a finding
that the Judge President was guilty
of gross misconduct and that the
matter was accordingly finalised;
-
The
evidence in support of the counter-application did not support a
finding of the Constitutional Court Justices were guilty of
gross
misconduct and that the matter was accordingly finalised; and
-
None of the judges
against whom complaints were lodged was guilty of gross misconduct.
”
[31]
As already indicated, the complaint in this matter has been the
subject matter of much litigation,
including an application
instituted by Hlophe JP in the South Gauteng High Court to set aside
the entire proceedings of the Commission
as well as two review
applications instituted against the Commission on different grounds
in the High Court by Freedom Under Law
and the Premier of the Western
Cape (as part of the Democratic Alliance). Both applications for
review were successful before the
SCA for different reasons. The two
judgments in this respect are reported as
Freedom
Under Law v Acting Chairperson: Judicial Service Commission and
Others
2011 (3) SA 549
(SCA) (“the Freedom Under Law case”) and
Acting
Chairperson: Judicial Service Commission v Premier of the Western
Cape Province
2011(3) SA
538 (SCA).
[32]
In an application for an interdict relating to a media statement
instituted by Hlophe JP, Langa
CJ deposed to an answering affidavit
on behalf of all the Judges, who had lodged the joint complaint
against Hlophe JP.  Langa
CJ stated in this respect in his
answering affidavit that the complaint in this matter was made in
accordance with the rules governing
complaints in terms of section
177(1)(a) of the Constitution as well as the rules accepted by the
Commission.
[33]
The Chief Justice and the other Constitutional Court Judges did not
participate in the proceedings
in the Cape High Court as the relief
sought in that case was directed towards the Commission itself inter
alia on the basis of
the non-participation of the Premier of the
Western Cape in the proceedings of the Commission in terms of the
Constitution.
[34]
In the judgment relating to the case of Freedom Under Law, which was
handed down by the SCA in
March 2011, the SCA reviewed and set aside
the Commission’s decision to finalise the complaint on the 15
th
of August 2009 on the basis that Hlophe JP was not guilty of
misconduct, as irrational.  The SCA concluded in this respect
as
follows:
“
Any attempt by
an outsider to improperly influence a pending judgment of a court
constitutes a threat to the independence, impartiality,
dignity and
effectiveness of that court. In the present case the allegation is
that Hlophe JP attempted to improperly influence
the Constitutional
Court’s pending judgment in one or more cases. The JSC had
already, when it decided to conduct the interview
with the judges,
decided that, if Hlophe JP had indeed attempted to do so, he would
have made himself guilty of gross misconduct
which,
prima
facie,
may
justify his removal from office. Moreover, it based its decision
dismissing the complaint on an acceptance that Hlophe JP probably

said what he is alleged to have said. In these circumstances, the
decision by the JSC to dismiss the complaint, on the basis of
a
procedure inappropriate for the final determination of the complaint,
and on the basis that cross-examination would not take
the matter
further, constituted an abdication of its constitutional duty to
investigate the complaint properly. This dismissal
of the complaint
was therefore unlawful.
”
[4]
[35]
It may be mentioned by way of background that in the notice of
motion, in the court
a quo
, the appellants in the SCA had also
requested an order to set aside the decision of the Commission at its
meeting on the 20
th
to the 22
nd
of July 2009
(to reverse its earlier decision to hold a formal enquiry). However,
even though the appeal was successful, as indicated
above, the SCA
did not set aside the Commission’s decision in July 2009 and
merely set aside the subsequent decision of the
Commission taken at
its meeting on the 15
th
of August 2009, referred to above
[36]
To the extent that it is relevant in this context, in accordance with
the assertion in the joint
statement of the Constitutional Court
Judges on the 30
th
of May 2012 relating to public
confidence in the integrity of courts being of crucial importance for
our constitutional democracy
and not being jeopardised, the SCA also
recognised that:
“
The
Constitutional Court judges did not act in their own interest and
their complaint is not that they have been wronged in their

individual capacities. They acted in what they considered to be the
public interest.
”
[5]
[37]
Pursuant to the decision of the SCA and on the 18
th
of
April 2012, the Commission decided to investigate the complaint
against Hlophe JP in terms of new procedures contemplated by
the
Amended JSC Act. On the basis of this decision, during or about July
2012, the Commission then established a Judicial Conduct
Committee
(“the Musi JCC”) comprising three judges (including Musi
JP) to investigate the complaint of the Constitutional
Court Judges
as well as a further complaint by Freedom Under Law arising from the
former complaint. The Musi JCC also considered
whether the complaint
against Hlophe JP should be referred to a Judicial Conduct Tribunal
in terms of the Amended JSC Act.
[38]
The parties then made written representations to the Musi JCC and
were also afforded an opportunity
to make oral submissions on the 6
th
of August 2012. At that stage, the Constitutional Court Judges
indicated that they did not wish to make any oral submissions.

Musi JP concluded in his decision on behalf of the JCC relating to
the two complaints as follows:
“
I conclude
therefore that the application of the procedure of the new Act to the
complaints based on gross misconduct will not violate
the rule
relating to retrospectivity. Subject to one qualification to be dealt
with below, all such complaints fall to be handled
in terms of the
procedures of the new Act irrespective of when they arose. This will
be the case even if the complaint may have
been lodged before the
coming into operation of the new Act as long as it has not been dealt
with.
”
[6]
On
the 4
th
of September 2012, the Musi JCC accordingly
recommended to the Commission that the complaint lodged by the Judges
of the Constitutional
Court be investigated by a Tribunal. To the
extent that it is relevant in this context, the further complaint by
Freedom Under
Law at the time, was dismissed by the Musi JCC.
[39]
Thereafter, on the 17
th
of October 2012, the Commission,
constituted as prescribed in section 178(5) of the Constitution,
resolved in terms of section
19(1) of the Amended JSC Act to request
the Chief Justice to appoint a Tribunal in terms of section 21 of the
Amended JSC Act.
[40]
In due course, on the 28
th
of January 2013, the present
Chief Justice established the Labuschagne Tribunal in terms of
section 19(1) of the Amended JSC Act
to investigate and report on the
complaint lodged in June 2008 by the Justices of the Constitutional
Court against Hlophe JP. As
already stated, Labuschagne J was
appointed as the Tribunal President. The remaining Tribunal Members
were Sandi J and Ms Pather
as envisaged in section 22(1) of the
Amended JSC Act. The stated purpose of the Labuschagne Tribunal in
the Terms of Reference
published by the Chief Justice on the 4
th
of March 2013 was “to investigate and report on” the
complaint lodged with the Commission on the 30
th
of May
2008 by the Justices of the Constitutional Court against Hlophe JP.
In accordance with the provisions of the Amended JSC
Act, it was
stated that the Tribunal was to conduct its investigations “amongst
others” by “collecting evidence;
conducting a formal
hearing; making findings of fact; and making a determination on the
merits of the allegations.”
[41]
On the 6
th
of March 2013, the office of the NDPP proposed
the name of the fourth respondent, as a senior member of the NPA and
the Director
of Prosecutions, Free State, to the Labuschagne Tribunal
as “evidence leader”, in terms of section 24(1) of the
Amended
JSC Act.
[42]
The applicants indicate in affidavits on record in relation to the
establishment of the Labuschagne
Tribunal that following the judgment
of the SCA in the case of Freedom Under Law on the 31
st
of
March 2011, they expected the Commission to refer the complaint in
this matter either back to the Commission itself or to the

sub-committee in terms of the Old Rules in order to resolve disputes
of fact by way of cross-examination. Instead, Jafta J asserts
in his
founding affidavit that the Commission adopted a different approach
and so changed the “
rules of engagement”
by
utilising a new regime involving a Tribunal, as contemplated in the
Amended JSC Act, which came into effect in June 2010, two
years after
the complaint in this matter had been lodged in 2008.
[43]
Jafta J also makes reference in an affidavit deposed by him for the
purposes of the present application
to the principle of legality,
which he asserts is a component of the rule of law and one of the
founding values of our Constitution.
As such, he emphasises in his
founding affidavit that it is a fundamental principle of the rule of
law that statutes, which are
passed by Parliament generally apply
prospectively only, unless a retrospective application is
contemplated by the clear terms
of the statute itself. Jafta J
accordingly contends in the affidavits deposed by him that the
Commission incorrectly applied the
Amended JSC Act retrospectively,
when nothing in the clear terms of the Act itself permitted the
Commission to do so.
[44]
The Labuschagne Tribunal commenced proceedings in October 2013.
Counsel representing the applicants
as well as counsel for Hlophe JP
jointly raised a number of preliminary objections.  The main
preliminary objection was that
the complaint in this matter does not
comply with section 14(3) of the Amended JSC Act by virtue of the
fact that the said complaint
was not incorporated in an affidavit or
affirmation.  An ancillary preliminary objection related to the
legality of proceedings
before the Labuschagne Tribunal.
[45]
The Labuschagne Tribunal noted in relation to the preliminary
objections raised that even though
this matter had a history
approximating five years, and the SCA had considered the complaint in
this matter on two occasions, the
applicants’ counsel only saw
fit to make submissions premised upon section 14 of the Amended JSC
Act for the very first time
in a “pre-trial meeting” on
the 30
th
of September 2013, shortly before the
commencement of the hearing of the Tribunal. Be that as it may, the
Labuschange Tribunal
also recognised that the relevant rules at the
time the complaint was lodged (in terms of the JSC Act) included rule
2.1 relating
to the Commission considering complaints received by it
against a Judge and rule 2.2, in terms of which the Commission could
require
any complaint to be on oath or not. As such, it appeared that
even though the procedures adopted by the Commission after 2012, were

defined in terms of the Amended JSC Act, the initial complaint in
this matter was lodged in 2008 in terms of the JSC Act.
[46]
The Labuschagne Tribunal ultimately dismissed all the preliminary
objections by both the applicants
and Hlophe JP on the 3
rd
of October 2013, inter alia on the basis that there was nothing in
the Amended JSC Act, which either expressly or impliedly invalidated

complaints made before the said Act took effect. Reasons for the
dismissal of the preliminary objections were subsequently handed
down
on the basis of the unanimous findings of the Tribunal President and
the two Tribunal Members on the 1
st
of November 2013. It appears that the present application was
instituted shortly after the preliminary objections were dismissed
on
the 3
rd
of October 2013, and before the reasons for such dismissal were
subsequently handed down. Be that as it may, after referring to

certain case authority,
[7]
the Tribunal found that:
“
[
E]ven
if a statute is amended with retrospective effect,  the rights
of the parties to a pending action must be decided in
accordance with
the law as it was when the action was instituted, unless a contrary
intention appears from the statute.”
[8]
[47]
For the reasons stated, the Labuchagne Tribunal also concluded:
“
On a proper
consideration of the facts as a whole, considered in the light of all
the legal principles set out above and on any
one of the tests
referred to, we find that the reliance on section 14 of the JSC Act
is misplaced and if applicable, there has
been compliance with the
provisions of that section. To the extent, therefore, that compliance
of the Act was a mandatory requirement,
the defect in our view has
been cured.
”
[9]
[48]
Finally, it may also be mentioned by way of factual background that
in response to the legal
averments relied upon by the applicants
pertaining to the unconstitutionality of section 24(1) of the Amended
JSC Act, the Minister
states inter alia in his answering affidavit
that he supported the appointment of prosecutor for the purposes of
Tribunals of this
nature as a mechanism to ease the workload of
Tribunals efficiently in a cost-effective and convenient manner.
This is particularly
so as the involvement of independent
attorneys and advocates will have unnecessary cost implications for
Tribunals of this nature.
CONSTITUTIONAL
FRAMEWORK
The
Commission
[49]
The Commission was established in terms of Section 178 of the
Constitution.
[50]
Section 177 of the Constitution deals with the removal of Judges from
office. Section 177(1)
of the Constitution provides that a Judge may
be removed from office only if the Commission finds that the Judge
concerned suffers
from “an incapacity, is grossly incompetent
or is guilty of gross misconduct”, and if the National Assembly
calls for
the Judge to be removed, by a resolution adopted with the
supporting vote of two-thirds of the members. In terms of section
177(2)
of the Constitution, the President is then empowered to remove
a judge pursuant to the resolution of the National Assembly as
envisaged
in section 177(1)(b).
[51]
In terms of section 178(4) of the Constitution, the Commission has
the powers and functions assigned
to it in terms of the Constitution
and the relevant national legislation. Section 178(6) provides that
the Commission
“
may determine
its own procedure, but the decisions of the Commission must be
supported by a majority of its members.
”
Judicial
Independence and the Separation of Powers
[52]
Section 165 of the Constitution guarantees judicial independence.
Section 165(2) provides
that:
“
The courts are
independent and subject only to the Constitution and the law, which
they must apply impartially, and without fear,
favour or prejudice.
”
Section
165(3) further provides that:
“
No
person or organ of state may interfere with the functioning of the
courts.
”
In
addition, Section 165(4) further provides that:
“
Organs of state
through legislature and other measures must assist and protect the
courts to ensure independence, impartiality,
dignity, accessibility,
and effectiveness of the courts
.”
STATUTORY
AND REGULATORY FRAMEWORK RELATING TO THE COMMISSION
The
Old Rules
[53]
The original JSC Act did not deal with the procedure for the lodgment
and investigation of complaints
against Judges, though section 5
contemplated the publication of procedural rules in the Government
Gazette. It is common cause
in the present proceedings that even
though no rules of procedure were apparently gazetted in terms of
section 5 of the previous
JSC Act, the procedure previously adopted
by the Commission for dealing with complaints against Judges was in
accordance with rules
issued in this respect under the heading “Rules
Governing Complaints and Enquiries in terms of Section 177(1)(a) of
the Constitution”.
[54]
Rule  2.1 of the Old Rules provided as follows:
“
The JSC shall
consider any complaint received from any source alleging incapacity,
gross incompetence or gross misconduct of a Judge.
”
Rule
2.2 further provided that:
“
The JSC may
require any complaint to 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, which it deems of sufficient seriousness to justify
investigation or possible action in terms of Section
177 of the
Constitution.”
The
Commission accordingly had a discretion in terms of the Old Rules
whether or not to direct that a complaint be made on oath
or not.
In terms of rule 2.5 of the Old Rules, the Commission was entitled to
appoint a sub-committee to deal with complaints
in accordance with
the procedure set out in the Old Rules.
[55]
Rule 4 of the Old Rules governed the preliminary investigation and an
informal enquiry pertaining
to any complaint received by the
Commission. Thus, for example, in terms of rule 4.1 of the Old Rules,
the Commission was empowered
to appoint a sub-committee consisting of
one or more of its members to investigate a complaint and report to
the full Commission.
In the event that there was a formal enquiry,
the Old Rules provided that the Commission could appoint an attorney
and/or counsel
to act as a “pro-forma prosecutor” for the
task of preparing a charge sheet, leading evidence, cross-examining
witnesses
and presenting argument.
[56]
The Old Rules also envisaged a bifurcated process for the
consideration of complaints received
by the Commission. There was
accordingly provision for a preliminary investigation and an informal
enquiry in terms of rule 4 and
a formal enquiry in terms of rule 5,
if necessary.
[57]
Rule 5.2 of the Old Rules provided that any member of the Commission
was entitled to ask questions
of witnesses and counsel with the
consent of the Chairperson of the Commission. Provision was also made
inter alia for attendance
by the media at the formal enquiry,
[10]
the right to legal representation for a Judge who is called to attend
a formal enquiry
[11]
and the supplementation of charges against a Judge.
[12]
Sub-rule 5.4 of the Old Rules provided that:
“
The JSC may
appoint an attorney and/or counsel to act as pro-forma prosecutor and
to undertake any of all 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 for the JSC
in fulfilling its task under Section 177(1)(a) of the Constitution
”
.
Sub-rule
5.12 further provided that any member of the Commission was entitled
to ask questions to witnesses, with the consent of
the chair of the
Commission.
[58]
In terms of sub-rule 5.14 of the Old Rules, the Commission was
required to make a finding after
considering the evidence and
arguments in a formal enquiry relating to whether or not the Judge
concerned suffers from incapacity,
or is grossly incompetent or is
guilty of gross misconduct as envisaged in section 177(1)(a) of the
Constitution.  Sub-rule
5.15 further provided that if the
finding was adverse to the Judge concerned, then the Speaker of the
National Assembly as well
as the President must be advised of the
Commission’s reasons as envisaged in section 177.
The
Amended JSC Act
[59]
The long title to the Amended JSC Act provides that it seeks:
“
To regulate
matters incidental to establishment of the Judicial Service
Commission by the Constitution of the Republic of South
Africa, 1996;
to establish the Judicial Conduct Committee to receive and deal with
complaints about judges; to provide for a Code
of Judicial Conduct
which serves as the prevailing standard of judicial conduct which
judges must adhere to; to provide for the
establishment and
maintenance of a register of judges’ registrable interests; to
provide for procedures for dealing with
complaints about judges; to
provide for the establishment of Judicial Conduct Tribunals to
inquire into and report on allegations
of incapacity, gross
incompetence or gross misconduct against judges; and to provide for
matters connected therewith.”
[60]
The preamble to the Amended JSC Act provides inter alia that:
“
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)
[61]
As already indicated, with effect from June 2010, the Amended JSC Act
now governs the procedure
relating to the investigation of and
reports in respect of complaints received by the Commission relating
to the misconduct of
Judges. In terms of section 8 of the Amended JSC
Act, an entity called a Judicial Conduct Committee (“JCC”)
is established
to consider complaints received by the Commission.
[62]
In terms of the new procedure prescribed in Part III of Chapter 1 of
the Amended JSC Act, sections
14 to 18 relate to the “Consideration
of complaints by Committee”. More specifically, section 14
relates to the lodging
of complaints and section 14(3) provides as
follows:
“
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.”
(Emphasis
added)
Once
a complaint is lodged as prescribed in terms of section 14(3),
section 14(2) provides that the Chairperson of Commission “must”

deal with the complaint in terms of section 15, which relates to
“lesser complaints”, or section 16, which relates
to
complaints, which could result in impeachment of the Judge concerned,
or section 17, which relates to inquiries into “serious,

non-impeachable” complaints by the chairperson or member of the
JCC.
[63]
Section 14(4)(a) deals with the grounds upon which a Judge may be
impeached, namely incapacity,
gross incompetence and gross
misconduct. As already indicated, section 16 specifically relates to
“impeachable complaints”,
which appear to be as
contemplated in section 177 of the Constitution. Section 16(2) makes
provision for a complaint to be referred
to the JCC. Section 16(4)
provides that the JCC must consider whether the complaint, if
established, will
prima facie
indicate “gross
misconduct”, and if so, the JCC “may” recommend to
the Commission in terms of section 16(4)(b),
that the complaint
should be investigated by a Tribunal.
[64]
Section 15(2) provides that:
“
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)
In
contrast, section 16 contemplates the appointment of a Tribunal in
respect of impeachable complaints, which appears to be comparable
to
the sub-committee contemplated under rule 4 of the Old Rules.
Sections 16(1) and 16(3) in the context of complaints which could

result in impeachment, entitles the JCC to convene a meeting and to
request such further information from the complainant or any
other
person as the Commission deems fit.
[65]
The Amended JSC Act also envisages referral of the complaint by the
Chairman of the JCC in the
event that a valid complaint is
established. As already stated, in terms of section 16(4), in
relation to complaints, which could
lead to impeachment, the JCC is
to consider whether the complaint against a Judge will, if
established, constitute a
prima facie
case of gross
misconduct. The JCC can also consider whether to recommend to the
Chief Justice in terms of section 16(4)(a) that
a complaint be
investigated and reported on by a Tribunal in terms of section
16(4)(b). The Tribunal is comprised of two Judges
and one person who
is not a judicial officer, as approved by the Chief Justice acting in
concurrence with the Minister.
[66]
In terms of section 19, the Commission may request the appointment of
a Tribunal pursuant to
a recommendation of the JCC in terms of
section 16(4) relating to complaints which could result in
impeachment. Thus, section 19(1)
of the Amended JSC Act further
provides in this respect as follows:
“
(1)
Whenever it appears to the Commission –
(a)
on account
of a recommendation of a Committee in terms of Section 16(4)(b) …;
or
(b)
on
any other grounds, that there are reasonable grounds to suspect that
a judge –
(i)
is
suffering from an incapacity; or
(ii)
is grossly
incompetent;
(iii)
or is
guilty of gross misconduct
as
contemplated in Section 177(1)(a) of the Constitution, the Commission
must request the Chief Justice to appoint a Tribunal in
terms of
Section 21”.
Sections
22(1) read with 23(1) in Part I of Chapter 3 of the Amended JSC Act
further provide that a Tribunal must consist of two
judges and a
third member who is not a judicial officer.
[67]
Section 24(1) of the Amended JSC Act provides that:
“
The
President of a Tribunal may, after consulting the Minister and the
National Director of Public Prosecutions, appoint a member
of the
National Prosecuting Authority to collect evidence on behalf of the
Tribunal and to adduce evidence at a hearing.
”
[68]
The objects of a Tribunal as set out in section 26(1)(a) are to
enquire into allegations against
a Judge by collecting evidence,
conducting a formal hearing, making findings of fact and a
determination of the merits of the allegations,
and thereafter
submitting a report to the Commission, containing its findings.
[69]
In terms of section 26(2) of the Amended JSC Act:
“
A
Tribunal conducts its enquiry in an inquisitorial manner and there is
no onus on any person to prove or disprove any fact before
a
Tribunal
.”
LEGAL
ISSUES
[70]
Against this background, the main legal issue in this application
relates to whether the decisions
taken by the Commission in April
2012 and October 2012 should be set aside by this court on review, on
the basis that such decisions
constitute an impermissible
retrospective application of the provisions of the Amended JSC Act.
If the said main issue is determined
against the applicants, the
applicants also make submissions in the alternative relating to the
validity of the complaint in this
matter, given the fact that it was
not compliant with section 14 of the Amended JSC Act.
[71]
A further legal issue relates to the constitutionality of section
24(1) of the Amended JSC Act
to the extent that it is averred that
the separation of powers has been blurred and that the appointment of
a prosecutor in the
context of a Tribunal in terms of the Amended JSC
Act compromises the independence of the judiciary.
Retrospective
or prospective application of the Amended JSC Act
[72]
The applicants’ counsel contended in
this context that the retrospective application of the
Amended JSC
Act (on the basis of the decisions taken in April and October 2012)
was in breach of the principle of legality and
resulted in the
unlawful establishment of the Labuschagne Tribunal. It is not in
dispute in this context that the complaint, which
was lodged on the
30
th
of May 2008, and thereafter particularised by a consolidated
statement on the 17
th
of June 2008, was validly submitted in terms of the Old Rules, as
envisaged in section 177(1)(a) of the Constitution. The said
Old
Rules were, of course, determined by the Commission on the basis of
the power conferred to the Commission in terms of 178(6)
of the
Constitution. It may be mentioned in passing that it is common cause
that the Old Rules were never published pursuant to
section 5 of the
JSC Act. As such, it can reasonably be assumed that the Amended JSC
Act was specifically enacted to fill the lacuna.
[73]
The applicants’ counsel accordingly averred that statutes such
as the Amended JSC Act are
generally applied prospectively only,
unless retrospective application is clearly contemplated in the
relevant statute itself.
As such, it was averred on behalf of the
applicants that there was nothing in the Amended JSC Act, which
indicates that retrospective
application was contemplated, and the
Commission was accordingly not entitled to apply the said Act
retrospectively through its
decisions in April and October 2012,
based upon new procedures, which were not applicable when the
complaint was lodged in 2008.
[74]
Against this background, the applicants seek inter alia an order
setting aside the Commission’s
decision on the 18
th
of April 2012 and the 17
th
of October 2012 (triggered by
the decision of the SCA in the Freedom Under Law Case) on the basis
that these decisions impermissibly
applied the procedures envisaged
in the Amended JSC Act (including the establishment of a Tribunal)
retrospectively.
[75]
At a general level, before dealing with the submissions pertaining to
the retrospective application
of legislation, it is significant that
in terms of section 177(1)(a) of the Constitution, the Commission is
vested with the exclusive
power to deal with any complaint of
misconduct against a Judge, including impeachable misconduct. Thus,
the National Assembly and
the President cannot take any
constitutional steps to remove a Judge from office on the basis of a
complaint of serious misconduct,
until the Commission has exercised
its exclusive power to investigate such complaint and to make a
finding in relation to the said
complaint, as envisaged in the
Constitution.
[76]
As indicated in the case of
Justice
Alliance of South Africa v President of the Republic of South
Africa
,
[13]
another significant consideration at a general level is that
constitutional and statutory provisions must be interpreted on a
purposive basis, with due regard to the context of the relevant
statute.
[14]
Furthermore, legislation premised upon constitutional dictates (as in
the present case) must also be interpreted holistically
and within
the relevant framework of applicable constitutional rights and
norms.
[15]
Therefore, it is my view that due regard must be given to the
fact that the Commission remains the exclusive forum
for initially
investigating and reporting on complaints from any source alleging
incapacity, gross incompetence or gross misconduct,
as envisaged in
the Constitution.
[77]
Against this background, it ineluctably follows, as the SCA found in
the Freedom Under Law case,
that there is a legal duty on the
Commission to investigate allegations of misconduct, which may
threaten the independence or impartiality
of the judiciary.
[16]
This is the legal basis for the SCA’s further finding that the
Commission’s conduct in dismissing the complaint in
August 2009
constituted an abdication of the Commission’s “constitutional
duty to investigate the complaint properly”.
[17]
[78]
I mention as an aside in this respect that the averment by the
applicants in their affidavits
that after the SCA decision, they
expected the Commission to refer the complaint in this matter either
back to the Commission itself
or to the sub-committee in terms of the
Old Rules, cannot be sustained as the Commission’s decision in
July 2009 not to hold
a formal enquiry was essentially academic when
the SCA heard the matter in 2011. Counsel for the Commission
correctly averred in
this regard that this is the very reason for the
SCA not granting the appellant (which was successful) all the relief
it initially
claimed in its notice of motion to set aside both the
decisions in July 2009 as well as August 2009. The SCA accordingly
only set
aside the August 2009 decision dismissing the complaint as
irrational, as the July 2009 decision not to have a formal enquiry
was
effectively moot when the SCA heard the matter.
[18]
[79]
Returning to the issue of retrospectivity, within the framework of
the above constitutional obligations
and powers of the Commission,
the legal position relating to the retrospective application of any
statute is trite in our law
[19]
and most foreign jurisdictions. In the case of
Yew
Bon Tew v Kenderaan Bas Mara
Lord
Brightman said in this regard that:
“
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 (eg 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 (eg 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 … “
[20]
The learned Judge
accordingly further stated that:
“
Whether a statute has a
retrospective effect cannot in all cases safely be decided by
classifying the statute as procedural or substantive…Their

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.”
[21]
[80]
Therefore, a statute is presumed not to apply retrospectively, unless
it is expressly or by necessary
implication provided otherwise in the
relevant legislation.
[22]
It is accordingly presumed that the legislature only intends to
regulate future matters,
[23]
and that unless a contrary intention appears from new legislation,
which repeals previous legislation, it is presumed that no repeal
of
an existing statute has been enacted in relation to transactions
completed prior to such existing statute being repealed.
[24]
[81]
The justification for the presumption against the retrospective
application of legislation is
premised upon the reluctance of the
courts to interfere with vested rights
.
In the seminal authority in
this respect, Innes CJ stated in the case of
Curtis
v Johannesburg Municipality
:
[25]
“
The general
rule is that, in the absence of express provision to the contrary,
statutes should be considered as affecting future
matters only; and
more especially that they should if possible be so interpreted so as
not to take away rights actually vested
at the time of their
promulgation.
”
[26]
However,
Innes CJ also noted that one of the exceptions to the general
presumption against retrospectivity, falls within the sphere
of
procedural matters to the extent that acts committed prior to the
commencement of a statutorily prescribed procedure are adjudicated
in
terms of the new procedure. The learned Chief Justice stated in this
respect as follows:
“
Every law regulating
procedure must, in the absence of express provision to the contrary,
necessarily govern, so far as it is applicable,
the procedure in
every suit which comes to trial after the date of its promulgation.
Its prospective operation would not be complete
if this were not so,
and it must regulate all such procedure even though the cause of
action arose before the date of promulgation,
and even though the
suit may have been then pending. To the extent to which it does that
but to no greater extent, a law dealing
with procedure is said to be
retrospective
.”
[27]
[82]
In effect, on the basis of the above
dicta
,
the presumption against retrospectivity is rebutted in relation to
matters of procedure only, which do not affect any existing

substantive rights. Many years later, the Constitutional Court
considered this issue in the case of
S
v Mhlungu
[28]
and Kentridge AJ, in (with whom Chaskalson P, Ackerman J and Didcott
J concurred) in a minority judgment, referred to the above
dicta
of Innes CJ in relation to changes in procedure, and stated that it
is not always easy to decide whether a new statutory amendment
is
purely procedural or whether such amendment affects substantive
rights. Thus, the learned Judge stated that:
“
Rather than
categorizing new provisions in this new way, it has been suggested,
one should simply ask whether or not they would
affect vested rights
if applied retrospectively
.”
[29]
[83]
In the subsequent case of
Haffejee,
[30]
Marais JA made reference to the
Curtis
case,
supra,
at 319 and restated the
common law position, which did not recognize vested rights in
procedure
simpliciter.
[31]
The learned Judge stated in this regard that this common law position
is supported by section 12(2)(c) and (e) of the Interpretation
Act 33
of 1957, in relation to repealed laws.  These sections provide
that where a law repeals any other law, the repeal does
not affect
rights, privileges, obligations or liabilities, accrued or incurred
in terms of the previous legislation, nor does the
repeal affect any
legal investigation, legal proceedings or any remedy in respect of
such rights, privileges, obligations or liabilities,
accrued or
incurred in terms of previous legislation.
[32]
On this basis, the learned Judge found that whether or not an
amending statute will be interpreted to have retrospective
effect
will ultimately depend upon a consideration of its impact upon
existing substantive rights and obligations.
[33]
[84]
Mokgora J then reiterated in the
Veldman
case that:
“
[28]
The distinction between procedural and substantive provisions cannot
always be decisive in the operation
of the presumption against
retrospectivity. As Marais JA recognized in
Minister
of Public Works v Hafejee N.O.
:-
“
[I]t
does not follow that once an amending statute is characterised as
regulating procedure it will always be interpreted as having

retrospective effect. It will depend upon its impact upon existing
substantive rights and obligations. If these substantive rights
and
obligations remain unimpaired and capable of enforcement by the
invocation of the newly prescribed procedure, there is no reason
to
conclude that the new procedure was not intended to apply.”
[34]
Furthermore, the
Constitutional Court has also stated in another context that:
“
The
principle against interference with vested rights is a component of
the presumption against retrospectivity. No statute is to
be
construed as having retrospective operation, which would have the
effect of altering rights acquired and transactions completed
under
existing laws, unless the legislature clearly intended the statute to
have that effect. This stems from the belief that at
some point the
State, the parties and third parties are entitled to rely on a common
understanding of the nature of rights acquired
or transactions
completed.
”
[35]
[85]
Against this background, one of the counsel for the applicants, who
was also one of the counsel
in another application (instituted by
Judge Poswa, which was heard by this full bench in the North Gauteng
High Court
[36]
),
submitted that the complaints in both cases should have been dealt
with by the Commission in terms of the Old Rules, simply by
virtue of
the fact that the complaints in both cases had been lodged prior to
the Amended JSC Act coming into force.  Specifically,
counsel
submitted in this regard that the
notion of procedural and substantive rights in relation to the
retrospective application of legislation
was definitively settled by
the SCA in the case of
Unitrans
Passenger (Pty) Ltd t/a Greyhound Coach Lines v Chairman, National
Transport Commission
[37]
and subsequently by the
Constitutional Court in the case of
Justice
Mpondombini Sigcau v President of the Republic of South Africa.
[38]
In these circumstances, much reliance was placed on paragraph 19 of
the
Unitrans
judgment
where Olivier JA stated as follows:
“
[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)
Thereafter,
it was contended that the Constitutional Court settled the law in
this respect by stating as follows in the
Sigcau
case:
“
[20]
…The ordinary rule of our law is that statutes operate only
prospectively. A distinction
was often made between substance and
procedure, which then allowed rules that affected only procedural
matters to operate retrospectively.
In
Unitrans
,
the Supreme Court refined this to a distinction between cases where
the amending procedures come into effect before the old procedures

had been initiated and situations where the amendments only come into
effect after the old procedures had been initiated. In the
latter
case,
unless
a contrary intention is clear from the amendment
,
the old procedure remains intact.”
(Emphasis
added)
[86]
In my view, Claassen J in the case involving Judge Poswa, correctly
found that the much-quoted
paragraph [19] of the
Unitrans
case
must be read in conjunction with the postulate in paragraph [23] of
the said judgment, where Olivier JA further 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 the ability to proceed with
the
application.” (Emphasis added)
[87]
Therefore, neither the
Unitrans
case (decided in 1999) nor the
Sigcau
cases were at variance with the well established
principles set out above in cases such as
Haffejee
. Therefore,
our courts did not effectively discard the distinction between
substantive rights and procedural rights, as suggested.
Furthermore,
to the extent that the
Sigcau
case related to an impairment of
an existing statutory right of the Royal Family to be consulted in a
matter involving the removal
and appointment of a Chief or King, that
case is distinguishable from the present case. This is particularly
so as the applicants
in the present case do not aver that any of
their substantive rights have been impaired by application of the JSC
Amendment Act.
They simply contend that the new regime in terms
of the JSC Amended Act does not permit any proceedings emanating from
a
pending complaint, which was not on oath, without making reference
to any impaired right on their part, or indeed on the part of
any
interested or affected party. Remarkably, the applicants are also
completely silent on the undisputed consideration of public
interest
in an impartial and independent judiciary, as asserted by Langa CJ in
2008.
[88]
In these circumstances, a “proper interpretation” of the
Constitutional and statutory
context is required with respect to
whether the Amended JSC Act can be retrospectively applied, without
affecting vested substantive
rights.   As already
indicated, it is pertinent in the circumstances of the present case,
that pursuant to the judgment of the
SCA in March 2011, when the Amended JSC Act was already in force, the
SCA directed the Commission
to investigate the complaint in the
present case further on the basis of the Commission’s
constitutional obligation to do
so. Therefore, the SCA held in this
context:
“
Once
it had been determined that he [Hlophe JP] did attempt to influence
them [the applicants in the present matter], the JSC had
to decide
whether his attempt to do so constituted gross misconduct of such a
nature that it may justify his removal from office.
”
[39]
It
may be mentioned as an aside that when the SCA found that the “JSC
had to decide”, the SCA specifically did not refer
the decision
back specifically to the sub-committee of the Commission, which
considered the matter in July 2009 in terms of the
JSC Act, as the
applicants indicate they understood the decision to mean. In my view
counsel for the Commission correctly contended
in this respect that
the SCA obviously remitted the matter back to the Commission to
investigate the complaint in this matter on
the basis of the
applicable procedures of the Commission prevailing at the time.
[89]
It is also my view in relation to the “proper interpretation”
of the JSC Amendment
Act that Claassen J correctly distinguished
between the
lodgement
of
complaints against Judges (section 14) and the new procedures for
their
investigation
(sections 16 and 17).
[40]
This appears to be sustained by the fact that the preamble to the
Amended JSC Act distinguishes between the lodgement of complaints

against Judges and the investigation thereof.
[90]
It can hardly be disputed in this respect that at the time section
14(3)(b) came into force,
the legislature must have been aware of
complaints against Hlophe JP as well as other Judges, which had
already been lawfully lodged
in terms of the Old Rules.  From
this perspective, the effect of applying procedures provided for in
the Amended JSC Act retrospectively
would simply mean that the
lodgement of unsworn complaints
prior
to 1 June 2010 would be
regarded as having been validly lodged.  As the stated
objectives of the Amended JSC Act are inter
alia premised upon the
constitutional injunction relating to the removal of a Judge in the
event of serious misconduct, and as
the Act itself contemplates an
investigation for “allegations” of serious misconduct (as
opposed to “lesser”
complaints), a prospective
interpretation of sections 16 and 17 would, in my view, completely
undermine the constitutional dictate
as well as the stated purposes
of the Amended JSC Act.
[91]
As Claassen J has also pointed out in this context the present case
is distinguishable from the
circumstances of the
Unitrans
case as the amendment in
the latter case completely abolished one forum in favour of another.
[41]
In the present case, the Old Rules envisaged informal or formal
enquiries as well the appointment of a sub-committee to investigate

all complaints received by the commission. In terms of the new
regime, a distinction is drawn between the investigation of lesser

complaints and impeachable complaints.  The Amended JSC Act
accordingly makes provision for lesser complaints to be summarily

dismissed by the Chief Justice or a Head of Court.
[42]
Furthermore, in terms of the new procedure, the JCC is enjoined to
consider more serious complaints, and if it is established by
the JCC
that there is a
prima facie
case of “gross
misconduct”, the JCC can recommend to the Commission, in terms
of section 16(4)(b), that a Tribunal investigates
such complaint of
gross misconduct. More importantly, the  “procedures,
structures and mechanisms” created by
the new legislation
simply constitute a more effective way to carry out the investigative
functions, which the Commission has in
terms of both regimes.
[92]
Comparing the two schemes, Claassen J notes that the composition of
the sub-committee investigating
a complaint in terms of the Old Rules
consisted of one or more of the members of the Commission (in the
absence of the political
members) whereas the Amended JSC Act
envisages an investigating authority, the JCC, comprising the Chief
Justice, the Deputy Chief
Justice and four judges. In these
circumstances, the Amended JSC Act does not establish a completely
different forum for dealing
with complaints against judges,
suggested, but rather more structured “procedures, structures
and mechanisms”. It can
hardly be stated in these circumstances
that all serious complaints lodged prior to the 1
st
of
June 2010, fall outside the ambit of the structured procedural
innovations.
[93]
It is accordingly my view that
the
decisions taken by the Commission in April and October 2012 to adopt
the procedures in the Amended JSC Act are lawful and cannot
be set
aside. This is particularly so as no vested rights of either the
applicants or any other party have been retrospectively
violated. To
the contrary, as already stated, in terms of section 177(1)(a) of the
Constitution, the Commission is compelled to
investigate the
complaint against Hlophe JP. Therefore, the presumption against
retrospectivity falls away.
[43]
I was also not persuaded that the SCA decision setting aside the
decision of the Commission as irrational effectively meant that
the
previous sub-committee of Commission in terms of the JSC Act had to
reconsider its decision on the 22
nd
of July 2009. As indicated above, the SCA did not grant relief in
relation to the sub-committee’s decision of the 22
nd
of July 2009, which was effectively moot, when the SCA heard the
matter. Thus, the SCA only set aside the decision of the 15
th
of August 2009, and pursuant to the order of the SCA, the Commission
was entitled to enforce the newly introduced procedures to
reconsider
the matter.
[94]
I note also that in terms of section 19(1)(b) of the Amended JSC Act,
the Commission can request
the appointment of a Tribunal not only
pursuant to a recommendation in terms of section 16(4)(b) arising
from a complaint (as in
the present case), but also whenever, there
are reasonable grounds to “suspect” any of the grounds of
misconduct specified
in section 19(1)(b). As such, whilst the
appointment of the Labuschage Tribunal appears to be premised on a
complaint as envisaged
in section 19(1)(a), it appears that in terms
of section 19(1)(b), the Commission is in any event empowered to
appoint a Tribunal
at any stage when it considers that there are
reasonable grounds to “suspect” that a Judge is guilty of
“gross
misconduct”, which could result in impeachment.
[95]
In these circumstances, I agree with the rationale of the Labuschagne
Tribunal that in the absence
of the impairment of any substantive
rights of the applicants (or for that matter Hlophe JP or any of the
complainants) nothing
in the Amended JSC Act either expressly or
impliedly invalidates the complaint lawfully made under the auspices
of the late Chief
Justice.
[44]
It is in my view also not insignificant in this context that the SCA
recognised in the Freedom Under Law case,
[45]
as I have emphasised above, that the Chief Justice and the other
Constitutional Court Judges did not act as complainants in their
own
interest, but were motivated purely by the public interest.
More
importantly, I find it difficult to conceive of any legitimate
purpose, which might be served by the invalidation of the existing

complaint, which was lawfully lodged in 2008.
[96]
It also bears mentioning in another context that the SCA has accepted
that an unlawful administrative
act is capable of producing legally
valid consequences.
[46]
A fortiori
,
it is my view that a lawfully submitted complaint by the Chief
Justice, the Deputy Chief Justice and other Judges of the
Constitutional
Court in terms of the Old Rules  (premised upon
the public interest) as well as the two impugned decisions triggered
by a
decision of the SCA, cannot automatically be rendered a nullity
in terms of the Amended JSC Act, simply by virtue of the fact that

subsequently enacted procedures were not followed.
[97]
In these circumstances, the submissions by the applicants premised
upon the principle of legality
cannot be upheld and the review
application to set aside the Commission’s decisions in April
and October 2012 must fail.
Requirement
relating to affidavits in terms of section 14 (2)(b)
[98]
In the alternative to the above submissions, the applicants’
counsel relied upon the provisions
of section 14(3)(b) of the Amended
JSC Act relating to a complaint being lodged by means of an affidavit
or an affirmed statement,
which sets out the nature of the complaint,
and the facts upon which the complaint is based. It was emphasised in
this respect
that section 15(2)(b) of the Amended JSC Act expressly
provides that complaints which do not substantially comply with the
statutory
demand to be on oath or affirmed, “must be
dismissed”. It was accordingly contended on behalf of the
applicants in
this respect that as the provisions of section 14 of
the Amended JSC Act were peremptory, non-compliance with section 14
effectively
rendered the complaint before the Commission invalid in
terms of the amended legislation.
[99]
As with all matters of this nature, a simple literal interpretation
of a statute is generally
not sufficient for the purposes of
determining the intention of the legislature, particularly so if such
interpretation is not
effected in context. Therefore, taking into
account the scope and objects of the Amended JSC Act (including the
preamble), and
given the fact there is nothing to suggest the
automatic invalidity of previous complaints, it is my view that an
affidavit is
not mandatory in all instances. This is particularly so,
as already stated, by virtue of the fact that complaints “must”

be dealt with in terms of section 15, 16 or 17, and there are
different procedures for “lesser complaints” in terms
of
section 15, and complaints which could lead to impeachment in terms
of section 16. It is significant in this regard that with
lesser
complaints, dealt with in terms of section 15, a complaint, which is
not on affidavit “must” be dismissed in
terms of section
15(2). It is further significant that section 16 relating to
complaints, which could result in impeachment, does
not incorporate a
comparable sub-section to 15(2). To the contrary, the JCC is
permitted in terms of 16(3) to request further information
from the
complainant or any other person as it deems fit.  As such, the
clear difference between the effect of non-compliance
of the
provisions of section 14 in the context of sections 15 complaints as
opposed to section 16 complaints, can in my view only
mean that the
requirement of an affidavit in section 14 is directory, but not
peremptory at the time the complaint is lodged, in
relation to
impeachable conduct (in section 16).
[100]
My view in this respect can be demonstrated by the hypothetical
example of a very serious substantiated complaint
against a Judge
being reported, such as, for example, relating to bribery or undue
influence, to the Commission verbally or by
way of a written
document, which does not constitute an affidavit. In such
circumstances, the clear purpose of the Amended JSC
Act would be
completely negated if the Commission was not vested with authority
and/or responsibility of investigating this hypothetical
complaint
because of non-compliance with section 14(3). To hold otherwise would
be to elevate form over substance.
[101]
It is also my view that there was in any event considerable merit in
the submissions by counsel for the Commission
that even if the
provisions of section 14(3) are peremptory, as averred, the
complainants in this matter effectively complied with
section 14(3)
on the basis of the joint statement submitted in terms of the Old
Rules. This is so as the initial statements in
this matter were
fortified by the evidence of the Constitutional Court Judges on the
7
th
and 8
th
of April 2009 as well as the
answering affidavits filed by said Judges in the context of
litigation in this matter. To hold otherwise
would also constitute
elevating form over substance within the framework of the important
Constitutional powers of the Commission
in terms of section 177.
Therefore, the suggestion that the complaint lodged in 2008 would
effectively be rendered a nullity within
the framework of the Amended
JSC Act would belie the foundational purpose of section 177 of the
Constitution.
[102]
In these circumstances, I agree with the conclusion of the
Labuschagne Tribunal that on a proper consideration
of the facts as a
whole, considered with the legal principles set out above, the
reliance by the applicants on section 14 of the
Amended JSC Act is
misplaced. Moreover, in the event that section 14 is applicable, as
averred, then there has been compliance
with the provisions of that
section by the Constitutional Court Judges in the present matter.
Therefore, to the extent that compliance
with section 14 was a
mandatory requirement, the defect has been cured by the evidence
under oath and the affidavits on record
relating to the complaint in
this matter.
[103]
For the reasons given, the decisions taken by the Commission in April
and October 2012, cannot be set aside on
the basis of non-compliance
of section 14 of the Amended JSC Act.
Section
24(1) of the Amended JSC Act
[104]
As regards section 24(1) of the Amended JSC Act, the applicants’
counsel contended that this section violated the fundamental

constitutional principles relating to the separation of powers and
judicial independence to the extent that a prosecutor is involved
in
disciplinary proceedings against a Judge. Thus, to the extent that
the Minister and the NDPP play a role in the appointment
of a member
of the NPA,
if
the President of a Tribunal elects to appoint a
prosecutor, as the collector of evidence on behalf of a Tribunal, it
is averred
that a non-judicial person plays a role in the removal of
a Judge and the separation of powers is inappropriately blurred. It
is
accordingly suggested in this context that government
functionaries in the office of the NDPP (as part of the executive)
could
potentially play a role in a “disciplinary enquiry”
relating to a Judge, which would effectively be no different to
the
function of a prosecutor in a criminal trial.
[105]
Before considering the applicants’ submissions in this regard,
it is useful to set out the values underlying
the fundamental
constitutional principle of separation of powers.  It has always
been accepted in this context that whilst
each branch of government
(including of course the judiciary and the executive) must be
functionally independent from other branches
of government, this
principle is not absolute in the sense that some intrusion by each
branch into the terrain of the other branches
(with appropriate
checks and balances) is inevitable at certain levels.
[106]
The Constitutional Court has stated in this respect in the case of
In
re: Certification of the Constitution the Republic of South
Africa
[47]
[“the First
Certification case] as follows:
“
[109]
The principle of separation of powers, on the one hand, recognises
the functional independence of branches
of government. On the other
hand, the principle of checks and balances focuses on the
desirability of ensuring that the constitutional
order, as a
totality, prevents the branches of government from usurping power
from one another. In this sense it anticipates the
necessary or
unavoidable intrusion of branch on the terrain of another
.
No constitutional
scheme can reflect a complete separation of power
…”
The
court has also held in relation to the appointment of Judges that:
“
An essential
part of the separation of powers is that there be an independent
Judiciary. The mere fact, however, that the executive
makes or
participates in the appointment of Judges is not inconsistent with
the doctrine of separation of powers or with judicial

independence…What is crucial to the separation of powers and
the independence of the Judiciary is that the Judiciary should

enforce the law impartially and it should function independently of
the Legislature and the Executive.
”
[48]
[107]
Therefore, whilst an independent judiciary (as guaranteed in section
165 of the Constitution) is an essential
part of the separation of
powers,
[49]
and judicial impartiality and independence is also implicit in the
rule of law, which is the founding premise of the Constitution,
[50]
the Constitutional Court has found that it is not inconsistent with
the principle of the separation of powers for the executive
arm of
government to participate for example in the appointment of Judges,
or for a Judge to preside over a commission of enquiry.
[51]
To the extent that it is relevant in this context, counsel also
referred the court to case authority from the Constitutional Court

relating to when it is permissible to assign a non-judicial function
to a Judge.
[52]
[108]
It is important to contextualize the power of a Tribunal to
“investigate and report” on an inquisitorial
basis,
purely with a view to making a recommendation to the Commission,
which is then empowered to make a finding in terms of section

177(1)(a) of the Constitution relating to whether a Judge is guilty
of “gross misconduct”. Pursuant to a finding of
“gross
misconduct” by the Commission (and not a Tribunal appointed by
the Commission) the President and two-thirds
of the National Assembly
are empowered in terms of section 177(1)(b) read with 177(2) of the
Constitution, to take further steps
to remove a Judge from office on
the grounds of the Commission’s finding of “gross
misconduct”.  Against
this background, the function of a
Tribunal such as the Labuschagne Tribunal in terms of section
26(1)(a) of the Amended JSC Act,
is limited to collecting evidence,
conducting a formal hearing, making findings of fact as well as a
determination of the merits
of the allegations against a Judge, and
thereafter to submit a report to the Commission, containing the
Tribunal’s findings
of fact only.
[109]
Significantly, no powers are given to a prosecutor (if one is
appointed by a Tribunal) to either investigate or
to make a
determination on the complaint, or even to make legal submissions to
the Tribunal. Thus, the appointed prosecutor has
no “investigative
role” within the ambit of the inquisitorial Tribunal, nor does
the appointed prosecutor decide which
witnesses are to be called on
particular aspects of a complaint against a Judge, nor is the
appointed prosecutor obliged to advise
witnesses on the presentation
of their case, nor does the prosecutor play “a major role”
in the removal of a Judge,
as suggested. It is further significant,
as pointed out by both counsel for the Commission as well as the
Minister, that even though
the applicants challenge the appointment
of a prosecutor in this context on the basis that a non-judicial
person plays a role in
the removal of a Judge, it appears that,
without any apparent consistency in this regard, the applicants have
no difficulty with
the third non-judicial member of a Tribunal,
appointed in terms of section 22(1) and 23(1).
[110]
The Minister tenably asserts in his answering affidavit in this
respect, that the Chief Justice, acting with the
concurrence of the
Minister also approves the participation of non-judicial persons as
members of a Tribunal of this nature. Be
that as it may, the deponent
to the answering affidavit on behalf of the Minister also rationally,
plausibly and tenably justifies
the appointment of a prosecutor from
the members of the NPA by obvious considerations of costs and
convenience for all parties
if
the Tribunal elects to appoint
a prosecutor.  As such, the Tribunal is spared the inconvenience
and costs of appointing an
evidence collector from the independent
bar and/or attorneys in private practice.
[111]
I was also not persuaded by submissions to the effect that members of
the NPA are precluded from carrying out
a function, which is not
“incidental” to a prosecutorial function. As such,
prosecutors, as attorneys and functionaries
are not “exclusively
linked to the prosecution of crime” or only to “prosecutorial
duties” assigned to
them, as contended. As already stated, just
as Judges are required to undertake certain non-curial functions,
such as commissions
of inquiry, the functions of members of the NPA
on a day to day basis go beyond merely prosecuting, and could include
other functions,
including of course, mundane administrative
functions which are implicit in every role in every branch of
government.
[112]
It is further significant, as already stated, that the provisions of
section 24(1) of the JSC Amendment Act are
not peremptory in the
sense that the Tribunal can discharge its functions without
appointing a prosecutor for the purposes of collecting
evidence.
Therefore, the Labuschage Tribunal correctly emphasised in its
reasons for dismissing the applicant’s preliminary
objections
in October 2013 that a Tribunal appointed in terms of the Amended JSC
Act can on its own accord obtain evidence or call
witnesses, without
the assistance of a prosecutor, as contemplated in section 24.
[113]
It is further significant that the inquisitorial powers granted to a
Tribunal are far wider than the powers of
inquiry stipulated in terms
of the Old Rules. Be that as it may, if a prosecutor is appointed in
terms of section 24(1), as in
the present case, such prosecutor is
subject to the inquisitorial powers of a Tribunal and directions from
the said Tribunal pertaining
to specific evidence and factual
enquiries required by the said Tribunal. In these circumstances, the
prosecutorial role in the
context of a Tribunal (which is limited to
adducing evidence) is materially different to the prosecutorial role
in the context
of a criminal trial before a Judge governed by
statutory procedures.  As such, unlike a criminal trial or even
for that matter
a disciplinary hearing, a “prosecutor” of
a Tribunal in terms of the Amended JSC Act has no authority “to
prosecute”
in the sense of establishing the guilt of a person
arraigned on a particular charge. Indeed, the fourth respondent and
any other
prosecutor appointed in a similar position is not even
required to make legal submissions to the relevant Tribunal.
Furthermore,
unlike the pro-forma prosecutor, who might have been
appointed in terms of sub-rule 5.4 of the Old Rules, the fourth
respondent
is not required to prepare a charge sheet or to present
argument to assist the Tribunal in fulfilling its tasks.
[114]
In contrast to the patently limited role of a “prosecutor”
in this context, it is significant that
in a formal enquiry in terms
of sub-rule 5.12 of the Old Rules, any member of the Commission is
entitled to ask questions to witnesses
and counsel with the consent
of the chair of the Commission. Notionally speaking, the questions in
this regard could be much more
far-reaching than the limited
evidence-collecting function of a prosecutor such as the fourth
respondent. Similarly, the questions
posed in terms of the previous
sub-section 5.12, could notionally speaking be more akin to questions
posed by a prosecutor in the
conventional sense in a criminal trial
and/or a disciplinary hearing.
[115]
It was further averred that the role of prosecutor in the Tribunal is
unconstitutional to the extent that section
41 of the Constitution,
which relates to co-operative governance, effectively prevents a
member of the NPA assuming “any
power or function except those
conferred on them in the Constitution.” As already indicated,
the principle of the separation
of powers has never been absolute in
the sense that each branch of government can intrude on the terrain
of other branches, with
appropriate checks and balances.
[116]
I had difficulty appreciating the further suggestion that the
independence of the judiciary may be compromised
by an appointment of
a prosecutor in terms of section 24(1), Similarly, I had difficulty
with the notion that a perception “may
also be created”
in the eyes of the public that judges are not independent.  Be
that as it may, as already indicated,
the significant feature of the
prosecutor’s role in a Tribunal is that such role is neither
necessary, nor defined, nor adversarial,
in the usual sense.
[117]
In these circumstances, I accept that a balanced view of all material
information in this context can include
the notional, though
admittedly remote, possibility of a prosecutor presenting evidence at
a Tribunal, and also subsequently prosecuting
in a criminal trial.
However, if one objectively balances all considerations, the
appointment of a prosecutor within the
framework of section 24 does
not at a practical level create any perception that the “prosecutor”
is part of the “executive”,
as suggested. This is
particularly so as the Constitutional Court has accepted in the case
of
Van Rooyen
[53]
that perception in this context must necessarily be premised upon all
the material information and must be reasonable considering
the
matter realistically and practically. It is in my view difficult to
appreciate even the hint of any perception in these circumstances
on
the part of any member of the public to the effect that a prosecutor
appointed in terms of section 24
qua
evidence collector can be
subject to executive control or discretion,
[54]
or create the risk of judicial entanglement in matters of a political
nature,
[55]
as suggested by the applicants’ counsel.
[118]
To the extent that the applicants’ counsel suggested the
potential for abuse of functional separation of
the judiciary and the
executive, the Constitutional Court has held in the
Van Rooyen
case that:
“
[37]
Any power vested in a functionary by the law (or indeed the
Constitution itself) is capable of being
abused. That possibility has
no bearing on the constitutionality of the law concerned. The
exercise of the power is subject to
constitutional control and should
the power be abused the remedy lies there and not in invalidating the
empowering statute.”
[56]
[119]
My findings in this respect are also supported by the
Labuschagne Tribunal, which states in its reasons that the fourth

respondent
“
was appointed
in terms of section 24 of the JSC Act and in our view her role as
evidence leader has nothing to do with her duties
and functions as a
prosecutor.”
[57]
[120]
For all the reasons given, objectively assessed, section 24(1) is not
inconsistent with the Constitution, nor
is the independence of any
branch of government compromised by the appointment of a prosecutor
in terms of the said section.
CONCLUSION
[121]
In these circumstances, the implementation or enforcement of new
procedural provisions of the Amended JSC Act do not affect
any
substantive rights of the applicants or any other party. Similarly,
the decisions of the Commission taken in April 2012 and
October 2012
in terms of the Amended JSC Act do not impair the substantive rights
of any party, which may have accrued prior to
1 June 2010. As such,
the application to set aside any averred impermissible retrospective
application of the Amended JSC Act on
the basis of these decisions,
must fail.
[122]
The provisions of section 14(3)(b) of the Amended JSC Act relating to
complaints being lodged by means of an affidavit or
an affirmed
statement are directory and not peremptory in respect of impeachable
complaints as envisaged in section 16. In any
event, to the extent
that such provisions are peremptory, there has been substantial
compliance with these provisions in the circumstances
of the present
case. The decisions of the JSC in April and October 2012 are
accordingly not invalidated by virtue of the fact that
the complaint
in this matter was not initially lodged on an affidavit in terms of
section 14.
[123]
Section 24(1) of the Amended JSC Act is not inconsistent with the
Constitution and the declaratory relief sought in this context
must
also fail.
COSTS
[124]
Even though the applicants have not been successful in respect of any
of the relief claimed, counsel for all parties agreed
that as this
matter involves constitutional issues of national significance, the
applicants should not be mulcted with an adverse
costs order. I
therefore propose making no order as to costs.
ORDER
[125]
Based on the aforegoing, the following order is made:
i)
The application is dismissed.
DATED
AT JOHANNESBURG THIS 26th SEPTEMBER 2014
H MAYAT J
JUDGE OF THE HIGH
COURT
OF SOUTH AFRICA
I concur
CJ CLAASSEN J
JUDGE OF THE HIGH
COURT
OF SOUTH AFRICA
I concur
F KGOMO J
JUDGE OF THE HIGH
COURT
OF SOUTH AFRICA
Counsel for the applicants : S
M Mbenenge SC
B R Tokota SC
Attorneys
for applicant : State Attorney, Kimberly
Counsel
for first respondent : M H Maenetje SC
P
G Seleka
Attorneys
for first respondent : Mashaba Attorneys
Counsel
for third respondent : T Motau SC
T
B Hutamo
Attorneys for third respondent :
Mashaba Attorneys
Date of Hearing : 18
th
to the 19
th
of September 2014
Date of Judgment : 26
th
of September 2014
[1]
Hlophe JP is of course not a party to the present
proceedings. However, without making a finding on the probabilities
in this
matter, the record in this matter includes a statement
signed by Hlophe JP on the 30
th
of June 2008 under the heading “John Hlope’s response to
the statement of the Chief Justice Langa filed on behalf
of the
Constitutional Court Judges” in which he admits the meetings
with both the applicants on the dates reported by the
applicants. He
also does not deny the reported discussions between him and the
applicants in such statement. Thus, for example,
in paragraph 23 of
his statement Hlophe JP admits he visited Justice Jafta at his
chambers in the Constitutional Court in March
2008 for approximately
1 hour 30 minutes. He also admits in paragraphs 23.4 and 23.5 of his
statement that they discussed the
Zuma/Thint cases as well as the
issue of privilege and fair trial and a number of other topics as
friends.
[2]
In para 23.5 of his statement,
supra
fn 1, Hlophe JP admits he said “sesithembele
kinana” but states this expression was not intended to convey
a positive
finding in the Zuma/Thint cases.
[3]
See fn 1,
supra
[4]
Freedom Under Law v Acting Chairperson: Judicial
Service Commission and Others
2011 (3) SA
549
(SCA) (“the Freedom Under Law case”) at para 50
[5]
Freedom Under Law case,
supra,
fn 4, at para 22
[6]
para 13 of the decision dated 4
th
September 2012.
[7]
Para 12 of the reasons of the Labuschagne Tribunal
dated 1 November 2013 in which reference is also made to the cases
of
Woerman and Schutte NNO v Masondo and
Others
2002 (1) SA 811
(SCA) at para 18;
Bell v Voorsitter van die
Rasseklassifikasieraad en Andere
1968 (2) SA
678
(A) at 684 E-F and
Bellairs Hodnett and
Another
1978 (1) SA 1109
(A) at 1148F-G
[8]
Para 12
[9]
Para 29 of reasons
[10]
sub-rule 5.6
[11]
sub-rule 5.7
[12]
sub-rule 5.8
[13]
2011 (5) SA 388
(CC) at para 37
[14]
See for example
Wary Holdings
(Pty) Ltd v Stalwo (Pty) Ltd and Another
[2008] ZACC 12
;
2009
(1) SA 337
(CC) para 61 and
Mistry v Interim
Medical and Dental Council of South Africa and Others
1998
(4) SA 1127
(CC) paras 17-18
[15]
See generally
Bato Star Fishing
(Pty) Ltd v Minister of Environmental Affairs and Others
[2004] ZACC 15
;
2004
(4) SA 490
(CC)
[16]
fn 4,
supra
at
para 49
[17]
fn 4,
supra
at
para 50
[18]
fn4,
supra
at
para 58, where the SCA sets out the relief the appellant initially
sought in its notice of motion and stated that the appellant
was not
entitled to set aside the decision taken by the Commission at the
meeting on 20 to 22 July 2009 to reverse its earlier
decision to
hold a  formal enquiry
[19]
See for example the cases of
Veldman
v Director of Public Prosecutions, Witwatersrand Local Division
2007(3) SA 2010 (CC)
[20]
[1982] 3 All ER 833
(CA) at 836b – d as approved
in our courts by Marais JA in
Minister of
Public Works v Haffejee N.O
.
[1996] ZASCA 17
;
1996 (3) SA 745
(AD) at 752C – G; in
Euromarine
International of Nauren v The Shipburg and Others
1986 (2) SA 700
(A) at 710E – H and in
Transnet
Ltd v Ngcezula 1
995 (3) SA 538
(A) at 549G –
I.
[21]
supra
fn 19 at 839d –
f
[22]
S v Mhlungu
1995(3) SA 867
(CC) at para 64
[23]
Transnet Ltd v Ngcezula
,
supra
fn 20
[24]
Chairman, Board of Tariffs & Trade v Volkswagen
of SA (Pty) Ltd
2001(2) SA 372 (SCA) at p380
[25]
1906 TS 308
[26]
supra
fn 25 at 311
[27]
supra
fn 25
at
312
[28]
S v Mhlungu supra
fn 22
[29]
supra
fn 22 at para 66
[30]
supra
fn 20
[31]
supra
fn 20 at p 755 B-C
[32]
supra,
fn 20 at p 755 E-H
[33]
supra,
fn 20 at 753 B-C
[34]
supra
fn  19 para 28
[35]
In footnote 23 in
Du Toit v
Minister of Safety and Security
2010 (1)
SACR 1 (CC)
[36]
The full bench of this court in the present matter was
specially constituted to hear the present application as well as the
case
of
Justice Ntsikelelo Mandlenkosi Poswa
v The President of the Republic of South Africa and Others
,
instituted in the North Gauteng High Court under case number
30021/13.  Counsel for the applicants in both matters relied

upon similar submissions in relation to whether the Amended JSC Act
could be interpreted to have retrospective or prospective

application and section 14 of the Amended JSC Act. I concur with the
judgment of my brother Claassen J in the application instituted
by
Justice Poswa for the reasons given in that judgment.
[37]
1994(4) 1 (SCA)
[38]
2013(9) BCLR 1091 (CC)
[39]
at para 42 of the Freedom Under Law case,
supra
fn 4
[40]
in para 63 of the
Justice Poswa
case,
supra
fn
36
[41]
in para 67 of the
Justice Poswa
case,
supra
fn
36
[42]
See section 14(2) as read with section 15(1) and (2)
and the definition of “Chairperson” in section 1
[43]
See, for example the case of
Khumalo
v Director-General of Co-operation and Development
1991(1)
SA 158 AD at 165D-4. In a more recent case of
Loureiro
v Imvula Quality Protection
2014 (3) SA 394
(CC) the court in para 31 appeared to accept in the context of
argument for leave to appeal that the general presumption against

retrospectivity of law is rebutted in instances when one is dealing
with procedural aspects, which does not affect a party’s

substantive rights
[44]
Para 12 of the Tribunal’s reasons for dismissing
the preliminary objections raised by the applicants.
[45]
supra
fn 4 at para 22
[46]
Oudekraal Estates v The City of Cape Town
2004
(6) SA 220
(A)
[47]
1996 (4) SA 744(CC)
. See also the case of
Justice
Alliance supra
fn 13 at para 33
[48]
First Certification
judgment para,
supra,
fn 47 para 123
[49]
First Certicification judgment,
supra,
fn 47, para 123. See also the case of
Justice Alliance, supra
paras
34-36 and the authorities quoted there. Chaskalson P in the case of
South African Association of Injury Lawyers v
Heath and Others
2001(1) SA 883 (CC) also
noted that the majority of the members of the Commission, whose
central role is the appointment of Judges
and matters relating to
the judiciary are not judicial officers. It is also well-known in
this respect that the majority of the
members of the Commission are
now politicians and/or members of the executive.
[50]
Per Chaskalson CJ in the case of
Van
Rooyen and Others v The State and Others
2002(5)
SA 246 (CC) para 17.
[51]
First Certification
judgment,
supra,
fn
48 para 111
[52]
Heath
case,
supra
49
[53]
supra
fn 50
[54]
See
Wilson v Minister for
Aborignal Affairs
(1996) 189 CLR 1
at 17-20
referred to in the
Heath
case,
supra
in fn 50
[55]
See
Mistretta v United States
[1989] USSC 9
;
488 US 361
(1989) at 407;
Wilson
v Minister for Aborignal Affairs
(1996) 189
CLR 1
at 9 and
Groller v Palmer
[1995] HCA 26
;
(1995)
184 CLR 348
at 366, all of which are referred to in the
Heath
case,
supra
fn
49
[56]
supra
fn 50. The same point
is made by the Constitutional Court, albeit in a different context,
in the case of
Bernstein and Others v Bester
and Others NNO
[1996] ZACC 2
;
1996 (2) SA 751
(CC) at para
52
[57]
para 67 of reasons