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[2010] ZAWCHC 136
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Premier of the Western Cape Province v Acting Chairperson: Judicial Service Commission and Others (25467/2009) [2010] ZAWCHC 136 (24 June 2010)
6
Not
reportable
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
Case
No: 25467/2009
In the matter between:
PREMIER
OF THE WESTERN CAPE PROVINCE
Applicant
and
THE
ACTING CHAIRPERSON: JUDICIAL
SERVICE
COMMISSION
First
Respondent
THE
JUDICIAL SERVICE COMMISSION
Second
Respondent
CHIEF
JUSTICE SIRRAL SANDILE NGCOBO
Third Respondent
DEPUTY
CHIEF JUSTICE DIKGANG MOSENEKE
Fourth
Respondent
JUSTICE
CHRISTOPHER NYAOLE JAFTA
Fifth
Respondent
JUSTICE
BAAITSE ELIZABETH NKABINDE
Sixth
Respondent
JUSTICE
THEMBILE LEWIS SKWEYIYA
Seventh
Respondent
JUSTICE
JOHANN VINCENT VAN DER WESTHUIZEN
Eighth
Respondent
JUSTICE
ZAKERIA MOHAMMED YACOOB
Ninth
Respondent
JUSTICE
PIUS NKONZO LANGA
Tenth
Respondent
JUSTICE
THOLAKELE HOPE MADALA
Eleventh
Respondent
JUSTICE
JENNIFER YVONNE MOKGORO
Twelfth
Respondent
JUSTICE
CATHERINE MARY ELIZABETH O'REGAN
Thirteenth
Respondent
JUSTICE
ALBERT LOUIS SACHS
Fourteenth
Respondent
JUSTICE
PRESIDENT MANDLAKAYISE JOHN HLOPHE
Fifteenth
Respondent
JUSTICE
FRANKLYN KROON
Sixteenth
Respondent
Summary
Leave
to appeal granted against an order declaring certain proceedings
before the Judicial Service Commission to be null and void.
Coram:
JONES and EBRAHIM JJ Date of hearing: 18 June 2010
JUDGMENT
ON LEAVE TO APPEAL
JONES
J:
[1] On 12 April 2010 we
issued a declaratory order, with costs, that the proceedings before
of the Judicial Service Commission
on 20 to 22 July 2009 and 15
August 2009 and the decisions to dismiss the complaint and
counter-complaint which were the subject
of those proceedings were
unconstitutional and invalid, and were set aside. The 1
st
and 2
nd
respondents
(collectively referred to as the Judicial Service Commission or the
JSC) and the 15
th
respondent (the Judge President of the Western Cape High Court), who
were the only respondents to oppose the relief, now apply
for leave
to appeal to the Supreme Court of Appeal against that order.
[2] The application
before us arose out of a complaint laid by the judges of the
Constitutional Court against the 15
th
respondent, and a counter-complaint laid by the 15
th
respondent
against the Constitutional Court judges. The complaints were
considered and dismissed by the Judicial Service Commission.
The
applicant, who is Premier of the Western Cape Province, challenged
the constitutional validity of those decisions on procedural
grounds. We upheld the three main grounds upon which she relied. We
accordingly ruled that the proceedings, and the decisions
taken at
them, were a nullity.
[3] The complaints
before the JSC were complaints of judicial misconduct. They were
dealt with together by the JSC because the
counter-complaint by the
15
th
respondent arose directly out of the laying of the complaint against
him by the judges of the Constitutional Court. The allegations
of
misconduct against the Constitutional Court judges had no bearing on
the application before us, which was focused on the complaint
against the 15
th
respondent.
Those allegations, if established, might result in impeachment
proceedings against him in terms of section 177(1)
of the
Constitution which provides that a judge may be removed from office
if the JSC finds that he or she is guilty of gross
misconduct and if
the National Assembly calls for him or her to be removed by a
resolution adopted with a supporting vote of
at least two thirds of
its members.
[4] The order sought to
be appealed against did not relate to the merits or otherwise of the
complaints against the 15
th
respondent. The three grounds upon which the order was based were,
as I have said, procedural. They were:
that when the JSC took
its decisions and conducted its proceedings, it was not properly
constituted for want of compliance with
the provisions of section
178(1)(k) of the Constitution, which provides for the Premier to be
a member of the JSC when considering
matters relating to a High
Court of a Province (the section 178(1)(k) point);
alternatively and also
as an independent argument in its own right, that the JSC was not
properly constituted when it took the
decision because only ten of
its members participated in the decision making process when there
should have been at least thirteen
members - on the JSC's
interpretation of section 178(1)(k) - to consider complaints
against judges (the composition point);
and
as a further
alternative, that the decisions of the JSC were not supported by a
majority of the JSC's members as required by
section 178(6) of the
Constitution (the majority point).
[5] The application for
leave to appeal requires us to consider whether another court might
reasonably come to a different conclusion
on each of these points.
They are pertinently raised in the 1
st
and 2
nd
applicants' notice of application for leave to appeal, and are the
only grounds alleged. They are consequently the only grounds
which
fall to be considered in respect of the 1
st
and 2
nd
respondents' application. It is necessary to make this observation
at the outset because we were invited during argument to consider
additional grounds which, though part of the heads and not
previously abandoned, were not pursued in oral argument by counsel
for the 1 and 2 respondents at the hearing of the main application.
An attempt to resurrect these other arguments
1
in the application for leave to appeal is not possible unless they
are incorporated as part of the grounds of the application
for leave
to appeal now brought before us. I need therefore say no more about
them. But it is necessary to consider the application
for leave to
appeal in the light of the three grounds outlined in paragraph 4.
[6] In argument before
us the 15
th
respondent concentrated on two grounds which were indeed raised in
his notice of application for leave to appeal - the section
178(1)(k) point referred to in paragraph 4.1 above, and a factual
argument that the issue was moot because, even if a Premier
is
constitutionally part of the JSC when it sits to consider complaints
of misconduct against a judge of the province, this Premier
has
publicly made statements on the merits of this complaint which
preclude her from being part of the JSC for that purpose.
He aligned
himself with the submissions of the 1
st
and 2
nd
respondents in respect of the composition point and the majority
point.
[7] The issues in the
application for leave to appeal, therefore, are the three points
isolated in paragraph 4 above, and the
mootness point raised by the
15
th
respondent. There must be a reasonable prospect of success on the
three arguments in paragraph 4, or, in the case of the 15
lh
respondent's application, the mootness point, before we can give
leave to appeal.
[8] The 15
th
respondent has no prospects of success on the mootness point. We did
not accept this argument for the simple reason that the
possibility
of the Premier's recusal from the JSC was not one of the issues
before us. There was no relief sought in regard thereto.
The Premier
has not been properly heard on that issue. If we had made a
declaratory order in that regard, it would have been
incompetent.
The 15
th
respondent is not entitled on these
papers to an opinion
from this Court about whether or not she should recuse herself in
the event of a future JSC hearing into
the issues which underlie
this application.
[9] As in the main
application, most of the argument was directed at the section
178(1)(k) point, which concerned the interpretation
of the
Constitution. In a nutshell, the argument is that when viewed
against the background of the doctrine of separation of
powers and
the material difference between the process of appointing a judge on
the one hand and his or her impeachment on the
other, another court
may reasonably consider that a more restricted interpretation of the
words of the section is to be preferred.
In the course of the
judgment I remarked that this argument was not without its
attraction but that the wide language of the
Constitution did not
permit the restricted interpretation because the Constitution had
had the doctrine of separation of powers
in mind in constructing the
JSC. It provided for ten representatives of the legislative branch
to be members despite the doctrine,
but expressly restricted their
participation to the issue of the appointment of judges. It also
provided for selected members
of the executive branch to be members,
but did not expressly restrict their participation in similar
fashion. They are the cabinet
minister responsible for the
administration of justice, four persons designated by the President
as head of the national executive,
and the Premier of the province
concerned or his or her designate when the JSC considers a matter
relating to the high court
of that province. As it stands, the
Constitution makes them members for all purposes, and not merely for
the appointment of judges.
We were unable to find any signs or
indications to justify the conclusion that the Constitution did not
mean what it said. I
am still of that view. Similarly, nothing has
been said in argument before us to make me doubt the correctness of
our findings
on the composition point and the majority point.
[10] But the issue is
not whether or not we are correct. It is whether there is a
reasonable prospect of success on appeal. I
have already alluded to
attractive features of the argument advanced by the respondents
a
quo.
In
addition, there is information on record that for a considerable
number of years members of JSC - which include distinguished
Chief
Justices, judges and members of the legal profession - and the
officials responsible for its administration have understood
and
applied section 178(1)(k) to exclude premiers of the provinces from
the JSC when it sits to consider complaints of judicial
misconduct.
There is, of course, no way of knowing whether they applied their
mind to the specific wording of the Constitution
when they did so,
and no court is bound by the opinion of an administrative official
on the meaning of the Constitution. But
this is nevertheless an
additional reason for the conclusion that the arguments put by the
respondents are not so lacking in
substance that they can properly
be said to be entirely without prospect of success.
[11] Counsel have
suggested other reasons for granting leave - the importance of the
issue, not only to the parties from a personal
point of view but
also in respect of the conduct of proceedings in the JSC in the
future; the absence of authority on the point;
and the complexity of
the application of the general principles of interpretation to this
particular section of the Constitution.
Mr
Katz
correctly
argued on behalf of the applicant that these considerations do not
permit granting leave if there are no prospects of
success
(Janit
v
Van
den Heever and another NNO
(2)
2001 (1) SA 1062
(W) paras 3, 4, 5 and 6). But the respondents do
not argue that leave should be granted because of the importance or
complexity
of the issues, regardless of the prospects of success.
Their submission was that these are additional reasons why we should
find
that there are prospects of success.
[12] My conclusion is
that there are reasonable prospects of success on appeal on the
three grounds alleged in the 1
st
and 2
nd
respondents' notice of application for leave to appeal, and the
first ground in the 15
th
respondent's notice. The proper forum is the Supreme Court of
Appeal. In the result, the 1
st
,
2
nd
and 15
th
respondents are granted leave to appeal to the Supreme Court of
Appeal. Ordinarily, I would order that the costs of this application
be costs in the appeal, but there has been a suggestion that in this
case that may not be appropriate. The costs will therefore
stand
over for later determination, but in the absence of a future
determination, they will be costs in the appeal.
RJW
JONES
Judge
of the High Court
24
June 2010
EBRAHIM,
J
I
agree
S
EBRAHIM
Judge
of the High Court
1
An example is the argument that only the Constitutional Court had
jurisdiction to hear the main application because it involves
a
dispute between organs of state.