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[2011] ZASCA 59
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Freedom Under Law v Acting Chairperson: Judicial Service Commission and Others (2011 (3) SA 549 (SCA); [2011] 3 All SA 513 (SCA)) [2011] ZASCA 59; 52/2011 (31 March 2011)
Links to summary
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 52/2011
In the matter between:
FREEDOM
UNDER
LAW
Applicant
and
THE ACTING
CHAIRPERSON:
JUDICIAL SERVICE
COMMISSION
First Respondent
THE JUDICIAL SERVICE
COMMISSION
Second Respondent
CHIEF JUSTICE PIUS
NKONZO LANGA
Third Respondent
DEPUTY CHIEF JUSTICE
DIKGANG MOSENEKE
Fourth Respondent
JUSTICE THOLAKELE HOPE
MADALA
Fifth Respondent
JUSTICE JENNIFER
YVONNE MOKGORO
Sixth Respondent
JUSTICE CATHERINE MARY
ELIZABETH O’REAGAN
Seventh Respondent
JUSTICE ALBERT LOUIS
SACHS
Eighth Respondent
JUSTICE SIRRAL SANDILE
NGCOBO
Ninth Respondent
JUSTICE THEMBILE LEWIS
SKWEYIYA
Tenth Respondent
JUSTICE JOHANN VINCENT
VAN DER WESTHUIZEN
Eleventh Respondent
JUSTICE ZAKERIA
MOHAMMED YACOOB
Twelfth Respondent
JUSTICE BAAITSE
ELIZABETH NKABINDE
Thirteenth Respondent
JUSTICE CHRISTOPHER
NYAOLE JAFTA
Fourteenth Respondent
JUDGE FRANKLYN
KROON
Fifteenth Respondent
JUDGE PRESIDENT
MANDLAKAYISE JOHN HLOPHE
Sixteenth Respondent
Neutral
citation:
Freedom
Under Law v JSC
(52/2011)
[2011] ZASCA
59
(31 March 2011)
Coram:
STREICHER, BRAND, CACHALIA, THERON and SERITI JJA
Heard:
22 MARCH 2011
Delivered:
31 MARCH 2011
Summary:
Judicial Service Commission –
constitutional duty to properly investigate allegations of gross
misconduct on part of judge
– cross-examination required to
resolve disputes of fact – company whose mission to strengthen
independence of judiciary
has standing in respect of alleged failure
of JSC to properly investigate.
ORDER
On appeal from: North
Gauteng High Court, Pretoria (Mabuse J sitting as court of first
instance)
1
Leave to appeal with costs including the costs of three counsel is
granted to the applicant.
2
Leave to cross-appeal is refused with costs including the costs of
three counsel.
3
The appeal is upheld with costs including the costs of three counsel.
4
The order by the High Court is set aside and replaced with the
following order:
‘
1
The decision of the Judicial Service Commission at its meeting on 15
August 2009, “that
the evidence in respect of the complaint
does not justify a finding that Hlophe JP is guilty of gross
misconduct” and that
the matter accordingly be “treated
as finalised”, is reviewed and set aside.
2
The first and second respondents on the one hand and the sixteenth
respondent on the
other hand are ordered jointly and severally to pay
the applicant’s costs.’
JUDGMENT
STREICHER JA (BRAND,
CACHALIA, THERON and SERITI JJA concurring)
[1]
This is an application for leave to appeal and a conditional
application for leave to cross-appeal.
A sub-committee of the
Judicial Service Commission (JSC), the second respondent, conducted a
preliminary investigation into a complaint
by judges of the
Constitutional Court (third to fifteenth respondents) against Judge
Hlophe, the Judge President of the Western
Cape High Court, Cape
Town, the sixteenth respondent, and a counter-complaint by Hlophe JP
against those judges of the Constitutional
Court. Upon receipt of the
sub-committee’s report the JSC, by a majority vote, dismissed
the complaints. The applicant thereupon
applied to the North Gauteng
High Court, Pretoria for an order setting aside the decision by the
JSC to hold a preliminary enquiry
and the subsequent decision to
dismiss the complaints. The high court’s dismissal of the
application, the subsequent application
for leave to appeal and the
conditional application for leave to cross-appeal gave rise to the
present application to this court.
The application for leave to
cross-appeal is conditional upon the application for leave to appeal
succeeding and is against the
high court’s finding that the
applicant had standing in the matter. Both applications were referred
to the court for oral
argument together with an indication that the
parties should be prepared to argue the merits of the appeal, which
they did.
[2]
On 11 and 12 March 2008 the Constitutional Court heard argument in
four matters regarding the
prosecution of Mr Jacob Zuma and Thint
(Pty) Ltd on corruption charges (these matters are at times referred
to as the Zuma/Thint
matters or simply as the Zuma matters). The
cases concerned, among other things, the lawfulness of search and
seizure procedures
and the question of legal professional privilege
over documents held on behalf of clients. The Constitutional Court
reserved judgment
at the conclusion of the hearing of the four
matters. Nkabinde J and Jafta AJ were two of the eleven judges who
heard the matters.
The latter, at the time, was a permanent member of
this court acting as a judge of the Constitutional Court.
[3]
Before judgment in the Zuma/Thint matters was handed down Hlophe JP
visited Nkabinde J and Jafta
AJ separately in their chambers at the
Constitutional Court and had discussions with them. These discussions
were subsequently
reported to the other members of the Constitutional
Court and led to a complaint being lodged by the judges of the
Constitutional
Court with the JSC that ‘Judge John Hlophe, has
approached some of the judges of the Constitutional Court in an
improper
attempt to influence this Court’s pending judgment in
one or more cases’. The judges of the Constitutional Court also
published a press statement that they had done so. Hlophe JP then
lodged a counter-complaint against the judges of the Constitutional
Court. He accused them of having undermined the Constitution by
making a public statement in which they sought to activate a
procedure
for his removal for alleged improper conduct before
properly filing a complaint with the JSC and of having violated his
rights
to dignity, privacy, equality, procedural fairness and access
to courts by filing the complaint even before they had heard his
version of the events.
[4]
The JSC requested statements from the judges who were directly
involved in the incident whereupon
Nkabinde J and Jafta AJ responded
that they were not complainants, that they had not lodged a
complaint, did not intend to lodge
one and did not intend making
statements about the matter. Shortly thereafter a statement by Langa
CJ on behalf of all the judges
of the Constitutional Court and
confirmed by, amongst others, Nkabinde J and Jafta AJ, in so far as
the contents of the statement
referred to them, was filed with the
JSC in support of, and in answer to, the complaint and the
counter-complaint.
[5]
In the statement filed by the Constitutional Court judges in support
of their claim Langa CJ related
the versions of Jafta AJ and Nkabinde
J as to what was said during their discussions with Hlophe JP and how
it came about that
the complaint was lodged. According to the
statement Nkabinde J and Jafta AJ had made it clear to Langa CJ and
Moseneke DCJ that
in their view the approach by Hlophe JP had been
improper and that after they had dealt with the matter by rejecting
the approach
of Hlophe JP they did not consider it necessary to lodge
a complaint or make a statement. A meeting of Constitutional Court
judges
was thereafter called at which Langa CJ and Moseneke DCJ
reported that in their view the conduct of Hlophe JP, as reported to
them
by Jafta AJ and Nkabinde J, constituted a serious attempt to
influence the decision of the Court in the Zuma/Thint cases. After
discussion the judges decided to lodge a complaint with the JSC.
[6]
Hlophe JP also filed a statement in answer to the complaint and in
support of his counter-complaint.
He contended that the
Constitutional Court judges made themselves guilty of gross
misconduct by laying the complaint and by issuing
a media release
stating that a complaint had been laid, before even having afforded
him a hearing, thereby violating his constitutional
rights and
undermining the integrity of the judiciary. He stated that the
history related by the judges of the Constitutional Court
showed a
motive by Langa CJ and Moseneke DCJ to get rid of him at all costs.
He stated further that it would seem that inappropriate
pressure had
been brought to bear on Nkabinde J and Jafta AJ to associate
themselves with the complaint and that Langa CJ and Moseneke
DCJ
failed to convey the correct position ‘in respect of the so
called “complainant judges” to the JSC’
and
hoodwinked them into supporting a decision without knowledge of the
position taken by Nkabinde J and Jafta AJ. Given the personalities
involved in the cases which the Constitutional Court had to decide,
Hlophe JP suggested, ‘it does appear that there may well
have
been a political motive on the part of the Chief Justice and his
Deputy’.
[7]
In terms of s 177(1) of the Constitution a judge may be removed
from office only if the JSC
finds that the judge suffers from an
incapacity, is grossly incompetent or is guilty of gross misconduct
and if the National Assembly
calls for that judge to be removed by a
resolution adopted with a supporting vote of at least two-thirds of
its members. The JSC
may determine its own procedure but its
decisions must be supported by a majority of its members.
[1]
Rule 3 of the rules adopted by the JSC provides:
‘
3.1
On receipt of a complaint and the responses referred to above, the
JSC shall consider the relevant
documentation and decide whether,
prima facie,
the
conduct complained of would, if established, amount to such
incapacity, incompetence or misconduct as may justify removal of
the
Judge in terms of Section 177(1) of the Constitution.
3.2
In the event of the view of the JSC being
that the conduct complained of would not constitute grounds for
removal from office, the
matter shall be treated as finalised and the
complainant and the Judge notified accordingly.
3.3
In the event of the JSC resolving that the
pertinent conduct, if established, may justify removal from office,
the matter shall
be dealt with further as provided below.’
[8]
Rule 4 makes provision for a preliminary investigation by a
sub-committee and rule 5 provides
for a hearing at which the judge is
charged in terms of a charge sheet. The judge must be asked to plead
to the charge, is entitled
to legal representation, may call
evidence, cross-examine witnesses and present argument. After the
enquiry the JSC must make a
finding as to whether or not the judge
suffers from incapacity, or is grossly incompetent, or is guilty of
gross misconduct as
envisaged by s 177(1).
[9]
On 5 July 2008 the JSC, after having considered both the complaint
and counter-complaint, released
a media statement in which they said:
‘
The
Commission unanimously decided that, in view of the conflict of fact
on the papers placed before it, it was necessary to refer
both the
complaint by 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.’
[10]
The JSC advised the parties that 1 to 8 April 2009 had been set aside
for the hearing of oral evidence on
disputes on what it considered to
be material disputes of fact which could not be resolved on the
papers. It indicated that it
believed that judges Nkabinde, Jafta,
Langa, Moseneke, Mokgoro and Hlophe would have to give evidence. In a
subsequent letter the
JSC advised that all questions had to be aimed
at resolving the disputes of fact that had been identified.
[11]
Upon application by Hlophe JP on 1 April 2009 for a postponement sine
die, the JSC postponed the matter until
4 April 2009. On that date an
application by Hlophe JP for a further postponement, on medical
grounds, for a period of ten days
was turned down but the matter was
adjourned to 7 April 2009. When a further application for
postponement was refused on the last-mentioned
date Hlophe JP’s
counsel withdrew. The matter then proceeded in the absence of Hlophe
JP and his legal representatives. The
evidence of, amongst others,
Nkabinde J and Jafta AJ was received and they were questioned by the
Commissioners.
[12]
An urgent application by Hlophe JP to the South Gauteng High Court,
Johannesburg for an order declaring the
entire proceedings of the JSC
commencing on 5 July 2008 unlawful and therefore void ab initio was
partly successful in that the
court set aside the proceedings of 7
and 8 April 2009 and ordered that they were to commence de novo on a
date suitable to the
parties. The court could find no basis for a
finding that the proceedings on 5 July 2008 were unlawful.
[2]
[13] On
20 July 2009 the JSC reconvened to discuss the complaint and
counter-complaint. In the meantime its composition
had changed. A new
President, Mr Jacob Zuma, had been elected and a new Minister of
Justice had been appointed. The Minister
of Justice, ex
officio, became a member of the JSC and the newly elected President
Zuma, as he was entitled to do, replaced four
of its members, who had
been appointed by his predecessor, with four new appointees. One of
the new members had previously acted
as counsel for one of the
complainants and recused himself from the discussion leaving four new
members who had not previously
been involved in the matter. The
reconstituted JSC decided that it was necessary to commence with the
matter de novo. Having reconsidered
the matter they concluded in
terms of rule 3.1 ‘that the allegations made in the Complaint
and Counter complaint, if established,
would amount to gross
misconduct’ and in terms of rule 4.1 appointed a sub-committee
to investigate the complaints by conducting
interviews behind closed
doors with Langa CJ, Moseneke DCJ, Hlophe JP, Nkabinde J and Jafta
AJ.
[14]
Shortly after the decision had been taken, Mail and Guardian Ltd and
others applied to the South Gauteng
High Court, Johannesburg for an
order setting it aside. They contended that the JSC could not have
reversed its earlier decision
to hold a formal enquiry and that the
interviews should not be closed to the public. In the answering
affidavit filed by the JSC
in that application the deponent Mr
Semenya SC stated that the decision to commence with the matter de
novo was considered to be
the best route to follow because there was
a question mark over the issue as to whether the previous decision to
commence with
the hearing was properly made ‘in that there was
a challenge raised as to whether a preliminary investigation, in
terms of
rule 4.1 of the Rules of the JSC, had preceded the decision
to commence with the hearing’. This contested issue could not
be ignored, so the JSC decided, as it could expose the JSC to further
litigation. Malan J held that the JSC was entitled
to reverse
its earlier decision and conduct a new preliminary hearing but
reviewed and set aside the decision that the interviews
be held
behind closed doors and ordered that they be open to representatives
of the media.
[3]
[15]
The JSC sub-committee held the interviews and upon conclusion thereof
in a report to the JSC recommended
‘fresh deliberations to the
complaint and the counter-complaint’ in light of the
proceedings before them and the transcript
of the proceedings of
April 2009. The JSC reconsidered the matter and dismissed both
complaints. When the complainants did not
take the matter any further
the applicant applied for the decision of the JSC to hold a
preliminary enquiry and the subsequent
decision to dismiss the
complaints to be reviewed and set aside. Hlophe JP opposed the
application on the grounds that the applicant
did not have standing
in the matter and that it was in any event not entitled to the relief
claimed. The high court held that the
applicant did have standing but
that it was not entitled to the relief claimed. The applicant now
applies for leave to appeal the
high court’s decision and
Hlophe JP opposes the application also on the basis that the high
court erred in finding that the
applicant had standing in the matter.
I shall deal with the standing of the applicant first and then with
the decision to hold
a preliminary enquiry and the decision to
dismiss the complaints in turn.
Standing
[16]
The applicant is a not for profit company registered in terms of s 21
of the Companies Act 61 of 1973.
Its mission is, amongst others, to
promote democracy under law, advance the understanding and respect
for the rule of law and the
principle of legality and secure and
strengthen the independence of the judiciary. It states that the
application is being brought
in its own interest, in the public
interest, and in the interest of all litigants and future litigants
before the courts over which
the fourteen judge respondents may
preside.
[17]
The applicant’s case is that the decision by the JSC to have a
preliminary enquiry and its decision
to dismiss the complaint and
counter-complaint was in breach of s 165(4) of the Constitution
and also constituted unlawful
administrative action in breach of s 33
of the Constitution. Section 165(4) of the Constitution provides that
organs of state,
through legislative and other measures, must assist
and protect the courts to ensure the independence, impartiality,
dignity, accessibility
and effectiveness of the courts. In terms of
s 33 of the Constitution everyone has the right to
administrative action that
is lawful, reasonable and procedurally
fair and the Promotion of Administrative Justice Act 3 of 2000 (PAJA)
was enacted to give
effect to these rights as required by s 33(3)
of the Constitution.
[18] In
terms of s 38 of the Constitution anyone acting in the public
interest has the right to approach
a competent court, alleging that a
right in the Bill of Rights, which includes a right in terms of s 33,
has been infringed
or threatened.
[19]
The Constitutional Court has repeatedly stressed that a broad
approach to standing should be adopted also
in matters that involve
an infringement of rights other than those protected in the Bill of
Rights.
[4]
In
Ferreira
v Levin NO & others
1996 (1) SA 984
(CC) para 165 Chaskalson P said that he could see no
good reason for adopting a narrow approach to the issue of standing
in constitutional
cases.
[5]
In
Kruger
v President of Republic of South Africa & others
[2008] ZACC 17
;
2009 (1) SA 417
(CC) the Constitutional Court recognised the standing
of an attorney who applied in his own interest and in the public
interest
for a proclamation to be declared invalid in circumstances
where s 38 was not of direct application. Skweyiya J said:
‘
Where
the practitioner can establish both that a proclamation is of direct
and central importance to the field in which he or she
operates, and
that it is in the interests of the administration of justice that the
validity of that proclamation be determined
by a court, that
practitioner may approach a court to challenge the validity of such a
proclamation.’
[6]
[20]
In
Lawyers
for Human Rights & another v Minister of Home Affairs &
another
[2004] ZACC 12
;
2004 (4) SA 125
(CC) para 17 the Constitutional Court once again
confirmed that a broad rather than a narrow approach should be
adopted to standing
to ensure that constitutional rights enjoy the
full measure of the protection to which they are entitled. In respect
of litigation
in the public interest they adopted the approach
advocated by O’Reagan J in
Ferreira
v Levin
when dealing with the standing provisions of the Interim Constitution
which they considered for all practical purposes to be the
same as
the standing provisions of s 38 of the Constitution. According to
that approach a court will be circumspect in affording
standing to
applicants purporting to act in the public interest. Various factors
to determine whether a person is genuinely acting
in the public
interest were identified by O’Reagan J and some were added.
They stressed that the list of relevant factors
is not closed and
stated that ‘the degree of vulnerability of the people
affected, the nature of the right said to be infringed,
as well as
the consequences of the infringement of the right are also important
considerations’.
[7]
[21]
There is no reason to doubt the applicant’s statement in its
founding affidavit that it is acting in
the public interest. Every
South African citizen has an interest to be served by judges who are
fit for judicial office and by
courts which are independent and
impartial. But no judge may be removed from office unless the JSC has
found that he suffers from
an incapacity, is grossly incompetent or
is guilty of gross misconduct. It is therefore in the interest of
every South African
citizen that the JSC should properly and lawfully
deal with every complaint of gross misconduct by a judge that may
threaten the
independence and impartiality of the courts and may
justify the removal of that judge from office. Should it shirk its
duty as
is alleged it had done in this case it can have grave
repercussions for the administration of justice.
[22]
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. I therefore agree with
counsel for the applicant’s
submission that this ‘is not a matter that can or should be
left to the judges individually
involved. They are entitled to act in
their own interests and are not required to litigate in the public
interest. They are also
inhibited by the constraints of the reserve
appropriate to judicial office, which renders them averse to
involvement in public
controversy’. One can also not expect
individuals to call the JSC to account in expensive court actions. It
is for bodies
like the applicant that can afford to do so and whose
very mission is to secure and strengthen the independence of the
bench to
take action.
[23]
For these reasons I am satisfied that the high court correctly held
that the applicant has standing in this
matter, which means that the
counter-appeal must fail.
The decision not to
hold a formal enquiry
[24]
The applicant submitted that the JSC decided on 5 July 2008, in terms
of rule 3.1 of its Rules, in respect
of the complaint as well as the
counter-complaint, that prima facie the conduct complained of would,
if established, amount to
such misconduct as may justify removal of
the judges concerned in terms of s 177(1) of the Constitution.
In consequence it
decided to embark on a formal enquiry in terms of
rule 5 of its Rules. It submitted further that when the JSC on 22
July 2009 decided
to appoint a sub-committee in terms of rule 4.1 to
investigate the complaints by conducting interviews behind closed
doors, it
did so under the misapprehension that it had never before
decided that a prima facie case as aforesaid had been made out and
that
a formal enquiry in terms of rule 5 should be undertaken. Having
been based on a mistake of fact, so the applicant submitted, the
decision to appoint a sub-committee should be reviewed and set aside.
[25] In
support of its submission that the JSC had on 5 July 2008 taken the
prima facie decision referred to in
rule 3.1 the applicant relied on
an affidavit by Mpati P, at the time the acting chairperson of the
JSC. The affidavit was filed
on behalf of the JSC in the urgent
application by Hlophe JP to have the entire proceedings of the JSC
commencing on 5 July 2008
set aside on the basis first, that such a
prima facie decision had not been taken and second, that the
procedure adopted in respect
of the enquiry embarked on did not
comply with rule 5. In his affidavit Mpati P stated that three
documents referred to by him
showed that Hlophe JP’s contention
that no prima facie decision had been taken was incorrect. He denied
furthermore that
the procedure adopted in respect of the enquiry
scheduled for 1 to 8 April 2008 did not comply with the provisions of
rule 5. Mr
Bizos SC, who, at the time, was a member of the JSC
deposed to a confirmatory affidavit. The three documents relied upon
are: (i)
The media statement issued by the JSC on 5 July 2008 in
terms of which the JSC stated that it had unanimously decided that,
in
view of the conflict of fact on the papers placed before it, it
was necessary to refer the complaint and counter-complaint to the
hearing of oral evidence; (ii) The document in terms of which the JSC
advised that 1 to 8 April 2009 had been set aside for the
hearing of
oral evidence of the judges specified on disputes that it considered
to be material disputes of fact; and (iii) A document,
issued by the
chairman of the JSC, containing directions to be observed during the
hearing. One of the directions being that all
questions put to
witnesses in cross-examination had to be aimed at resolving disputes
of fact that had been identified.
[26] In
the present application the JSC, in an answering affidavit by Mr
Semenya SC, one of the newly appointed
members of the JSC, made a
complete turnabout and denied that a prima facie decision had been
taken at the meeting of 5 July 2008
and that a rule 5 formal enquiry
had been embarked on. No explanation for the turnaround was
proffered. Mr Moerane SC who was a
member of the JSC at the time when
the 5 July decision was taken, deposed to an affidavit confirming
what Mr Semenya SC said.
[27]
The applicant submitted that the JSC, in terms of its rules, could
only have proceeded to an enquiry after
having taken the prima facie
decision required and that it had indeed instituted an enquiry in
terms of rule 5. The newly constituted
JSC on the other hand
submitted that the three documents relied upon by the applicant for
drawing the inference that the required
prima facie decision had been
taken is not susceptible to the drawing of the inference contended
for. It submitted furthermore
that the enquiry instituted was not an
enquiry in terms of rule 5 in that no charge sheet was prepared, the
judges accused of misconduct
were not asked to plead and
cross-examination was restricted contrary to the provisions of rule
5.
[28]
The court below held in favour of the JSC but in my view it is not
necessary to resolve the dispute. The
affidavits filed are not the
affidavits of the JSC but are affidavits by individual members of the
JSC. There is obviously no unanimity
among the members of the JSC
concerning the decision that was taken on 5 July 2008 and whether the
enquiry proceeded with thereafter
was intended to be an enquiry in
terms of rule 5. That being the case and in the light of the fact
that the composition of the
JSC had changed the sensible course to
follow would have been to reconsider the matter de novo whatever the
previous decisions
may have been. I cannot accept, as contended
by the applicant, that the decision to reconsider the matter de novo
was taken by
the JSC on the basis of the members being agreed that no
prima facie decision as required had been taken on 5 July 2008 or on
the
basis of it being agreed that the enquiry proceeded with was not
intended to be a rule 5 enquiry. The decision could in the light
of
the different versions of the members of the JSC only have been taken
on the basis that whatever the position may have been
it should be
reconsidered.
[29] It
follows that it cannot be said that the decision taken on 22 July
2009 was taken on the basis of a mistaken
view as to what had been
decided on 5 July 2008. The applicant submitted that the JSC in any
event had to afford the parties to
the complaint and
counter-complaint a hearing before reversing its earlier decision
whatever it may have been. I will assume without
deciding that the
parties should have been afforded a hearing before the decision was
taken. However, although the judges of the
Constitutional Court
indicated that they were reserving their rights they did not take the
matter any further but attended the
interviews conducted by the
sub-committee as did Hlophe JP. The parties concerned, therefore,
accepted the decision of the JSC.
In these circumstances it is not
for the applicant, an outsider to the proceedings, to complain about
the JSC’s failure to
give them a hearing.
The decision to
dismiss the complaint
[30]
The JSC decided to dismiss the complaint and the counter-complaint
because the majority of its members were
of the view that the
evidence of Nkabinde J and Jafta AJ, together with that of Hlophe JP
did not establish and, at a formal enquiry,
could not establish that
Hlophe JP had attempted to improperly persuade them to decide the
cases in Mr Zuma’s favour.
[31] At
the hearing in April 2009 the complainants’ evidence was not
tested by cross-examination as Hlophe
JP and his legal
representatives were not present or represented. The interviews
conducted on 30 July 2009 were, as submitted by
the applicants, brief
and perfunctory. They consisted of the confirmation of the
correctness of the evidence given at the hearing
in April 2009 and
questions by the three members of the sub-committee. No
cross-examination was allowed. The JSC was therefore
confronted with
the untested evidence of Jafta AJ and Nkabinde J on the one hand and
the untested evidence of Hlophe JP on the
other hand.
[32]
The evidence of Jafta AJ in so far as it is relevant to the
question whether Hlophe JP attempted to
influence the Constitutional
Court’s pending judgment in the Zuma cases was that Hlophe JP
made an appointment to visit him
in his chambers at the
Constitutional Court. During their meeting Hlophe JP initiated a
discussion about the Zuma matters. He,
inter alia, said that: (a) the
matters had to be looked at properly because he believed that Mr Zuma
was being persecuted just
like he, Hlophe JP, had been; (b) the SCA
had got it wrong in its judgment; and (c) ‘sesithembele kinina’
meaning ‘we
pin our hopes on you’ and understood by Jafta
AJ to mean ‘you are our last hope’. Although he did not
at the
time think that Hlophe JP was trying to influence him, Jafta
AJ did think that Hlophe JP ‘was wishing for a decision which
would favour Mr Zuma because the SCA had found against Mr Zuma and
Thint’. Jafta AJ then terminated the discussion by saying
that
the matter would be decided on its facts and according to the law.
[33]
Some four weeks later, when Jafta AJ learnt that Hlophe JP had made
an appointment to see Nkabinde J, he
told her that Hlophe JP might
want to discuss the Zuma matters with her as he earlier had done so
with him. It was then that Jafta
AJ formed the view that Hlophe JP
had attempted to influence him. Asked whether he accepted that Hlophe
JP might not have been
attempting to influence him he answered that
one can only work on an inference and that he ‘would not know
what intention
he had’. He confirmed that he and Hlophe JP were
friends but stated that they had not met since 2003.
[34]
Nkabinde J’s evidence in so far as it is relevant to the
question whether Hlophe JP attempted to influence
the Constitutional
Court’s pending judgment in the Zuma cases was that Hlophe JP
telephonically made an appointment to visit
her in her chambers. When
he made the appointment Hlophe JP told her that he had a mandate and
that they could talk about privilege.
During the visit to her
chambers Hlophe JP said that the reason why he was there was, among
other things, that ‘a concern
had been raised that people who
are appointed at the Constitutional Court should understand our
history’. Asked who those
people were he said that ‘he
has connection with some ministers whom he from time to time
advised’. He then started
talking about the Zuma case and said
that it was an important case and that the issue of privilege was
also important. It had to
be decided properly because the prosecution
case rested on that aspect of the case. Having been warned by Jafta
AJ that Hlophe
JP might want to talk about the case of Mr Zuma she
‘snapped’ and said ‘my brother, you know that you
cannot
talk about this case. You have not been involved in the case,
you have not sat on it and you are not a member of the Court to come
and talk about the case’. His response was that he did not mean
to interfere with her work but he went on to explain ‘that
the
point is that there is no case against Mr Zuma.’ He went
further and said ‘Mr Zuma has been persecuted, just as
he was
persecuted’. He stated that there was a list containing names
of people who were also implicated in the arms deal.
He had obtained
the list from the National Intelligence and said something to the
effect that some of the people who appeared in
the list were going to
lose their jobs when Mr Zuma became President. She was adamant that
Hlophe JP visited her to discuss the
Zuma case and nothing else.
[35]
Nkabinde J denied Hlophe JP’s version that she initiated the
discussion about privilege and that she
told Hlophe JP that she was
busy writing a note about privilege. She said that she could not have
done so as the note had long
since been written. Asked whether it was
possible that Hlophe JP had not tried to influence her she said that
she did not know
what his intentions were.
[36]
Hlophe JP, during his interview by the members of the sub-committee,
denied that he asked Jafta AJ whether
or not the judgment in the Zuma
matters had been handed down and said that he knew that that was not
the case. He denied that he
said that Mr Zuma was persecuted just
like him, in the context mentioned by Jafta AJ and claimed that that
was said in the context
of a discussion about himself and the Western
Cape. He admitted that he said that the matters should be properly
decided but claimed
that it was not said in the context of Mr Zuma
being persecuted but in the context of the uncertainty created by the
SCA judgment.
He did not think that he said that the SCA got it wrong
but did express concerns about the judgment. He also denied that he
said
‘sesithembele kinina’ in the context alleged by
Jafta AJ and claimed that he used the phrase by way of encouragement
when he left, some time after the discussion of the Zuma matters.
[37]
Hlophe JP denied that during his telephonic discussion with Nkabinde
J he could have said that he had a mandate
and said that the word
mandate was used by him in the context of a mandate having been given
to him by the Chief Justice to chair
a Local Organising Committee. He
also denied that he initiated the discussion about privilege, and
that he said: (a) that the reason
why he was there was that a concern
had been raised that people in the Constitutional Court should
understand our history; (b)
that he had political connections; (c)
that the issue of privilege should be decided properly because the
prosecution’s case
rested on it. Finally he denied: (a) that
Nkabinde J rebuffed him when he started talking about the Zuma case;
(b) that they ever
spoke about the facts in the Zuma matter; (c) that
he expressed an opinion about the strength of the Zuma case; (d) that
he spoke
about a list obtained from National Intelligence; and (e)
that he said that some of the people whose names were on the list
could
lose their jobs.
[38]
Hlophe JP’s version, on the other hand, was that he and
Nkabinde J started talking about the Zuma matter
when he noticed the
Zuma files in her chambers and asked when judgment was going to be
delivered. According to him he did say that
the issue of privilege
was an important one for a trial lawyer and also that he said that Mr
Zuma was being persecuted but denied
that the latter statement was
made in the context alleged. He claimed that the statement was made
when he was asked how he was
doing in the Western Cape to which he
replied that he was like Zuma, people will always find something
wrong with him.
[39]
Jafta AJ and Nkabinde J did not at their interviews deviate from
their earlier evidence at the enquiry held
in April 2009. Standing on
its own there was no reason not to believe their evidence.
Consequently, without having tested the evidence
of Hlophe JP, the
JSC had no basis for rejecting the evidence of Nkabinde J and Jafta
AJ and did not do so. For the purposes of
its decisions the JSC
accepted that Hlophe JP probably said what he is alleged to have
said.
[40]
All the aforementioned evidence of Jafta AJ and Nkabinde J relating
to their meetings with Hlophe JP is clearly
relevant to the question
whether he attempted to influence the Constitutional Court’s
pending judgment in the Zuma/Thint
matters. Both Nkabinde J and Jafta
AJ, on the strength of that evidence, drew the inference that he did
attempt to do so.
[41]
The JSC concluded that the evidence of Jafta AJ standing alone was
not sufficient to establish that Hlophe
JP attempted to improperly
influence him to decide the Zuma/Thint matters in a particular way.
In regard to the evidence of Nkabinde
J the JSC pointed out that
there were contradictions between her evidence and that of Hlophe JP
and said that the question arose
whether her evidence was material.
Dealing with this issue the JSC said that the evidence contradicted
by Hlophe JP did not appear
to have a material bearing on the central
question that it was required to consider namely ‘did Hlophe JP
attempt to improperly
influence Nkabinde J to give judgment in a
particular way against her conscience or better judgment’.
[42]
This finding by the JSC is irrational. Hlophe JP contradicted almost
everything that Nkabinde J said. It
follows that the JSC considered
virtually everything that Nkabinde J said ie virtually everything on
the strength of which she
drew the inference that Hlophe JP tried to
influence her, to be immaterial in respect of the question whether he
tried to influence
her. It cannot conceivably, rationally be
considered to be immaterial to the question whether Hlophe JP tried
to influence Nkabinde
J that Hlophe JP said, when making an
appointment to see her, that he had a mandate, that, when he visited
her, he said that the
reason why he was there was that a concern had
been raised that people in the Constitutional Court did not
understand our history,
that he said, when asked who those people
were, that ‘he has connection with some ministers’, that
he said that the
question of privilege should be decided properly
because the prosecution’s case rested on it, that Nkabinde J
reprimanded
him for speaking about a case he was not involved in,
that he said that there was no case against Mr Zuma and that Mr Zuma
was
being persecuted, that he said that some of the people implicated
in the arms deal whose names appeared on a list he had obtained
from
National Intelligence were going to lose their jobs when Mr Zuma
became President. These were the facts which the JSC had
to consider
together with Jafta AJ’s evidence, to determine whether Hlophe
JP attempted to influence them. Once it had been
determined that he
did attempt to influence them 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.
[43]
The JSC nevertheless concluded:
‘
The
CJ’s statement says what was communicated to Jafta JA was that
the matters must be decided in favour of Mr Zuma. That
is not what
Jafta JA said in his evidence. As pointed out, at best, he said he
had made that inference. On a proper analysis of
her evidence, this
is what Nkabinde J also said. Having regard to the totality of the
facts and the context, we do not accept that
that is the only
reasonable inference to be drawn. We cannot reject Hlophe JP’s
contention that he did not attempt to improperly
attempt to influence
the two judges to decide the cases in Mr Zuma’s favour.’
[44]
The JSC therefore came to the conclusion that there are two
possibilities. The one being that Hlophe JP attempted
to influence
the two judges as alleged by them and the other being that he did not
attempt to do so as alleged by him. It did not
decide that it was
more probable that Hlophe JP had not attempted to influence the two
judges and, therefore, must have dismissed
the complaint simply on
the basis of another innocent possibility. It follows that it applied
the criminal standard applicable
at the end of a criminal trial,
namely proof beyond reasonable doubt, to dismiss the complaint, at a
stage when neither of the
conflicting versions of the two judges on
the one hand and Hlophe JP on the other hand had been tested by
cross-examination.
[45]
The finding that it could not reject Hlophe JP’s version is
quite correct. By disallowing cross-examination
that result was made
inevitable. It would have been highly irregular to reject his
evidence without having given him an opportunity
to cross-examine his
accusers. Utilising this procedure for the final resolution of a
complaint of misconduct by a judge will always
lead to a dismissal of
the dispute where the conduct alleged by the accuser is disputed by
the judge because the judge’s
version can never be rejected
without having given him an opportunity to cross-examine his
accusers. The procedure adopted was
therefore not appropriate for the
final determination of the complaint.
[46]
The requirement of proof beyond reasonable doubt (the only reasonable
inference) was similarly not appropriate.
Not even in a criminal
trial is proof beyond reasonable doubt required before the trial has
run its course and an investigation
of a complaint of gross
misconduct is not a criminal enquiry but more in the nature of a
disciplinary enquiry where proof on a
balance of probabilities is
required at its conclusion.
[8]
[47]
The JSC purported to justify their decision to dismiss the complaint
without proceeding to a formal enquiry
by saying that
cross-examination would serve no purpose. It advanced a number
of reasons in support of its view. These are
their reasons: First, it
would be naïve to believe that
Hlophe JP would not
persist in his denial that he had the intention to influence the two
judges. It must also be realistically be
accepted, they said, that he
would adopt the same stance in respect of his claimed links with the
National Intelligence and the
other matters on which there are sharp
disputes of fact. Second, there are factors that support Hlophe JP’s
version that
he did not try to influence the two judges. They are:
(i) One would have expected him to follow up had he tried to
influence them;
(ii) There is no evidence that he attempted to
influence other judges of the Constitutional Court; (iii) The
Zuma/Thint matters
were heard by a panel of ten judges and the
decisions in the Constitutional Court are taken by a majority; (iv)
Jafta AJ did not
find it sufficiently concerning to make anything of
his discussion with Hlophe JP until Nkabinde informed him that she
was going
to meet with Hlophe JP; (v) Nkabinde J did not raise the
alarm about the conduct of Hlophe JP until nearly two weeks later;
(vi)
Jafta AJ and Nkabinde J did not complain in their individual
capacities. Third, Nkabinde J reported what Hlophe JP had said to
Langa CJ and Mokgoro J and confirmed the statement submitted by Langa
CJ to the JSC in support of the complaint but there are discrepancies
as to the point in time it is alleged that he said that he had a
mandate. Fourth, similar considerations obtain in respect of other
matters which are not identified. Fifth, Hlophe JP did not know that
the judges of the Constitutional Court did not discuss matters
with
other judges who were not involved in the particular matters.
[48] I
find the reasoning surprising. Courts frequently have to decide where
the truth lies between two conflicting
versions. They often do so
where there is only the word of one witness against another and
neither of the witnesses concedes the
version of the other.
Civil cases are decided on a balance of probabilities but where there
is a dispute of fact it is rarely
possible to do so without
subjecting the parties to cross-examination and without allowing them
to test what are alleged to be
probabilities in the other parties’
favour. A court may of course after cross-examination still be unable
to decide where
the truth lies. That possibility does not entitle a
court to decide the matter without allowing cross-examination and it
does not
entitle the JSC to do so.
[49] As
stated above, in terms of s 165(4) of the Constitution organs of
state, through legislative and other
measures, must assist and
protect the courts to ensure the independence, impartiality, dignity,
accessibility and effectiveness
of the courts and in terms of
s 177(1) a judge cannot be removed from office for having made
himself guilty of misconduct
unless the JSC has found him guilty of
misconduct. It follows that there is a duty on the JSC to investigate
allegations of misconduct
that may threaten the independence,
impartiality, dignity, accessibility and effectiveness of the courts.
[50]
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 interviews 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 any further constituted an abdication of its constitutional
duty to investigate
the complaint properly. The dismissal of the
complaint was therefore unlawful. In addition, the JSC’s
decision to dismiss
the complaint constituted administrative action
and is reviewable in terms of s 6(h) of PAJA for being
unreasonable in that
there was no reasonable basis for it.
The decision to
dismiss the counter-complaint
[51]
Concerning the counter-complaint Jafta AJ and Nkabinde J explained
that they willingly participated in the
collective complaint and the
statement filed in support of that complaint but that they did not
want to be individual complainants.
For that reason, when called upon
by the JSC to file statements, they issued the statement that they
were not complainants and
that they did not intend filing statements
as complainants. They were in fact, at the time when they issued
their statement, collaborating
in the preparation of a collective
statement that was issued shortly thereafter.
[52]
Hlophe JP made it clear at the interview that he had no complaint in
so far as the Constitutional Court judges
were exercising their right
to report him to the JSC. He conceded further that he had to accept
the version of the Constitutional
Court judges as to how it came
about that the complaint was lodged with the JSC. He accepted the
statement by the Constitutional
Court judges that their conduct ‘was
inspired by their desire to protect the institutional integrity or
the constitutional
integrity of the court.’ His complaint was
that they made the complaint public by releasing a media statement to
journalists
including the Mail and Guardian and to the Democratic
Party which caused him to draw the inference that they were actuated
by political
considerations and indicated to him that they were
trying to get rid of him.
[53]
Moseneke DCJ told the sub-committee that the judges of the
Constitutional Court believed what they were told
by their colleagues
Nkabinde J and Jafta AJ and that they were satisfied that there was a
complaint that should be placed in the
hands of the JSC. The judges
collectively considered that the independence of the Constitutional
Court was being threatened and
that they were duty-bound to let the
public know that a complaint had been lodged with the JSC ‘in
order to protect the integrity
of the judicial process . . . which
would otherwise have been dogged by rumour’. He explained that
the court had a mailing
list and anybody could apply to have his name
placed on the mailing list. Once the decision had been taken to
release a statement
the registrar would have disseminated the
statement to whoever’s name appeared on the mailing list. He
denied that any pressure
had been brought to bear on Nkabinde J and
Jafta AJ to be parties to the collective complaint. Langa CJ’s
evidence was to
the same effect.
[54]
The JSC pointed out that the Supreme Court of Appeal had already held
that what the judges of the Constitutional
Court had done was
lawful.
[9]
It stated that the
publication of the complaint might have been an infringement of the
principle of collegiality or comity among
judges or some ethical
principle but that it could not amount to gross misconduct. Although
it might have been unwise to publish
the media statement there was in
its view no reasonable possibility that the JSC would at the
conclusion of a formal enquiry find
that the Constitutional Court
judges made themselves guilty of gross misconduct. Hlophe JP’s
allegations against the judges
of undue pressure on Nkabinde J and
Jafta AJ to act contrary to their conscience, of the concealment of
the complete and true facts,
of acting with an ulterior motive and of
masterminding leaks to the media in a well orchestrated media
campaign were according
to the JSC as unfortunate as they were
incapable of establishment on the evidence before them. They
concluded:
‘
It
is clear from the evidence of Hlophe JP to the sub-committee that he
based his allegations almost entirely on conclusions and
inferences
that he drew from what they had said and done on various occasions.
The CJ and DCJ emphatically deny the conclusions
and inferences. We
accept the denials.
. . .
In the result, there is
no basis for finding that any of the Judges of the CC is guilty of
gross misconduct.’
[55]
Unlike in the case of the complaint there was no evidence
contradicting the evidence of the Constitutional
Court judges on the
basis of which the allegations against them could be established. The
JSC was therefore entitled to dismiss
the counter-complaint on the
basis that the allegations were incapable of establishment.
[56] In
his submissions to the JSC Hlophe JP did not call for a formal
hearing but submitted ‘that the JSC
should determine the
counter-complaint on the material already before it’.
[57]
One of the prayers in the applicant’s notice of motion is that
the decision of the JSC in relation
to the counter-complaint be set
aside. Counsel for the applicant, however, initially did not address
this issue at all. When asked
whether the applicant was persisting
with its request for this relief counsel for the applicant confirmed
that it was but the only
submission they made in support thereof was
that they thought that the complaint and counter-complaint went hand
in hand. None
of the other parties advanced another reason for
reviewing the JSC’s decision in respect of the
counter-complaint. No reason
was advanced as to why it was thought
that the two complaints could not be separated and I can see no
reason why the JSC was not
entitled to dismiss the counter-complaint
if it was satisfied, as it said it was, that there was no evidence to
support it.
The Remedy
[58]
Apart from asking for an order that leave to appeal be granted and
that leave to cross-appeal be refused
the applicant asked for an
order that the appeal be upheld and that the order of the high court
be set aside and replaced with
an order in terms of prayers 1.2 to
1.7 of the applicant’s notice of motion, namely:
‘
1.2
The decision of the JSC at its meeting on 20 to 22 July 2009, to
reverse its earlier decision to hold a formal enquiry into
the
complaints and to hold a preliminary enquiry instead, is reviewed and
set aside.
1.3 The decision of the
JSC at its meeting on 15 August 2009, “that the evidence in
respect of the complaint does not justify
a finding that Hlophe JP is
guilty of gross misconduct” and that the matter is accordingly
“treated as finalised”,
is reviewed and set aside .
1.4 The decision of the
JSC at its meeting on 15 August 2009, “that the evidence in
support of the counter-complaint does
not support a finding that the
judges of the Constitutional Court are guilty of gross misconduct”
and that the matter is
accordingly “treated as finalised”,
is reviewed and set aside.
1.5 The decision of the
JSC at its meeting on 15 August 2009, “that none of the judges
against whom complaints had been lodged
is guilty of gross
misconduct”, is reviewed and set aside.
1.6 The JSC is ordered to
hold a formal enquiry into the complaints in terms of rule 5 of its
Rules Governing Complaints and Enquiries
in terms of section
177(1)(a).
1.7 The JSC and any
respondent who opposes this review, if any, are ordered jointly and
severally to pay the applicant’s costs.’
For the above reasons the
applicant is not entitled to an order in terms of 1.2, 1.4, 1.5 and
1.6.
[59]
The JSC as well as Hlophe JP submitted that the court has a
discretion not to review and set aside the decision
of the JSC to
terminate the enquiry. In this regard they relied on s 172(1) of
the Constitution and s 8 of PAJA. Section 172(1)
provides that when
deciding a constitutional matter a court must declare that any
conduct that is inconsistent with the Constitution
is invalid to the
extent of its inconsistency and make any order that is just and
equitable, including an order limiting the retrospective
effect of
the declaration of invalidity and an order suspending the declaration
of invalidity for any period and on any conditions,
to allow the
competent authority to correct the defect. Section 8 of PAJA provides
that a court, in proceedings for judicial review
in terms of s 6(1),
may grant any order which is just and equitable.
[60]
Counsel representing Hlophe JP sought to find support for their
submission in the decision of the Constitutional
Court in
J T
Publishing (Pty) Ltd & another v Minister of Safety and Security
& others
[1996] ZACC 23
;
1997 (3) SA 514
(CC) para 15 to the effect that the
fact that a court is enjoined to declare a law that is inconsistent
with the Constitution invalid
to the extent of its inconsistency does
not mean that a court is ‘compelled to determine the anterior
issue of its inconsistency
when, owing to its wholly abstract,
academic or hypothetical nature should it have such in a given case,
our going into it can
produce no concrete or tangible result, indeed
none whatsoever beyond the bare declaration’. They also
referred to
Islamic Unity Convention v Independent Broadcasting
Authority & others
[2002] ZACC 3
;
2002 (4) SA 294
(CC) para 10-12 in which
the Constitutional Court reaffirmed the statement in
J T
Publishing
and stated that a court should not ordinarily decide a
constitutional issue unless it is necessary to do so and that it
should not
decide a constitutional issue that is moot.
[61] In
this case the applicant raised a constitutional issue which cannot be
said to be of an abstract, academic
or hypothetical nature or one
that cannot produce a tangible result. It was therefore necessary to
decide the issue. In light of
our determination that the JSC’s
decision to dismiss the complaint was inconsistent with the
Constitution we are obliged
to declare the decision invalid.
[62] I
shall assume that the high court nevertheless had a discretion to
order that the enquiry into the alleged
misconduct of Hlophe JP be
terminated. The respondents submitted that it should have done so
because:
(i) Both the
Constitutional Court judges and Hlophe JP have accepted that the
complaints have been finalised. Their attitude is
based upon a
recognition of the fact that it is in the interests of the judiciary,
the legal system and the country as a whole
that this unhappy series
of events in our history be regarded as finalised.
(ii) The costs of
re-opening the enquiries in these circumstances are unjustifiable.
(iii) Considerations of
public interest require that there should be finality on a matter
which has continued for so long without
any definitive resolution.
[63]
There is no evidence that the Constitutional Court judges consider it
in the interests of justice, the interests
of the judiciary, the
legal system and the country that the matter should be regarded as
finalised. It is alleged that a very high
ranking judge, the head of
one of the biggest divisions of the high court, attempted to
influence two of the judges of another
court to decide a matter in a
particular way. The allegation was considered to be so serious as to
constitute gross misconduct
which if established may justify the
removal of the judge from office. It cannot be in the interests of
the judiciary, the legal
system, the country or the public to sweep
the allegation under the carpet because it is being denied by the
accused judge, or
because an investigation will be expensive, or
because the matter has continued for a long time.
[64]
Professor Kader Asmal was allowed to join the proceedings as an
amicus curiae in which capacity he submitted
heads of argument. We
appreciate his assistance. In light of the fact that all the parties
were well represented we do not think
that it is appropriate to make
any cost order in his favour.
Order
[65]
For these reasons the following order is made:
1
Leave to appeal with costs including the costs of three counsel is
granted to the applicant.
2
Leave to cross-appeal is refused with costs including the costs of
three counsel.
3
The appeal is upheld with costs including the costs of three counsel.
4
The order by the High Court is set aside and replaced with the
following order:
‘
1
The decision of the Judicial Service Commission at its meeting on 15
August 2009, “that
the evidence in respect of the complaint
does not justify a finding that Hlophe JP is guilty of gross
misconduct” and that
the matter accordingly be “treated
as finalised”, is reviewed and set aside.
2
The first and second respondents on the one hand and the sixteenth
respondent on the
other hand are ordered jointly and severally to pay
the applicant’s costs.’
P E STREICHER
JUDGE OF APPEAL
APPEARANCES:
For
appellant:
W
Trengove SC
T
Bruinders SC
N
Fourie
L
Sisilana
B
Macola
Instructed
by:
Bowman
Gilfillan, Johannesburg
McIntyre
& Van der Post, Bloemfontein
For
1
st
& 2
nd
respondents:
I V
Maleka SC
B
Vally SC
L
Gcabashe
M
Sello
Instructed
by:
The
State Attorney, Cape Town
The
State Attorney, Bloemfontein
For
16
th
respondent:
J
Newdigate SC
V
Ngalwana
T
Masuku
Instructed
by:
Xulu
Liversage Inc, Cape Town
Lovius
Block, Bloemfontein
[1]
Section 178(6) of the Constitution.
[2]
Hlophe
v The Judicial Service Commission & others
[2009] 4 All SA 67 (GSJ).
[3]
Mail
and Guardian Ltd v Judicial Service Commission and others
2010 (6) BCLR 615 (GSJ).
[4]
Albutt
v Centre for the Study of Violence and Reconciliation & others
2010 (3) SA 293
(CC) para 33.
[5]
See also para 229 where O’Reagan J expressed a similar view.
[6]
Para
25.
[7]
Para
18.
[8]
Olivier
v Die Kaapse Balieraad
1972
(3) SA 485
(A) at 495 in fine to 496H.
[9]
See
Langa
CJ & others v Hlophe JP
2009 (4) SA 362
(SCA) in which this court, in respect of an earlier
application by Hlophe JP, held that the filing of the complaint by
the Constitutional
Court judges and the making of a public statement
that they had done so, before he had been given a hearing, was not
unlawful.