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[2021] ZAGPPHC 14
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Freedom Under Law v Motata (33227/2020) [2021] ZAGPPHC 14 (28 January 2021)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
(1)
REPORTABLE: YES /
NO
(2)
OF INTEREST TO OTHER JUDGES: YES/
NO
(3)
REVISED.
28
January 2021
Case No: 33227/2020
In the matter between:
FREEDOM UNDER
LAW
Applicant
and
JUDGE NKOLA JOHN
MOTATA
Respondent
Summary:
Interpretation of statutes – Applicant seeks declaratory
orders that
section 47(1)
of the
Superior Courts Act 10 of 2013
does
not apply to retired Judges and that the term ‘civil
proceedings’ does not relate to review applications instituted
against regulatory bodies such as the Judicial Services Commission
(JSC) but not against Judges even if they have an interest in
the
matter – alternative relief is for consent to be granted
in terms of the section to cite a retired Judge –
meaning and
purpose of
section 47(1)
restated – doctrine of leave to sue
applies with equal force to retired Judges –- case by case
approach required when
consent requested –- Retired judges
continue to feature in judicial functions and activities - the
safety net of
section 47(1)
is largely aimed at protecting judicial
independence – test is whether good cause has been shown.
JUDGMENT
MLAMBO JP
Introduction
[1] This is an application seeking my consent in terms of section
47(1) of the Superior Courts Act 10 of 2013 (“the Act”),
to cite the respondent, a retired Judge, in a review application the
applicant has instituted against the Judicial Services Commission
(hereinafter referred to as "the JSC"). In that application
the applicant seeks to review and set aside the decision
of the JSC
dated 10 October 2019, in which the respondent was found guilty of
misconduct instead of gross misconduct. In the application
before me
the applicant seeks an order:
1.1
declaring
that section 47(1) of the Act does not require a litigant to obtain
consent to institute civil proceedings against Judges
retired from
active service.
1.2
declaring
that section 47(1) of the Act does not require a litigant to obtain
consent to institute civil proceedings against Judges
where the civil
proceedings are instituted against the Judicial Service Commission
and the Judge is an interested party.
1.3
declaring
that no consent was required in respect of the review proceedings
instituted by the applicant, citing the respondent,
in the Gauteng
Local Division of the High Court under case number 17374/2020
(hereinafter referred to as “the July review
proceedings”).
1.4
in
the alternative to paragraphs 1 to 3 above, granting the applicant
the consent of the Honourable Judge President of the Gauteng
Division, Pretoria, in terms of the Act to cite the respondent as a
party to the July review proceedings, alternatively, proceedings,
inter alia
,
to review and set aside the decision of the JSC dated 10 October 2019
and seek further relief in this regard.
1.5
ordering
the respondent to pay the costs of this application, including the
costs of two counsel, only if the respondent opposes
the relief
sought herein; and
1.6
granting
further and/or alternative relief as the Honourable Court may deem
meet.
The Parties
[2] The applicant is Freedom Under Law (RF) NPC (hereinafter referred
to as “FUL”), a non-profit company. FUL seeks
the Judge
President’s consent in terms of section 47(1) of the Act in so
far as it may be necessary to cite the respondent
in the review
proceedings.
[3] The respondent is Judge Nkola Motata, a retired Judge of the High
Court of South Africa, formerly in active service in the
Gauteng
Division of the High Court, Pretoria.
Background
[4]
On 10 October 2019, the JSC
dismissed the Judicial Conduct
Tribunal’s recommendation that the respondent’s conduct
amounted to gross misconduct
and that the JSC invoke section
177(1)(a) of the Constitution. The JSC found that the respondent was
not guilty of gross misconduct,
but rather guilty of the offence of
misconduct. Further, as a sanction for the respondent’s
misconduct, the JSC imposed a
fine of R1,152,650.40 to be paid by the
respondent to the South African Judicial Education Institute.
[5]
The JSC’s finding is the outcome of the disciplinary process
followed by the JSC in response to complaints lodged against
the
respondent that had been submitted to the JSC, and was made in terms
of sections 20(5)(b) and 17(8)(g) of the Judicial Service
Act.
[6] On 11 May 2020, FUL’s lawyers wrote to my office to request
consent to cite the respondent in the review proceedings
in terms of
section 47(1) of the Act. In the letter, FUL’ Lawyers indicated
that:
1.7
The
review proceedings seek relief against the JSC and not the
respondent. FUL however wishes to cite the respondent as the second
respondent in the review proceedings by virtue of any interest which
he may have in the proceedings.
1.8
It
was submitted that FUL has a meritorious case that demands
adjudication and that it would be fair, just and equitable for the
respondent to be a party to the review proceedings.
[7] On 18 May 2020, the respondent’s Lawyers, S Ngomane Inc.
Attorneys sent a letter to my office setting out the respondent’s
responses to the applicant’s letter dated 11 May 2020. The
respondent’s Lawyers indicated that:
7.1
Given
that the review proceedings are aimed at setting aside the JSC’s
decision, the JSC has an academic interest in the matter
and the
respondent has a direct and substantial interest in the outcome of
the proceedings. The respondent must therefore participate
in the
proceedings or oppose them.
7.2
The
respondent has been complying with the JSC’s decision in that
the emoluments have begun and are continuing. In light of
this, the
respondent would be severely prejudiced by the applicant’s
institution of the review proceedings.
7.3
The
respondent has had to bear the costs of various litigious processes
that took place from the inception of the matter until the
conclusion
thereof by the JSC, which occurred after his retirement. Further
litigation would be detrimental to the respondent’s
health.
[8]
On 17 June 2020, I responded to FUL’s Lawyers’ letter and
advised that
in light of the fact that Judge Motata is a
retired Judge and that, purely based on the correspondence at my
disposal, I was unpersuaded
that the applicant had shown good cause
to cite the respondent. I, however, invited FUL to formally apply for
my consent and advance
submissions in this regard.
I
further directed that should FUL indeed lodge the said application,
that it file a copy of the application at the Deputy Judge
President’s office at the Gauteng Division of the High Court,
Pretoria.
[9]
On 27 July 2020, FUL filed this application.
The
respondent has not opposed this application but has filed an
affidavit to assist the court. On 16 September 2020, the respondent
delivered a notice of intention to abide the decision of this Court.
[10]
In
N v Lukoto
[1]
,
Ngoepe JP had the opportunity to deal
with an application brought in terms of section 25(1) of the now
repealed Supreme Court Act
59 of 1959 (hereinafter referred to as the
old act), which is the precursor to section 47(1) and held that such
an application
is to be brought to the Judge President heading the
Division in which the Judge concerned has been appointed.
[11]
Section 25 (1) of
the Old Act
and now
section 47 (1) are provisions in which is embedded the
doctrine
of leave to sue in so far as Judges are concerned. This
doctrine constitutes a procedural mechanism ordaining, as
Ngoepe JP
found in
Lukoto
,
that anyone desiring to cite a Judge in Court proceedings must obtain
the consent of the Judge President of the Court in which
the Judge
sought to be cited was appointed. It is a mechanism designed for the
protection of Judges against non meritorious lawsuits.
It is thus a
mechanism for sparing Judges from the nuisance of having to deal with
frivolous litigation instituted against them.
[12]
In
Soller v President of the Republic of
South Africa
[2]
Ngoepe JP characterized this principle as follows – “Broadly,
the purpose thereof is to ensure the independence of
the Judiciary.
The oath which Judges take upon assumption of office requires of them
to adjudicate matters fearlessly. This they
can only do if protected
against non-meritorious actions. Judges should not, in the execution
of their judicial functions be inhibited
by fear of being dragged to
Court unnecessarily over their judgements. Such a threat could have a
chilling effect on the execution
of their duties.... Furthermore,
Judges should rather spend time hearing matters than defending
themselves against endless unfounded
civil claims. The very nature of
the duty of a Judge is such that it would open them to such
litigation: a Judge’s task is
to resolve disputes, inevitably
leaving one person or the other dissatisfied; moreover, they are, in
the process, required to make
findings on the credibility, honesty
and integrity of witnesses and litigants and to justify those
findings.”
[13]
This Court in
Engelbrecht v Khumalo, In re: Tarloy
Properties (Pty) Ltd v Engelbrecht
[3]
matter affirmed this principle when it held that:
“Section
47(1) is the mechanism through which the institution of legal
proceedings against Judges is regulated and plays what
I regard as a
gate keeping role. In essence the section seeks to insulate Judges
from unwarranted and ill-conceived legal proceedings
aimed at them.
The need to protect Judges from unwanted litigation is not difficult
to fathom. The core function of Judges is the
adjudication of
disputes involving competing interests daily. The judgements they
hand down as well as the statements they make
in court and in their
judgements invariably displease some litigants and sometimes their
legal representatives.”
[14]
For leave to be obtained good cause would have to be shown for an
application to cite a Judge.
This Court in
Engelbrecht
[4]
cited with approval the Judgment of
Torwood Properties (Pty) Ltd
vs South African Reserve Bank
that the test for good cause is not
all-embracing but is case specific. There the Court held that:
"The
test is no different regarding matters where consent is sought, as is
the case in this matter, to institute legal proceedings
against a
Judge. In this context a court would consider whether on the facts
before it an arguable case calling for an answer,
by the Judge, is
made out and whether it is fair, just and equitable between the
parties to grant or refuse consent. Simply put
the issue is whether
the proceedings, for which consent to litigate against a Judge is
sought, contains a justiciable issue.”
[15]
In terms of section 47(1), leave to sue must be obtained regardless
of whether the matter relates to a Judge’s judicial
functions,
activities or private affairs
[5]
.
The claimant however loses his or her right to sue if the lawsuit is
meritless
[6]
in that consent will not be granted. Support for maintaining the
insulation and thus protection of Judges from meritless lawsuits
is
advanced, amongst others, by McCreath and Koen
[7]
as follows:
“Perforce,
therefore, we need the doctrine of leave to sue in order to warrant
that judges do not become sitting ducks for
wrongly aggrieved or
opportunistic claimants and to ensure that judicial resources are not
expended unnecessarily upon the adjudication
of their claims…
Meritless suits against judges do violence to the status which our
society, rightly or wrongly, has bestowed
upon them. If countenanced,
they place at risk the proper functioning of the judicial office.
Needless to say - and no judge will
demur - the rule of law demands
that judges whose non-judicial behaviour causes damage not be
shielded by the majesty of the judicial
office. The judge who has
gone off the rails of his or her office has to join the ranks of
regular people, temporarily at least.
However, meritless allegations
ought not to trigger litigation which probably will cause damage to
the judicial office itself.”
[16]
The declaratory relief sought by FUL in the first place is that
Section 47(1) does not require a litigant to obtain consent
to
institute proceedings against retired Judges. FUL relies
predominantly on the Judgement of my brother, Mbenenge JP of the
Eastern
Cape Division in his judgement in NP
v
LP
[8]
.
In that decision Mbenenge JP concluded
that section 47(1) does not apply to retired Judges. It is important
to point out that Section
47(1) does not draw a distinction between
active and retired Judges. This, according to FUL is no bar to the
declaratory order
it seeks and argued that
Mbenenge JP in
NP
v LP
[9]
,
held that section 47(1) is
"apposite in the situation of a
judge in active service, and not one who no longer discharges
judicial functions".
FUL further argued that Mbenenge JP’s
interpretation of the section took into account the reference in
section 47(1) to “
any judge of a Superior Court”
.
The argument by FUL was further that when Mbenenge JP noted that the
section could be construed to refer to retired Judges and
those still
in active service, he opted for the narrower meaning in the light of
the purpose of the Act that the section only apply
to Judges still in
active service i.e. for the protection of the independence and proper
functioning of the judiciary.
[17]
This is the basis of FUL’s reliance on
NP v LP
that the
first declaratory order it seeks should be granted. Essentially, the
import of FUL’s argument, based on the reasoning
and conclusion
arrived at in the
NP v LP
matter, is that retired Judges no
longer enjoy the protection of section 47 (1) as they no longer
render Judicial functions, so
to speak. The absence of the protection
of the section poses no threat, so the argument went, to the
independence and proper functioning
of the judiciary. In other words
the doctrine of leave to sue as articulated by section 47 (1) does
not apply or if it does, applies
with less if any stringency, when it
comes to retired Judges. I will show in the following paragraphs
that, given the correct context,
the conclusion in
LP vs NP
does not provide authority for the order sought by FUL. In fact
Mbenenge JP cautioned that context remained relevant.
[18]
Section 25(1) of the Old Act provided that:
“Notwithstanding
anything to the contrary in any law contained, no summons or subpoena
against the Chief Justice, a judge
of appeal or any other judge of
the Supreme Court shall in any civil action be issued out of any
court except with the consent
of that court: Provided that no such
summons or subpoena shall be issued out of an inferior court unless
the provincial division
which has jurisdiction to hear and determine
an appeal in a civil action from such inferior court, has consented
to the issuing
thereof.”
[19]
On the other hand section 47(1) of the Act stipulates that:
“Notwithstanding
any other law, no civil proceedings by way of summons or notice of
motion may be instituted against any judge
of a Superior Court, and
no subpoena in respect of civil proceedings may be served on any
judge of a Superior Court, except with
the consent of the head of
that court or, in the case of a head of court or the Chief Justice,
with the consent of the Chief Justice
or the President of the Supreme
Court of Appeal, as the case may be.”
[20]
It is self-evident that section 47(1) is wider in its application
than its predecessor in the sense that it includes
Justices of
the Constitutional Court, who were previously not mentioned in
section 25(1) of the Old Act
[10]
(reference was only made to the Chief Justice). That is the only
difference of substance. Therefore, there is no substantive
discrepancy
between the two sections. Parliament simply transplanted
the substance of the doctrine of leave to sue from the old section
25(1)
to the new section 47(1)
[11]
.
[21]
Indeed the overarching foundation of Mbenenge JP’s
conclusion in
NP v LP
is captured in his finding that section 47(1) “is apposite in
the situation of a judge in active service, and not one who
no longer
discharges judicial functions,”
[12]
and that “no stretch of the imagination is required to conclude
that within the scheme of the entire Act, retired judges
do not
feature in the running of the courts.”
[13]
I surmise that that Mbenenge JP was stating a general principle that
is relevant when a head of Court is approached to grant consent
to
sue a retired Judge. As I demonstrate hereunder, whenever consent is
requested it is expected of the head of Court to approach
the matter
on its own merits. Indeed, a case-by-case approach is warranted in
deciding whether to grant consent or not.
[22] At the outset I point out that the absence in both the old and
new sections, of a distinction between Judges still in active
service
and retired Judges, is not insignificant. Perhaps the most obvious
reason is that a Judge’s appointment is a lifetime
appointment.
It subsists even during the time the Judge has retired. However, for
a more fundamental reason the statement that
retired judges no longer
feature in the running of the courts must be qualified, as I show
below.
[23] We know that there are Judges who retire but who continue to
feature in judicial functions and activities. This is to finalize
part heard matters they are seized with but more importantly, retired
Judges are appointed to undertake new work allocations either
in
their divisions or in others. Clearly therefore these Judges continue
to feature in judicial activities despite being retired.
Section 2(c)
of the Act states that the object of the Act is “to make
provision for the administration of the judicial functions
of all the
courts…”. Retired Judges who are called to act from time
to time or to finalize part heard matters fall
within the ambit of
the above-mentioned administration, in that the head of that Court
retains supervisory authority over retired
Judges especially when
assigning work to them and everything related to those functions. It
is the responsibility of that head
of Court to also ensure that the
necessary administrative resources are availed to that retired Judge.
This illustrates that despite
being retired these Judges continue to
play a role in the judiciary i.e., in rendering judicial functions.
[24]
It is instructive further to note that Section 1 of the Act
further states that:
“service” means - (a) service as a judge of the
Supreme Court of Appeal or a High Court as
contemplated in the Supreme Court Act, 1959 (Act No. 59 of 1959), in
the same or a higher office held by the judge concerned on
discharge
from active service, or, with the approval of the judge concerned,
service in a lower office; (b) service as a
chairperson or a
member of a commission as contemplated in the Commissions Act, 1947
(Act No. 8 of 1947); (c) service as a chairperson
or a member of a
body or institution established by or under any law; or (d) any other
service which the Minister may request him
or her to perform.’
[25]
The import of this provision is to buttress the underlying rationale
that retirement cannot be construed as contended by FUL,
to lead to
loss by retired judges of the protective mechanism of section 47(1).
I hold the view that
properly considered,
the word “service” in this section must include Judges
who are retired but who continue to either
perform Judicial functions
when called upon to do so by the Minister in line with (d) or have
been appointed to perform other functions
as provided in the section
in other capacities. In other words, section 47 ought not to limit
the scope of application of the leave
to sue doctrine to only Judges
who remain in active service. Clearly the immunity implicit in the
section also extends to those
retired Judges who remain in service.
It is therefore conceivable that Mbenenge JPs conclusion in
NP v
LP
could be correct in a matter where the retired Judge sought to
sued has not featured and will not be called to render any service
whatsoever. However this is subject to what I say in the following
paragraph.
[26]
Additionally, one cannot exclude the real prospect of litigation
being initiated against retired judges arising from matters
they
handled whist still in active service. I mention this aspect simply
to remind ourselves that the safety net of section 47(1)
is largely
aimed at protecting judicial independence as articulated in
Soller
v President of the Republic of SA
[14]
by Ngoepe JP and later in
Engelbrecht v
Khumalo
to the effect that “Section
47(1) is the mechanism through which the institution of legal
proceedings against judges is regulated
and plays what I regard as a
gate keeping role”. In essence the section seeks to insulate
judges from unwarranted and ill-conceived
legal proceedings aimed at
them. The need to protect judges from unwarranted litigation is not
difficult to fathom. The core function
of Judges is the adjudication
of disputes involving competing interests daily. The judgements they
hand down as well as the statements
they make in their judgements
invariably displease some litigants and sometimes their legal
representatives. It is integral to
the adjudication function of
Judges that they should be free from any fear of repercussions for
doing their work. It is necessary
therefore that Judges be protected
from the ever present threat of legal proceedings directed at them
arising from the execution
of their official responsibilities. This
is necessary to ensure that they adjudicate disputes unhindered and
that they do so ‘without
fear, favour or prejudice’.”
[15]
[27] To me this points to the doctrine of leave to sue remaining as
relevant to retired Judges as it does to Judges still in active
service. That this is so is found in the reach of the section i.e.,
covering conduct in office and in private. Clearly this can
only mean
that retired Judges remain relevant in the insulation of the
judiciary from meritless lawsuits, to ensure noninterference
with its
proper functioning. Therefore, one cannot exclude retired Judges from
the ambit of section 47(1). Whilst it remains important,
for a head
of Court approached in terms of section 47(1), to consider whether in
the context of all relevant factors, there is
merit to the intended
suit against the Judge and whether such suit poses any threat to the
proper functioning of the Judiciary,
it remains important for all
these factors to be taken into account in the decision whether
consent should be granted. This is
the consideration required from
the head of Court and in my view applies with equal force even where
a Judge is retired. This demonstrates
the prudence of a case by case
enquiry by a head of Court.
[28]
It is also notable that Article 17 of the Code of Judicial Conduct
provides that:
“
A
judge who is no longer on active service or liable to be called
upon to perform judicial duties (herein referred to as a retired
Judge) shall act honourably and in a manner befitting his or her
status”
Courts or heads of court rather
should, when applying section 47(1), consider each matter on its own
facts. When assessing the merits
of each case it is “
. .
.
important to stress that the court's role is of a discretionary
nature which should be exercised in light of all the relevant
considerations
including the benefits which the granting thereof may
hold for the parties. . . What it requires the court to do is to
attempt
to strike a balance between the different considerations
relevant to the exercise of its discretion.
”
[16]
Based on all I have said thus far, the first
declaratory order sought by FUL cannot be granted.
[29] The second declaratory order sought by FUL is that the phrase
‘civil proceedings’ in section 47(1) should not
be
interpreted to countenance review proceedings instituted against
administrative decision makers such as the JSC and not against
Judges
even if such Judges have an interest in the matter or outcome
thereof. The argument advanced by FUL in this regard is that
in the
first place the review proceedings are not “instituted against
any judge” but against the administrative decision
maker, the
JSC in this instance. In the second place it is argued that the
review proceedings can proceed with or without the interested
Judge’s
participation. In the fourth place it is argued that that review
proceedings are “
sui generis
” proceedings whose
objective is to test the lawfulness of an administrative decision
maker’s decision.
[30]
Based on the foregoing the submission is advanced that section 47(1)
cannot be used as a means to limit a litigant’s
access to Court
when such review proceedings are at issue. It is argued that
interpreting “civil proceedings” as found
in section
47(1) to encompass review proceedings of the nature we are dealing
with “would limit not only the right of access
to court found
in section 34
[17]
of the Constitution but also the right to administrative justice”.
[31] FUL has come up with an interpretation of section 47(1)
suggestive that a refusal of consent to cite a Judge who has an
interest
in review proceedings not instituted against the Judge,
would amount to a denial of access to courts and administrative
justice
to the litigant instituting such proceedings. To avoid such
obvious unconstitutionality, FUL argues that the way to interpret the
section is that the phrase “civil proceedings” found in
the section should be interpreted to exclude such review proceedings
from the ambit of the section. This would, in FUL’s view
obviate the need to seek the requisite consent.
[32] I cannot find any basis to regard the phrase “civil
proceedings” to be capable of more than one interpretation
simply because the target thereof is not a Judge who has an interest
in the said proceedings. Review proceedings are “civil
proceedings” and that is the only interpretation that applies.
It cannot be that the interpretation of the phrase has a double
meaning simply because the relief sought is against one respondent
but not against another who also has an interest in the same
proceedings. In my view FUL’s argument advocating for a
restrictive interpretation of the phrase “civil proceedings”
excluding judicial review from the ambit of section 47(1) is ill
conceived and must be rejected.
[33] The fact of the matter is that such review proceedings do not
depend on the participation of the judge who has an interest
in the
proceedings, a point FUL also make. Those proceedings can take place
and be finalized with or without the participation
of the Judge, a
fact recognized by FUL. FUL’s interpretative argument has the
effect of limiting the ambit of section 47(1)
which cannot, on the
objective of the section and the act in general, be justified on any
basis. The clear language of section
47(1) is that the consent of the
head of the Court where the Judge has been appointed, must be sought
to cite the Judge in the
intended proceedings. Should such consent be
granted it will be up to the Judge to decide whether to participate
in the proceedings
or abide the decision of the court hearing the
review application.
[34]
My conclusion, having considered FUL’s submissions is that
consent as ordained by 47(1) is required to cite the respondent
in
the review proceedings. As to whether good cause has been shown to
warrant the requisite consent, this is a case where consent
must be
granted. The respondent has retired and has not been called to act or
participate in judicial functions since retiring.
Prior to his
retirement in February 2017, the respondent was on special leave for
almost a decade. The respondent’s involvement
in the review
proceedings will in no way impede the functioning of the High Court
in which he formerly served. Nor will his inclusion
in the review
proceedings undermine the independence of the judiciary. All these
facts illustrate the case by case approach implicit
in such matters
and that consent is warranted in the circumstances of this matter.
Furthermore,
the review
proceedings aimed at upsetting the JSC’s decision contain a
justiciable issue. The objective thereof is to challenge
the
lawfulness, rationality and validity of the JSC’s decision. The
objective of the review proceedings is therefore aimed
at asserting
the proper standard by which Judges’ misconduct should be dealt
with by the JSC. Issues of judicial integrity
and accountability will
of necessity be ventilated in the review proceedings.
It is
common cause that the Judicial Conduct Tribunal, established to
investigate allegations of gross misconduct against the respondent,
had recommended that the respondent be found guilty of gross
misconduct which carried with it the prospect of impeachment but the
JSC rejected that recommendation opting instead to return a verdict
of misconduct
simpliciter
.
The review is
aimed testing the appropriateness of that finding.
[35]
T
his is, in my view, a clear case where consent is warranted,
and it is for the respondent to decide if he would want to
participate
in the review proceedings. An administrative decision was
taken by the JSC against the respondent and the review application
threatens
the respondent’s interest as he has complied with
that decision.
ORDER
[1]
In the circumstances I make the following
order:
1.
The
applicant is hereby granted leave in terms of
s 47(1)
of the
Superior
Courts Act 10 of 2013
to issue legal process against the respondent
relating to the main application in this matter under case no.
17374/2020.
2.
In
the circumstances of this case, the institution of the review
proceedings before the grant of consent in terms of
section 47(1)
does not vitiate those proceedings.
3.
There is no order as to
costs.
D MLAMBO
JUDGE PRESIDENT
GAUTENG DIVISION OF THE
HIGH COURT
OF SOUTH AFRICA
Delivered:
This judgement was prepared and authored by the Judge whose name is
reflected and is handed down electronically
by circulation to the
Parties/their legal representatives by email and by uploading it to
the electronic file of this matter on
CaseLines. The date for
hand-down is deemed to be 28 January 2021.
Appearances:
Counsel for the
Applicant:
Adv. C Steinberg
Adv. N Luthuli
Instructed by:
Webber Wentzel Attorneys
Reference: V Movshovich / P Dela / D Cron
/
M Kruger / D Rafferty / A Carr / L Mthembu 3037225
Counsel for the Respondent: None (Notice to
abide filed)
Instructed by:
S Ngomane Inc. Attorneys
Reference: HN530/2020
Date of hearing: 01
October 2020
Date of judgement:
28 January 2021
[1]
2007 (3) SA 569
(T) at para 4.
[2]
[2005] ZAGPHC 13
;
2005 (3) Sa 567
(T) at para[14]
[3]
2016 (4) SA 564
(GP) at para 3.
[4]
Ibid,
paras 7-8.
[5]
Ibid
. See also Soller v President of the Republic of South
Africa and Others [2005] ZAGPHC at para 17. The court held that for
the
purposes of
section 25(1)
there was no substantive difference
between a claim based on a decision made by a Judge in court and one
based upon the extra-curial
transactions of a Judge. The Judge needs
protection from both if they are without merit.
[6]
Soller v President of the Republic of South Africa and Others [2005]
ZAGPHC at para 1.
[7]
McCreath H and Koen R. “Defending the absurd: the iconoclast's
guide to
section 47(1)
of the
Superior Courts Act 10 of 2013
”
2014 PER 1789-1827.
[8]
[2020] ZAECELLC 10
[9]
[2020] ZAECELLC 10 at para 47.
[10]
Supra
at note 7, pg 1790. This is evident from
s 1
of the
Superior Courts Act 10 of 2013
, which defines a Superior Court to
mean "the Constitutional Court, the Supreme Court of Appeal,
the High Court and any court
of a status similar to the High Court".
The question of suing Constitutional Court judges used to be
governed by the
Constitutional Court Complementary Act 13 of 1995
.
The
Superior Courts Act has
consolidated the doctrine of leave to
sue and repealed both the Supreme Court Act 59 of 1959 and the
Constitutional Court Complementary Act 13 of 1995
.
[11]
Supra
at note 7, pg.
1790.
[12]
At para 47
[13]
At para 45
[14]
supra
at para 12 above
[15]
2016 (4) SA 564
GP, at paras [3] and [4]
[16]
PL v YL
2013
(6) SA 28
(ECG) at para 41.
[17]
Section 34
provides