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[2016] ZAGPPHC 1063
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Motata v Minister of Justice and Correctional Services and Another (52010/2016) [2016] ZAGPPHC 1063; [2017] 1 All SA 924 (GP) (30 December 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO:
52010/2016
DATE:
30/12/2016
In
the matter between:
NKOLA JOHN
MOTATA APPLICANT
and
THE MINISTER OF JUSTICE
AND
CORRECTIONAL
SERVICES FIRST
RESPONDENT
THE JUDICIAL SERVICE
COMMISSION SECOND
RESPONDENT
ORDER
The
following order is granted:
The
application is dismissed, the applicant to pay the respondents’
costs.
JUDGMENT
D
PILLAY AJ:
Introduction
[1]
The
applicant is a Judge of the High Court of South Africa, appointed to
the Gauteng Division, Pretoria on 1 December 2000. The
first
respondent is the Minister of Justice and Correctional Services. The
second respondent is the Judicial Service Commission
(JSC). The
applicant challenges the constitutionality of various provisions of
the
Judicial Service Commission Act 9 of 1994
as amended by the
Judicial
Service Commission Amendment Act 20 of 2008
(JSC
Act).
The Facts
[2]
The
applicant was involved in an accident on 6 January 2007 that resulted
in his conviction for driving a motor vehicle whilst under
the
influence of alcohol and sentence of 12 months imprisonment or a fine
of R20 000. He appealed unsuccessfully. From 15 January
2007 to 28
February 2007 the applicant was placed on special leave. Such leave
continued from 1 March 2007 to 15 April 2007 pending
his criminal
prosecution. Almost ten years later the special leave is still in
place.
[3]
In
May 2011, the Judicial Service Commission (JSC) received a complaint
against the applicant from AfriForum and Adv G C Pretorius
SC in
terms of s 14(3)(b) of the JSC Act. The JSC referred the complaint to
the
Judicial
Conduct Committee (
JCC)
established in terms of s 8 of the JSC Act.
The
applicant appeared before the JCC on charges of alleged gross
misconduct. A complaint of gross misconduct can result in the
impeachment of the applicant in terms of s 177 of the Constitution of
the Republic of South Africa, 1996 (the Constitution)
.
On 21 February 2013, the JCC recommended to the JSC that the
complaint be referred to the Judicial Conduct Tribunal (Tribunal)
established
in
terms of s 21(1) of the JSC Act
for
further investigation into the applicant’s conduct in terms of
s 16(4)(b) of the JSC Act.
[4]
At
the request of the JSC, the Chief Justice established the Tribunal.
The Tribunal comprised of two judges namely, Jappie JP as
the
Tribunal President and Dambuza J. The third member of the Tribunal
was Mr Alex, a practising attorney. The applicant was summoned
to
appear before the Tribunal in June 2013. Those proceedings were
however postponed
sine
die
and remain pending.
The Constitutional
Challenge
[5]
The
applicant seeks to have ss 8-10, 14-23 and 25-33 of the JSC Act
declared inconsistent with ss 177 and 178 of the Constitution
and
consequently, unconstitutional and invalid. On the applicant’s
interpretation of the Constitution, the separation of
powers and the
independence of the judiciary, the power to remove a judge is derived
exclusively from ss 177 and 178(6) of the
Constitution and not from
the JSC Act. Section 177 of the Constitution authorises only three
role-players to be involved in the
removal of a judge namely the JSC,
the National Assembly and the President. Section 178(6) of the
Constitution empowers the JSC
exclusively to determine its own
procedure in relation to its functions,
[1]
in this instance, the procedure to remove a judge. The Constitution
does not provide for delegation of this power to Parliament.
Only the
JSC is authorised to enquire into a judge’s conduct, capacity
or competence.
[2]
In short, the
applicant’s overarching attack on the JSC Act is that
Parliament arrogated unto itself the power to promulgate
the JSC Act,
to determine the procedures to be followed by the JSC when deciding
whether a judge is guilty of gross misconduct,
is grossly incompetent
or incapacitated.
Hence
Parliament violated the doctrine of the separation of powers and the
independence of the judiciary.
[6]
The
applicant’s secondary but related objection is that the
Constitution does not authorise the structures created in the
JSC Act
namely the JCC and the Tribunal and the functions they perform. For
instance s
9(2)(a) of
the JSC Act authorises the JCC to determine the procedure to be
followed at its meetings and s 10 confers on the JCC
the power to
receive, consider and deal with complaints. However, in his view ss
177 and 178 of the Constitution confer these powers
exclusively upon
the JSC.
Furthermore,
the decision to remove a judge is the decision of the JSC not the JCC
or the Tribunal. The tiered process prescribed
in the JSC Act
relegates the JSC to some form of appeal tribunal.
[7]
Equally
repugnant to the applicant is the appointment of non-JSC members to
the JCC and the Tribunal, and the participation of ‘politicians’
in the enquiry.
For
instance, ss 8 and 22 of the JSC Act permit the JCC
and the Tribunal
to be composed of persons other than members of the JSC. Furthermore,
the Minister, who is a member of the executive,
is consulted in the
appointment of both the majority of the members of the JCC
[3]
and the non-judicial member who is selected to serve on the Tribunal
from the list approved by the Chief Justice.
[4]
[8]
The
National Assembly, the President and members of the National Assembly
and Provincial Councils serving on the JSC do not participate
in the
enquiry that could result in findings leading to the removal of a
judge. By excluding politicians from decisions when the
JSC considers
removing a judge in terms of
ss
177 (1)(b) and (2) and 178 (5) of the Constitution
,
judicial independence is preserved. Consequently the JSC Act, in so
far as it prescribes procedures, establishes the JCC and the
Tribunal
and permits any person or entity other than the JSC and its members
from removing a judge from office, is unconstitutional.
[9]
With
regard to s 180 of the Constitution, the applicant contends that the
respondents have misread its provisions. On the applicant’s
interpretation, Parliament enacted national legislation to provide
procedures for dealing with complaints against judicial officers;
that is a matter already dealt with in the Constitution. Section
178(6) of the Constitution assigns this power to the JSC to determine
its own procedures. Hence s 180(1)(b)
occludes
Parliament from
legislating for such procedures.
[10]
Similarly, s
178(4) of the Constitution which
assigned
to the JSC the powers and functions accorded to it in both the
Constitution and national legislation,
must
be construed to refer to national legislation that complies with s
180 of the Constitution, that is, legislation on matters
that are not
dealt with in the Constitution. In other words the national
legislation referred to in s 178(4) is not the JSC Act.
Hence
Parliament violated the doctrine of separation of powers. The
applicant’s challenge to the remaining provisions
of the JSC
Act are on similar themes.
The Opposition
[11]
The
respondents raise two points
in
limine
.
The first is the non-joinder of Parliament in the application.
[5]
The second is the applicant’s failure to establish a ‘factual
predicate’ or ‘substantive, concrete and
demonstrable
evidence’; as a result the respondents were unable to plead
comprehensively. The applicant’s attacks are
‘mere
conclusions of law with no probative value’.
[6]
Hence the applicant has failed to establish that the impugned
provisions of the JSC Act are unconstitutional.
The points
in
limine
[12]
Regarding
the first point
in
limine
,
the applicant relied on
Helen
Suzman
Foundation v President of the Republic of South Africa & others
2015 (2) SA 1
(CC)
para 13 to resist the non-joinder of Parliament. The Constitutional
Court stated:
‘
[12]
Only when the constitutionality of the procedure followed by
Parliament in processing and passing legislation is challenged,
does
it become necessary to join Parliament as a party. This is so because
Parliament bears the constitutional responsibility to
ensure that the
correct procedures are followed in passing legislation. And it is for
this reason, as well as its resultant
material interest in the
matter, that it must be afforded the opportunity to be heard and to
defend itself before potentially adverse
conclusions are arrived at
in relation to its primary area of responsibility. This would explain
why Parliament had to be cited
in
Matatiele
Municipality
when the regularity of the constitutionally required
consultative process necessary to pass the impugned legislation was
challenged.
[13]
Parliament is, however, not to be cited when the substance of a
provision is challenged, save under exceptional circumstances,
like
where Parliament or the provincial legislature itself initiated and
prepared legislation as was the case in
Premier, Limpopo Province
.
Ordinarily, it is the executive branch that initiates, prepares and
introduces draft legislation in the National Assembly. Only
thereafter does Parliament get down to the business of ensuring that
constitutionally prescribed procedures are followed in passing
Bills
into law. For this reason, when the content of legislation is
impugned, it is usually only the executive that must be cited.’
(Footnotes omitted)
[13]
The
applicant attacks both the substance and the fact that Parliament
promulgated the JSC Act. In doing so Parliament usurped the
powers of
the JSC. His attack is not on the procedure it adopted in passing the
JSC Act but on its very powers to do so. A challenge
to the powers of
Parliament albeit not to the substance of the content of legislation
as in
Helen
Suzman
Foundation,
is
a matter of substance
.
The question
remains: Did Parliament initiate the JSC Act?
[14]
The
unequivocal answer to this question is to be found in s 5, which
reads:
‘
The
Minister must by notice in the
Gazette
,
make known the particulars of the procedure, including subsequent
amendments, which the Commission has determined in terms of
section
178(6) of the Constitution.’
[15]
Self-evidently
s 5, and as will emerge below, the Preamble and the various other
provisions of the JSC Act demonstrate that this
legislation is the
product of extensive collaboration between the Minister and the JSC.
The JSC Act is not the work of Parliament
acting on its own. On the
contrary it is the initiative of the Minister as a member of the
executive branch. As such it is the
sort of legislation for which
Helen
Suzman
Foundation
says
joinder
of Parliament is dispensable.
[16]
In
finding that the joinder of Parliament was not necessary for the
reasons that I do I must also find against the applicant on
its main
challenge. If Parliament did not initiate the JSC Act then it cannot
have unilaterally usurped the powers and functions
of the JSC.
Consequently I find that Parliament did not breach ss 177 and 178 of
the Constitution by initiating the JSC Act. Whether
promulgation of
the impugned sections are invalid for some other reason remains to be
determined.
[17]
The
first point
in
limine
is
dismissed.
[18]
Turning
to the second point
in
limine
,
the respondents relied on
Minister
of Home Affairs v National Institute for Crime Prevention and the
Reintegration of Offenders (NICRO) & others
[2004] ZACC 10
;
2005 (3) SA 280
(CC) paras 33-37 in
which
the
Constitutional Court had to consider the need for facts to determine
the proportionality of the limitation on the right of prisoners
in
s 19(3) of the Constitution
to
vote. Facts were required in that case in order for the court to
balance means and ends to determine justification for the limitation.
That case is distinguishable from this one as this is not about
interpreting and applying s 36 of the Bill of Rights.
[19]
However,
the court acknowledged in
NICRO
that ‘
the
paucity of the justification evidence and argument does not
necessarily result in invalidity of the impugned provision. . .
.
’
[7]
In
any case
‘
[c]ontext
is all important and sufficient material should always be placed
before a court dealing with such matters to enable it
to weigh up and
evaluate the competing values and interests in their proper
context.
’
[8]
What
is ‘
sufficient
material’ depends on the context.
[20]
The
second case which the respondents relied on was
Radebe
& others v Eastern Transvaal Development Board
1988
(2) SA 785
(A),
in
which the appellants unsuccessfully resisted ejectment. They relied
on certain regulations to assert a right to occupy
,
contending that the regulations had abolished the vindicatory right
of an owner. The court found that this was a conclusion of
law not a
statement of fact.
Without
establishing
as
a primary fact that he was the holder of a permit to occupy, the
appellant could not rely on the regulations.
Nevertheless the
Appellate Division
proceeded
to
determine
the conclusion of law as a ‘secondary fact’.
[9]
[21]
Neither of these cases
bars absolutely the determination of questions of law and
interpretation in the absence of a factual predicate.
Ex
Parte Chairperson of The Constitutional Assembly: In Re Certification
of The Constitution of the Republic of South Africa,
[1996] ZACC 26
;
1996 1996 (4) SA
744
(CC), the ‘certification judgment’
was
litigation ‘
to
pronounce whether or not the Court certifies that all the provisions
of South Africa’s proposed new constitution comply
with certain
principles
.’
Nkabinde
& another v Judicial Service Commission & others
2016 (4) SA 1
(SCA)
was a similar cha
Ilenge
as this case but it concerned the constitutionality of s 24 of the
JSC Act. The Supreme Court of Appeal determined the constitutional
question raised.
[22]
Turning to
foreign law, in
Gratton
v. Canadian Judicial Council
,
[1994] 2 FCR 769
,
1994 CanLII 3495
(FC),
Justice Gratton of
the
Ontario Court of Justice,
Canada
sought a
declaration
that certain provisions of the
Judges
Act
violated
Canada’s
Constitution
Act, 1867
.
The Canadian Judicial Council had established an Inquiry Committee to
conduct an investigation into the allegation that the judge
may have
become incapacitated by reason of infirmity.
Even
though the Inquiry Committee heard no evidence
regarding
the judge’s time off from work for some four years due to
severe illness,
the
Federal Court determined the constitutional challenge, which involved
statutory and constitutional interpretation, in the context
of the
supervening principles of the independence of the judiciary, public
interest and accountability.
[23]
In my view when the law
concerned is the Constitution, refusing to adjudicate questions of
interpretation could chill litigation
in a nascent democracy to the
point of prematurely denying access to justice and frustrating the
development of jurisprudence.
Furthermore,
the applicant claims standing in terms
of s 38 of the Constitution in his Replying Affidavit. As the
respondents correctly submit,
this claim should have been pleaded in
his Founding Affidavit, especially in so far as he seeks to act not
only in his own interest.
However, I accept that proceedings by or
against a judge implicating the constitutional values of the
separation of powers, independence
of the judiciary, accountability
and transparency are in the public interest.
[24]
The fact sufficient to justify
a determination of the questions of law is that the applicant has
been summoned to an enquiry about
his conduct that could lead to his
impeachment. This is sufficient for the court to adjudicate the
constitutional validity of the
provisions relevant only to his
impeachment. His attack on sections of the JSC Act that do not relate
to impeachment, including
ss 15, 17 and 18 are academic. He is
allowed to raise the constitutionality of the the JSC Act only in so
far as it relates to
him in fact.
[25]
In the circumstances the second
point
in limine
succeeds partially. I find that:
a)
the order sought to declare
invalid ss 15, 17 and 18 of the JSC Act, i.e. provisions unrelated to
his impeachment proceedings, have
no factual predicate and the
applicant has no standing to contest their validity.
b)
Accordingly, the declarator in
respect of ss 15, 17 and 18 is refused.
c)
The second point
in
limine
is dismissed in
respect of
ss
8-10, 14, 16,19-23 and 25-33 of the JSC Act
,
i.e. provisions relating to his impeachment proceedings.
General principles
[26]
The
applicant’s challenge is not to the validity of provisions of
the Constitution but to their interpretation and application.
The
Constitutional Court has pronounced extensively on this topic and no
more need be said here.
[10]
Our
appellate courts have also pronounced extensively on the core values
underlying an open and democratic society. Hence another
encomium of
these values is dispensable. However, a few observations about the
principles and values of separation of powers, judicial
independence,
accountability,
responsiveness and openness
are
worth recalling
from
the perspective of the relationship of the three arms of government,
the status of the judiciary and consequently, the office
of a judge
.
[27]
The
separation of powers, which has its genesis in Constitutional
Principle VI,
empowers
each arm of the State - the legislature, executive and judiciary - to
exercise appropriate checks and balances generally
and particularly
on each other. But the separation
of
powers
is
not synonymous with unmitigated departmentalism in which the three
arms of government have independent and decisive authority
to
interpret the Constitution where its own power is concerned. Nor does
judicial independence mean unbridled judicial supremacy.
[11]
[28]
Instead,
constitutional interpretation is deliberative and dialogical, with
each arm conversing with the other(s) and the polity
to ensure not
only ‘accountability, responsiveness and openness’, but
also, quite simply, that society functions optimally.
[12]
The interaction is dialectical, at times tense and agonistic,
[13]
and at other times cooperative and consensual.
[14]
In this context judicial independence and supremacy are crucial in
maintaining the separation of powers. The separation
of
powers
assigns
to
the
courts
their
‘absolutely unique’
[15]
function ‘as the independent arbiter of issues involving
the division of powers between the various spheres of government,
and
the legality of legislative and executive action measured against the
Bill of Rights and other provisions of the Constitution.
. .
.’
[16]
But
the courts do not have a monopoly on the ‘correct’
constitutional interpretation.
[17]
For genuine dialogue, the legislature and executive must also be
effective and assertive interpreters of the Constitution.
[18]
Judicial supremacy, for the sake of judicial finality, is vital for
enforcement of the rule of law.
[19]
Configured
thus, the
separation
of
powers elevates judges to being ‘the pillar of our entire
justice system’.
[20]
[29]
Judicial
independence is a safeguard for judges to do their work without fear,
favour or prejudice; equally it is assurance for
the public that
their cases will in form and substance be determined
thus.
[21]
Institutional
independence in the administration of the judiciary, security of
tenure, which are the issues in this case, and financial
security,
cumulatively contribute to the perception and reality of judicial
independence. Whilst these issues guarantee ‘benefits
of the
judged’, for judges they are merely safeguards against undue
influence.
[22]
Holding the
office of a judge is a public duty of exceptional importance to
democracy itself.
The Constitutional
Scheme
[30]
The
dialogical nature of our Constitution is self-evident from the way it
governs the removal of a judge from office. At the outset,
s 177
compels collaboration between the three principal actors: the JSC,
the National Assembly and the President. Their participation
in the
decision to remove is sequential. First, the JSC must find that the
judge suffers from incapacity, is grossly incompetent
or is guilty of
gross misconduct. This foundational step of establishing good cause
for the removal is assigned to the JSC as the
governing and oversight
body of judges. Only then can the National Assembly justifiably call
for that judge to be removed by resolution
that must be adopted with
a supporting vote of at least two thirds of the members. Upon the
adoption of that resolution, the President
must remove that judge
from office. The President has little if any discretion but to remove
the judge; a failure to do so after
the judiciary and the legislature
have decided that the judge should be removed could be perceived by
the public as irrational,
unjustified or as a special favour or
benefit to that judge. The Constitutional Court struck down s 8(a) of
the
Judges'
Remuneration and Conditions of Employment Act 47 of 2001
(Remuneration Act) as an unconstitutional delegation of the powers
in
s 176(1) of the Constitution. It refused to allow the President to
usurp the powers vested in Parliament to extend the tenure
of a Chief
Justice lest it ‘operate as a favour that may influence those
judges.
.
. .
’
[23]
[31]
In
executing their constitutional mandates all the actors must protect
and preserve
‘
the
precious institutional attribute of impartiality and the public
confidence’ implicit in
s
177(1) and (2).
[24]
Hence
constitutional interpretation is more than merely parsing the
words.
[25]
[32]
Participation
by the three arms of government in judicial governance begins with
the establishment of the JSC in terms of s 178
of the Constitution.
Of the twenty-five members of the JSC, at least eight are lawyers,
ten represent the national and provincial
legislatures and five
represent the executive. When the JSC considers matters specific to a
High Court, the Judge President of
that Court and the Premier of the
province join the JSC.
[26]
Demonstrably asserting the separation of powers and judicial
independence,
the
Chief Justice flanked by two heads of court presides over the
JSC.
[27]
[33]
Collaboration
between the judiciary and the legislature continues in s 178(4)
whilst securing constitutional safeguards for the
independence of the
judiciary. Section 178(4) provides:
‘
The
Judicial Service Commission has the powers and functions assigned to
it in the Constitution and national legislation.’
[34]
The
JSC derives its powers not only from the Constitution but also from
national legislation. As a framework to secure our most
important,
non-negotiable and unchangeable values, except by overcoming the
onerous provisions of s 74, the Constitution does not
identify all
the powers and functions of the JSC. The Constitution shares this
responsibility with the legislature. Hence
the Constitution
prescribes the substantive reasons for removing a judge and limits
them to three.
[28]
Yet there
are other less serious causes for regulating judicial conduct and
performance. Predictably therefore none of these are
specified in the
Constitution.
[35]
In
s 178(5) both collaboration and independence are balanced on the one
hand by enabling the JSC to ‘advise the national government
on
any matter relating to the judiciary or the administration of
justice’, and on the other hand by precluding members of
the
legislatures when the JSC ‘considers any matter except the
appointment of a judge’.
[29]
[36]
Another issue not
specified in the Constitution emerges from s 178(6) which provides:
‘
The
Judicial Service Commission may determine its own procedure, but
decisions of the Commission must be supported by a majority
of its
members.’
[37]
Precisely
what its procedures should be when it investigates and determines
substantive causes for removing a judge, and for dealing
with
complaints that result in the removal of a judge or those that do not
do so, are not specified in the Constitution. Furthermore,
members of
the legislatures are absent from the JSC when it advises the national
government on any matter relating to the judiciary
or the
administration of justice; they constitute the JSC only when it
considers the appointment of a judge.
[30]
[38]
This
arrangement secures the separation of powers and preserves the
supremacy and independence of the judiciary, especially as members
of
the National Assembly participating in the JSC will have an
opportunity to vote on the removal in their legislature in due
course. To secure substantial consensus a majority of members of the
JSC must support its decisions.
[31]
It also acknowledges the importance of securing participation and
(hopefully) acquiescence of the members of the legislature and
executive in choosing judges who would have the power to prevail over
their decisions. Securing commitment of (potential) litigants
in the
choice of their dispute resolver is a hallmark of a good dispute
resolution system design. It generates acceptance and improves
compliance with the adjudicator’s decisions, thus minimising
resistance to enforcement. In a transformative constitutional
democracy in which the judiciary has to reimagine its expansive
jurisdiction and remedial functions,
[32]
the value of consensus about the choice of judges cannot be
overstated.
[39]
In
due course the legislature would have to vote on the removal of a
judge. If it has to do so without having had a say in the procedures
determined by the JSC acting on its own, the legislature might first
need convincing of the fairness of the JSC’s procedures.
One
way of avoiding conflict would be for the three arms to predetermine
the removal procedure. National legislation, which is
the usual and
most effective way of democratically accomplishing consensus about
rules is enabled in s 178(6) (discussed further
below).
[40]
Provision for
national legislation is catered for in s 180 thus:
‘
Other
matters concerning administration of justice
National legislation may
provide for any matter concerning the administration of justice that
is not dealt with in the Constitution,
including-
a.
training
programmes for judicial officers;
b.
procedures
for dealing with complaints about judicial officers; and
c.
the
participation of people other than judicial officers in court
decisions.’
[41]
Section 180 gives
the JSC the option of calling for national legislation on issues
affecting the administration of justice and that
are not dealt with
in the Constitution. Clearly training programmes for judicial
officers and the participation of people other
than judicial officers
in court decisions are not expressly mentioned elsewhere in the
Constitution. Neither are specific procedures
for dealing with
complaints about judicial officers. Listed as it is with two other
exclusions the complaints procedure is unambiguously
and emphatically
excluded from the Constitution.
[42]
The
Constitution must be read as a whole and its provisions must be
interpreted in harmony with one another.
[33]
Not
only must one strive to interpret the provisions of ss 177, 178 and
180 consistently with one another, but also
with other
provisions in the Constitution. Other provisions that come to mind
include the values of a sovereign democracy in s
1 and the supremacy
of the Constitution in s 2. Additionally, the supremacy of the
Constitution is fortified over Parliament's
legislative power in s
43
[34]
and over the judiciary
in s 165 of the Constitution.
[43]
Section
165 secures the independence of the courts ‘subject only to the
Constitution and the law’ rendering its decisions
binding on
‘all persons to whom and organs of state to which it
applies’.
[35]
It is not
enough for organs of State to desist from interfering with the
functioning of the courts.
The
vesting of the judicial authority
in
the courts also imposes a duty
on
them
to
assist to ensure the independence, impartiality, dignity,
accessibility and effectiveness of the courts. Such assistance is
fortified ‘through legislative and other measures’.
The
JSC as the ‘governing body’ of judges is primarily the
institution overseeing the judiciary. The other arms of government
are constitutionally bound to ensure that the JSC is able to function
optimally.
[44]
The
power of the JSC to determine its own procedures is necessarily broad
because it is a constitutional provision and as such is
a framework
for governance.
[36]
Furthermore the functions that the JSC performs and may in future
perform are not only wide and varied, but also not entirely
foreseeable. Currently its procedures are not limited to determining
complaints against judges and selecting judges for appointment.
[45]
In
the circumstances s 178(6) must be interpreted consistently with ss
177(1), 178(4), 180(b), s 165 and other provisions that guide
interpretation, such as s 233 of the Constitution, which requires
courts to draw guidance from international law.
[37]
How the application of these provisions will evolve in a nascent
democracy requires the flexibility and responsiveness that
legislation
and not constitutions offer.
Application of the
Constitution to the complaints procedures against judges
[46]
Conceivably, the
constitutional provisions above generate at least two possible models
for judicial governance that remain faithful
to constitutional
interpretation. The first model is that which the JSC determines as
its own procedure for inquiring into the
conduct, capacity and
competence of a judge to the exclusion of the legislature and the
executive. In this model only the JSC or
a subcommittee of it is
involved in the inquiry. Only after the JSC determines the issue does
it report to the legislature and
the executive. This model
seeks to give effect to s 178(6) without any regard to s 178(4) and
(5). It reads s 180(b) in relation
to the complaints procedure as a
matter that is dealt with in s 177 and 178 (6) exclusively. This
model is captured in the Judicial
Service Commission Rules Governing
Complaints and Inquiries in terms of s 177(1)(a) attached to the
applicant’s founding
affidavit as Annexure NJM4 (the JSC
Rules). This is the model that counsel for the applicant submitted
meets with the applicant’s
interpretation of the Constitution
and which the applicant accepts as valid. This was the model when he
was convicted until the
second model replaced it three years later.
[47]
The
second model is the statutory model espoused in the JSC Act. Counsel
for the respondents submitted that ss 178(4)-(6) and 180(b)
read
together mandate the JSC Act. The JSC Act replaced the JSC Rules from
1
June 2010.
[38]
[48]
What
this application is not is a challenge to the procedural propriety of
promulgating the JSC Act. Furthermore, my task is not
about assessing
the JSC Rules model. That is no longer the law that the JSC seeks to
apply. For a comparison of both instruments
one may look to the first
case to challenge the jurisdiction of the Tribunal.
[39]
Let it suffice to say that the Supreme Court of Appeal had
‘difficulty
in
appreciating’
the
general objections to the inquiry being conducted in terms of ‘the
new statutory regime.
’
[40]
[49]
This
application singularly calls for a declarator on whether the impugned
provisions of the JSC Act comply with ss 177(1), 178(6)
and 180(b) of
the Constitution. The primary attack on the JSC Act is that these
constitutional provisions do not authorise Parliament
to legislate
for the JSC, but that the JSC must govern itself by adopting its own
procedures.
[50]
Literally,
the general power of the JSC in s 178(6) to determine its own
procedures includes the specific power in s 180(b) to determine
its
own procedures for dealing with complaints about judicial officers.
The
generalia
specialibus non derogant
maxim: general words and rules do not derogate from special ones,
applies.
[41]
On
this interpretation, the JSC chose to issue its own procedures in the
form of NJM4. Once it made this choice, s 180(b) precluded
legislation to deal with complaints.
[51]
However
the JSC has since abandoned this choice. A literal interpretation of
s 180(b) expressly authorises the JSC Act. Nowhere
does the
Constitution provide for procedures specifically dealing with
complaints about judicial officers. Having abandoned the
JSC Rules,
this interpretation of s 180(b) does not conflict with s 178(6).
Self-evidently by subjecting the applicant to proceedings
first
before the JCC and thereafter before the Tribunal, the JSC has
adopted the JSC Act as ‘its own procedure’. The
applicant
has not right to instruct the JSC on what procedure it should adopt
in any proceedings, unless such procedure as it does
adopt is flawed.
Neither does this court have any mandate in an application for a
declarator to interfere with the JSC’s
choice of procedures.
This is not a review. Furthermore neither option is unconstitutional.
[52]
Textually
and contextually the Constitution authorises the JSC Act. When
Parliament passes the JSC Act it exercises original jurisdiction
derived from the Constitution
[42]
in collaboration with the JSC. The question of the JSC delegating its
authority to Parliament does not arise.
International
Best Practice
[53]
A
cursory digression into foreign jurisdictions finds support for the
dialogical approach in governing the judiciary. For instance
in
Australia, s 72(ii) of the Commonwealth of Australia Constitution Act
permits the Governor-General in Council, on an address
from both
Houses of Parliament in the same session, to remove a judge on the
ground of ‘proved misbehaviour’ or incapacity.
[43]
Underpinning the Constitution Act with the procedural specifics is
the Judicial Misbehavior and Incapacity (Parliamentary Commissions)
Act 188 of 2012 that authorises the establishment of a commission to
process the removal of a judge.
[44]
[54]
Similarly,
s
99(1)
of
the
Constitution
Act, 1867
of
Canada provides that the only procedure available for the removal of
a federally appointed judge is by act of the Governor-General
on
address of both Houses of Parliament and only for ‘breach of
good behaviour’. Section 59 of the
Judges
Act
,
R.S.C., 1985, which bolsters t
he
Constitution
Act
establishes
the Canadian Judicial Council chaired by the
Chief
Justice of Canada and populated by other senior judges. This Council
establishes an Inquiry Committee comprised of one or
more designated
members of the Committee and members of the Bar designated by the
Minister.
[55]
The
United States of America has
the
Judicial Conduct and Disability Act of 1980, 28 U.S.C. §§
351-364 in terms of which the judicial council may after
investigation refer a complaint that might lead to impeachment of a
judge to the Judicial Conference
of
the United States. If the Judicial Conference decides impeachment is
justified, it refers the proceedings to the House of Representatives
for determination.
[45]
[56]
In
the United Kingdom s 115 of the Constitutional Reform Act, 2005 gives
the Lord Chief Justice the power to issue the Judicial
Discipline
(Prescribed Procedures) Regulations, 2014 dealing with judicial
discipline. Section 116 prescribes a framework for the
Regulations,
which must provide for important functions to be performed not only
by the Chief Justice but also the Lord Chancellor,
who is a Cabinet
Minister in charge of the Ministry of Justice.
[46]
Furthermore the regulations must require both officials to agree on
certain issues, for instance, the exclusion of any prescribed
requirement,
[47]
and the
determination and publication of procedural rules.
[48]
[57]
In
all jurisdictions
the
arrangements strive to give effect in varied ways to the universal
values of separation of powers, the independence of the judiciary,
accountability
and
transparency in a collaborative dialogue between the judiciary and
the executive. These universal values enjoy greater respect
and
observance precisely because of the collaboration amongst all three
arms of government. Exclusion of the legislature and the
executive
from determining and participating the complaints process, as
contended for by the applicant, is the antithesis of dialogue
and
counterproductive to constitutional values in South Africa and other
democracies.
The JSC Act
[58]
Having found that
Parliament did not initiate the JSC Act and that the Constitution
itself mandates it, I also find nothing in the
provisions of the JSC
Act or the material before me that suggest that the JSC Act was
foisted upon the judiciary. On the contrary,
the
Preamble to the JSC Act, which replaced the long title of its 1994
predecessor, imports ss 178(1) and (4), 177(1) and (3), and
180 of
the Constitution. Reassuringly the Preamble acknowledges that:
‘
.
. .it is necessary to create an appropriate and effective balance
between protecting the independence and dignity of the judiciary
when
considering complaints about, and the possible removal from office
of, judicial officers, and the overriding principles of
openness,
transparency and accountability that permeate the Constitution and
that are equally applicable to judicial institutions
and officers.’
Furthermore,
as stated above s 5 of the JSC Act emphasises that it is the JSC that
determines its own procedures with the executive
availing its
promulgation machinery.
[49]
[59]
Turning
to the mechanics of the JSC Act, s
8
establishes the JCC, which is headed by the Chief Justice as the
Chairperson, the Deputy Chief Justice and four judges designated
by
the Chief Justice, in consultation with the Minister. The Chairperson
receives complaints about judges.
[50]
The objects of the JCC are to receive, consider, deal with complaints
and report to the JSC every six months.
[51]
[60]
If
the Chief Justice, as the Chairperson of the JCC, concludes that the
complaint could lead to a finding by the JSC that the judge
suffers
from an incapacity, is grossly incompetent or is guilty of gross
misconduct, he must refer the complaint to the JCC to
consider
whether it should recommend to the JSC that the complaint be
investigated and reported on by a Tribunal.
[52]
[61]
If
the JSC receives a report from the JCC recommending the appointment
of a Tribunal to investigate the capacity, competence or
conduct of a
judge
[53]
‘as
contemplated in section 177 (1)
(a)
of the Constitution’, the JSC must request the Chief Justice to
appoint a Tribunal.
[54]
Thereafter, the JSC must forthwith inform the President of the
request and advise him on the desirability of suspending the judge
in
terms of s 177(3) of the Constitution, subject to any conditions.
[55]
[62]
The
Chief Justice must appoint a Tribunal after consulting with the head
of the court in which the judge serves.
[56]
The Tribunal comprises of two judges, one of whom the Chief Justice
designates as the Tribunal President. The third person is selected
from a list maintained in terms of s 23(1).
[57]
Section 23(1) allows for a list of non-judicial persons
to serve on a Tribunal with the approval of the Chief Justice,
acting
in concurrence with the Minister.
[58]
[63]
The
President of the Tribunal may, after consulting the Minister and the
National Director of Public Prosecutions, appoint a member
of the
National Prosecuting Authority to collect and adduce evidence at the
hearing of the Tribunal.
[59]
The Executive Secretary of the Office of the Chief Justice arranges
administrative assistance for the Tribunal.
[60]
[64]
The
Chief Justice retains the power to make rules regulating procedures
before a Tribunal.
[61]
The
Minister must table the rules in Parliament before its publication in
the Government Gazette.
[62]
[65]
The
objects of the Tribunal are to inquire into the allegations of
incapacity, gross incompetence and gross misconduct against a
judge.
To this end the Tribunal must collect evidence, conduct a formal
hearing, make findings of fact, determine the allegations
on their
merits, and report its findings to the JSC.
[63]
The Tribunal adopts an inquisitorial approach; no onus is placed on
any person to prove or disprove any fact before the Tribunal,
[64]
which makes its determination on a balance of probabilities.
[65]
[66]
The
hearing must be concluded without unreasonable delay, in the
interests of protecting and enhancing the dignity and effectiveness
of the judiciary and the courts.
[66]
The judge must be served with adequate notice and be allowed legal
assistance at the hearing.
[67]
The Tribunal may also begin or continue a hearing in the absence of
the judge or his legal representative or both, if the Tribunal
is
certain that the judge was properly informed of the hearing.
[68]
The judge has all the rights of a fair hearing including the right to
adduce evidence, call and cross-examine witnesses, have access
to
books, documents and other evidence, and to make submissions to the
Tribunal.
[69]
[67]
The
only persons entitled to attend the hearing are the judge, the
complainant, other witnesses, legal representatives, the
administrative
assistant and any other person that the Tribunal
considers should be present.
[70]
However, the Tribunal President may in the public interest and for
purposes of transparency determine that all or any part of the
hearing must be held in public.
[71]
[68]
Evidence
must be given under oath or affirmation at the hearings of the
Tribunal.
[72]
Any person who
under oath or affirmation refuses to answer a question, knowingly
provides false information to the Tribunal or
willfully hinders or
obstructs a Tribunal in the performance of its functions commits an
offence and is liable to a fine or term
of imprisonment.
[73]
The Tribunal may notify the National Director of Public Prosecution
if it finds evidence that discloses the commission of an offence.
[74]
[69]
At
the end of the hearing, the Tribunal must record its findings on the
merits and on the facts, including the cogency and sufficiency
of the
evidence and the demeanour and credibility of any witness, report to
the JSC and to the Chief Justice about the reasons
for its findings,
and submit a copy of the record of the hearing and all other relevant
documents with its report.
[75]
[70]
The
JSC must consider the report of the Tribunal, inform the judge and
complainant of the time and place of its meeting and invite
them to
submit written representations.
[76]
If after considering the report and any representations, the JSC
finds that the judge suffers from incapacity, gross incompetence
or
is guilty of gross misconduct
[77]
it must submit its findings, together with its reasons, the report of
the Tribunal and any other relevant information to the Speaker
of the
National Assembly.
[78]
If it
finds that the judge’s competence, capacity or conduct
justifies a penalty short of impeachment, it may impose other
corrective measures or a combination of remedies.
[79]
[71]
Manifestly
the JSC is anything but an appeals body. It exercises original
jurisdiction; it is not bound by the findings of the Tribunal.
It is
free to consider new material and to exercise its own discretion,
unfettered by any prior processes.
Synthesis
[72]
Having found that
the Constitution anticipates the JSC Act, my focus turned to the
specific provisions of the JSC Act governing
the removal of a judge.
From the outset the
declared intention of the JSC Act is to give full effect to
ss
177 and 178 of the Constitution. Although the JCC and the Tribunal
are not structures established in the Constitution, their
establishment in the JSC Act is the JSC’s choice of process
exercised in terms of s 178(6) of the Constitution, read with
ss
178(4), (5) and 180(b) and s 5 of the JSC Act. The
establishment of the JCC and the Tribunal are consistent with the
Constitution.
[73]
When
assessing the validity of the JSC Act, its constitutionality must be
distinguished from the functionaries who exercise power
under it. The
possibility of abuse of power has no bearing on the constitutionality
of the JSC Act.
The
remedy for abuse of power does not lie in invalidating the JSC
Act.
[80]
[74]
Notwithstanding
van
Rooyen
&
others v The State & others (General Council of the Bar of South
Africa Intervening)
the
applicant insisted in his founding affidavit that only the JSC
(excluding the members of the legislature and the executive),
the
National Assembly and the President should be involved in the removal
of a judge. He relied on s 178(5) for this submission.
[81]
But s 178(5) does not exclude the executive from participating in any
matter pertaining to the judiciary. Furthermore, neither
the JCC nor
the Tribunal is composed of members of the legislature or the
executive. To precisely which provision of the JSC Act
the applicant
was targeting this criticism was unclear from his founding affidavit.
In the heads of argument for the applicant
his counsel accepted
van
Rooyen,
disavowed
his criticism made under oath and unfairly accused the respondents of
missing their point. Their point was no longer that
the inclusion of
non-JSC members intruded on
judicial
independence but that the participation of ‘structures outside’
of the JSC in the removal of a judge conflicted
with s 177 of the
Constitution. But during argument counsel resurrected
their
inclusion of non-JSC members objection.
[75]
Van
Rooyen
settled
objection to the appointment of non-JSC members to the JCC and the
Tribunal; it is insignificant in itself in determining
the
constitutionality of such a provision. What matters is that
irrespective of who is appointed to these structures they must
perform their duties without fear, favour, prejudice and above all,
faithfully to the Constitution.
[76]
Manifestly,
all critical decisions pertaining to procedures that could lead to
the impeachment of a judge involve the JSC and the
Chief Justice, in
his capacity as Chairperson of the JSC and the JCC. They have
institutional authority derived from the Constitution
that supersedes
their personal and subjective predilections as individuals.
[77]
Lawyers
who participate in the process as members of the JSC, the JCC and the
Tribunal are bound by their oaths of office to uphold
the
Constitution. The integrity of the persons involved in the processes
is as highly prized as the process itself given the stature
of the
judiciary as a pillar of democracy. The applicant’s criticism
that non-JSC members are appointed to the JCC and the
Tribunal is
unjustified.
[78]
Notwithstanding his
virulent attack on the establishment of the JCC and the Tribunal the
applicant did not contest the proceedings
before the JCC and its
decision to request the JSC to establish the Tribunal to inquire into
allegations of his gross misconduct.
Given his strident
constitutional attack, one also anticipated a claim for some relief
against the JCC process such as an order
reviewing and setting aside
its ensuing decision to request a Tribunal. None has been
forthcoming.
[79]
The participation
of the Minister is confined to consultation with a view to joint
decision-making; when he serves as a member of
the JSC by voting if
consensus is unattainable. Maximum consensus during the process is
vital for laying the foundation for the
National Assembly to endorse
the decision of the JSC. Such participation by the Minister is also
not inconsistent with the Constitution;
s 178(5) specifically allows
the Minister to remain in attendance in the JSC even when members of
the legislatures are excluded.
[80]
Ironically,
the applicant prefers the JSC Rules procedure. As the Supreme Court
of Appeal pointed out in its comparative analysis
the JSC Rules and
the JSC Act
are
‘substantively the same’ and that there is no is no
'fatal effect' on existing rights.’
[82]
Furthermore,
the
constitutional
principle in
Rule
1.2, which excludes all ten members of the legislatures serving on
the JSC from presiding in impeachment proceedings, is carried
forth
into the JSC Act.
[83]
Rule
2.5 entitled the JSC to appoint a subcommittee to deal
with complaints when the JSC was not in session. Likewise, the
JSC Act creates the JCC for a similar purpose but with added
safeguards for judicial independence. Whereas a subcommittee of the
JSC might include members of the executive, the JCC is composed of
six judges exclusively.
[84]
[81]
As
stated above constitutional interpretation is not only about parsing
the words. Both textual and contextual interpretations matter.
[85]
Contextually, the JSC Act reinforces dialogical constitutionalism. It
sets objective ground rules for engagement by the three actors
representing the three arms of government. A certain, predictable,
consistent, transparent and accountable process fortifies the
separation of powers and preserves the independence of the judiciary.
Without it, the JSC would have to first persuade the other
two arms
that it adopted a fair procedure in deciding to remove a judge and
therefore they should accept its decision to remove
the judge.
[82]
The dialogue is not
only amongst the three arms of government. When it performs its
functions and especially when it appoints and
removes judges, the JSC
exercises public power in the public interest. The public has an
interest in how the JSC executes its constitutional
mandate. The JSC
is not a self-serving closed-shop in which the profession protects
its own members. Left to determine its own
procedures the JSC will
have to do much more to satisfy the public interest than merely adopt
its own procedures outside of a parliamentary
process.
[83]
Promulgation
of the JSC Act would have allowed public participation in determining
the procedures to be adopted, more so than the
JSC Rules did.
Publication of rules and procedures for governing judges promotes
transparency and access to information and
justice for those who wish
to lodge complaints against a judge. The complainants can expect to
have their disputes resolved by
a Tribunal comprised of persons of
impeccable integrity and competence. Legislation embodying generally
objective and universally
accepted rules and practices rather than
internal JSC own rules is better suited for inculcating ‘public
confidence in the
institution of the judiciary as a whole.’
[86]
[84]
In
the circumstances I conclude that the JSC Act is not inconsistent
with the Constitution.
Costs
[85]
Both
sides asked me to follow
Biowatch
Trust v Registrar Genetic Resources and Others
and
to direct each party to pay its own costs.
[87]
Biowatch
set the following principle:
‘
The
primary consideration in constitutional litigation must be the way in
which a costs order would hinder or promote the advancement
of
constitutional justice.’
[88]
[86]
What does
‘constitutional justice’ mean in the context of the
judiciary and the facts of this case?
When
considering complaints about, and the possible removal from office of
judicial officers,
the
exhortation in the Preamble to the JSC Act is to balance effectively
and appropriately the
independence
and dignity of the judiciary and ‘the overriding principles of
openness, transparency and accountability that
permeate the
Constitution and that are equally applicable to judicial institutions
and officers.’ Additionally s 27(1) of
the JSC Act urges that
hearings
of the Tribunal be concluded without unreasonable delay, in the
interests of protecting and enhancing the dignity and effectiveness
of the judiciary and the courts.
[89]
Therefore
constitutional justice cannot be assessed from the linear
parochial
perspectives of
the litigants. Unambiguously in litigation in which the interests of
the public are at stake constitutional justice
must also embrace and
promote those interests.
[87]
The
applicant’s case is constructed entirely on the separation of
powers and the first part of the Preamble cited above, namely
the
independence of the judiciary. He omits to mention the dignity of the
judiciary and openness, transparency and accountability.
Not once has
the applicant said that he is committed to accounting for his conduct
that resulted in his conviction and sentence
for driving a motor
vehicle under the influence of alcohol. In his founding affidavit he
admits that he was involved in a motor
vehicle accident in which he
crashed into a person’s wall. He acknowledges that the
complaint against him to the JSC is that
he falsely denied that he
was driving under the influence of alcohol. But this is only a
fragment of the complaint. The complainant
wrote:
‘
I
expected the …JSC to have taken judicial notice of the
completely unacceptable conduct… it is the first time that
a
sitting judge is mentioned in a legal publication… as a
convicted accused. …this is sufficient reason why the learned
judge should no longer be a judge. Added to this are his public
protestations that he was not drunk, never recanted, and
the finding
of the trial court, confirmed on appeal, that this statement was
untrue, as well as his wholly unacceptable drunken
tirades.
’
(
sic
)
[88]
The
seriousness of the complaint, the conviction and sentence being
admitted facts, and the implications for the image and dignity
of the
judiciary, should leave the applicant in no doubt about his duty to
account for his conduct. Why has he not done so?
[89]
Not
once has he submitted that this application is his pursuit of
enforcing the rule of law or the principle of legality. In these
respects this application is distinguishable from
Nkabinde
[90]
In
that case the applicant judges emphasised their willingness to
testify before the JSC
but
they were ‘adament’ that ‘they were motivated by
their commitment to the rule of law, of which the principle
of
legality was an essential component.
’
On
appeal, those judges were absolved from the costs order imposed by
the full court below.
[90]
Turning
to the bases of his attack on the JSC Act,
Nkabinde
is
conclusive authority that the JSC Rules and the JSC Act are
substantively the same.
[91]
The Supreme Court of Appeal dismissed the appeal on 10 March 2016.
The Constitutional Court dismissed the appeal against the judgment
of
the Supreme Court of Appeal on 24 August 2016. The applicant launched
this application on 30 June 2016. Lead counsel for
the
applicant in this case is the same as in
Nkabinde
(SCA).
As a judge and litigant the applicant also had to be aware of the
evolution of
Nkabinde
to the Constitutional Court
.
Yet
the applicant’s heads of argument do not refer to it at all.
[91]
Only
in replying argument did Counsel for the applicant distinguish this
case from
Nkabinde
.
His distinction is on the secondary point decided in
Nkabinde
(SCA)
namely the validity of s 24 of the JSC Act relating to the
appointment of a member of the prosecution services to adduce
evidence
before the Tribunal. The primary point decided by the
Supreme Court of Appeal was the validity of the decisions of the JSC
to refer
complaints to the JCC and the Tribunal. What could possibly
have been the reason for this material non-disclosure?
[92]
In
Justice
Alliance
the
Constitutional Court reaffirmed well-known principles about the
separation of powers and constitutional interpretation. Not
only must
all actors protect and preserve
‘
the
precious institutional attribute of impartiality and the public
confidence’ implicit in
s
177 (1) and (2),
[92]
but they must also read the Constitution as a whole and interpret its
provisions in harmony with one another.
[93]
Although
the applicant relied on that case as authority for the first
principle he ignored the second principle about constitutional
interpretation.
Why
did he ignore the second principle?
[93]
Turning
to the JSC Act why did the applicant not seek a declaration of
invalidity of s 5 or even refer to it at all considering
his stance
that the Minister should not be involved in the procedures for the
JSC?
[94]
Aside
from the ethics of these material non-disclosures, the answers to
these questions are matters implicating the applicant’s
accountability in a similar way as his duty to account to the
Tribunal and ultimately the JSC for his criminal conduct.
[95]
In
my assessment the reason for the applicant avoiding
Nkabinde
is that he cannot get around the Supreme Court of Appeal’s
finding that the JSC Rules and the JSC Act are substantively the
same.
[94]
Although that Court
approached the comparison of the two instruments from a different
angle, the result is a principled finding
on a point of law. It
remains our law until the Constitutional Court has occasion to deal
with the question. Any hope of the Constitutional
Court rescuing the
situation for the applicant also fell away once it dismissed the
appeal. That being the law this application
had little
prospects of success from the outset. The applicant cannot rationally
contend that he is willing to submit to the application
of the JSC
Rules but not to the JSC Act when both instruments are substantively
the same. As my analysis of both instruments show
the provisions in
the JSC Act capture constitutional principles better than the JSC
Rules. Absent a factual predicate the applicant
cannot show that he
is actually worse off under the JSC Act than the JSC Rules. He does
not advance facts that show how practically
the Tribunal currently
composed of two senior judges and an attorney will prejudice him.
[96]
Regarding
Justice
Alliance
his
submission was that ‘the only plausible interpretation to be
given to the provisions of section 178(6) is that only the
JSC may
determine its own procedure and not Parliament’. This
submission was based on the separation of powers principle
at the
expense of the principle of harmonious constitutional interpretation.
As stated above it
conflicts
with s 178(4) in terms of which not only the Constitution but also
national legislation determines the powers and functions
of the JSC.
Furthermore, he ignored the text of s 5 of the JSC Act that
recognises ‘the procedure…which the Commission
has
determined in terms of section 178(6) of the Constitution.’ On
his interpretation s 178(6) cannot exist harmoniously
with other
provisions of the Constitution including ss 43, 165, 177, 178 and
180. By ignoring the unambiguous text of the Constitution,
several
references in the JSC Act to the Constitution, especially s 5 and the
principle of harmonious interpretation, what little
prospects of
success the applicant had after
Nkabinde
has evaporated.
[97]
My
analysis raises two questions that neither party has articulated:
(a)
Has
the applicant raised a genuine constitutional challenge?
Merely
labeling the litigation as constitutional and dragging in specious
references to sections of the Constitution would not absolve
the
applicant from an adverse cost order.
Biowatch
directs that the ‘issues must be genuine and substantive, and
truly raise constitutional considerations relevant to the
adjudication.’
[95]
(b)
Has
the conduct of the applicant been ‘
vexatious,
frivolous, professionally unbecoming or in any other similar way
abusive of the processes of the Court’
[96]
or ‘manifestly inappropriate’.
[97]
[98]
Biowatch
also directs that
‘
when
departing from the general rule [of not awarding costs in
constitutional matters
[98]
] a
court should set out reasons that are carefully articulated and
convincing. This would not only be of assistance to an appellate
court, but would also enable the party concerned and other potential
litigants to know exactly what had been done wrongly, and
what should
be avoided in the future.’
[99]
In
addition to my analysis and conclusions about the applicant’s
case, four factors inform my response to these two questions:
[99]
First:
The applicant has delayed launching this application. This
application is surprisingly sparse on facts. The incident giving
rise
to the complaint occurred on 6 January 2007. The applicant was
convicted about April 2007. The complaint to the JSC was made
only on
22 May 2011. The applicant has failed to disclose to the court why he
did not launch these proceedings then, or when he
appeared before the
JCC, or in February 2013 when the JSC informed him of establishing
the Tribunal, or eventually when he was
summoned to appear before the
Tribunal in June 2013. Neither side has taken the court into its
confidence to explain the reasons
for the Tribunal adjourning its
enquiry indefinitely.
[100]
Second:
The delay is unconscionable; as such it violates s 27(1) of the JSC
Act, impairs the dignity and effectiveness of the judiciary
and the
courts, and is against the public interest. The applicant has been on
special leave since 15 April 2007. There is no indication
on the
papers what conditions, if any, apply to his special leave. The
probabilities are that his leave is with full pay for
almost ten
years hence his disincentive to act expeditiously. After his
fifteenth year of service he would have qualified for his
tax-free
gratuity amounting to double his prevailing annual salary. After age
sixty-five years he could retire on pension with
the leave of the
Minister. Considering that the applicant has spent only five of his
sixteen years as a judge in active service,
these burdens on the
public purse cease to be safeguards against undue interference but
become a favour akin to one that the Constitutional
Court eschewed in
Justice
Alliance.
[101]
Third:
The applicant fails to account not only for his criminally proven
conduct but also his reasons for delaying this application.
Furthermore, the material omissions in his submissions call for an
explanation. He is no ordinary litigant. As a member of the
judiciary
he remains accountable for his acts and omissions.
[102]
Fourth:
The applicant’s conduct and his failure to account have
impaired the dignity of the judiciary. The perception if not
the
inference should be avoided that the judiciary protects its members
at the expense of the public interest and the public purse,
especially with the current cost-cutting constraints weighing on the
judiciary.
[103]
I
find that the applicant has not raised a genuine constitutional
dispute. This application, the grounds on which it is based, and
crucially his failure to account for his acts and omissions are
manifestly inappropriate. Not to award costs against the
applicant in these circumstances would be to devalue the essence of
constitutional justice and to ignore the Preamble and s 27(1)
of the
JSC Act.
It
would result in unfairly and unjustifiably preferring the applicant
at the expense of the public interest.
In
all the circumstances not to award costs against the applicant would
be unconscionable.
[104]
To
paraphrase the Constitutional Court in
Nkabinde:
In
conclusion, I would be failing in my duty if I did not take this
opportunity to emphasise that it is in the interests of justice
that
the matter of the complaint against the applicant should be dealt
with and concluded without any further delay. The events
that gave
rise to the complaint occurred in 2007. Nine years later, the matter
has not been finalised. It is in the interests of
justice that this
matter be brought to finality.
[100]
Order
[105]
The
application is dismissed, the applicant to pay the respondents’
costs.
D Pillay AJ
[1]
S 178(6) of the
JSC Act.
[2]
S 177(1)(a) of
the Constitution.
[3]
S 8(1)(c) of the
JSC Act.
[4]
S 23(1) of the
JSC Act.
[5]
Para
11 of the respondents’ Answering Affidavit; para 14 of the
applicant’s Replying Affidavit.
[6]
Paras
20-27 of the respondents’ Answering Affidavit.
[7]
Minister
of Home Affairs v NICRO
para
101.
[8]
Minister
of Home Affairs v NICRO
para
37.
[9]
Above
at 794B-D.
[10]
[zRPz]Investigating
Directorate: Serious Economic Offences & others v Hyundai Motor
Distributors (Pty) Ltd & others: In
Re Hyundai Motor
Distributors (Pty) Ltd & others v Smit NO & others
[2000] ZACC 12
;
2001
(1) SA 545
(CC) paras 22-24;
Van
Rooyen & others v The State & others (General Council of the
Bar Of South Africa Intervening)
2002 (5) SA 246
(CC) paras 87-88;
Justice
Alliance of South Africa v President of The Republic Of South Africa
& others
2011 (5) SA 388
(CC) paras 29-37, 72 and 75.
[11]
R C
Post&
R B Siegel "Popular Constitutionalism, Departmentalism, and
Judicial Supremacy" (2004). Faculty Scholarship
Series. Paper
178 1031.
http://digitalcommons.law.yale.edu/fss_papers/178
;
D W Tyler
‘Clarifying Departmentalism: How the Framers' Vision of
Judicial and Presidential Review Makes the Case for Deductive
Judicial Supremacy’ (2009) 50
William
& Mary Law Review
2215 ; D E Johnsen “Functional Departmentalism and
Nonjudicial Interpretation: Who Determines Constitutional Meaning?”
(year)
http://www.law.duke.edu/journals/lcp
.
(accessed15/12/2016).
[12]
Constitutional
Principle VI; P
W
Hogg & A A Bushell ‘The Charter Dialogue between Courts
and Legislatures (Or Perhaps the Charter of Rights Isn’t
Such
a Bad Thing after All)’ (1997) 35 .
Osgoode
Hall Law Journal
75 at 78; M C Dorf ‘Legal Indeterminacy and Institutional
Design’ (2003) 78
NYU
Law Review
875; Post & Siegel
at
;
B Friedman ‘The Importance of Being Positive: The Nature and
Function of Judicial Review’ (2004) 72
University
of Cincinnati Law Review
1257; C Bateup ‘The Dialogic Promise: Assessing the Normative
Potential of Theories of Constitutional Dialogue’ (2006)
71
Brooklyn
Law Review
http://brooklynworks.brooklaw.edu/blr/vol71/iss3/1
[13]
JFD
Brand ‘Courts, socio-economic rights and transformative
politics’ Stellenbosch University
http://scholar.sun.ac.za
.
[14]
Post
& Siegelat 1029.
[15]
Nkabinde
& another v Judicial Service Commission & others
2016
(4) SA 1
(SCA) para 5 citing
Therrien
(Re)
2001
SCC 35
(84 CRR (2d) 1) para 108.
[16]
[zRPz]South
African Association of Personal Injury Lawyers v Heath & others
[2000] ZACC 22
;
2001
(1) SA 883
(CC) para 26.
[17]
C
P Manfredi & J B Kelly ‘Six Degrees of Dialogue: A
Response to Hogg and Bushell’(1999) 37
Osgoode
Hall Law Journal
513 at 523.
[18]
Manfredi
& Kelly at 524.
[19]
Post
& Siegel at 1029.
[20]
Nkabinde
v Judicial Service Commission
para
5.
[21]
Compare
Gratton
v. Canadian Judicial Council
.
[22]
Compare
Gratton
v. Canadian Judicial Council
,
see also Provincial Court Judges Assn. (Manitoba) v Manitoba
(Minister of Justice) (1997) 46 CRR. (2d) 1 at 118 cited by E
Cameron in ‘Judicial Independence- a substantive component?’
[23]
Justice
Alliance of South Africa v President of The Republic of South Africa
para
75.
[24]
Justice
Alliance of South Africa v President of The Republic of South Africa
para
75.
[25]
Justice
Alliance of South Africa v President of The Republic of South Africa
para
72.
[26]
S 178(1)(k) of
the Constitution.
[27]
S 178(1)(a)-(c)
of the Constitution.
[28]
S
177(1)
of
the Constitution.
[29]
S
178(5) of the Constitution.
[30]
S
178(5)
of
the Constitution.
[31]
S
178(6) of the Constitution.
[32]
Susan
Sturm ‘Resolving The Remedial Dilemma: Strategies Of Judicial
Intervention In Prisons’ 138 U. Pa. L. Rev. 805
1989-1990; A
Normative Theory Of Public Law Remedies Susan P. Sturm Geo. L.J.
1355 1990-1991.
[33]
Justice
Alliance of South Africa v President of The Republic Of South Africa
para
37;
[zRPz]United
Democratic Movement v President of The Republic of South Africa &
others (African Christian Democratic Party
& others Intervening;
Institute For Democracy In South Africa & another As Amici
Curiae) (No 2)
[2002] ZACC 21
;
2003
(1) SA 495
(CC) para 12.
[34]
[zRPz]Executive
Council, Western Cape Legislature, & others v President of The
Republic of South Africa & others
[1995] ZACC 8
;
1995
(4) SA 877
(CC) para 62.
[35]
Justice
Alliance of South Africa v President of The Republic of South Africa
para
34.
[36]
See
for example in relation to the
expression
of the constitutional powers of the legislative authority in wide
terms
Executive
Council, Western Cape Legislature v President of The Republic of
South Africa
para
51.
[37]
Justice
Alliance of South Africa v President of The Republic of South Africa
para
37.
[38]
Proc
R 25,
GG
33254, 28 May 2010.
[39]
Nkabinde
v Judicial Service Commission
paras
49, 73-81.
[40]
Nkabinde
v Judicial Service Commission
paras
73.
[41]
Minister
of Defence and Military Veterans v Motau & others
2014 (8) BCLR 930
(CC) para 78;
Minister
of Justice and Constitutional Development & others v Southern
Africa Litigation Centre & others
2016
(3) SA 317
(SCA).
[42]
S
43 and 44 of the Constitution.
[43]
https://www.legislation.gov.au/Details/C2013Q00005
;
see also R Ananian-Welsh and G Williams ‘Judicial Independence
from the Executive’ (2014) ISBN:978-0-9941739-0-4
.
[44]
http://www.austlii.edu.au/au/legis/cth/num_act/jmaica2012596/
[45]
See
also M Gur-Arie and R Wheeler ‘Judicial Independence in the
United States: Current Issues and Relevant Background Information’
in ‘Guidance for Promoting Judicial Independence
andImpartiality 133-147
[46]
http://www.parliament.uk/about/mps-and-lords/principal/
downloaded
25/12/16)
[47]
s116(4)(a)
of the Constitutional Reform Act.
[48]
s117
of the Constitutional Reform Act.
[49]
S
5 of the JSC Act:
‘
The
Minister must by notice in the
Gazette
,
make known the particulars of the procedure, including subsequent
amendments, which the Commission has determined in terms of
section
178 (6) of the Constitution.’
[50]
S
14 (1).
[51]
S
10 of the JSC Act.
[52]
S
16(1)(a).
[53]
S
16(4)(b).
[54]
S
19(1).
[55]
S
19(4).
[56]
S
21(1) and (3).
[57]
S
22(1).
[58]
S
23(1).
[59]
S
24(1).
[60]
S
24(2).
[61]
S
25(1).
[62]
S
25(2).
[63]
S
26(1).
[64]
S
26(2).
[65]
S
26(3).
[66]
S
27(1).
[67]
S
28(1) and (2).
[68]
S
28(2).
[69]
S
28(3).
[70]
S
29(1).
[71]
S
29(3).
[72]
S
31(1).
[73]
S
34.
[74]
S
32.
[75]
S
33.
[76]
S
20(1)(a) and (b) .
[77]
S
20(3).
[78]
S
20(4).
[79]
S
20(5).
[80]
Van
Rooyen v The State
para
37.
[81]
Para
38 of Founding Affidavit.
[82]
Nkabinde
v Judicial Service Commission
paras
84.
[83]
Nkabinde
v Judicial Service Commission
paras
73.
[84]
S
8 of the JSC Act.
[85]
Justice
Alliance of South Africa v President of The Republic of South Africa
paras
44 and 57.
[86]
Justice
Alliance of South Africa v President of The Republic of South Africa
para
73;
Gratton
v. Canadian Judicial Council
at
37-38.
[87]
(CCT
80/08)
[2009] ZACC 14
;
2009 (6) SA 232
(CC);
2009 (10) BCLR 1014
(CC) (3 June 2009).
[88]
Biowatch
para
16.
[89]
S
27(1).
[90]
Nkabinde
para
51.
[91]
Nkabinde
para
70-83.
[92]
Justice
Alliance Of South Africa v President Of The Republic Of South Africa
And Others
2011
(5) Sa 388
(CC) para 75.
[93]
Justice
Alliance Of South Africa V President Of The Republic Of South Africa
And Others
2011
(5) Sa 388
(CC) para 37;
[zRPz]United
Democratic Movement V President Of The Republic Of South Africa And
Others (African Christian Democratic Party And
Others
Intervening;
Institute For Democracy In South Africa And Another
As Amici Curiae) (No 2)
[2002] ZACC 21
;
2003
(1) SA 495
(CC) para 12.
[94]
Nkabinde
para
70-83.
[95]
Biowatch
para
25.
[96]
Biowatch
para
18.
[97]
Biowatch
para
24.
[98]
Affordable
Medicines Trust and Others v Minister of Health and Another
[2005]
ZACC 3
;
2005 (6) BCLR 529
(CC);
2006 (3) SA 247
(CC) at para 139
cited in
Biowatch
para
18.
[99]
Biowatch
para
25.
[100]
Nkabinde
and Another v Judicial Service Commission and Others
[2016]
ZACC 25