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[2012] ZAGPPHC 196
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Motata v Minister of Justice and Constitutional Development and Others (66300/11) [2012] ZAGPPHC 196 (7 September 2012)
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
CASE
NO:66300/11
DATE
HEARD: 15 August 2012
DATE
DELIVERED: 7 September 2012
In
the matter between
NKOLA
JOHN
MOTATA
..........................................................................
Applicant
and
THE
MINISTER OF JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT
...................................................
First
Respondent
THE
JUDICIAL SERVICE
COMMISSION
….......................................
Second
Respondent
AFRIFORUM
….....................................................................................
Third Respondent
ADVOCATE
G C PRETORIUS
SC
......................................................
Fourth
Respondent
JUDGMENT
NEPGEN
J
[1]
The applicant is a judge of the High Court of South Africa, based in
the North Gauteng High Court Division, Pretoria. First
respondent is
the Minister of Justice and Constitutional Development of the
Republic of South Africa. Second respondent is the
Judicial Service
Commission, established in terms of Section 178 of the Constitution
of the Republic of South Africa, 1996. Third
respondent is Afriforum,
an incorporated association (according to its letterhead in the
papers before me). Fourth respondent is
an advocate of the High Court
of South Africa.
[2]
On 5 January 2007 the applicant was involved in a motor vehicle
accident in Gleneagles Road, Hurlingham. Subsequently the applicant
was arrested and charged with a number of offences. He thereafter
appeared in Court and was eventually convicted of driving under
the
influence of liquor. An appeal against this conviction was
unsuccessful.
[3]
On 7 July 2008, while the criminal trial was in progress, third
respondent lodged a complaint with second respondent against
the
applicant. The complaint related to remarks allegedly made by the
applicant on 5 January 2007 after the accident occurred.
These
remarks, so third respondent contended, constituted gross misconduct
on the part of the applicant. Whether or not there is
any merit in
the complaint lodged against the applicant is something that I do not
have to consider for purposes of this judgment.
[4]
While the criminal trial was in progress the applicant was granted
special leave of absence pending the finalization of the
criminal
matter. Such finalization came about on 9 September 2009. On 10
September 2009 the Deputy Judge President of the North
Gauteng High
Court addressed a letter to first respondent recommending that
special leave of absence be granted to the applicant
pending the
finalization of the complaint against him by third respondent. I can
mention at this stage that there were other complaints,
including one
by fourth respondent (which is the reason for him having being joined
herein), but for purposes of this matter it
is unnecessary to discuss
them further. On 10 September 2009 first respondent responded to the
aforesaid recommendation by granting
the applicant special leave
"pending the consideration and finalization of the complaints
against him which are currently
before the Judicial Service
Commission".
[5]
On 14 April 2011 the Judicial Conduct Committee of second respondent
wrote a letter to the applicant advising him that the Chairperson
of
the Judicial Conduct Committee had referred the complaints against
him to the Judicial Conduct Committee to consider whether
it should
recommend to second respondent that the complaints should be
investigated and reported on by a Judicial Conduct Tribunal.
It was
stated that a sitting to consider whether or not such recommendation
should be made would take place on 14 May 2011. The
applicant
attended the meeting on that date. The applicant avers that at the
meeting the committee decided that the complaint against
him by third
respondent, if established, prima facie indicated gross misconduct on
his part. In any event, on 17 May 2011 the Judicial
Conduct Committee
addressed a letter to the applicant's legal representatives informing
them that a recommendation had been made
to second respondent that
the complaint lodged against the applicant by third respondent should
be investigated by a Judicial Conduct
Tribunal. A further letter
dated 28 June 2011 was addressed to the applicant in which he was
informed that second respondent had
decided to request the Chief
Justice to appoint a Tribunal to investigate and report on the
complaint. The possible suspension
of the applicant was also raised
in this letter, but this is something which has not occurred and
requires no further consideration.
At present a Tribunal has not yet
been appointed by the Chief Justice.
[6]
On 4 October 2011 the applicant's legal representatives wrote to the
Judicial Conduct Committee requesting the Code of Judicial
Conduct on
which the alleged gross misconduct charge against the applicant would
be based. This letter was replied to on 4 October
2011. In that
letter the applicant's legal representatives were informed that the
Code of Judicial Conduct was still awaiting approval
by Parliament.
This resulted in the applicant's legal representatives addressing a
letter to second respondent in which it was
contended that as
Parliament had not approved a Code of Judicial Conduct there was no
basis upon which the applicant could be charged
with misconduct and
that they therefore demanded that second respondent should "stop
the process" in connection with
the complaints of misconduct and
allow the applicant to resume his duties immediately. Second
respondent responded that it was
satisfied that it was empowered to
institute proceedings against judges, and therefore the applicant,
for misconduct.
[7]
It was thereafter that the present application was launched. In the
Notice of Motion the following relief is sought:
"1.
That the decision taken by the second respondent on 25 June 2011 that
the Chief Justice must appoint a Judicial Conduct
Tribunal to
investigate a complaint by the third respondent against the applicant
be declared unconstitutional and unlawful;
2.
That the second respondent be ordered and directed to stop the said
misconduct investigations or enquiry against the applicant;
3.
That the decision of the first respondent dated 10 September 2009
granting the applicant special leave be declared unconstitutional
and
unlawful;
4.
That the first and second respondents be directed and ordered to
allow the applicant to resume his judicial work as a Judge forthwith;
5.
That any respondent who opposes this application be ordered to pay
the costs on a scale as between attorney and own client."
The
application is opposed by first respondent, second respondent and
third respondent.
[8]
Despite the wording of paragraph 3 of the Notice of Motion, it was
made clear to me at the outset of argument that it was not
contended
on behalf of the applicant that first respondent did not have the
power to grant special leave to a judge. The applicant's
contention
in regard to the granting of special leave, so I was informed, was
that as the continued investigation of the complaint
against the
applicant was unlawful, the special leave granted pending the
consideration and finalization of such complaint was
impermissible as
it had the effect of preventing the applicant from pursuing his
occupation as a judge. This amounted to a violation
of the
applicant's right to pursue his occupation in terms of section 22 of
the Constitution. On this basis, so it was contended,
first
respondent was acting unlawfully and unconstitutionally.
[9]
The applicant's concession regarding the power of first respondent to
place a judge on special leave was, in my view, correctly
made.
Section 13
of the
Judges' Remuneration and Conditions of Employment
Act, No. 47 of 2001
, provides for regulations to be made, inter alia,
in respect of the periods for which and the circumstances under which
and conditions
upon which leave of absence may be granted to a judge.
Regulation 5
of the regulations promulgated in terms of this section
provides as follows:
"Special
Leave
5.
If in exceptional circumstances the Minister is satisfied that leave
for which no provision has been made in these regulations
should be
granted in a specific case, he or she may, on the recommendations of
the Chief Justice, the President of the Supreme
Court of Appeal or
the Judge President concerned, grant such leave on such conditions as
he or she may deem necessary, whether
it be leave with full
remuneration."
The
special leave granted to the applicant was granted in terms of the
aforesaid
regulation 5.
[10]
A decision on the relief sought by the applicant in relation to him
being placed on special leave is accordingly dependent
upon the
outcome of the relief sought by him in paragraphs 1 and 2 of the
Notice of Motion. I shall endeavor to summarize as briefly
as
possible the applicant's contentions in this regard.
[11]
I was referred to section 12 of the Judicial Service Commission Act,
No. 9 of 1994 (the JSC Act), which provides that the Chief
Justice,
acting in consultation with the Minister, must compile a Code of
Judicial Conduct which the Minister must table in Parliament
for
approval. It was pointed out that section 12 (5) of the JSC Act
provides that the Code of Judicial Conduct serves as the prevailing
standard of judicial conduct, which judges must adhere to. The Code
of Judicial Conduct has not yet been approved by Parliament.
It was
submitted that in the absence of an approved Code of Judicial
Conduct, which is required to stipulate and define what is
meant by
"gross misconduct", no enquiry may be conducted by a
Judicial Conduct Tribunal as provided for in Section 26
of the JSC
Act. Thus, so it was argued, to consider a complaint against the
applicant in respect of an "offence" which
has not been
created is unconstitutional as it is against the principle of
legality.
[12]
Although this was not raised in the papers, it was further contended
that those provisions of the JSC Act which provide for
the
formulation of a Code of Judicial Conduct and a process to
investigate complaints were only introduced by
Section 9
of the
Judicial Service Commission Amendment Act, No. 20 of 2008
and came
into operation on 1 June 2010. It was argued that such provisions
thereforedo not apply to the applicant as this would
amount to a
breach of the presumption that statutes are not meant to operate
retrospectively.
[13]
The preamble to the JSC Act, which was introduced by Section 9 of Act
20 of 2008, specifically refers to the provisions of
Section 177 (1)
of the Constitution. Section 177 of the Constitution provides as
follows:
"177.
Removal.-
(1)
a Judge may be removed from office only if-
a)
the Judicial Service Commission finds that the judge suffers from an
incapacity, is grossly incompetent or is guilty of gross
misconduct;
and
b)
the National Assembly calls for that judge to be removed, by a
resolution adopted with a supporting vote of at least two thirds
of
its members.
(2)
the President must remove a judge from office upon adoption of a
resolution calling for that judge to be removed.
(3)
the President, on the advice of the Judicial Service Commission, may
suspend a judge who is the subject of a procedure in terms
of
subsection (1)."
[14]
It will be noted from the aforegoing that with the adoption of the
Constitution, long before 1 June 2010, there was provision
for "a
procedure" in terms of Section 177 (1).
That
procedure, applied to the facts of the present matter, would involve
a finding whether or not the applicant is guilty of gross
misconduct,
and if so, whether the National Assembly thereafter calls for the
removal of the applicant by a resolution adopted
with a supporting
vote of at least two thirds of its members. That this is so appears
clear from what was said in Lanpa CJ and
others vs Hlophe,
2009 (4)
SA 382
(SCA) at 389 AB, para [23];
"The
JSC is under the Constitution the forum for deciding whether or not a
judge is guilty of gross misconduct. Such a conclusion
presupposes a
finding that the judge committed the conduct complained of, which may
involve factual or legal findings. The JSC
may find that the
complaint is without merit and summarily dismiss it. If it has merit,
two value judgments follow: did the conduct
amount to misconduct and,
if so, was it gross? If it finds that the judge was guilty of
misconduct which was not "gross"
that ends the matter. If
however, it finds that the misconduct was gross, impeachment
proceedings follow."
It
is clear from the aforesaid dictum that, in determining whether or
not any conduct of a judge amounts to gross misconduct, second
respondent exercises a value judgment. In my view it is obvious that
it was both empowered and obliged to make such a determination
long
before 1 June 2010. Any doubt there may be in this regard is removed
by the express statement that this is one of the "powers
and
functions" assigned to second respondent by the Constitution,
see Acting Chairperson: Judicial Service Commission and
Others vs
Premier of the Western Cape,
2011 (3) SA 538
(SCA) at 541 G, para
[7].
[15]
The essence of the argument advanced on behalf of the applicant is
that because there is no Code of Judicial Conduct no guidelines
exist
upon which to measure whether any conduct of a judge constitutes
gross misconduct or not; and as neither the Constitution
nor the JSC
Act provide any definition of gross misconduct no offences have been
created with which a judge can be charged. If
this argument is to be
upheld it would mean that second respondent does not yet have and has
never had the power to consider any
complaints in connection with the
conduct of judges. It will only have such power once the Code of
Judicial Conduct has been adopted.
In my view, as discussed more
fully in para [14], supra, this contention is so contrary to the
express provisions of Section 177
(1) of the Constitution that it
cannot be upheld. If it was to be upheld it would mean that no judge
can ever be found guilty of
misconduct until a Code of Judicial
Conduct exists. Clearly any conduct of a judge committed before the
coming into operation of
the Code of Judicial Conduct cannot be
measured against what is provided for in such Code of Judicial
Conduct in order to determine
whether such conduct amounted to
misconduct as this would be manifestly unfair. Applying the
aforegoing to the facts of the present
matter, the fact that the
conduct complained of preceded the adoption of a Code of Judicial
Conduct means, of necessity, that such
conduct cannot be judged
against a standard that did not exist at the time. The position is,
therefore, that second respondent
must consider the complaint against
the applicant by exercising a value judgment as referred to above.
[16]
It is apparent from the papers that second respondent has decided to
deal with the complaint against the applicant in terms
of the
procedures provided for in the JSC Act. Such procedures were only
established by Act No. 20 of 2008. The applicant does
not complain,
in this application, about the fact that the complaint is being dealt
with in terms of these procedures. Accordingly,
this aspect need not
be considered for present purposes. I would mention, however, that I
agree with the submission made by counsel
for second respondent that
second respondent may either proceed with its investigation into the
applicant's conduct in terms of
Part III of the JSC Act by way of an
enquiry conducted by a Judicial Conduct Tribunal, or it may conduct
such enquiry in accordance
with such procedures as it may decide upon
as provided for in Section 178 (6) of the Constitution.
[17]
Having regard to the aforegoing, it is clear that the application
cannot succeed. None of the respondents sought an order for
costs
against the applicant in the event of the application failing.
[18]
The application is dismissed.
J
J NEPGEN
JUDGE
OF THE HIGH COURT
Appearance:
On
behalf of the applicant:
Adv
B R Tokota SC, Adv D T Skosana, Adv Z Z Matebese
On
behalf of the respondents:
1st
Respondent: Adv L M Montsho SC, Adv S M Malatji, Adv T M Masevhe
2nd
Respondent: Adv I Jamie SC 3rd Respondent: Adv Q Pelser SC