About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2009
>>
[2009] ZAGPJHC 19
|

|

Hlophe v Judicial Service Commission and Others (19006/09) [2009] ZAGPJHC 19; [2009] 4 All SA 67 (GSJ) (1 June 2009)

IN THE HIGH COURT OF SOUTH AFRICA
SOUTH GAUTENG, JOHANNESBURG
CASE NO:19006/09
REPORTABLE
In the matter between:
MANDLAKAYISE JOHN
HLOPHE
............................................................
Applicant
and
THE JUDICIAL SERVICE COMMISSION AND OTHERS
…
.................
Respondents
____________________________________________________________
JUDGMENT
____________________________________________________________
WILLIS J:
[1]
The applicant who is and at all times material hereto has been the
Judge President of the Western Cape High Court, Cape Town
1
seeks an order “declaring the
entire proceedings of the Judicial Service Commission commencing on 5
July 2008 are unlawful and
therefore void
ab
initio
.” He seeks
this order in both a final and interim form, the interim interdict to
await the Judicial Service Commission showing
good cause why such an
order should not be made. In addition, and in the alternative, the
applicant seeks an interim interdict
staying the aforesaid
proceedings pending the final determination of the applicant’s
application to the Constitutional Court
to appeal to that court
against the judgment of the Supreme Court of Appeal (“the SCA”)
in the case of
Langa
and Others v Hlophe
2
delivered on 31 March, 2009.
[2]
The first respondent is the Judicial Service Commission. For the sake
of convenience, the first respondent shall hereinafter
be referred as
“the JSC”. The second respondent is the former Minister of
Justice and Constitutional Development, Mr Enver
Surty. The remaining
respondents are the justices and acting justices of the
Constitutional Court who, on 30
th
May 2008, lodged a complaint with the
JSC which alleged that the applicant had, in March 2008, approached a
judge then acting in
the Constitutional Court, Jafta JA
3
and later, in April 2008,
Constitutional Court judge Nkabinde J in chambers in an improper
attempt to influence the Constitutional
Court's pending judgment in
certain cases involving,
inter
alia
, the
investigation of alleged offences against the person who is now the
President of the Republic of South Africa, Mr Jacob Zuma.
The
aforesaid judges of the Constitutional Court also issued a “media
statement” relating to the complaint lodged with the
JSC. The
applicant lodged with the JSC a counter-complaint against the judges
on 10 June 2008. The essence of his complaint was
that the issuing of
the media statement violated certain of his rights. On 5 July 2008,
the JSC ruled, after hearing argument from
both sides, that there was
a
prima facie
case
(in respect of both complaints) which required resolution by oral
evidence. The ambit of the dispute in the complaint by the
justices
of the Constitutional Court (hereinafter, for the sake of
convenience, referred to as “the Judges”) against the applicant

is narrow. It is common cause that discussions took place between the
applicant and Jafta JA and later between the applicant and
Nkabinde J
in the chambers of the Constitutional Court concerning the cases in
question. The applicant’s stance is that these
discussions, far
from constituting an improper attempt to influence the court were
entirely innocuous – they were the kind of
discussions that
routinely take place among judges in chambers.
[3]
On 23 July 2008 the applicant launched an application in the High
Court based,
inter
alia
, on the
alleged unconstitutionality of the conduct of the Judges in relation
to the complaint lodged with the JSC and the media
statement that
followed it. He simultaneously sought an interdict against the JSC
from proceeding. At that stage, it was anticipated
that the hearing
of the complaint and the counter-complaint would be heard by the JSC
in August 2008. A majority of the High Court
found that there had
been a limited violation of certain of the applicant's rights. The
matter went on appeal to the SCA. A bench
of nine judges unanimously
reversed the findings of the High Court. The judgment in that matter
is the case referred to above,
Langa
and Others v Hlophe
.
4
[4]
In their respective judgments both the High Court and the SCA
considered it in the public interest that the investigation by
the
JSC into the respective complaints by the applicant and the Judges
should proceed. The decision of the High Court is now reported
as
Hlophe v
Constitutional Court of South Africa and Others
5
Mojapelo DJP, on behalf of the
majority, observed at para [103]:
I also do not share
the applicant's view that a declaratory order in his favour may
have the effect of vitiating or tainting
the process before the JSC
with illegality. The process before the JSC, particularly the
complaint against the applicant, remains
totally uncontaminated and
will be determined on a different basis from the issues decided in
this judgment.
It is in fact in the interest of public policy,
justice and the Judiciary as a whole that the complaint be fully
investigated
by the JSC. Nothing in this judgment and the
proceedings before this Court prevents that and nothing should be
construed as
preventing that from happening
.” (emphasis
added)
[5] The hearings before
the JSC into the complaint and counter-complaint were scheduled to
begin on 1 April 2009. On 27 March 2009,
new attorneys acting for the
applicant wrote a letter to the JSC informing it,
inter
alia
, that he may
seek an interdict against the JSC should it persist in holding the
scheduled hearings. In the letter, it is alleged
on the applicant's
behalf that the JSC is biased against him,
inter
alia
, by reason of
the areas of enquiry that the JSC had indicated would be the subject
of investigation in a letter to all parties
dated 17 February 2009.
Prior to receipt of the letter of 27 March 2009, the applicant had
not made any complaint concerning the
conduct of the JSC.
[6] The applicant did not,
however, proceed with any interdict between 27 March and 1 April
2009. On 1 April 2009, however, his
counsel sought and obtained a
postponement of the hearing until 4 April 2009 on account of the
applicant's ill-health. At the hearing
before the JSC on 1 April,
counsel for the applicant was put on terms to indicate what his
attitude was to the allegations of bias
against the JSC. The JSC
postponed the hearing until Saturday, 4 April 2009. On that day the
applicant was represented by a new
senior counsel, Mr Brian Pincus
SC. It appears from the record of the proceedings before the JSC that
a postponement was sought
(on notice of motion and supporting
affidavit) on the basis that Mr Pincus SC had very recently been
brought into the matter and
had insufficient time to prepare. Once
again, the question of bias levelled against the JSC was raised. Mr
Pincus SC took the attitude
that he was not in a position to give his
view on the matter and stated that he would not seek the recusal of
any members of the
JSC unless he was personally satisfied that such
was justified. The JSC postponed the hearing until Tuesday 7 April
2009. At that
hearing, Mr Pincus SC was no longer instructed by the
applicant. Counsel for the applicant sought a further postponement of
the
hearing. He did so on the grounds of the applicant's ill-health.
The application was not supported by an affidavit that the applicant

continued to be in ill-health. Reliance was placed on a “doctor’s
note” or medical certificate by a certain Dr Waynik dated
3 April,
2009 which was vaguely cast as to the expected duration of the
applicant’s indisposition but which, nevertheless, indicated
that
he might be well enough by 7 April, 2009. The application for
postponement was refused by a majority of the members of the
JSC.
Counsel for the applicant withdrew from the hearing and the matter
proceeded in his absence. The evidence of the Chief Justice,
the
Deputy Chief Justice, Mokgoro J, O'Regan J, Nkabinde J and Jafta AJ,
all of whom were either justices or acting justices of
the
Constitutional Court at the relevant time, was heard on 7 and 8 April
2009. Counsel for the applicant made it clear that the
applicant
regarded the JSC as biased against him.
[7] At the conclusion of
the proceedings, the Chairperson of the JSC, the President of the
SCA, Lex Mpati (“Mpati P”), stated
that it had been decided that
the record of the proceedings would be prepared and furnished to the
applicant who would be invited
to make submissions thereon and,
depending upon his attitude, a date would then be arranged for
argument. The applicant was furnished
with a copy of the record of
proceedings of the JSC on 24 April 2009. In a letter dated 24 April
2009, the JSC requested him to
indicate by no later than 8 May 2009
whether he intended to take advantage of the invitation to make
submissions or to testify
before the JSC. The applicant has not done
so.
[8] In the present
application before this court, the applicant relies on the following:
(i) The JSC
wrongfully and unfairly refused the application for a further
postponement on 7 April, 2009;
(ii) The procedures which the JSC adopted the hearing
that followed, particularly in regard to the hearing of evidence
were wrongful
and unfair;
(iii) Before deciding
on 5 July, 2008 that a hearing into the complaints was warranted,
the JSC wrongfully and in breach of Rule
3 of its own rules, had
failed properly to establish whether their was a
prima
facie
case to
justify such a hearing;
(iv) The JSC wrongfully failed, in breach of Rule 4 of
its own rules, properly to conduct a preliminary investigation;
(v) The JSC was, by reason of the absence of the second
respondent at the hearing, or an alternate designated by him,
improperly
constituted;
(vi) The applicant was not given a proper “charge
sheet” setting out with appropriate particularity the allegations
of gross
misconduct against him;
(vii) The applicant was not given sufficient notice of
the enquiry and had insufficient time to prepare his defence;
(viii) The applicant was not given an opportunity to
plead to the allegations against him;
(ix) The JSC acted as “prosecutor and judge” in the
same matter;
(x) Nowhere in either the Constitution or the
Judicial
Service Commission Act, No. 9 of 1994
, is “gross misconduct” of
a judge defined and, accordingly, no one has a clear sense of what
had to be proved against a judge
in regard to any “gross
misconduct” or any sense of the conduct from which a judge must
refrain from doing;
(xi) The JSC took into
account irrelevant political factors (a change in government and
possible new appointments to the JSC)
in deciding to proceed with
the hearing on 7 April, 2009 (it has been alleged,
inter
alia
, that a
member of the JSC, Mr George Bizos SC, referred to possible
“shenanigans” on the part of the new government);
(xii) The JSC is biased against him and related to
that, Mpati P, ought to have recused himself;
(xiii) The
Constitutional Court has not made any decision in regard to the
applicant’s application to it to appeal against the
decision of
the SCA in the case of
Langa
and Others v Hlophe,
6
which decision may have a bearing on
the proceedings in the JSC.
[9] Mpati P, in the affidavit filed on behalf of the JSC
in the application now before the court has protested that the
application
is premature. Counsel for the respondents have taken a
similar stance. They have argued that the applicant must first
exhaust his
internal remedies before seeking any review of the
proceedings before the JSC. For reasons which will be developed
later, I agree
with this view and would have directed the applicant
accordingly. Accordingly, I must act with circumspection in dealing
with the
grounds upon which the applicant relies. The reason for
circumspection is not timidity but propriety. The applicant may, once
the
proceedings in the JSC have been finalised, seek to review the
final decision of the JSC and may seek to rely on some or all of
the
grounds listed in paragraph [8] above. Neither the JSC nor any court
which may subsequently be seized with the matter should
be either
influenced or embarrassed by this court’s judgment.
[10]
There are, however, a few aspects which must be briefly touched upon.
Opinions may differ among reasonable men and women as
to whether the
JSC fairly refused the applicant a postponement and proceeded as it
did. Mr
Maleka
,
who appears for the JSC, accepts that this may be so. The divergence
of opinion among reasonable persons on this issue is obvious
from the
fact that some members of the JSC, albeit a minority, were of the
view that a postponement should have been granted. The
fact that
reasonable persons may consider it unfair to refuse the postponement
and to proceed is underlined by the fact that the
majority of this
court clearly have strong opinions on the issue. I consider it
unnecessary and undesirable to express a view on
the matter in this
application.
7
It should be noted, however, that a
complex matrix of factors, rather than a single issue, seems to have
influenced the decisions
of the JSC in this regard. In any event, in
my opinion the position has been mitigated to a considerable extent
by reason of the
fact that the JSC, during the hearing before this
court, made a “with prejudice” offer as follows:
(i) The JSC will
start proceedings afresh on the basis that the applicant is invited
unconditionally to participate therein;
(ii) The applicant will have the right to cross-examine
any of the witnesses who have testified before the JSC;
(iii) The applicant will have the right to testify and
lead such evidence as he may decide upon;
(iv) The applicant may make such submissions as he may
choose to make.
The JSC, in other words,
is willing to make substantial redress to the applicant on the
question of the postponement. Insofar as
the allegations of bias are
concerned, these have been expressly denied by Mpati P and Mr George
Bizos SC, a senior member of the
JSC and the legal profession as a
whole. Moreover, they have both denied the allegations relating to
taking into account irrelevant
political considerations and have
expressly denied that Mr Bizos used the
ipsissimum
verbum
,
“shenanigans”. The second respondent, the former Minister of
Justice, Mr Enver Surty, has also, to the extent that he has
been
accused of bias, expressly denied any such bias. As these are motion
proceedings and there is nothing inherently implausible
in the JSC’s
and the second respondent, Mr Surty’s version, this court cannot go
behind what the respondents have said.
Insofar
as the disputes of fact are concerned, the time-honoured rules set
out in
Stellenbosch Farmers’ Winery Ltd v
Stellenvale Winery (Pty) Ltd
8
and as qualified in
Plascon-Evans
Paints (Pty) Ltd v Van Riebeeck Paints (Pty) Ltd
9
are to be followed.
These are that
where an applicant in motion proceedings seeks final relief, and
there is no referral to oral evidence, it is the
facts as stated by
the respondents together with the admitted or undenied facts in the
applicant’s founding affidavit which provide
the factual basis for
the determination, unless the dispute is not real or genuine or the
denials in the respondents’ version
are bald or uncreditworthy, or
the respondents’ version raises such obviously fictitious disputes
of fact, or is palpably implausible,
or far-fetched or so clearly
untenable that the court is justified in rejecting that version on
the basis that it obviously stands
to be rejected. These rules have
been re-affirmed in innumerable cases and, recently, in the case of
National Director of Public Prosecutions v Zuma
.
10
At times it has been unclear whether the applicant is
seeking final or merely interim relief in making application for the
proceedings
before the JSC to be declared void
ab
initio.
Even if the applicant may be regarded
as seeking merely interim relief, the disputes of fact are too deep
to come to the assistance
of the applicant at this stage. See,
Simon
NO v Air Operations of Europe AB and Others.
11
Furthermore, cases such as
Cape
Tex Engineering Works (Pty) Ltd v SAB Lines (Pty) Ltd
;
12
SAB Lines (Pty) Ltd v Cape Tex Engineering Works
(Pty) Ltd
;
13
BHT Water Treatment (Pty) Ltd v Leslie and Another
;
14
Shoprite Checkers Ltd v Pangbourne Properties (Pty)
Ltd
15
and
Knox D'Arcy Ltd and Others v
Jamieson and Others
16
make it clear that courts must be alive to the fact that
applications which are cast in the form of seeking interim relief
may,
in fact, result in the order being final in effect, if it is so
granted.
Finally, in regard to the aspects in the
applicant’s case which need to be touched upon, there is the
question of the absence
of the second respondent, former Minister of
Justice, Mr Enver Surty, or an alternate designated by him, at the
proceedings of
the JSC in April of this year. This aspect must be
dealt with by reason of the fact that Mr
Ngalwana
,
who appeared for the applicant, submitted, in effect, that this
delivered a “knock-out blow” to the JSC which made any further

deliberations of the JSC concerning this matter superfluous,
regardless of what may transpire in terms of exhausting or attempting

to exhaust internal remedies. In other words, “All the king’s
horses and all the king’s men could not put Humpty (Dumpty)

together again”.
17
[11] It is
common cause that the second respondent attempted to mediate a
settlement between the applicant and the other parties
in this
application. For this reason, according to the affidavit which the
second respondent has filed in this matter, he considered
it
appropriate that he should recuse himself from the hearing in April,
2009. It is common cause that he did not seek the approval
of the
applicant before recusing himself, that he did not attend the hearing
in April, 2009 and that he did not designate an alternate.
Section
178 (1) (d) of the Constitution provides that he, as the Cabinet
member responsible for the administration of justice at
the time, or
an alternate designated by him, would have been a member of the JSC.
Section 178 (5) provides that when the JSC considers
any matter
except the appointment of a judge “it must sit without the members
designated in terms of subsection (1) (h) and (i)”
(the members
designated by the National Assembly and the National Council of
Provinces). Accordingly, so the argument went, it
is obligatory for
the Minister or his designated alternate to be present at the
hearing: if he is not, the proceedings are a nullity.
In this regard,
the applicant relied on the following cases:
Schierhout
v Union Government
;
18
R v Silber
;
19
R v Price
;
20
;
Schoultz v Voorsitter, Personeel-Advieskomitee
van die Munisipale Raad van George en ’n Ander
21
and
Ras Behari Lal and Others v
The King Emperor
.
22
Counsel for every one of the respondents submitted that
the applicant had misinterpreted the relevant subsections of the
Constitution
and has misconstrued the law. Interesting submissions
indeed were made in this regard but, for the purposes of the present
application,
there is only one argument that needs to be considered.
It is that since the case of
Oudekraal Estates
(Pty) Ltd v City of Cape Town and Others
,
23
it has been clear that the modern approach in South
Africa, when it comes to determining fairness in administrative
matters, is
not to adopt a mechanical, “checklist” approach but
rather to take a
holistic view of each matter
and, in the light of the overall determination of fairness, then to
make an appropriate order. It is
instructive, in this regard, also to
read the case of
Millennium Waste Management
(Pty) Ltd v Chairperson Tender Board : Limpopo Province and Others.
24
At this stage, one has no idea at all as to what
prejudice, if any, anyone suffered as a result of the Minister’s
absence. According
to the respondents, the applicant is free,
however, to raise his difficulties on this issue with the JSC and the
JSC may attempt
to address them. At this stage, one cannot determine
with certainty what another court which may be called upon to review
the proceedings
of the JSC, once they have been finalized, may decide
in regard to the absence of the Minister or his designated alternate.
Accordingly,
it would be inappropriate for this court to intervene at
this stage.
[12] It
should be noted,
en passant
,
that insofar as the question of the Constitutional Court being called
upon to decide how it should deal with the applicant’s
application
for leave to appeal in the matter of
Langa
and Others v Hlophe
25
is concerned, it is common cause that
the Constitutional Court has, since the service of the application
before this court, set
in motion steps to consider what it should do.
It appears the result will soon be known. That aspect therefore falls
away. As the
parties have agreed that no order as to costs should be
made in this matter, the issue does not even impact on the question
of
costs. Besides, the passage referred to in paragraph [4] above
from the judgment of Mojapelo DJP, which the applicant wishes to
have
reinstated on a further appeal to the Constitutional Court, makes it
plain that Mojapelo DJP was of the view that the hearing
should
proceed. This means that, taking into account the fact that the SCA
bench hearing the appeal consisted of nine judges, 12
judges share
the same position. In view of the controversy which has clouded the
saga of the complaints of the applicant and the
Judges against each
other, it seems fair to observe that a remarkable consensus exists on
the issue of the hearing proceeding.
[13]
The issue of the prematurity of this application will now be
considered in more detail. It is clear that applications for the

review of administrative decisions must be brought in terms of the
Promotion of Administrative Justice Act 3 of 2000
. This Act is widely
known among lawyers as “PAJA”. See, in regard to the question of
review applications needing to by brought
in terms of PAJA,
Bato
Star Fishing (Pty) Limited v Minister of Environmental Affairs and
Others
;
26
Sidumo and another v Rustenburg
Platinum Mines Limited and Others
;
27
Walele v City of Cape Town and
Others.
28
Although the applicant’s
application has not formally been brought in terms of PAJA, it must
be assumed that this is the case
(otherwise he would have
difficulties in the application even being heard). Section 7(2) of
PAJA provides:
7(2)(a) Subject to
paragraph (c), no court or tribunal shall review an administrative
action in terms of this Act unless any
internal remedy provided for
in any other law has first been exhausted.
(b) Subject to paragraph (c), a court or tribunal
must, if it is not satisfied that any internal remedy referred to
in paragraph
(a) has been exhausted, direct that the person
concerned must first exhaust such remedy before instituting
proceedings in a
court or tribunal for judicial review in terms of
this Act.
A court or tribunal may, in exceptional circumstances
and on application by the person concerned, exempt such person from
the
obligation to exhaust any internal remedy if the court or
tribunal deems it in the interest of justice.
Inextricably linked to
the requirement that internal remedies must be exhausted, is the
question of prematurity. It is, in any event,
contrary to public
policy to permit reviews
in
medias res
and
these will be permitted in exceptional circumstances only. See, in
this regard
Wahlhaus
v Additional Magistrate, Johannesburg
;
29
S v Western Areas Ltd and Others
;
30
Take and Save Trading CC and
others v Standard Bank of SA Ltd
;
31
South African Commercial Catering
and Allied Workers Union and others v Irvin & Johnson Limited
(Seafoods Division Fish Processing).
32
In terms of subsection 7(2)(c) of
PAJA, an applicant must specifically apply to be exempt from the
requirement of exhausting internal
remedies if he or she wishes such
exemption and must show that there are exceptional circumstances
justifying such a course of
action. No such application was made in
the present matter and, in any event, in my opinion, no exceptional
circumstances have
been put before us to justify such a step
especially as the JSC has made it plain that it will consider all
submissions that the
applicant may make in regard to any alleged
unfairness. It must be emphasised that public policy is strongly
against interventions
of the kind which the applicant is now seeking
before the matter has been disposed of by the tribunal in question.
In this regard,
the issue of precedent is all-important. A court must
be careful not to open sluice-gates that could render the functioning
of
the courts and the innumerable administrative tribunals throughout
the land untenable.
[13] The respondents have
sought that the application be dismissed for want of urgency, the
reasoning being that if the applicant
had a case, he could have and
should have brought it earlier: too long he has tarried. Be that as
it may, it clearly is urgent,
in an overall sense, that the
application be determined. Three judges have read the voluminous
papers in the matter. In order to
avoid confusion, it seems better
now to deal with the simpler point which has been raised by Mpati P,
in particular: the application
has been brought prematurely. The
application accordingly should not to be dismissed for want of
urgency. I am mindful, however,
that the respondents’ argument is
the inverse of that which commonly comes before the urgent court. The
usual argument of respondents
is: “Why is the applicant in such a
hurry?” Here the argument, at least in respect of some of the
issues, is “The applicant
should have hurried along much earlier –
it is now too late.”
[14]
In the applicant’s replying affidavit the question of alternatives
to the hearing proceeding before the JSC and, in particular,
being
referred to arbitration was raised. This was further explored during
argument. In the previously mentioned case of
Langa
and Others v Hlophe
,
33
the SCA made it clear that complaints
concerning gross misconduct by judges must be determined by the JSC.
The SCA said:
[22] Under Section
177 of the Constitution matters relating to gross misconduct of
judges must be dealt with by the JSC. If
the JSC makes a finding
of gross misconduct and the National Assembly by a two-thirds
majority calls for the removal from
office of the judge concerned,
the President must comply. That means that once a complaint of
that kind has been laid against
a judge the JSC must conduct the
necessary inquiry and come to a finding.
[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 seems that the JSC, even if it wanted to, could not
abdicate its responsibility to determine the matter. Moreover, it
hardly
needs be said that this court could not, in the absence of a
lawful agreement between the parties, make any order that the parties

refer the matter to arbitration.
[15] There were various
applications, from both the applicant and the respondents, to strike
out matter from the affidavits. As
the parts thereof to which
objection was taken bear no relation to the question of whether or
not the application was premature,
no ruling or order should be made
in this regard. The offending portions have been ignored.
[16] The parties all
agreed that no order as to costs should be made in this matter.
[17]
Penultimately: it is important to
maintain perspective. As Mr
Soni
,
counsel for the second respondent,
was
astute to point out, sight must not be lost of the fact that, in
terms of section 177 (1) (b) of the Constitution, the final
decision
as to whether or not a judge is to be removed from office may only be
made by a resolution of two thirds of the members
of Parliament, a
mighty forum indeed. This two-tier process, so Mr
Soni
submitted, may have
considerable legal implications. Indeed it may: in matters of
procedure, less exacting standards may be required
of a body that is,
in at least certain respects, advisory
34
;
in regard to the substantive issues, its findings are merely
preliminary. Presumably, provided it does not flout the Constitution,

and its own rules, Parliament can take into account any factors it
wishes in coming to its decision. In other words, the doors
of
fairness are not only wide but also open. The order proposed by me
will not slam these doors in the face of the applicant. Besides,
the
matter may even not travel as far as Parliament. If one is to gauge
from the judgment of the SCA in
Langa
and Others v Hlophe
,
35
the affidavit of Mpati P in this
matter and the submissions of Mr
Maleka
,
much may depend on the willingness of the applicant to cooperate with
the JSC.
[18]
The applicant seems to have been unimpressed by the submissions of Mr
Soni
in
regard to the final decision lying with Parliament. After the hearing
in this matter, his counsel filed supplementary heads in
which was
asked the following question: even if the applicant were to survive a
vote in Parliament, what of his reputation? It
is a good point but it
should not be pressed too far. In the “courts of public opinion”
there is no grander forum than Parliament.
Besides, an intervention
by the court at this stage, could damage the reputation of the JSC,
Mpati P and the second respondent.
That would be unfortunate, more
especially as they have denied, on oath, in affidavits, any
wrongdoing. If they believe that they
have done nothing wrong, there
is no other step which is available to them at this stage. The
applicant, however, has other options.
As controversial a measure as
an intervention at this stage may result in an appeal. Appeals matter
in the reputation of judges.
In the absence of tested evidence to the
contrary, it must be accepted that the Judges, when lodging their
complaint against the
applicant did so out of a sense of duty rather
than malice. The Judges, too, have rights. They have the right that
their complaint
be fully considered. One can do worse than to remind
oneself that a recurring theme of one of the great philosophers of
the twentieth
century, Sir Isaiah Berlin, was that in human societies
we can manage imperfection to the best of our abilities but we can
never
eliminate it. The order which I propose may be imperfect but,
in my opinion, it is the best that can be made in the circumstances.
[19] I propose that the
following be the order of the court:
The application
(including both Parts A and B thereof) is dismissed.
[20] I have had the benefit of reading the
judgment of my brother Tsoka J with which judgment my brother
Maluleke J agrees. I had
intended to be more circumspect about the
issue of the JSC’s refusal of a postponement on 7 April, 2009 and
its decision to proceed
in the absence of the applicant on that day
and 8 April, 2009. In my opinion it has become necessary that I deal
with this aspect
more directly. Assume, with the benefit of
“retrospective foresight”, that the JSC, in refusing a
postponement on 7 April,
2009 and in deciding to proceed in the
absence of the applicant on that day and 8th April, 2009 made a
blunder. Assume further
that the blunder was serious. The fact
remains that for this court to order,
in
medias res
,
that the
proceedings of 7 and 8 April, 2009 be set aside and commenced
de
novo
would be unprecedented in the annals of
South African legal history and, in my understanding of the law,
impermissible. It may do
the applicant no favour. He did not even ask
for such an order. Of course, I accept that the applicant has the
right to confront
his accusers eye-to-eye.
36
It is trite that the applicant has the right to
cross-examine those who have testified against him. Nevertheless, the
applicant
must at least inform the JSC as to which witnesses, if any,
he wishes to have recalled.
37
He has not done so. On the contrary, it is my
understanding of his position that the JSC, in refusing a
postponement on 7 April,
2009 and in deciding to proceed in the
absence of the applicant on that day and 8 April, 2009, made an
irremediable blunder, an
irreversible error, a fatal mistake. In the
view of the applicant, this mistake, whether taken singly or together
with the applicant’s
other criticisms of the whole process, will
result in any finding of the JSC against him, in regard to the
substantive complaint
of the Judges, being quashed on review. The JSC
has, however, made no such finding. It is not, at this stage, clear
whether the
applicant’s position concerning the JSC’s decision to
proceed on 7 and 8 April, 2009 is provisional or final. The applicant

is, of course, entitled to adopt such positions as he considers best.
Ultimately, the decisions which he makes in this regard are
for him
and him alone. He may decide that his overall position is strong
enough to justify his refusal to participate in the proceedings
at
all. He may decide, in effect, to “close his case” without giving
any evidence. Nevertheless, it seems clear that before
the JSC makes
any finding, the applicant must decide whether he wishes:
(i) to participate in
the proceedings at all; and/or
(ii) to make any further representations to the JSC;
and/or
(iii) any of the witnesses to be recalled; and/or
(iv) to give evidence
(or lead his own witnesses) before the JSC.
Ideally, and as a matter of rudimentary courtesy, he
should let the JSC know of his elections. His choices may, however,
be inferred
from his responses to requests from the JSC. It is
precisely and particularly because the JSC has not yet made any
finding against
the applicant and the applicant has not yet made his
elections clear that it would, in my opinion, be inappropriate for
the court
to intervene in this application. The order of the majority
of this court may create difficulties for the JSC. Nevertheless, the

order may create even greater difficulties for the applicant: he will
be deprived of his opportunity to argue that, on 7
th
and
8
th
April, 2009, an irreversible wrong was perpetrated
against him.
DATED AT JOHANNESBURG THIS 1ST DAY OF JUNE, 2009
N.P. WILLIS
JUDGE OF THE HIGH COURT
IN THE HIGH COURT OF SOUTH AFRICA
SOUTH GAUTENG, JOHANNESBURG
CASE NO:19006/09
REPORTABLE
In the matter between:
MANDLAKAYISE JOHN
HLOPHE
....................................................
Applicant
and
THE JUDICIAL SERVICE COMMISSION AND OTHERS
…
.................
Respondents
JUDGMENT
MALULEKE J:
I have read the judgments of my brothers Willis and
Tsoka JJ. I agree with the judgment and order of Tsoka J.
Accordingly, the order
of the court is the following:
1. The proceedings of
the JSC on 7 and 8 April 2009 are set aside;
2. The proceedings are to commence
de novo
on a
date suitable to the parties.
DATED AT JOHANNESBURG THIS 1ST DAY OF JUNE, 2009
G.S.S. MALULEKE
JUDGE OF THE HIGH COURT
IN THE HIGH COURT OF SOUTH AFRICA
SOUTH GAUTENG, JOHANNESBURG
CASE NO:19006/09
REPORTABLE
In the matter between:
MANDLAKAYISE JOHN
HLOPHE
....................................................
Applicant
and
THE JUDICIAL SERVICE COMMISSION AND OTHERS
…
.................
Respondents
___________________________________________________________
JUDGMENT
____________________________________________________________
TSOKA J:
[1]         The
applicant seeks, on urgent basis, an order, amongst others, declaring

the entire proceedings of the Judicial Service Commission (“the
JSC”) commencing on 5 July 2008 unlawful and therefore void
ab
initio
.
[2]         The
application is opposed by the JSC, the first respondent. Although no

order is sought against the second to the fifth respondents, the
Minister of Justice and Constitutional Development (“the Minister”)

and the Chief Justice have filed affidavits. The affidavit filed by
the Chief Justice is on behalf of all the Justices of the
Constitutional Court. The Minister’s affidavit explains his reasons
for recusing himself from the proceedings of the JSC commencing
on
1to 8 April 2009.
[3]
The Chief Justice’s affidavit opposes the relief sought by the
applicant.
[4]
The history of this matter is on record and is public knowledge with
the result that no purpose would be served in repeating it in this
judgment.
[5]
The crisp issue to be decided is whether the entire proceedings of
the
JSC commencing on 5 July 2008 are unlawful and void
ab initio
or only the proceedings of the 7 and 8 April 2009 are unlawful and
ought to be set aside.
[6]
I deal with the proceedings of the JSC in two parts. Firstly, the
proceedings
from 5 July 2008 to 31 March 2009 and Secondly, the
proceedings from 1 to 8 April 2009 in particular the hearing of 7 and
8 April
2009.
The proceedings from 5 July 2008 to 31 March 2009.
[7]
On 17 June 2008 the Justices of the Constitutional Court filed a
formal
complaint against the applicant. The applicant, who had
already lodged a counter-complaint against the Constitutional Court
Judges,
responded to the complaint. As the JSC concluded that there
is a dispute of fact that could not be resolved on affidavits, it
advised
the parties that it intended to hear oral evidence. The
applicant participated in the processes of the JSC as “the accused”

and the complainant. At no stage did he mention that the JSC was in
breach of its rules and the law.
[8]         In
the South Gauteng High Court, the then Witwatersrand Local Division
in the matter of
Hlophe v Constitutional Court of South Africa and
Others
2009 (2) BCLR 161
(W), the applicant conceded that the
enquiry of the JSC and the violation of his rights, for which he was
seeking relief from that
court were separate and that the JSC may
proceed with its enquiry. In fact this was the finding of the
majority of the court in
that matter. The matter went on appeal. The
Supreme Court of Appeal also confirmed this finding.
[9]
In the result there is no basis upon which this Court could find that
the proceedings of 5 July 2008 to 1 March 2009 are unlawful.
The
proceedings of 7 and 8 April 2009.
[10]        After
having identified the dispute of fact to be resolved and witnesses to
testify
in resolving the dispute of fact, the JSC  determined
that the hearing would commence on 1 April 2009. On 1
April
2009 the proceedings did not commence as the applicant was indisposed
due to ill-health. A medical certificate was submitted
in support of
the application. The applicant requested that the hearing be
postponed sine die. The JSC refused to postpone the
hearing sine die.
The hearing was postponed to 4 April 2009. On this date the applicant
had engaged new counsel who requested a
further postponement for a
period of ten days as he required time to consult and prepare.
Counsel further stated that the applicant’s
ill-health was a
further reason for the application for postponement. A substantial
application supported by affidavit and medical
certificate was
furnished to the JSC. The JSC refused to postpone the hearing as
requested by Counsel. The hearing was adjourned
to 7 April 2009.
[11]        On 7
April 2009 again the applicant sought a postponement as the applicant
had not
fully recovered from his illness. The application was
requested by a different  counsel as the one who requested a
postponement
for a period of 10 days was no longer representing the
applicant. This application for a further postponement was refused.
Counsel
for the applicant withdrew from representing the applicant.
They walked out of the JSC hearing. The hearing proceeded in the
absence
of the applicant and his counsel. In its reasons for refusing
the postponement the JSC states:
“
15 Taking all the circumstances into account,
the Commission considered that good cause had not been shown for
the further
postponement of the matter and that fairness required
that the hearing should proceed, if necessary without Hlophe JP
being
present. It was manifestly in the interest of the parties,
of the administration of justice and of the public that there

should be no further delays in the finalizing of the complaint and
counter -complaint by the Commission”
[12]        The
question that must be asked and be answered is whether the Applicant
had shown
no good cause for further postponement on 7 April 2009. If
the answer is that the applicant indeed had shown no good cause, then

the JSC was entitled to proceed in his absence. If, on the other
hand, the applicant had shown good cause, the JSC was not entitled
to
proceed in the absence of the applicant. It is therefore vital to
determine the reasons for the applicant’s absence on 7 April
2009.
[13]        The
starting point is the state of health of the applicant. It is common
cause that
on 1 April 2009 the applicant was ill and a medical report
was furnished in support of the application for postponement. On 3
April
2009 the applicant consulted with Dr Waynik. Dr Waynik
furnished the JSC with an affidavit. The affidavit appears on page
160 of
the paginated papers as
Annexure
“
MJH7.
” Dr
Waynik’s medical report is attached to his affidavit.
[14]        From the
medical report, the applicant was seen by Dr Waynik on 3 April 2009
at home.
He diagnosed the applicant with
acute-sino-bronchitis
.
He advised the applicant to remain indoors for 3 to 4 days from 3
April 2009. He further advised the applicant not to travel or
venture
out of his home surrounds until his symptoms have completely abated.
During this period, the applicant was medically advised
not to
consult with his legal representatives until early the following
week.
[15]        Dr
Waynik’s affidavit and the medical report are not disputed by the
JSC. It is
Dr Waynik’s evidence that resolves the question whether
the applicant had not shown good cause for the postponement of 7
April
2009.
[16]        The JSC
held the hearings in Johannesburg. The applicant was confined to bed
in Cape
Town. Although he had seen a doctor prior to consulting with
Dr Waynik on 3 April 2009, his health had not improved resulting in

him consulting Dr Waynik on 3 April 2009. Dr Waynik diagnosed the
applicant with
acute-sino-bronchitis
that warranted the
applicant not to leave his home, travel or consult with his legal
representatives. In Dr Waynik’s opinion,
the applicant would only
be able to consult, leave his home and travel to Johannesburg at the
earliest on 7 April 2009, the date
of the hearing. The opinion was
premised on the fact that the applicant’s symptoms would have by
then completely abated.
[17]        On 7
April 2009, the applicant, his symptoms not having completely abated,
did not
travel to Johannesburg. As he was unable to attend the
hearing, he instructed his counsel to ask for a further postponement.
The
court is mindful of the fact that this application was not a new
application.
[18]         The
delay in finalizing the hearing of the complaint and the
counter-complaint of
the parties appear to be irritating to both the
JSC, the Judges of the Constitutional Court and the public. The delay
puts the
judiciary in the spotlight. The credibility and the
confidence of the public in the judiciary, because of the delay, is
daily bruised
and eroded. It is therefore in the interest of both the
JSC, the Judges of the Constitutional Court, the judiciary and the
public
that the hearing should be finalized without undue delay.
[19]        However,
the considerations outlined above, laudible as they are, cannot, in
the
face of evidence of Dr Waynik’s report, overshadow the right of
the applicant to a fair hearing and to be heard by the JSC. On
the
uncontested evidence of Dr Waynik, the applicant was not able to
travel to Johannesburg and attend the hearing on both 7 and
8 April
2009. The JSC was, in the circumstances, wrong in concluding that the
applicant had shown no good cause for the postponement
of the hearing
on 7 April 2009. The prior attempts by the applicant to secure
postponement should not have clouded the real reason
for the
postponement on 7 April 2009, being the state of health of the
applicant.
[20]        That the
refusal for the postponement and the willingness to proceed with the
hearing,
in the absence of the Applicant, was unhelpful and
prejudicial to the Applicant, is apparent. The JSC was unable to
resolve the
dispute between the Judges of the Constitutional Court
and the Applicant. They had identified areas of dispute of fact for
resolution
by oral evidence. The applicant, in this context, as a
witness and a role player, was the main actor without whose
participation,
the dispute of fact could not be resolved, unless for
no good cause he elected to absent himself from the hearing.
[21]        It is
without doubt that the participation of the applicant in the hearings
was of
vital importance. His participation would have assisted the
JSC to resolve amongst others the following:-
21.1   Whether in discussing the issue of
privilege with Justices Nkabinde and Jafta, he intended to
influence
them in making a finding  favourable to Mr. Zuma
bearing in mind that the two Justices prior to 17 June 2008,

did not wish to lodge a complaint or to make any statement about
the encounter between them and the applicant;
21.2 The intention or motive for the applicant in
uttering the words “
sesi thembele kinina
”. It is
common cause that the applicant uttered these words. As Justices
Nkabinde and Jafta, prior to 17 June 2008, made
no complaint and
intended not to complain and were not the complainant Judges, it
is only the applicant, in his testimony,
who could explain his
intention or motive in uttering these words. His absence, despite
the testimony of the two Judges
and all the other Judges who
testified at the hearing, could not have resolved this dispute;
21.3 Whether the applicant informed Justice Nkabinde
that he had the mandate to act as he did. As pointed out above,
the
applicant was an important witness who could have assisted
the JSC in this regard. The testimony of Justice Nkabinde and all

the other Judges of the Constitutional Court represented one side
of the story and could not resolve this dispute. This
fact is
within the knowledge of the Applicant. By proceeding with the
hearing in the absence of the applicant, the JSC
became poorer
for it.
[22]
The JSC appreciated the seriousness of the hearing hence eight days
were set aside
for it. It is in this context that it is not
understandable as to why, even if the applicant was able to travel to
Johannesburg
on 7 April 2008, the JSC was of the opinion that the
hearing could have been finalized on 8 April 2009. As it transpired,
after
the hearing on 8 April 2009, the matter was postponed sine die
whereafter the JSC furnished the applicant with the record of the

proceedings requesting him to make representations and to make
election either to cross-examine the witness who testified on 7
and 8
April 2009 or to testify. This conduct emphasizes the vital
participation of the applicant in the process leading to his
possible
impeachment.
[23]        Does the
fact that the Applicant was invited to make representations to
cross-examine
the witnesses who testified on 7 and 8 April 2009
render the refusal to grant the Applicant the postponement,
reasonable?
[24]        The
invitation is not without difficulties. It is not for certain that
the JSC would
recall the witnesses to be cross-examined. The
invitation, it seems to me, will first be considered before a yes or
no decision
is given.
[25]
Purposeful and effective cross-examination flow from evidence in
chief of any witness.
The integral part of the right to
cross-examination is in observing the witness’s demeanour in the
witness stand. To cross examine
a witness whom one has not observed
and noted such witness’ demeanour is an impoverished and a futile
exercise. For cross-examination
to be the best vehicle ever invented
to discover the truth, (
see Eric Morris
: The technique in
Litigation) it must benefit from hearing and observing any witness
who testify in a particular matter. It is
in this context, that I
understand the Bapedi saying that “
Ditaba di
tswa
mahlong
” (which may loosely and contextually be translated as:
to truly appreciate and evaluate testimony one must have looked at
and
observed the witness testify).
[26]        In the
circumstances , I find that the invitation extended to the applicant
to make
representations is unhelpful and would serve no purpose. The
invitation cannot render the refusal of the JSC to grant the
applicant
the postponement due to the ill–health, reasonable. The
invitation cannot be an adequate cure for the prejudice suffered by
the
applicant in not attending the hearing on 7 and 8 April 2009.
[27]        In the
result, I find that on 7 April 2009 the applicant had good cause for
not attending
the hearing of the JSC. The JSC acted improperly and
unreasonably in refusing the applicant a further postponement. The
decision
of the JSC unjustifiably violated the applicant’s right to
a fair hearing and to participate freely in the proceedings which
affect him. The proceedings of the JSC of both 7 and 8 April are
unreasonable and unlawful. They ought to be set aside. Although
the
applicant is not entitled to an order setting aside the entire
proceedings of the JSC from 5 July 2008 to 8 April 2009, the
court
is, in terms of the provisions of the Promotion of Administrative
Justice Act, No 3 of 2000 (
PAJA
), entitled to make an order
that is just and equitable. I find that the order I intend making, is
in the circumstances, just and
equitable.
[28]
Is the
application in medias res?
[29]         The JSC
and the Judges of the Constitutional Court contend that this is so
while
the applicant contends to the contrary although his attack and
submissions is directed mainly at the interdicts prayed for.
[30]         The
applicant’s challenge of the proceedings of the JSC is based on
various
grounds such as the procedure adopted in the hearing of
oral evidence, the non-observance by the JSC of its own rules, bias

on the part of the JSC and the improper composition of the JSC. These
grounds, however must be separated from the applicant’s
complaint
that the JSC acted unfairly and unreasonably in refusing a further
postponement on 7 April 2009, otherwise the application
of the
principle of  in
medias res
would become blurred. I
therefore deal with the in
medias res
in two parts. Firstly as
it relates to  bias and all the other grounds raised in the
application and secondly as it relates
to the applicant’s absence
in the hearing of 7 and 8 April 2009.
Bias, Improperly constituted JSC, Non-observance
by the JSC of its own rules, Absence of the Minister of Justice
and Constitutional
Development or his Delegate etc.
[31]       The starting
point is the law and the case law. In terms of the provisions of
section 7(2) of PAJA
a court or a tribunal cannot review
an administrative action until internal remedies available to a party
have been exhausted.
If there are exceptional circumstances a court
or a tribunal may, on application, review an administrative action
only if the court
or a tribunal deems it in the interest of justice
to do so.
[32]       The case law is
also clear. A court or a tribunal, although it has power to review
administrative
action piecemeal, this is used sparingly and only in
exceptional circumstances or where injustices would occur. In
Wahlhaus v Additional Magistrate, Johannesburg
1959(3) SA
113(A) at page 120A
the court stated the principle in the
following terms:-
“
While a superior court having jurisdiction in
review or appeal will be slow to exercise any power, whether by
mandamus or
otherwise upon unterminated  course of
proceedings in a court below, it certainly has the power to do
so, and will
do so in rare cases where grave injustice might
otherwise result or where justice might not by other means be
attained…..
In general, however, it will hesitate to intervene,
especially having regard to the effect of such procedure upon the
continuity
of the proceedings in the court below, and to the fact
that redress by means of review or appeal will ordinarily be
available”
[33]        In
Tuesday Industries (Pty) Ltd v Condor Industries (Pty)
Ltd
And Another 1978(4) SA 379(T)
court at page
382 D-E
stated
the abovestated principle as follows-
“
I am of the view that this approach is not an
absolute approach and is not necessarily the correct approach. I
am of the
view that the court has jurisdiction to review this
type of ruling, and at this stage. But it is a step which will be
resorted
to only in exceptional circumstances,…”
[34]        In
Take
and Save Trading CC and others v Standard
Bank of SA Limited
2004(4) SA 1 (SCA)
dealing with
medias res
regarding a
review recusal application, the court in
paragraph 4
of the
judgment said:-
“
A balancing act by the judicial officer is
required because there is a thin dividing line between managing a
trial and getting
involved in the fray. Should the line on
occasion be overstepped, it does not mean that a recusal has to
follow or the
proceedings have to be set aside. If it is, the
evidence can usually be reassessed on appeal, taking into account
the degree
of the trial court’s aberration. In any event, an
appeal in medias res in the event of a refusal to recuse,
although
legally permissible, is not available as a matter of
right and it is usually not the route to follow because the
balance
of convenience more often than not requires that the case
be brought to a conclusion at the first level and the whole case
then be appealed”
[35]        It is
apparent that from the cases cited above, these issues such as bias
raised
by the applicant amount to in
medias res.
They may
still be raised at the hearing in due course. The JSC’s rulings on
these issues are unknown. If known they cannot be
subjects of review
until a final pronouncement is made by the JSC. In the result I agree
with the submissions of respondents’
counsel that it is undesirable
for the court to intervene at this stage.
The absence of the applicant in the hearing of 7
and 8 April 2009.
[36]
The declarator prayed for is not hit by the prohibition of review of
unterminated
proceedings. In the cases cited above the applicant was
present at the hearing and applied for postponement. In the present
matter
the applicant was indisposed. He was unable to attend the
hearing due to ill-health. The applicant’s right to be present
and
observe the witnesses testifying was compromised by the refusal for a
postponement. This, according to
Wahlhaus
, amounts to “
grave
injustice”
entitling the court to interfere at this stage. The
provisions of
section 7(2) of PAJA
are not applicable. There
are no internal remedies for the applicant to exhaust before
approaching the court for review. The ruling
is contrary to
Rule
5.13 of the JSC’s Rules governing Complaints and Enquiries
in
terms of section 177 (1) (a) of the Constitution. It resulted in the
JSC proceeding to lead evidence in the absence of the applicant
and
his counsel. The ruling is final in effect. It curtailed the
applicant’s right to attend and be present when the evidence
of the
Judges of the Constitutional Court is led. The invitation to make
representations and the “
with prejudice tender”
are no
more than palliatives used by the JSC in an attempt to remedy the
obvious injustice.
[37]   On 4 April 2009 the applicant submitted
a substantial application for postponement sine die due to his
ill-health.
The medical report attached to the application reveals
that the applicant was confined to bed and not to leave his home. He
was
also advised not to travel for a period of four days. The fourth
day fell on 7 April 2009. The doctor who consulted with the applicant

further advised him not to leave his surroundings until his “
symptoms
have completely abated”.
[38]   On April 2009 the
applicant did not travel to the hearing as his symptoms had not
completely abated. He instructed
his counsel to request a further
postponement. The postponement was refused.
[39]   Following the refusal
for a postponement, his legal representatives withdrew from acting
for him. The hearing proceeded
in his absence. The applicant was, as
a result of the refusal for postponement, denied the right to observe
the witness testifying.
As a result, the witnesses’ testimony was
not put to rigorous test of cross- examination. The applicant’s
right to a fair hearing
has been compromised through no fault of his
own.
[40] The reported cases referred to
above are distinguishable to the present. In all those cases, the
applicant was present and
able to proceed with the hearing as so
advised. In the present matter neither the applicant nor his legal
representatives were
present to proceed with the hearing. The
applicant’s absence, which was explained and justifiable did not
entitle the JSC proceed
in his absence. The application for review of
the ruling of the JSC of 7 April 2009 is not an in
medias res
hearing. If it is, it falls within the exceptional cases which
entitles the court to intervene at this stage.
[41]    However the
other issues raised by the applicant such as bias and the absence of
the Minister of Justice
or his alternate in the hearing of both 7
and 8 April 2009 and all the other issues, may be raised at the
hearing of the complaints
in due course. The JSC’s rulings on these
issues are unknown. If known, they cannot be subjects of review until
a final pronouncement
is made by the JSC.
[42]   That the applicant
suffered prejudice as a result of the refusal for postponement is
beyond doubt. The hearing
was to resolve a dispute of fact as to what
exactly transpired between the applicant and Justices Nkabinde and
Jafta. In this kind
of testimony, credibility finding is of crucial
importance. A proper finding on credibility could only be made if the
applicant
participated in the hearings. His participation could have
enabled the JSC, the witnesses and the applicant to observe the
demeanour
of one another. The observation would empower the parties
to embark on purposeful and effective cross-examination. In the
absence
of the applicant’s participation in the hearing,
cross-examination of the witnesses, based on evidence already on
record, would
serve no purpose.
[43]   During the hearing of
the application, a with prejudice tender was made to the applicant.
Apart from the fact that
the tender is with prejudice and
unconditional, it still does not cure the prejudice suffered by the
applicant in not attending
the hearing and observing the witnesses
testifying. It is inconvenient for the witnesses to be recalled and
testify. However, this
inconvenience cannot be elevated to the same
prejudice suffered by the applicant. Truth does not change. It is
universal. There
is no suggestion therefore that in the event that
the witnesses are recalled there is a likelihood of the witnesses
perjuring themselves.
[44]    The following
order is made:-
44.1 The proceedings of
the JSC of the 7 and 8 April 2009 are set aside.
44.2 The proceedings are to commence
de novo
on a date suitable to both parties.
DATED AT JOHANNESBURG THIS 1ST DAY OF JUNE, 2009
M.P. TSOKA
JUDGE OF THE HIGH COURT
Counsel for the Applicant:
V.Ngalwana
(with him,
T. Masuku
)
Attorneys for Applicants: Xulu
Liversage Inc
Counsel for the First Respondent:
V.I.
Maleka
SC (with him,
M. Lekoane
)
Attorneys for the First Respondent: The
State Attorney
Counsel for the Second Respondent:
V.Soni
SC (with him,
M. Sello
)
Attorneys for the Second Respondent:
The State Attorney
Counsel for the Remaining Respondents:
G.J Marcus
SC (with him,
M.Sikhakane
)
Attorneys for the Remaining
Respondents: The State Attorney
Date of hearing: 18
th
May,
2009
Date of Judgment: 1
st
June,
2009
1
Before
the proclamation of the Renaming of the High Courts Act, No. 8 of
2008, this was known as the Cape of Good Hope Provincial
Division.
The President of the Republic of South Africa brought the Act to
come into force with effect from 1 March, 2009 under
Proclamation
R13 GG 31948 dated 23 February 2009.
2
[2009]
ZASCA 36
3
He
is a judge of the SCA and, for this reason, the usual abbreviation
used in honour of a judge of that court, viz. “JA” (Judge
of
Appeal) will be used, unless the context otherwise requires. It doe
not seem “right” to refer to him as “AJ” (Acting
Justice)
even though this would, technically, be correct.
4
[2009]
ZASCA 36
delivered on 31 March, 2009. See, para [1] above.
5
2009
(2) BCLR 161
(W)
6
[2009]
ZASCA 36
delivered on 31 March, 2009. See. Paras [1] and [3] above.
7
The
author acknowledges, however, that he may be influenced by a strong
cultural tradition that views with disdain the inconveniencing
of
others on account of one’s own indisposition. The philosophy
underlying this tradition seems to work: in the period of
approximately 30 years that the author has been a lawyer he has
never missed a consultation, professional appointment or court

appearance on account of ill-health. The author has not, however,
been immune from mischievous bouts of influenza, coughs and

splutters, sniffles and snuffles.
8
1957
(4) SA 234
(C) at 235E-G
9
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634H-635C
10
2009
(1) SACR 361
(SCA) at para [26].
11
[1998] ZASCA 79
;
1999
(1) SA 217
(SCA) at 228.
12
1968
(2) SA 528
(C)
13
1968
(2) SA 535
(C)
14
1993
(1) SA 47
(W)
15
1994
(1) SA 616
(W)
16
1995
(2) SA 579
(W)
17
The
author of this judgment acknowledges that those for whom English is
not a first language may be unfamiliar with English nursery
rhymes
from which this quote derives. They are much beloved throughout the
English-speaking world: by reason of their rhyme and
rhythm they are
easy to learn, improve vocabulary and often contain moral truths and
political satire. The most common version
of the verse is:
Humpty Dumpty sat on a wall,
Humpty Dumpty had a great fall.
All the king’s horses,
And all the king’s men,
Couldn’t put Humpty together agin.
18
1919
AD 30
at 44
19
1940
AD 187
20
1955
(1) SA 219
(A) at 224C-E
21
1983
(4) SA 689
(C) at 708H
22
150
LTR 3
23
2004
(6) SA 222
(SCA) at paras [25] to [37]
24
2008
(2) SA 481
(SCA)
25
[2009]
ZASCA 36
delivered on 31 March, 2009. See paras [1], [3], and [8]
above
26
[2004] ZACC 15
;
2004
(4) SA 490
(CC) at paras [24]-[27]
27
2008
(2) SA 24
(CC) at paras [92]-[93]
28
[2008] ZACC 11
;
2008
(6) SA 129
(CC) at para
[29]
29
1959
(3) SA 113
(A) at 120E. The judgment has been followed in a number
of cases and, more recently, by the SCA in
Magistrate,
Stutterheim v Mashiya
2004 (5) SA 209
(SCA) at para [13] and
S v Western
Areas Ltd and Others
2005 SA 214
(SCA)
at para [20].
30
2005
(5) SA 214
(SCA) at para [20]
31
2004
(4) SA 1
(SCA) at para [4]
32
[2000] ZACC 10
;
2000
(3) SA 705
(CC) at paras [4]-[5]
33
[2009]
ZASCA 36
delivered on 31 March, 2009. See paras [1], [3], [8] and
[12] above
34
See
Chairman, Board of Tariffs and Trade v
Brenco Inc
2001 (4) SA 511
(SCA) at
para [38]
35
[2009]
ZASCA 36
delivered on 31 March, 2009. See paras [1], [3], [8], [12]
and [14] above
36
See
S v Motlatla
1975
(1) SA 814
(T) at 815F
37
If
the applicant asks that all the witnesses be recalled, and the JSC
acquiesces, this will result, in effect, in holding the
hearing
de
novo
.