REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUT H AFRICA
GAUTENG DIVISION, PRETORIA
(1)
(2)
(3)
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In the matter between:
DCSENEKAL
and
JUDICIAL SERVICE COMMISSION
CASE NO.: 2025-052490
Applicant
First Respondent
CHAIRPERSON- JUDICIAL SERVICE COMMISSION Second Respondent
ACTING CHAIRPERSON JUDICIAL SERVICE Third Respondent
COMMISSION
JUDICIAL CONDUCT APPEAL COMMITTEE Fourth Respondent
JUDGMENT
VAN DER WESTHUIZEN , J
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(1] The applicant launched a review application ostensibly in terms of
section 20(4) of the Judicial Service Commission, Act 9 of 1994 (the Act).
He sought the following relief:
1. A declaration that the first and fourth respondents had misdirected
themselves, in that the applicant's complaint was not about the
merits;
2. A declaration that the narrative was changed in the Ruling by the First
and Fourth respondents and declaring further that relevant facts (i)
were omitted and or (ii) twisted in the Ruling;
3. An order remitting it back to the first and fourth respondents;
4. Directing the matter to the Directorate Priority Crime Investigation.
[2] Section 20(4) of the Act provides as follows:
"If the Commission finds that the respondent is suffering from an
incapacity, is grossly incompetent or is guilty of gross misconduct,
the Commission must submit that finding, together with the
reasons therefore and a copy of the report, including any relevant
material, of the Tribunal, to the Speaker of the National
Assembly."
[3] The applicant appeared in person at the hearing. It is to be noted that
the applicant's formal documents did not comply with the requirements
prescribed for legal proceedings such as the present. The application fell
far short of the requirements. The applicant filed an Index which listed
the documents filed. It indicated that a notice of motion, together with a
supporting affidavit was filed. The index further indicated that annexures
relating to a letter from the JSC , dismissal of complaint and appeal and
tainted ruling were filed. At best, the notice of motion at best contains
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the relief that was sought. However, the supporting affidavit was brief
and curt. It merely listed certain issues.
[4] The relevant background to this purported review is to be gleaned from
the ruling complained of. The applicant sustained an injury on duty in an
alleged government department. That injury was of a permanent nature.
The injury suffered was a partial loss of hearing. The applicant
apparently sustained the injury leading to the of loss of hearing whilst
doing his compulsory National Service. At the time he was a qualified
teacher and was employed as such by the Defence Force. After
completing his compulsory National Service, he was employed by the
department of education as a teacher. He demanded to be accorded
appropriate conditions of employment as an employee with disability. His
demands were not met. That resulted in the applicant "withholding his
labour" and he did not return to work for an extended period. The
department charged him with misconduct and held a disciplinary
hearing. He was found guilty and his employment was terminated. The
applicant did not accept the validity of his dismissal and a dispute arose.
By agreement, that dispute was referred to the Education Labour
Relations Council for arbitration. The arbitrator found that the applicant
was not legally entitled to withhold his labour and that the dismissal was
substantially fair. However, due to the department taking too long in
holding the disciplinary action, the arbitrator found the dismissal to be
procedurally unfair and directed the department to pay the equivalent of
four months' salary the applicant. Still not satisfied, the applicant took
the award on review to the Labour Court. That court dismissed the
review application. The applicant subsequently referred the matter back
to the Education Labour Relations Council for the rescission of the
award. That application was also dismissed. The applicant had
numerous cases pending in the Labour Court, including a claim for unfair
numerous cases pending in the Labour Court, including a claim for unfair
discrimination. All those matters were consolidated and referred to trial.
The trial was held and resulted in delivery of a comprehensive judgment.
In terms of the judgment, certain claims were dismissed. However, on
the issue of unfair discrimination the court held in favour of the applicant
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and awarded an amount the equivalent of remuneration for twelve
months. The applicant sought to appeal the order, but leave was
refused. Unperturbed, the applicant launched an application to hold the
department in contempt of court in respect of a ruling prior to the hearing
of the trial. That application was dismissed on the ground that it was
moot in view of the trial having been completed and ruled upon. The
applicant's application for leave to appeal that dismissal was refused.
The applicant thereafter launched fresh proceedings for unfair
discrimination in the Equality Court in the Gauteng High Court. Those
proceedings were dismissed for want of jurisdiction. The applicant
nevertheless soldiered on and launched proceedings on an urgent basis
in the Labour Court. That application was struck off on the basis that it
was frivolous and the applicant was mulct with a punitive cost order. An
application for leave to appeal lodged at the Labour Appeal Court was
equally unsuccessful. Following yet another defeat, the applicant lodged
complaints against a number of judges who had presided in the
aforementioned matters. The Acting Chairperson, tasked to consider the
complaints against the judges, was of the view that the complaints
related to the merits of a judgment or order and dismissed the complaints
in terms of section 15(2)( c) of the Act. The applicant then launched an
appeal to the Judicial Service Commission against that dismissal. The
Judicial Service Commission held the impugned decision to have been
correct. It is this finding that the applicant sought to review.
[5] The aforesaid was not set out in the applicant's founding affidavit, but is
to be gleaned from the impugned ruling of the Judicial Services
Commission.
[6] A number of points in /imine were raised by the respondents in their
answering affidavit. None of those were dealt with by the applicant in a
replying affidavit. The applicant did not file any replying affidavit and was
replying affidavit. The applicant did not file any replying affidavit and was
content to rely on his submissions in his heads of argument only and
those raised in his oral argument in this court. He did not address any of
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those points in limine in his heads of argument or in his oral address to
this court.
[7] The respondents raised the following points in limine:
1. A misplaced application for review;
2. Misjoinder;
3. Incompetent relief sought.
[8] It is clear from the provisions of section 20(4) of the Act, as recorded
above, that they relate to the procedure to be followed by the
Commission after a finding of incapacity, gross incompetence or gross
misconduct has been made. No such finding was made, nor is it the
subject of this matter. Consequently, it does not warrant a referral to the
Speaker of the National Assembly. Section 20(4) of the Act does not find
application in this matter. Any reliance on that section is accordingly
misplaced.
[9] The decision that was sought to be reviewed only relates to the Judicial
Conduct Committee. None of the other respondents were involved
therein. They are not alleged to have participated in, or taken the
impugned decision. The provisions or Rule 10 of the Uniform Rules of
Court clearly do not apply to this matter and the joinder of those parties
were not warranted. It follows that the application in respect of those
parties stand to be dismissed.
[1 0] In respect of the third point in limine, the respondents submitted that the
relief sought by the applicant is incompetent for what follows. In the main
the applicant sought declarators. It is trite law that a declarator will only
be granted where there exists a current, future or contingent right or
obligation which a declaratory order would address. The applicant is
further obliged to show that he has a direct and substantial interest in
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the subject matter. It is contended for by the respondents that the
applicant has dismally failed to comply with the requirements for a
declaratory order, and in my view, rightly so.
[11] Considering the heads of argument filed by the applicant and his oral
submissions in this court, it is apparent that the applicant did not
appreciate the principles applicable in respect of each of the
proceedings that he had instituted. His non-compliance with those
principles resulted in the adverse findings against him. The inference to
be drawn from his repetitive attempts in obtaining the redress is that he
would not refrain from litigating until he has obtained that what he
believes his was entitled to. He would only refrain from further litigation
once he has achieved his aim, irrespective of the merits thereof.
[12] It is not possible to glean from the founding papers of this application on
what premise it is based, whether in terms of PAJA or on the principle of
legality.
(13] On the issue of whether this review is premised upon PAJA, it is to be
noted that the Judicial Service Commission and its Judicial Conduct
Committee exercise statutory powers in terms of The Judicial Service
Act. When dealing with complaints against judges, the Committee
performs a public function in terms of national legislation. Where
decisions are taken in terms of the provisions of sections 15 and 18 of
the Act, those decisions constitute administrative actions as defined in
PAJA, alternatively may be subject to review on the principle of legality.
[14] It is trite law that a review is not directed at correcting a decision on the
merits, but rather ensuring that the decision maker had acted lawfully and
within the boundaries of his or her powers.
[15] What an applicant for review is obliged to show is the following :
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(a) The premise upon which the review is brought, i.e. in terms of
PAJA, or on the principle of legality;
(b) The grounds for review set out with sufficient particularity; and
(c) Establish on the papers a material irregularity affecting the
lawfulness, reasonableness or the procedural unfairness of
the impugned decision.
[16] In casu, the applicant has been vague in his allegations and provided
insufficient details of his complaints. His allegations lack evidence in
support thereof. Furthermore, he contends for factual inaccuracies
without identifying such without specificity. His allegations of non
interpretation of the law or the misinterpretation thereof are without
specificity. There is a clear lack of particularity in respect of the
allegations of the non-consideration of relevant facts, violation of
constitutional rights, the omission of facts and the alleged changing of
the narrative.
[17] The applicant's complaint of procedural unfairness in that he was not
present when his complaint was considered, is without merit. Section 18
of the Act stipulates that the complainant and the respondent are to be
advised of the time and place of the meeting and that they may submit
representations within a stipulated period for consideration by the
Committee. There is no automatic right to appear in person at such a
meeting. Only when the Committee considers it prudent to receive oral
submissions, would such invitation follow. The applicant was advised
timeously that he could make written representations. The provisions of
PAJA equally do not provide a right to appear at the hearing. The
applicant's aggrievement in this regard is without merit and cannot be
sustained.
[18) Considering the applicant's contention that the impugned decision was
biased and irrational is equally without merit. His contentions in this
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regard lacked particularity and specificity. They are unsubstantiated and
do not meet the legal threshold in that regard.
[19] I agree with the respondents' contention that a mere dissatisfaction with
a decision does not translate into constitutional irrationality or
unreasonableness. No detailed support for the applicant's allegation in
that regard was pied by the applicant.
[20] The applicant furthermore failed dismally in his contention that his
Constitutional rights were violated and thus rendered the decision
arbitrary. It is trite that an applicant is obliged to plead the specific right
that was allegedly violated, the alleged manner in which it was infringed
and a factual basis for such infringement. Furthermore, the applicant is
not permitted to rely directly on the provisions of section 33 of the
Constitution where the provisions of PAJA apply.
[21] From all the foregoing, there is no basis why this matter ought to be
referred back to the Judicial Service Commission or the Judicial Conduct
Committee. That relief stands to be refused.
[22] The applicant further sought in his notice of motion that this matter be
directed to the Directorate Priority Crime Investigation. No facts were
pied why this relief sought should be granted. The founding affidavit is
totally silent thereon. The relief stands to be refused.
[23] Accordingly, in view of all the foregoing, the applicant has failed to prove
his onus in obtaining any of the relief he sought in his notice of motion.
The application for review stands to be refused.
[24] There remains the issue of costs. The respondents seek a punitive cost
order which is premised upon the applicant's alleged abuse of process.
In my view, the applicant's approach and conduct evidenced in the
background as contained in the impugned ruling, which formed the basis
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of this application and his lack of candour in pleading his case in an
inappropriate manner, warrants some sanction.
I grant the following order:
The application for review is dismissed with costs, such costs to include
the cost of Senior Counsel where so employed, and to be taxed on the
scale as between Attorney and Client.
C
JUDGE ·-- -~ -. - .
On behalf of Applicant: In person
Instructed by:
On behalf of Respondent: F Mathibedi SC
Instructed by: State Attorney
Date of hearing:
Date of Judgment:
11 March 2026
7 May 2026
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