SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy




THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 1186/2024
In the matter between:
MPUMALANGA SOCIETY OF ADVOCATES APPELLANT
and
JUDICIAL SERVICE COMMISSION FIRST RESPONDENT
PRESIDENT OF THE REPUBLIC OF
SOUTH AFRICA SECOND RESPONDENT

JOHANNES HENDRIKUS ROELOFSE THIRD RESPONDENT
Neutral citation: Mpumalanga Society of Advocates v Judicial Service
Commission and Others (1186/2024) [2026] ZASCA 99
(7 July 2026)
Coram: ZONDI DP and MOCUMIE, MAKGOKA JJA and NORMAN and
MAMOSEBO AJJA
Heard: 16 March 2026
Delivered: This judgment was handed down electronically by circulation to the
parties’ legal representatives by email, publication on the Supreme Court of
Appeal website and by release to SAFLII. The date and time for the hand-down

of the judgment is deemed to be 7 July 2026 at 11h00.

Summary: Judicial Service Commission – recommendation of a candidate for
judicial appointment, unaware of adverse comments against the candi date and the
candidate’s negative financial affairs – recommendation declared unconstitutional,
unlawful, invalid and set aside – matter remitted to the JSC.

ORDER
On appeal from: Gauteng Division of the High Court, Johannesburg
(Sutherland DJP sitting as court of first instance):
1 The appeal is upheld with no order as to costs.
2 The order of the Gauteng Division of the High Court, Johannesburg, is set aside
and replaced with the following:
‘1 The decision of the first respondent on 21 October 2021 to recommend the
third respondent for appointment as a judge of the Mpumalanga Division of
the High Court is declared unlawful, invalid and unconstitutional.
2 The decision of the first respondent to recommend to the second respondent
to appoint the third respondent as a judge is reviewed and set aside.
3 The matter is remitted to the first respondent to reconsider the third
respondent’s candidature for judicial appointment.
4 Each party shall pay its own costs.’
___________________________________________________________________

JUDGMENT
___________________________________________________________________
Makgoka JA ( Zondi DP and Mocumie JA and Norman and M amosebo
AJJA concurring):
[1] This is an appeal against an order of the Gauteng Division of the High
Court, Johannesburg (the High Court). The High Court dismissed an application
by the appellant, the Mpumalanga Society of Advocates (the MSA), to set aside
the decision of the first respondent, the Judicial Service Commission (the JSC) ,
to recommend the third respondent, Mr Johannes Hendrikus Roelofse, for
appointment as a judge. The appeal is with the leave of the High Court.

[2] Although the JSC initially opposed the application, it later withdrew its
opposition and filed a notice to abide and an ‘explanatory’ affidavit. The second
respondent, the President of the Republic of South Africa (the President), deferred
acting on the JS C’s recommendation pending the determination of the review
application. In this Court, neither the JSC, the President, nor WDT Attorneys
(WDT), the amicus curiae in the High Court, participated in the appeal. The
appeal is opposed only by the third respondent, Mr Roelofse. For convenience, I
refer to him as the respondent.

[3] The MSA is a voluntary professional body and an affiliate member of the
General Council of the Bar of South Africa. The JSC, established in terms of s
178 of the Constitution, is mandated to advise the national government on matters
relating to the judicia ry or the administration of justice. Its functions include
interviewing candidates for judicial vacancies and recommending suitable
candidates to the President. In terms of s 174(6) of the Constitution, the President
is responsible for appointing, among ot hers, judges of the High Court, on the
advice of the JSC.

Factual background
[4] The respondent has been a practising advocate since 2003. He was a
member of the Pretoria Bar until 2016, when he became a founding member of
the MSA upon the establishment and proclamation of the Mpumalanga Division
of the High Court (the Mpumalanga Division) . From 2018 onwards, the
respondent served as an acting judge in the Mpumalanga Division. When judicial
vacancies were advertised for that division in 2019, the respondent accepted
nomination for permanent appointment as a judge and was shortlisted for an
interview. There were no adverse comments about him. He was not recommended
for appointment after the interview.

[5] In December 2019, the respondent again accepted nomination for
appointment and was shortlisted. On 19 March 2020, the MSA submitted
comments to the JSC regarding the respondent and objected to his appointment.
In summary, the MSA’s objection rested on three grounds. The first was that the
respondent was not in good standing with the MSA. This was because he owed
rental fees (referred to in advocates’ parlance as ‘Bar fees’) for more than two
years. Under the MSA’s standing resolution, members in this position would not
receive letters of good standing from the MSA.

[6] The MSA asserted that, being aware that he would not obtain a letter of
good standing from the MSA, the respondent circumvented this requirement by
seeking one from the Provincial Legal Practice Council (the local LPC). The
MSA stated that the respondent ought to have disclosed this in his application but
failed to do so. The MSA contended that this bordered on dishonesty, thereby
calling into question the respondent’s suitability for judicial appointment.

[7] The second ground was that the respondent lacked knowledge of the law.
This was based on a review of some of his judgments and his interactions with
legal practitioners in court. The MSA also questioned the respondent’s
commitment to constitutional values. The third ground was that the respondent
lacked the necessary judicial temperament. The MSA complained that the
respondent often interrupted counsel during oral submissions, engaged in
disruptive, abrasive behaviour, and was not open to persuasion. According to the
MSA, the respondent’s conduct was unbecoming of a judicial officer.

[8] On 31 March 2020, the MSA charged the respondent with three counts of
misconduct, all arising from his debt to the MSA for Bar fees. In respect of the
first charge, it was alleged that, in connivance with his wife, the MSA’s
bookkeeper at the time, the res pondent had fraudulently attempted to cede some

of his invoices in favour of the MSA without the latter’s consent. The attempted
cession would have resulted in the respondent being credited with R124 409 in
lieu of his outstanding fees. This would have created the impression that the
respondent had paid that amount to the MSA, thereby reducing his indebtedness.

[9] The MSA alleged that, when the respondent acted as described above, he
knew or ought reasonably to have known that the MSA had instructed its
attorneys to recover the debt from him. Accordingly, the purported cession was
intended or calculated to fraudulently relieve the respondent of his indebtedness
to the MSA. The charge sheet further alleged that the respondent had intentionally
and fraudulently shifted the risk of his unpaid invoices or claims to the MSA.

[10] The second charge alleged that in his questionnaire for judicial
appointment in December 2019, the respondent failed to disclose to the JSC that
his outstanding debt of R241,852.72 in respect of Bar fees had been handed over
to attorneys for collection and that a letter of demand had already been issued to
him. The respondent stated that there were no circumstances known to him,
including financial matters, that might cause him embarrassment in undertaking
the office of a judge.
[11] In the third charge, the MSA alleged that the respondent, in his application
for judicial appointment, failed to disclose that he was not in good standing with
the MSA. Consequently, he could not obtain the required letter of good standing
from the MSA, the professional body to which he belonged. Instead, he obtained
a letter from the local LPC. On 4 April 2021, after being served with the charge
sheet, the respondent tendered his resignation from the MSA, with immediate
effect.

The April 2021 interview
[12] The respondent brought these charges to the JSC’s attention before the
interviews. The JSC’s 2020 autumn interviews did not take place in April as usual,
due to the COVID-19 lockdown, but were held a year later, in April 2021. During
the respondent’s inter view, a few questions were put to him arising from the
charges. The Judge President of the Mpumalanga Division (the Judge President)
raised these allegations with the respondent, and a few other members of the JSC
questioned him about them. Commissioner Magwanishe expressed concern to the
respondent about recommending him while ‘serious allegations’ were pending
against him. Commissioner Sigogo asked the respondent to explain his statement
that he had never been charged with the complaints levelled against him, in light
of the MSA’s charge sheet. The respondent explained that: (a) the charge sheet
was issued by the chairperson of the MSA, and that it was not the Bar Council’s
decision to charge him; and (b) he had resigned from the MSA because he could
no longer afford the Bar fees. Because of his resignation, the charge sheet was
not acted upon.

[13] The respondent attributed the MSA charge sheet to the Walele communal
dispute case, which he was presiding over when the charges were brought against
him. He stated that the charges were orchestrated by the chairperson of the MSA,
Adv Mokhare SC, who represented the applicants in that case, against whom he
had granted an ex parte interim order in camera. The applicants asserted that the
respondent and the Judge President had colluded to make an order in favour of
their opponents, without their knowledge. This stemmed from a statement in the
respondent’s judgment that he had heard the application for an Anton Pillar order
‘in camera in accordance with the Judge President’s directive’.

[14] The applicants in that matter accused the respondent, together with the
Judge President, of serious and grave misconduct. They contended that the

respondent had failed to act independently and impartially and had been unduly
influenced by the Judge President to hear and grant an interim interdict in camera.
The applicants’ application for leave to appeal against the respondent’s order was
ultimately dismissed by the Constitutional Court in Mkhatshwa v Mkhatshwa
(Mkhatshwa).1 The Court also summarily rejected the applicants’ allegations of
inappropriate conduct by the respondent and the Judge President, deeming them
baseless and frivolous. Accordingly, the Constitutional Court awarded punitive
costs against the applicants. It also criticised their legal representatives for failing
to advise the applicants not to persist with what the Court considered to be
frivolous allegations.2

[15] Commissioner Sigogo asked the respondent to explain why he sought a
letter of good standing from the LPC rather than from the MSA, given that he
knew he was not in good standing with the latter body. The respondent explained
that, under the law, the LPC was the regulatory body for legal practitioners, and
that there was nothing improper in his seeking a letter of good standing from it
rather than from the MSA. Minister Lamola put it to the respondent that resigning
from the MSA after he was charged could create an impression ‘of someone who
was running away’. The respondent disagreed with that proposition. After
interviewing the respondent, the JSC did not recommend him.

The October 2021 interview
[16] The respondent again accepted nomination for judicial appointment in June
2021 for one of the two vacant positions in the Mpumalanga Division. On 12
August 2021, the JSC issued a public statement announcing the names of the
shortlisted candidates for the various courts. The respondent was among th ose

1 Mkhatshwa and Others v Mkhatshwa and Others [2021] ZACC 15; 2021 (5) SA 447 (CC); 2021 (10) BCLR
1182 (CC).
2 The Constitutional Court’s judgment was delivered on 18 June 2021, two months after the respondent’s interview.

shortlisted for an interview , scheduled for 8 October 2021. The JSC further
invited comments on the shortlisted candidates to be submitted by 13 September
2021.

[17] The statement indicated that comments received after the closing date
would not be considered. This was a result of the JSC’s decision on 22 April 2021,
prompted by late adverse comments on candidates, some of which were made on
the eve of the interviews. The JSC decided to adhere strictly to the deadline for
comments and that comments submitted after the deadline would not be
considered unless they raised a ‘serious’ complaint arising after the closing date.

[18] On 22 September 2021, about eight days after the 13 September 2021
deadline, the MSA emailed its comments on the respondent to the then JSC
secretary, Mr Sello Chiloane. The comments were accompanied by a condonation
application for the late submission. In its comments, the MSA repeated its
assertions from April 2021, including those regarding the respondent’s
temperament, and objected to the respondent’s appointment.

[19] It is common cause that the MSA’s comments were never brought to the
attention of the JSC commissioners. In its affidavit, the JSC explained how this
came about. Because Mr Chiloane was busy preparing for the interviews, he only
saw the MSA’s comments ‘a few days after [the email] was sent.’ All comments
received before the cut-off date were sent to the JSC members between 20 and 24
September 2021. The JSC affidavit further explained that the MSA’s comments
were not sent to the JSC members because they were received after the deadline
and did not relate to a serious incident that occurred after the deadline.

[20] However, there is no confirmatory affidavit from Mr Chiloane in this
regard. Thus, the JSC’s unconfirmed explanation for why the MSA’s comments

were not before the JSC commissioners is hearsay. In any event, it was not for the
JSC secretariat to decide that the MSA’s comments were not to be made available
to the JSC commissioners. At the very least, the Acting Chief Justice should have
been alerted to the MSA’s late comments.

[21] Be that as it may, unaware of the MSA’s objections, the JSC interviewed
the respondent on 8 October 2021. The respondent answered questions from the
Acting Chief Justice, the Judge President, Judge President Mlambo,
commissioners Nyambi, Notyesi, Ma tolo-Dlepu, Nyambi, Madonsela SC and
Cane SC. Most of the questions were uneventful, but the respondent’s
engagement with commissioners Madonsela SC and Cane SC stood out. This is
how Madonsela SC’s engagement with the respondent proceeded:
‘COMMISSIONER MADONSELA: On the last occasion when you were here the
Mpumalanga Society of Advocates had raised an issue that you were . . . as it were, suspectus
de fuga.
MR ROELOFSE: Jah. That . . . [intervenes]
COMMISSIONER MADONSELA: In the sense that they were complaining that you had not
paid Bar fees for a long time. And they were looking for them, then you . . . when they were
trying to discipline you on that, then you resigned with an outstanding debt still not paid to
them. Has . . . [intervenes]
MR ROELOFSE: Its now paid. It was during the same time that the . . . [intervenes]
COMMISSIONER MADONSELA: Are you answering the same question that I’ve asked?
MR ROELOFSE: Sorry?
COMMISSIONER MADONSELA: Are you putting words in my mouth?
MR ROELOFSE: No, no, no, no, no. No, I am not. You may continue. Sorry, I [intervenes]
COMMISSIONER MADONSELA: I noticed when other people were asking you a question,
you answered them before they did.
MR ROELOFSE: Alright, I’ll wait.
COMMISSIONER MADONSELA: You even had the nerve to tell us that it is time for you
to be appointed.
MR ROELOFSE: Not me. I said it's time.
COMMISSIONER MADONSELA: Because you are white.

MR ROELOFSE: Yes.
COMMISSIONER MADONSELA : Will you please listen to the question I intend . . .
[intervenes]
MR ROELOFSE: I will.
COMMISSIONER MADONSELA: Ag man, you are even talking . . . interrupting me when
I am asking.
MR ROELOFSE: I said I will. Thank you.
COMMISSIONER MADONSELA: I don’t have any questions. Thank you.’

[22] Cane SC asked the respondent what his approach would be as a judge when
credit providers enforce credit agreements in the High Court for debts within the
magistrates’ court’s jurisdiction. The respondent stated that he would assume
jurisdiction but award costs on the magistrates’ court scale. The following
exchange then ensued:
‘COMMISSIONER CANE: You seem to be unaware of the recent authority, that in fact in
an NCA context, the requirement is for the financial institution to bring the matter in the
magistrates’ court.
MR ROELOFSE: Yes. Yes.
COMMISSIONER CANE: You are aware of that?
MR ROELOFSE: I am . . . I will check it up.
COMMISSIONER CANE: That would then mean your initial response to me was not correct
though.
MR ROELOFSE: Jah, then it was not correct.
COMMISSIONER CANE: Jah, then you can’t be aware of that authority?
MR ROELOFSE: Jah. No, no. I’m saying that there was an issue over whether or not the high
courts must or should adjudicate matters of the lower court, and I understood the judgment of
the SCA to be that, well, the high court must. I just did not mention the issue of the NCA.’

[23] The JSC commissioners engaged in deliberations, during which some
reflected in particular on the respondent’s temperament following his exchange
with Madonsela SC. Some commissioners regarded it as an unfortunate, isolated

incident. For example, the Judge President expressed surprise at the respondent’s
conduct and stated that it was uncharacteristic of him. Judge President Mlambo
stated that he was not aware of any complaint against the respondent regarding
his temperament. He further said that ‘[i]f temperament was a problem, we would
have heard it because attorneys and advocates appear in his court’.

[24] Of course, Judge President Mlambo made this statement in ignorance of
the fact that there was indeed a complaint from the MSA at that stage about the
respondent’s temperament, which was not brought to the attention of the JSC
commissioners. Moreover, there was already an MSA complaint about the
respondent’s temperament during the April 2021 interview.

[25] Madonsela SC cautioned against the view expressed by some
commissioners that the respondent could improve his temperament after
appointment. He pointed out that this was likely to worsen, given that, as a judge,
the respondent would have security of tenure for life. For her part, Cane SC
reflected thoughtfully on the respondent’s temperament:
‘So there’s that intemperance and lack of patience, which is really concerning to me as an
advocate. We are the people who know that kind of shorthanded, dismissive way of failing to
actually ensure that you grapple with something is deeply troublesome when you are in a court.
But I have that hesitation about him and yet at the same time, I do emphasi ze it with a very
heavy heart, because he’s made a very significant contribution as it’s been acknowledged here
. . .’
[26] After deliberations, the JSC, by an 18-3 vote, recommended the respondent
and another candidate for judicial appointment. On 27 October 2021, the Acting
Chief Justice communicated the JSC’s decision and advised the President to
appoint the respondent as a judge, among other candidates. On 29 October 2021,
the MSA wrote to the President and the Acting Chief Justice, informing them of

its intention to commence review proceedings to challenge the JSC’s
recommendation that the respondent be appointed a judge.

In the High Court
[27] The MSA launched its application on 25 November 2021. It challenged the
JSC’s decision to recommend the respondent on the following grounds. First, that
the decision was made without considering the MSA’s adverse written comments
on the respondent and its objection to his candidature, even though they were
submitted after the deadline. The comments concerned the respondent’s alleged
lack of integrity in hi s personal financial affairs, his temperament, and his
knowledge of the law. Second, that the respondent misled the JSC in his
questionnaire by stating that he had settled his debt with the MSA for Bar fees.

[28] Third, that the respondent misled the JSC during the October 2021
interview by failing to disclose that R20 000 of the debt owed to the MSA was
outstanding at the time, despite his compliance with the agreed payment plan.
Fourth, the respondent improperly bypassed the MSA by seeking a letter of good
standing from the local LPC, knowing that he would not obtain one from the MSA
because he was not in good standing. The respondent opposed the MSA’s
application and filed an answering affidavit in support of the JSC’s decision to
recommend him.

[29] Subsequent to the MSA’s review application, WDT applied to be admitted
as amicus curiae. The basis of the application was that, after the JSC’s decision
to recommend the respondent, WDT discovered that a civil judgment had been
entered against the respondent on 31 May 2021 in favour of Laerskool N[...] for
just over R31 000. The amount was for the respondent’s son’s school fees for
2018, 2019, and 2020. The summons had been issued in November 2020. WDT

asserted that the respondent had failed to disclose the debt and the judgment
during his candidature for the October 2021 interview.

[30] In response, the respondent stated that he had never received the summons
and only became aware of it on 1 February 2023, when his bank informed him.
The return of service indicated that the summons had been served by attachment
to the outer door at his previous address. After becoming aware of the judgment,
he reached an agreement with the school to pay R25 000 in instalments. On
30 March 2023, following the final payment, the school agreed to the rescission
of the judgment.

The judgment of the High Court
[31] The High Court considered the MSA’s complaints regarding the
respondent’s financial non-disclosure and his temperament. The financial non -
disclosure complaint was two-fold. First, that the respondent had concealed from
the JSC during his October 2021 interview that R20 000 of the Bar fees debt was
outstanding at that stage. Second, that the respondent had failed to disclose to the
JSC in his questionnaire for the October 2021 interview that there was a civil
judgment against him, or, alternatively, that he had failed to disclose the debt that
gave rise to the judgment. The High Court dismissed all of the MSA’s complaints
and accepted the respondent’s explanations. Accordingly, it dismissed the MSA’s
application with no order as to costs. It confirmed the JSC’s recommendation that
the respondent be appointed as a judge of the Mpumalanga Division.

In this Court
[32] The MSA persisted in its assertion that the respondent is unfit for judicial
office and, accordingly, that the JSC’s decision to recommend him was irrational,
on the same grounds it advanced in the High Court, namely, a lack of judicial

temperament and a failure to disclose material financial information. The
respondent supported the High Court’s findings.
[33] The JSC is an organ of State. Accordingly, its decision constitutes
administrative action within the meaning of s 1 of the Promotion of
Administrative Justice Act 2000 ( the PAJA), as it exercises public power and
performs a public function under the Constitution and the Judicial Service
Commission Act 9 of 1994. The JSC’s decision is therefore reviewable under s 6
of the PAJA.
Discussion
Judicial temperament
[34] This issue has two legs, each arising independently. The first stems from
the MSA’s comments on the respondent’s candidature for the April 2021
interview. These were repeated in the MSA’s comments on the October 2021
interview but were not brought to the a ttention of the JSC commissioners. The
second arose from the respondent’s exchange with Madonsela SC during the
October 2021 interview and, to some extent, with Cane SC.

[35] With regard to the first leg, the High Court summarily dismissed the MSA’s
complaint that, in October 2021, the JSC interviewed the respondent without the
benefit of the MSA’s adverse comments and objections to the respondent’s
candidature. It reasoned that this did not matter because the JSC was aware of the
allegations against the respondent in October 2021, as the MSA’s comments
merely repeated its objection from the April 2021 interview, which the JSC had
considered. Thus, the High Court concluded that it would not have made any
difference if the MSA’s objections had been received by the JSC commissioners
in respect of the October 2021 interview.

[36] The High Court misconstrued the facts. An overview of the questions posed
to the respondent by the JSC commissioners during the April 2021 interview
shows that none addressed the MSA’s complaints about the respondent’s
temperament. Instead, the commissioners focused on the allegations set out in the
MSA’s charge sheet. We do not know whether this issue was discussed during
deliberations, as the JSC did not include a transcript of the April 2021
deliberations in its record, in accordance with rule 53 of the Uniform Rules of
Court. The JSC has also not addressed this issue in its explanatory affidavit.
However, it is unlikely that it was discussed in the deliberations if it did not arise
from the interview.

[37] Similarly, in the October 2021 interviews, not a single question was put to
the respondent about the MSA’s complaint regarding his temperament. The
upshot is that, for different reasons, the JSC has not considered the MSA’s
complaint regarding the respondent’s temperament. For the April 2021 interview,
there is no explanation on record as to why, despite the MSA raising the issue, it
was not canvassed with the respondent. For the October 2021 interview, the
MSA’s complaint was not before the JSC commissioners.

[38] However, there is a direct link between the April and October 2021
interviews, as evidenced by the JSC’s affidavit. The affidavit explains that when
a candidate is interviewed for a position for which they were previously
unsuccessful, a transcript of the most recent unsuccessful interview is included in
the interview pack. According to the JSC, this enables JSC commissioners to
familiarise themselves with what transpired during the previous interview,
‘including any issues arising therefrom that may need to be raised’.

[39] Had the respondent’s temperament been canvassed during the April
interview, the JSC commissioners preparing for the October interview would

have noted it and, most likely, raised it with the respondent to determine whether
it remained an issue. Because the JSC failed to canvass the issue in the April
interview, it was no longer among the ‘issues arising’ that needed to be canvassed
with the respondent during the October interview. Furthermore, b ecause the
MSA’s comments for the October interview were not placed before the JSC
commissioners, the MSA’s complaint about the respondent’s temperament fell
through the cracks.

[40] Despite the JSC’s failure to consider the MSA’s complaints, the
respondent’s temperament was on full display during the October 2021 interview,
as evidenced by his ill-tempered exchanges with Madonsela SC. The High Court
brushed this aside and blamed Madonsela SC for the respondent’s conduct. The
court said that Madonsela SC was offended by the respondent’s earlier remark
that it was time for a white person to be appointed, given that there were no white
judges in the Mpumalanga Division.

[41] The High Court also stated that the respondent’s conduct stemmed from
Madonsela SC’s suggestion that the respondent was a ‘fugitive from justice’. It
described this as ‘an exaggerated allusion to the [MSA’s] allegation that he
resigned to avoid facing disc ipline for non -payment’. The court further blamed
Madonsela SC ‘for contriving umbrage at being interrupted by [the respondent]
when posing a question, when [the respondent] too quickly began to answer’.

[42] I do not consider the High Court’s assessment of the exchange between the
respondent and Madonsela SC to be fair and even-handed. I have set out the full
text of the exchange, which shows that the respondent repeatedly interrupted
Madonsela SC. This aligns with the MSA’s complaint that the respondent was
abrasive and disruptive in court, often interrupting counsel during submissions.

The respondent’s exchange with Cane SC should also be viewed in this light, as
it shows the respondent to be too quick to respond without reflection.

[43] What transpired during the interview undermines the High Court’s
characterisation of the MSA’s complaints as consisting of ‘generalised
condemnation in which opinions were stated but were bereft of any real narrative
substantiation’. The respondent’s conduct before the JSC thus confirmed, in real
time, the MSA’s complaints about the respondent’s temperament. In these
proceedings, the respondent himself acknowledged that his conduct was less than
exemplary.

[44] I mention these because when the JSC deliberated after the interview, the
respondent’s conduct was not properly contextualised. Had it been considered in
light of the MSA’s complaint about the respondent’s temperament during the
April 2021 interview and the persistence of that complaint at the October 2021
interview, the minds of the JSC commissioners might have been engaged
differently.
Financial disclosure
[45] As regards the outstanding R20 000, the High Court held that the
respondent was under no obligation to disclose it to the JSC during the interview,
as the amount was not yet due and the respondent had not defaulted on his
arrangement with the MSA. Furthermore, the High Court held that the respondent
was interrupted in his answer to the question, and there was no reason to doubt
that, but for the interruption, he would have disclosed the outstanding amount.

[46] It is unclear what the High Court meant by stating that the debt of R20 000
was not ‘due’. It was an outstanding amount in respect of Bar fees, for which the
respondent had arranged to pay in instalments. In his questionnaire for the judicial

appointment, completed for the October 2021 interview, the respondent stated
that he would have settled the debt in full by the time of the interview. However,
this did not happen. When commissioner Madonsela SC sought to question him
about it, the respondent interrupted him, and the two fell out. Whatever might
have happened, it remained the respondent’s obligation to disclose to the JSC
during that interview that his undertaking to the JSC in his questionnaire had not
been kept.

[47] Regarding the judgment, t he High Court correctly accepted the
respondent’s explanation that he was unaware of the judgment and therefore
could not have disclosed it to the JSC for the October 2021 interview. However,
regarding the debt itself, the court held that the respondent had no duty to disclose
it, as he had agreed with the school to pay it off upon his permanent appointment.
It also accepted the respondent’s explanation that the debt arose from a
‘dwindling and dissipated legal practice in the wake of his spells as an actin g
judge.’ For these reasons, the High Court postulated that even if the debt had been
disclosed to the JSC, it would not have dissuaded the JSC from recommending
the respondent.

[48] I have difficulty with this reasoning. The respondent’s after -the-fact
explanation in these proceedings is of little assistance. The debt, its origin, and
the repayment arrangement should have been disclosed to the JSC when the
respondent completed the questionnaire for judicial appointment. Just as it
occurred to the respondent to disclose his Bar fees debt to the JSC, so too was he
obliged to disclose the school fees debt. Only the JSC has the right, and indeed
the obligation, to weigh the impact of the debt on the respondent’s overall
candidature. It would do so, having regard to the explanation and other relevant
factors. It is not within a court’s remit to say how the JSC would have dealt with
the issue had it been disclosed to it.

[49] The High Court also accepted, without more, the respondent’s explanation
that he faced financial difficulties due to long, continuous acting stints as a judge,
which were said to have adversely affected his practice. However, there is no
suggestion that the respondent acted pro bono during those periods. It can
therefore be safely accepted that the respondent was paid a full judge’s salary for
those long periods of acting.

[50] As mentioned, t he respondent ha d served as an acting judge since 2018.
According to the judicial appointment questionnaire he completed in December
2019, his acting stints included three full terms, several weeks within terms, and
the mid-year recesses in 2019. The respondent was appointed to act during the
2019/2020 recesses and the first term of 2020. It is instructive that the school fees
debt arose during that period. Had he declared the debt to the JSC, the
commissioners might have probed the respondent about how, on a judge’s salary
for those periods, he was unable to pay his child’s school fees.

[51] In sum, the JSC’s decision to recommend the respondent following the
October 2021 interview is flawed in two respects. The first stems from its failure
during the April 2021 interview to canvass the respondent's comments on the
MSA’s complaint about his temperament. In Democratic Alliance v President of
South Africa,3 the Constitutional Court held that a failure to consider a relevant
material factor in reaching an administrative decision can render the decision
irrational if the factor not considered ought to be central to a rational , or even
reasonable, final outcome.

[52] In the present case, judicial temperament is a central attribute of a judge.
The JSC’s failure to consider the MSA’s complaint about it during either the April

3 Democratic Alliance v President of South Africa and Others [2012] ZACC 24; 2012 (12) BCLR 1297 (CC);
2013 (1) SA 248 (CC) paras 36 and 39. See also National Energy Regulator of South Africa and Another v PG

Group (Pty) Limited and Others [2019] ZACC 28; 2019 (10) BCLR 1185 (CC); 2020 (1) SA 450 (CC) para 63.

or the October 2021 interviews is reviewable under s 6(2)(e)(iii) of PAJA because
the JSC failed to consider a relevant factor. When the issue arose during the
October 2021 interview, it was not considered in the context of the MSA’s
complaint; instead, it was treated as an isolated incident arising from the interview
itself.

[53] The second defect is that the decision was made in ignorance of two
material facts, namely: (a) the MSA’s adverse comments on the respondent’s
candidature, which its own secretariat failed to bring to the commissioners’
attention; and (b) the respondent’s debt, which he failed to disclose. Each
constitutes a material error of fact. In Pepcor Retirement Fund v Financial
Services Board (Pepcor),4 this Court recognised a m aterial error of fact as a
ground of review thus:
‘…[I]f legislation has empowered a functionary to make a decision, in the public interest, the
decision should be made on the material facts which should have been available for the decision
properly to be made. And if a decision has been made in ignorance of facts material to the
decision and which therefore should have been before the functionary, the decision should . . .
be reviewable . . .’5

[54] Although a decision taken in ignorance of a material fact is not one of the
grounds of review specifically mentioned under s 6 of PAJA, this Court has held
that this ground could well be accommodated within one or other of the listed
grounds of s 6 of PAJA . In Chairpersons’ Association v Minister of Arts and
Culture, Farlam JA explained:
‘In my opinion the legal position as set out in the Pepcor case based as it is on the principle of
legality still applies under PAJA, s 6(2)(e)(iii) of which provides that administrative action

4 Pepcor Retirement Fund and Another v Financial Services Board and Another [2003] 3 All SA 21 (SCA); 2003
(6) SA 38 (SCA). See also Minister of Home Affairs and Others v Somali Association of South Africa Eastern

Cape (SASA EC) and Another [2015] ZASCA 35; 2015 (3) SA 545 (SCA); [2015] 2 All SA 294 (SCA) para 26.
5 Pepcor para 47.

taken because “irrelevant considerations were taken into account or relevant considerations
were not considered” can be set aside on review.’6

[55] This was affirmed in Chairman of the State Tender Board v Digital Voice
Processing (Pty) Ltd,7 where Plasket AJA observed that a material error of fact
could fall within s 6(2)(i) of PAJA. This is the catch-all provision that allows the
development of new grounds of review by providing that administrative action
may be reviewed on the basis that it is ‘otherwise unconstitutional or unlawful’.8
In my judgment, the JSC’s decision fits neatly within this provision.

[56] In Pepcor, this Court cautioned against blurring the distinction between an
appeal and a review when recognising this ground of review. That does not arise
here. We are not concerned with the correctness or reasonableness of the JSC’s
decision to recommend the resp ondent but with the process. It goes without
saying that complaints about the respondent’s temperament and his financial
debts are factors the JSC ought to have considered but did not. How the JSC
would have assessed the impact of those factors on the resp ondent’s candidature
would have been entirely for it, and a court would not have been competent to
review the decision merely because it disagreed with the JSC’s assessment of the
facts.

[57] In all the circumstances, the JSC’s decision to recommend the respondent
for judicial appointment is unconstitutional and invalid. It should be set aside. As
for the remedy, the MSA has correctly sought remittal of the matter to the JSC for

6 Chairpersons’ Association v Minister of Arts and Culture and Others [2007] ZASCA 44; [2007] SCA 44 (RSA);
2007 (5) SA 236 (SCA); [2007] 2 All SA 582 (SCA) para 48.
7 Chairman of the State Tender Board v Digital Voice Processing (Pty) Ltd, Chairman of the State Tender Board
v Sneller Digital (Pty) Ltd and Others [2011] ZASCA 202; 2012 (2) SA 16 (SCA); [2012] 2 All SA 111 (SCA).

See also Dumani v Nair and Another [2012] ZASCA 196; 2013 (2) SA 274 (SCA); [2013] 2 All SA 125 (SCA)
para 30.
8 Ibid para 34.

reconsideration of the respondent’s candidature. The JSC is at liberty to determine
its procedure in this regard, bearing in mind the findings of this judgment.

[58] Before I conclude, I note that , during the hearing of the appeal, the MSA
sought leave to introduce a judgment by a Full Court of the Mpumalanga Division
in the matter of Du Plessis and Others v Kruger & Partners and Others ,9
delivered on 13 January 2026 . This was an appeal against the respondent’s
judgment. The Full Court found that the respondent had a close relationship with
one of the litigants, which he failed to disclose. Because of what the court
considered to be a conflict of interest, it concluded that the respondent ought to
have disclosed the relationship and recused himself. The MSA sought to invoke
the judgment to demonstrate that the respondent lacks the integrity to serve as a
judge. I have ignored the judgment for present purposes because, important as it
might be, it is not relevant to the impugned decision of the JSC. Furthermore, it
is highly prejudicial to the respondent, as he was never afforded an opportunity
to present his version.

Conclusion and order
[59] For the reasons canvassed above, the appeal must be allowed. The MSA
has not pressed for costs. Accordingly, there will be no order for costs.

[60] The following order is made:
1 The appeal is upheld with no order as to costs.
2 The order of the Gauteng Division of the High Court, Johannesburg, is set
aside and replaced with the following:

9 Du Plessis and Others v Kruger and Partners Inc. and Another (A29/2024; 4186/2021) [2026] ZAMPMBHC 1
(13 January 2026).

‘1 The decision of the first respondent on 21 October 2021 to recommend the
third respondent for appointment as a judge of the Mpumalanga Division of
the High Court is declared unlawful, invalid and unconstitutional.
2 The decision of the first respondent to recommend to the second respondent
to appoint the third respondent as a judge is reviewed and set aside.
3 The matter is remitted to the first respondent to reconsider the third
respondent’s candidature for judicial appointment.
4 Each party shall pay its own costs.’



____________________
T MAKGOKA
JUDGE OF APPEAL

Appearances:
For appellant: M Majozi (with A Ngidi and Q Didiza)
Instructed by: Leepile Attorneys Inc., Johannesburg
McIntyre van der Post, Bloemfontein

For third respondent: R du Plessis SC
Instructed by: Phatshoane Henney, Bloemfontein.