S and Others v Van Rooyen and Others (General Council of the Bar of South Africa Intervening) (CCT21/01) [2002] ZACC 8; 2002 (5) SA 246; 2002 (8) BCLR 810 (11 June 2002)

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[2002] ZACC 8
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S and Others v Van Rooyen and Others (General Council of the Bar of South Africa Intervening) (CCT21/01) [2002] ZACC 8; 2002 (5) SA 246 (CC); 2002 (8) BCLR 810 (CC); 2002 (2) SACR 222 (CC) (11 June 2002)

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CONSTITUTIONAL COURT OF SOUTH AFRICA
                                                                                                                        Â
Case
CCT 21/01
HERMANUS FREDERICK
VAN ROOYEN                                                 Â
First Applicant
ADRIAAN CHRISTIAAN
BEKKER                                                          Â
Second
Applicant
THE ASSOCIATION OF
REGIONAL MAGISTRATES
OF SOUTH AFRICA                                                                                       Â
Third
Applicant
versus
THE STATE                                                                                                   Â
First
Respondent
GEORGE BIBI
TSHABALALA                                                              Â
Second
Respondent
G N TRAVERS N.O.                                                                                    Â
Third
Respondent
THE MINISTER OF
JUSTICE                                                                  Â
Fourth
Respondent
THE
ATTORNEY-GENERAL, TRANSVAAL                                             Fifth
Respondent
VASSILIS
THEMELAROS                                                                         Â
Sixth
Respondent
B BOOYSEN N.O.                                                                                  Â
Seventh
Respondent
GENERAL COUNCIL OF
THE BAR OF SOUTH AFRICA                                   Intervener
Heard on         :           10 and 11
September 2001
Decided on     :           11 June 2002
JUDGMENT
CHASKALSON CJ:
Introduction
[1]
The
first applicant (Van Rooyen) was convicted in the Pretoria Regional Court on
various counts of theft and the unlawful possession
of a firearm and
ammunition.  He was sentenced to imprisonment for periods amounting in all to
six years.  The presiding magistrate
in his case was the third respondent
(Travers).  Van Rooyen noted an appeal to the High Court in Pretoria (the High
Court) against
his conviction and sentence in which he disputed the findings
that Travers made on the merits, and also challenged the legality of
the
proceedings in the Regional Court, contending that the court lacks the
institutional independence and required by the Constitution.Â
He subsequently
sought to supplement his appeal by review proceedings in which similar issues
pertaining to the lack of institutional
independence of the Regional Court were
raised.
[2]
The
second respondent (Tshabalala) was charged in the Pretoria Regional Court with
murder and malicious injury to property.  He also
appeared before Travers and
applied for bail which was refused.  He noted an appeal to the High Court
against that order which failed.Â
He subsequently instituted review proceedings
in which he sought to set aside the proceedings on various grounds, including
that
the Regional Court lacked the institutional independence that the
Constitution requires.  In the meantime the sixth respondent (Themalaros)
was
called upon to face charges of fraud in the Regional Court at Pretoria.  He
entered a plea to the effect that the court had
no jurisdiction to try him
because it was not an independent court as contemplated in section 165(2) of
the Constitution.  His case
was heard by the seventh respondent (Booysen) who
upheld the plea and referred the matter to the High Court.  The fifth
respondent,
now known as the Director of Public Prosecutions,
1
then applied to the High
Court to review and set Booysen’s decision aside.
[3]
These
three matters were subsequently consolidated for the purpose of the hearing of
the appeals and reviews in the High Court.Â
They raised important issues
concerning the constitutionality of provisions of the Magistrates’ Courts Act,
2
the Magistrates Act,
3
and regulations made in
terms of the Magistrates Act.
4
  The third applicant – the Association of Regional
Magistrates of South Africa (ARMSA) – and the second applicant (Bekker) who
is
a regional magistrate, were given leave to intervene in the proceedings and did
so.
[4]
The
matter, involving these various parties with different interests, came before a
court of two judges of the High Court.  The papers
were voluminous and
complex.  After argument had been heard on the various issues that had been
raised but before judgment could
be given, one of the judges who had sat in the
matter died.  A judgment was subsequently delivered by the remaining judge.
5
  All the parties had
previously reached agreement in writing to accept the decision of the remaining
judge as the decision of the
Court.
6
  It was not disputed that he had the
power to do so in terms of section 17(2) of the Supreme Court Act.
7
[5]
The
judge upheld the application of the Director of Public Prosecutions to review
the judgment in the Themalaros case, and dismissed
the applications by Van
Rooyen and Tshabalala to review the decisions given in their cases.  He also
dismissed Van Rooyen’s appeal
against the convictions and sentences imposed on
him.  He concluded, however, that various provisions of the legislation and
regulations
which had been challenged were indeed inconsistent with the
Constitution and accordingly invalid.  To avoid any disruption in the
functioning of the courts consequent upon such a finding, he directed that the
operation of the order made by him be suspended for
9 months to enable the
executive and legislature to remedy the deficiencies in the legislation.  I
deal later with the details of
the provisions that were declared to be
inconsistent with the Constitution.
[6]
In
terms of section 172(2) of the Constitution the order of invalidity, insofar as
it pertains to the provisions of the two Acts,
is of no force or effect unless
confirmed by this Court.  The judge accordingly directed the registrar of the
High Court to refer
the order made by him to this Court to consider whether or
not the declarations of invalidity made in respect of the two Acts should
be
confirmed.  This is a requirement of the Constitutional Court Complementary
Act,
8
and rule 15 of the rules
of this Court.
9
[7]
Van
Rooyen, Bekker and ARMSA then applied to this Court for the order to be
confirmed.  The state, the Minister of Justice and the
Director of Public
Prosecutions opposed the confirmation of the order and also noted an appeal to
this Court against the order made
by the High Court.  Their appeal was noted in
terms of section 172(2)(d) of the Constitution which provides:
“Any person or
organ of state with a sufficient interest may appeal, or apply, directly to the
Constitutional Court to confirm or
vary any order of constitutional invalidity
by a court in terms of this subsection.”
[8]
Section
172(2)(d) governs appeals against orders of invalidity made concerning an Act
of Parliament, a Provincial Act or any conduct
of the President.  It has no
application to declarations of invalidity made in respect of other legislation
or conduct.
1
0
  As far as such matters are concerned, an appeal may be brought only
with the leave of this Court and in accordance with the requirements
of its
rules.
1
1
  The relevant rule is
rule 18 which requires an aggrieved litigant to apply to the High Court
concerned for a certificate that the
constitutional matter is one of substance
on which a ruling by this Court is desirable, that there is sufficient evidence
on record
to enable this Court to dispose of the matter and that there is a
reasonable prospect that this Court will reverse or materially
alter the
judgment if leave to appeal is given.  The litigant must then apply to this
Court which, after considering the certificate,
(which may be in negative or
positive terms) decides whether or not to grant leave to appeal.
[9]
It
follows that the first and fourth respondents were entitled to appeal as of
right to this Court in respect of the declarations
of invalidity made
concerning certain provisions of the Magistrates Act and the Magistrates’
Courts Act.
[10]
            The
first and fourth respondents noted an appeal against the whole of the judgment
including the orders pertaining
to the regulations, without first applying for
a certificate in terms of rule 18, or seeking leave from this Court to appeal
against
such orders.  At the hearing of the matter, Mr Fabricius who appeared
for the first and fourth respondents, applied formally for
leave to appeal
against that part of the order made by the High Court relating to the
regulations.
[11]
            Rule
15 makes provision for an appeal as of right to this Court against an order for
constitutional invalidity
contemplated in section 172(2)(d) of the
Constitution.  The appeal by the State and the Minister in the present case was
noted in
terms of this rule.  Their notice of appeal sought to appeal against
all the declarations of invalidity made by the High Court,
including those made
concerning the regulations.  The declarations of invalidity made concerning the
regulations are not subject
to confirmation by this Court and, standing on their
own, are not within the purview of section 172(2)(d) of the Constitution.Â
They
are, however, incidental to the findings of constitutional invalidity made by
the High Court that are the subject of the appeal
noted in terms of section
172(2)(d).  No good purpose would be served in the present case by requiring
appeals concerning these
regulations to be separated from appeals concerning
provisions of the Act.  We heard no argument on the question whether a right
to
appeal in terms of rule 15 includes a right to appeal against orders of
constitutional invalidity that are incidental to issues
that are the subject
matter of an appeal properly noted in terms of rule 15.  I therefore refrain
from expressing any opinion on
that issue.
[12]
            The
regulations deal with important issues on which it is desirable that there
should be certainty.  These
issues have been dealt with fully in the judgment
of the High Court, and were canvassed in the arguments addressed to this Court
on appeal.  They are incidental to the orders of constitutional invalidity in
respect of which there is an appeal as of right.Â
In these circumstances and
because of the compelling need to have certainty concerning the validity of
conditions of service under
which magistrates function, I consider it to be
desirable to deal with all of the orders made by the High Court in that
regard.Â
In so far as it may be necessary,
1
2
the failure to comply with rule
18(2) is condoned, and the first and fourth respondents are given leave to
appeal against the orders
of invalidity made by the High Court concerning
regulations made under the Magistrates Act.
Â
[13]
            Themalaros
died before the judgment was given.  Van Rooyen and Tshabalala disputed the
correctness of the
orders made by the judge dismissing their application to
have the judgments against them reviewed and set aside, and Van Rooyen also
disputed the order dismissing his appeal.  They applied to this Court for leave
to appeal directly to it against the dismissal of
these orders.
[14]
            The
application for confirmation of the orders of invalidity, the appeal by the
state, the Minister of Justice
and the Director of Public Prosecutions and the
application by Van Rooyen and Tshabalala for leave to appeal directly to this
Court,
were set down for hearing together.
[15]
            The
registrar was requested by the President of this Court to bring the orders to
the attention of the General
Council of the Bar of South Africa and the Law
Society of South Africa to enable them to make representations to the Court
should
they wish to do so.  Both these associations initially intimated that
they would wish to make representations to the Court but,
in the end, only the
General Council of the Bar did so.  The General Council of the Bar was
represented by Advocates M. Wallace
SC, A. Gabriel and M. Du Plessis.  The
Court is indebted to them for their helpful argument.
The Constitution
[16]
When
dealing with the appointment of judicial officers, the Constitution
distinguishes between judges and other judicial officers.Â
Judges are appointed
through procedures involving the Judicial Service Commission.
1
3
Other judicial officers
(and these include magistrates)
“must be
appointed in terms of an Act of Parliament which must ensure that the
appointment, promotion, transfer or dismissal of,
or disciplinary steps
against, these judicial officers take place without favour or prejudice.”
1
4
[17]
Other
provisions of the Constitution that are relevant to these proceedings are
sections 165(2), (3) and (4).  Section 165(2) provides
that
“[t]he courts
are independent and subject only to the Constitution and the law, which they
must apply impartially and without fear,
favour or prejudice.”
Judicial independence and
impartiality are also implicit in the rule of law which is foundational to the
Constitution,
1
5
and in the separation of powers demanded by the Constitution.
1
6
  This requirement is
buttressed by the provisions of sections 165(3) and (4) of the Constitution.Â
Section 165(3) states that
“[n]o person
or organ of state may interfere with the functioning of the courts”
and section 165(4)
requires that
“[o]rgans of
state, through legislative and other measures, must assist and protect the
courts to ensure the independence, impartiality,
dignity, accessibility and
effectiveness of the courts.”
[18]
The
Constitution thus not only recognises that courts are independent and
impartial, but also provides important institutional protection
for courts.Â
The provisions of section 165, forming part of the Constitution that is the
supreme law, apply to all courts and judicial
officers, including magistrates’
courts and magistrates.  These provisions bind the judiciary and the government
and are enforceable
by the superior courts, including this Court.  It is within
this context that the issues raised in the present matter must be decided.
An independent and impartial
court
[19]
In
De
Lange v Smuts NO and Others
,
1
7
Ackermann J referred to the views of the Canadian
Supreme Court in
The Queen in Right of Canada v Beauregard
,
1
8
Valente v The Queen
1
9
and
R v Généreux
2
0
on the question of what
constitutes an independent and impartial court, describing them as being
“instructive.”  In this context,
he mentioned the following summary of the
essence of judicial independence given by Dickson CJC in
Beauregard
’s
case:
“Historically,
the generally accepted core of the principle of judicial independence has been
the complete liberty of individual
judges to hear and decide the cases that
come before them;  no outsider
!
be it government, pressure group,
individual or even another judge: should interfere in fact, or attempt to
interfere, with the way
in which a judge conducts his or her case and makes his
or her decision.  This core continues to be central to the principle of
judicial independence.”
2
1
This requires judicial
officers to act independently and impartially in dealing with cases that come
before them, and at an institutional
level it requires structures to protect
courts and judicial officers against external interference.
2
2
[20]
Ackermann
J also referred to the fact that in
Valente
it had been said that,
“[i]t would
not be feasible, however, to apply the most rigorous and elaborate conditions
of judicial independence to the constitutional
requirement of independence in
s. 11(
d
) of the Charter, which may have to be applied to a variety of
tribunals.  The legislative and constitutional provisions in Canada
governing
matters which bear on the judicial independence of tribunals trying persons
charged with an offence exhibit a great range
and variety.  The essential
conditions of judicial independence for purposes of S. (11
d
) [sic] must
bear some relationship to that variety.”
2
3
He went on to say that
what
Valente
required was that
“‘the essence
of the security afforded by the essential conditions of judicial independence’
must be provided or guaranteed,
although this need not be done by ‘any
particular legislative or constitutional formula’.”
2
4
[21]
Counsel
for ARMSA and Bekker submitted that the South African Constitution, unlike the
Canadian Constitution, guarantees independence
to all courts.  He contended
that in the circumstances all courts should be treated in the same way.  This,
however, is contrary
to Ackermann J’s approval of the relevant passages in
Valente
in
De Lange v Smuts.
 As I discuss below,
2
5
it also takes no account of the fact
that the Constitution itself differentiates between the different courts and
between the procedures
for the appointment of different judicial officers.
[22]
The constitutional
protection of the core values of judicial independence accorded to all courts
by the South African Constitution
means that all courts are entitled to andÂ
have the basic protection that is required.  Section 165(2) of the Constitution
pointedly
states that “[t]he courts
are
independent”.
2
6
  Implicit in this is
recognition of the fact that  the courts and their structure, with the
hierarchical differences between higher
courts and lower courts which then
existed, are considered by the Constitution to be independent. This does not
mean that particular
provisions of legislation governing the structure and
functioning of the courts are immune from constitutional scrutiny.  Nor does
it
mean that lower courts have, or are entitled to have their independence
protected in the same way as the higher courts.  The
Constitution and the
existing legislation  kept in force by the Constitution treat higher courts
differently to lower courts.Â
Whilst particular provisions of existing legislation
dealing with magistrates’ courts can be examined for consistency with the
Constitution, the mere fact that they are different to the provisions of the
Constitution that protect the independence of judges
is not in itself a reason
for holding them to be unconstitutional.
[23]
In
deciding whether a particular court lacks the institutional protection that it
requires to function independently and impartially,
it is relevant to have
regard to the core protection given to all courts by our Constitution, to the
particular functions that such
court performs and to its place in the court
hierarchy.  Lower courts are, for instance, entitled to protection by the
higher courts
should any threat be made to their independence.  The greater the
protection given to the higher courts, the greater is the protection
that all
courts have.
[24]
Counsel
for Bekker and ARMSA pointed out that regional magistrates have extensive penal
jurisdiction, both in relation to the subject
matter of cases which can be
tried, and the penalties that can be imposed.  That is correct.  But
magistrates’ courts are  courts
of first instance and their judgments are
subject to appeal and review.  Thus the higher courts have the ability not only
to protect
the lower courts against interference with their independence, but
also to supervise the manner in which they discharge their functions.Â
These
are objective controls that are relevant to the institutional independence of
the lower courts.
[25]
Another
relevant factor is that district and regional magistrates’ courts do not have
jurisdiction to deal with administrative reviews
or constitutional matters
where the legislation or conduct of the government is disputed.  These are the
most sensitive areas of
tension between the legislature, the executive and the
judiciary.  Measures considered appropriate and necessary to protect the
institutional independence of courts dealing with such matters, are not
necessarily essential to protect the independence of courts
that do not perform
such functions.
[26]
It was
also contended that the dictum pertaining to possible differences in standards
of protection should be understood in the context
of
Valente
’s case,
which was concerned with the right to a fair trial.  It is, however, clear from
Valente’s
case that the principle of judicial independence was
considered to be an “unwritten” principle of the Canadian Constitution
applicable
to all courts.  Section 11(d) of the Charter of Rights which makes
provision for criminal trials to be heard by “an independent
and impartial
tribunal” is merely an illustration of this overriding requirement.
[27]
I am
therefore not persuaded that any reason exists to qualify the approval given to
the passages from
Valente
by Ackermann J in
De Lange v Smuts.Â
Judicial
independence can be achieved in a variety of ways; the “most rigorous and
elaborate conditions of judicial independence”
need not be applied to all
courts, and it is permissible for the essential conditions for independence to
bear some relationship
to the variety of courts that exist within the judicial
system.
[28]
This
seems to me to be implicit in the Constitution itself.  The jurisdiction of the
magistrates’ courts is less extensive than
that of the higher courts.  Unlike
higher courts they have no inherent power, their jurisdiction is determined by
legislation and
they have less extensive constitutional jurisdiction.
2
7
  The Constitution also
distinguishes between the way judges are to be appointed and the way
magistrates are to be appointed.  Judges
are appointed on the advice of the
Judicial Service Commission;
2
8
their salaries,  allowances and benefits may not be
reduced;
2
9
and the circumstances in which they may be removed from office are
prescribed.
3
0
  In the case of magistrates, there are no comparable provisions in the
Constitution itself, nor is there any requirement that an
independent
commission be appointed to mediate actions taken in regard to such matters.Â
That said, magistrates are entitled to
the protection necessary for judicial
independence, even if not in the same form as higher courts.
[29]
Ackermann
J also drew attention to other key aspects of judicial independence mentioned
in
Valente’s
case.
3
1
  They are, in particular, the requirement that
judicial officers have security of tenure, a basic degree of financial
security,
and institutional independence concerning matters that relate
directly to the exercise of the judicial function, as well as judicial
control
over administrative decisions “that bear directly and immediately on the
exercise of the judicial function.”
[30]
The
judgment of the High Court holds that magistrates’ courts lack the
institutional independence that the Constitution requires;
that impediments to
independence exist in the method of appointment, promotion, and disciplining of
magistrates, and in the control
that the executive has over the day-to-day
functioning of these courts.  I will deal with that later, but first it is
necessary
to consider the appropriate test for assessing whether a court has
the institutional independence required by the Constitution.
Assessment of independence
[31]
            Judicial
officers must act independently and impartially in the discharge of their
duties.  In addition, as
O’ Regan J points out in
De Lange v Smuts,
3
2
the courts in which they
hold office must exhibit institutional independence.  That involves an
independence in the relationship
between the courts and other arms of
government.  It is that relationship, as laid down in the Magistrates Act
3
3
and the Magistrates’
Courts Act
3
4
that the High Court held to be inconsistent with the Constitution.
[32]
            In
dealing with this, the High Court adopted the test used in
R v Généreux
,
which is whether the court or tribunal “from the objective standpoint of a
reasonable and informed person, will be perceived as
enjoying the essential
conditions of independence.”
3
5
  That the appearance or perception of independence
plays an important role in evaluating whether courts are sufficiently
independent
cannot be doubted. The reasons for this are made clear by the
Canadian jurisprudence on the subject, particularly in
Valente v The Queen
where Le Dain J held that:
“Both
independence and impartiality are fundamental not only to the capacity to do
justice in a particular case but also to individual
and public confidence in
the administration of justice.  Without that confidence the system cannot
command the respect and acceptance
that are essential to its effective
operation.  It is, therefore, important that a tribunal should be perceived as
independent,
as well as impartial, and that the test for independence should
include that perception.”
3
6
The jurisprudence of the
European Court of Human Rights also supports the principle that appearances
must be considered when dealing
with the independence of courts.
3
7
[33]
            When
considering the issue of appearances or perceptions, attention must be paid to
the fact that the test
is an objective one.  Canadian courts have held in
testing for a lack of impartiality
“the
apprehension of bias must be a reasonable one, held by reasonable and
right-minded persons, applying themselves to the question
and obtaining thereon
the required information.  In the words of the Court of Appeal . . . that test
is ‘what would an informed
person, viewing the matter realistically and
practically – and having thought the matter through – conclude.’”
3
8
This test was approved by
the Court in
Valente
as being appropriate for independence as well as
impartiality.
3
9
  It is also similar to the test adopted by this Court in
President of
the Republic of South Africa and Others v South African Rugby Football Union
and Others
4
0
for determining whether there are grounds for recusal:
“The question
is whether a reasonable, objective and informed person would on the correct
facts reasonably apprehend that the Judge
has not or will not bring an
impartial mind to bear on the adjudication of the case, that is a mind open to
persuasion by the evidence
and the submissions of counsel.”
[34]
            The
High Court adopted this test.
4
1
  I agree that an objective test properly
contextualised is an appropriate test for the determination of the issues
raised in the
present case.  The perception that is relevant for such purposes
is, however, a perception based on a balanced view of all the material
information.  As a United States court has said,
“we ask how
things appear to the well-informed, thoughtful and objective observer, rather
than the hypersensitive, cynical, and
suspicious person.”
4
2
Bearing in mind the
diversity of our society this cautionary injunction is of particular importance
in assessing institutional independence.Â
The well-informed, thoughtful and
objective observer must be sensitive to the country’s complex social realities,
in touch with
its evolving patterns of constitutional development, and guided
by the Constitution, its values and the differentiation it makes
between
different levels of courts.  Professor Tribe’s comment on the separation of
powers, already cited with approval by this
Court,
4
3
seems especially relevant in this
regard:
“What counts
is not any abstract theory of separation of powers, but the actual separation
of powers ‘operationally defined by
the Constitution.’  Therefore, where
constitutional text is informative with respect to a separation of powers
issue, it is important
not to leap over that text in favor of abstract
principles that one might wish to see embodied in our regime of separated
powers,
but that might not in fact have found their way into our Constitution’s
structure.”
4
4
This comment seems to be particularly
appropriate when considering what the objective observer might conclude about
the independence
of the magistracy.
[35]
            Accepting,
as I do, that a properly contextualised objective test is the test to be
applied in the present
case, I turn now to a consideration of the issues raised
in the appeal.
In dealing with these issues it must be kept in mind that
judicial impartiality and the application without fear, favour or prejudice
by
the courts of the Constitution and all law, as postulated by section 165(2) of
the Constitution,
4
5
are inherent in an accused’s right to a fair trial
under section 35(3) of the Constitution.  One of the main
goals
of
institutional judicial independence is to safeguard such rights.  However,
institutional judicial independence itself is a constitutional
principle and
norm that goes beyond and lies outside the Bill of Rights.  The provisions of
section 36 of the Constitution dealing
with the limitation to rights entrenched
in the Bill of Rights are accordingly not applicable to it.  Judicial
independence is not
subject to limitation.
The Magistrates Commission
[36]
             The
High Court held that the Magistrates Commission is an executive structure that
is not independent. This
provided the basis for the conclusion reached by the
High Court that magistrates’ courts lack the institutional independence
required
by the Constitution. The crucial findings of the High Court are as
follows:
“The
perception of the objective, reasonable and informed person will be that the
executive authority is in effective control of
the Magistrates Commission and
can use it for its own purposes.  To all intents and purposes the Magistrates
Commission is an organ
of State . . . .  It is obviously no longer the
autonomous body it was intended to be.
. . . .
Insofar as the
Magistrates Commission has any role to play in taking decisions, making its
views known to the Minister or making recommendations
to the Minister, either
in terms of the Act or the regulations, it is unlikely to take any decisions,
express any views or make recommendations
which do not find favour with the
Minister.  As a member of the Magistrates Commission the Minister will probably
play a decisive
role when the Magistrates Commission takes a decision on any
contentious issue.
. . . .
The
Magistrates Commission as presently constituted will be perceived by the
objective, reasonable and informed person to be in conflict
with or undermining
of the independence of the magistracy.  The section is therefore inconsistent
with the requirement that the
magistrates’ courts be independent.  It is also
inconsistent with s174(7) of the Constitution.  As presently constituted the
Magistrates Commission cannot ensure that the appointment, promotion, transfer
or dismissal of, or disciplinary steps against magistrates
take place without
favour or prejudice.”
4
6
[37]
            Any
power vested in a functionary by the law (or indeed by the Constitution itself)
is capable of being abused.
That possibility has no bearing on the
constitutionality of the law concerned.  The exercise of the power is subject
to constitutional
control and should the power be abused the remedy lies there
and not in invalidating the empowering statute.
4
7
[38]
            The
findings made by the High Court concerning the Magistrates Commission are
premised on the assumption that
a body consisting of judicial officers, legal
practitioners, members of Parliament and nominees of the executive, charged
with the
important duty of protecting the independence of magistrates, will
either be, or objectively be perceived to be, a sham, concerned
more with
pleasing the Minister of Justice than with discharging its responsibilities.  I
should say immediately that there is in
my view no basis for such an
assumption, nor for the conclusion reached by the High Court to that effect.Â
However, the findings
lie at the heart of the judgment of the High Court and it
is therefore necessary to deal with them in some detail.
The composition of the
Magistrates Commission
[39]
            The
Magistrates Commission is established in terms of the Magistrates Act.  Section
3 of this Act deals with
the composition of the Commission which is as follows:
“(i)       a judge of the [High Court] of South Africa, as chairperson,
designated by the President in consultation with the
Chief Justice;
(ii)        the Minister or his or her nominee, who must be an officer of
the Department of Justice;
(iii)       two regional magistrates, one to be designated by the
respective regional magistrates and the other by the President
after
consultation with the respective regional magistrates;
(iv)       two magistrates with the rank of chief magistrate, one to be
designated by the respective chief magistrates and the
other by the President
after consultation with the respective chief magistrates;
(v)        two magistrates who do not hold the rank of regional
magistrate or chief magistrate, one to be designated by the
magistrates’
profession and the other by the President after consultation with the
magistrates’ profession;
(vi)       two practising advocates designated by the Minister after
consultation with the advocates’ profession;
(vii)      two practising attorneys designated by the Minister after
consultation with the attorneys’ profession;
(viii)      one teacher of law designated by the Minister after
consultation with the teachers of law at South African universities;
(ix)       the Head: Justice College;
(x)        four persons designated by the National Assembly from among
its members, at least two of whom must be members of
opposition parties
represented in the Assembly;
(xi)       four permanent delegates to the National Council of Provinces
and their alternates designated together by the Council
with a supporting vote
of at least six provinces; and
(xii)      five fit and proper persons appointed by the President in
consultation with the Cabinet, at least of two whom shall
not be involved in
the administration of justice or the practice of law in the ordinary course of
their business.”
[40]
            The
Commission thus consists of a judge, six magistrates, four legal practitioners,
a teacher of law, eight
members of Parliament and five nominees of the
executive.  In addition, the Minister and the head of Justice College are
members
of the Commission.  On its face this is a diverse body of persons,
nearly half of whom consist of members of the judiciary and the
legal
profession. The rest are nominees of Parliament and the executive.  To some
extent this is similar to the composition of the
Judicial Service Commission
which has a central role in the appointment of judges and the composition of
which is dealt with in the
Constitution itself.
4
8
[41]
            The
Judicial Service Commission includes eight members from the legal profession
and judiciary and fifteen
members nominated by Parliament and the executive.Â
Where appointments to the High Court are concerned, these numbers become nine
and sixteen respectively.
[42]
            If
a comparison is made between the composition of the two commissions it will be
seen that the legal profession
and judiciary have a stronger representation in
the Magistrates Commission than in the Judicial Service Commission.  Apart from
that, the process to be followed in appointing members to the two Commissions
is similar.  Where Parliament is involved, provision
is made for opposition
parties to have equal say with the governing party for nomination from the
National Assembly, and for a special
two thirds majority in the case of
nominations from the National Council of Provinces.  Where the judiciary and
the professions
are concerned the nominations come from within the structure to
be represented.
The history of the
legislation dealing with the Magistrates Commission
[43]
            In
reaching the conclusion that it did, the High Court attached considerable
weight to the changes in the composition
of the Magistrates Commission
introduced by the 1996 amendment to the Magistrates Act.
[44]
            The
Magistrates Commission as originally constituted by the 1993 Act, was made up
as follows:
4
9
“(i)       a judge of the Supreme Court of South Africa, as chairman,
designated by the Chief Justice;
(ii)        an officer of the Department of Justice designated by the
Minister;
(iii)       two regional court presidents designated by the regional
court presidents of the respective regional divisions established
under section
2 of the Magistrates’ Courts Act;
(iv)       two magistrates with the rank of chief magistrate designated
by the respective magistrates with that rank;
(v)        the Chief Director: Justice College;
(vi)       one magistrate designated by the Magistrates’ Association of
South Africa;
(vii)      one advocate and one attorney designated by the General
Council of the Bar of South Africa and the Association of
Law Societies of the
Republic of South Africa, respectively; and
(viii)      one legal academic designated by the Society of University
Teachers of Law.”
[45]
            There
were thus ten and not 27 members of the Commission, as is now the case.  Of
those ten, all but two were
designated by judicial officers or the legal
profession.  The only members who were not in this category, were the officer
of the
Department of Justice designated by the Minister, and the Chief Director
of Justice College.  The changes introduced in 1996 made
provision for 13
members to be designated by the National Assembly, the National Council of
Provinces and the Cabinet; for six magistrates,
not five; for two advocates,
not one; and for two attorneys, not one.  The 1996 amendment also changed the
basis of designation,
vesting the power of appointment in respect of three of
the magistrates, and all of the representatives of the legal profession and
teachers of law, in the executive after consultation with the professions
concerned.
[46]
            Referring
to these changes, the High Court held that
“[t]he
objective, reasonable and informed person would conclude that the composition
of the Magistrates Commission was altered .
. . for the purpose of giving the
Executive and the Legislature control of the Magistrates Commission and through
it the magistracy.”
5
0
I cannot agree with this,
nor with the view expressed in the High Court judgment that it is “inescapable”
that the magistracy
has become the “personal fiefdom” of the Minister of
Justice.
5
1
[47]
            The
language in which these conclusions of the High Court are expressed is
unfortunate.  The findings imply
that Parliament changed the composition of the
Magistrates Commission to give the legislature and executive control over the
Magistrates
Commission so as to enable the Minister to manipulate the
Commission and the magistracy.  Implicit in these findings is also the
unjustifiable innuendo that the persons appointed to the Commission pursuant to
this scheme would be seen to be willing to do the
bidding of the Minister.Â
This is a recurring theme of the judgment which is ill-considered and not sustainable
on a proper analysis
of all the relevant circumstances.  In expressing these
intemperate views, which in effect attribute improper motives to the
legislature
and the executive, the High Court also failed to have regard to the
changes in the constitutional and legal order that occurred between
1993 and
1996, to relevant provisions of the interim Constitution and the 1996
Constitution, and to our history of racial and gender
discrimination which had
to be addressed after the adoption of the interim Constitution.  These were all
matters relevant to the
decisions taken by Parliament concerning the
composition of the Magistrates Commission.
[48]
            In
a constitutional democracy such as ours, in which the Constitution is the
supreme law of the Republic, substantial
power has been given to the judiciary
to uphold the Constitution.  In exercising such powers, obedience to the
doctrine of the separation
of powers requires that the judiciary, in its
comments about the other arms of the state, show respect and courtesy, in the
same
way that these other arms are obliged to show respect for and courtesy to
the judiciary and one another.  They should avoid gratuitous
reflections on the
integrity of one another.  Regrettably the High Court in its judgment did not
consistently fulfil this obligation.
The changes to the
constitutional and legal order between 1993 and 1996
[49]
            The
1993 Act was passed prior to the adoption of the interim Constitution and at a
time when the great majority
of the population of this country had no
representation in Parliament.  The power to appoint judges and magistrates was
then vested
in the executive.  There was no constitutional or statutory
protection of the independence of the judiciary.  The 1993 Act gave
the Magistrates
Commission an advisory function in the appointment of magistrates, but there
was no obligation on the executive to
consult any person or institution in
respect of the appointment of judges.  The Magistrates Commission was not a
representative
body and all but two of its members were designated by bodies
controlled by white judicial officers and lawyers.
5
2
[50]
            The
interim Constitution which came into force in 1994 changed the constitutional
and legal order within the
country.  The preamble to that Constitution referred
to the
“need to
create a new order in which all South Africans will be entitled to a common
South African citizenship in a sovereign and
democratic constitutional state in
which there is equality between men and women and people of all races”.Â
The Constitution itself
was to be the
 “historic
bridge between the past of a deeply divided society characterised by strife,
conflict, untold suffering and injustice,
and a future founded on the
recognition of human rights, democracy and peaceful co-existence and
development opportunities for all
South Africans irrespective of colour, race,
class, belief or sex”.
5
3
This Court has on more
than one occasion stressed the transformative purpose of the interim
Constitution and the 1996 Constitution.
5
4
  This transformation involves not
only changes in the legal order, but also changes in the composition of the
institutions of society,
which prior to 1994 where largely under the control of
whites and, in particular, white men.  The Magistrates Commission, constituted
as it was in 1993, could not be expected to escape this process.
[51]
            Section
96 of the interim Constitution provided that:
“(1)      . . . .
(2)        The judiciary shall be independent, impartial and subject only
to this Constitution and the law.
(3)        No person and no organ of state shall interfere with judicial
officers in the performance of their functions.”
[52]
            A
Judicial Service Commission was also established.  The interim Constitution  prescribed
how it was to be
composed, and vested in it the effective control over the
appointment and impeachment of judges.  This Commission had a diverse
membership that did not consist predominately of representatives of the white
legal profession and judiciary.
[53]
            As
far as magistrates were concerned, the interim Constitution provided that:
“There shall
be a Magistrates Commission established by law to ensure that the appointment,
promotion, transfer or dismissal of,
or disciplinary steps against magistrates,
take place without favour or prejudice, and that the applicable laws and
administrative
directives in this regard are applied uniformly and properly,
and to ensure that no victimization or improper influencing of magistrates
occurs.”
5
5
It did not, however,
prescribe how that Commission should be composed.  That was left to be
determined by the legislation establishing
the Magistrates Commission.Â
[54]
            Through
these provisions the interim Constitution strengthened the position of the
courts, including the magistrates’
courts, providing them with institutional
protection which they previously lacked, by entrenching as part of the
Constitution the
core values of judicial independence.
[55]
            In
1996, a new constitutional text was adopted by a Constitutional Assembly to
replace the interim Constitution.Â
The new constitutional text increased the
size of the Judicial Service Commission, making provision for six members of
the National
Assembly as well as four members of the National Council of
Provinces to be members of the Commission.  Three of the six National
Assembly
members had to be chosen from opposition parties. The new text also provided
that:
“If the number
of persons nominated from within the advocates’ or attorneys’ profession . . .
equals the number of vacancies
to be filled, the President must appoint them.Â
If the number of persons nominated exceeds the numbers of vacancies to be
filled,
the President, after consulting the relevant profession, must appoint
sufficient of the nominees to fill the vacancies, taking into
account the need
to ensure that those appointed represent the profession as a whole.”
5
6
The new Constitution, with
these provisions concerning the composition of the Judicial Service Commission,
came into force on 4 February
1997.
The 1996 changes to the
composition of the Magistrates Commission
[56]
            The
amendment to the Magistrates Act changing the composition of the Magistrates
Commission was assented to
on 27 June 1996.  This was approximately seven weeks
after the new constitutional text changing the composition of the Judicial
Service Commission had been adopted by the Constitutional Assembly.  Section 10
of the amending Act  provided that the amendments
would come into operation on
a date fixed by the President by proclamation in the Gazette, which in the
result was 1 October 1998.Â
This was more than a year after the 1996
Constitution came into force.Â
[57]
            The
change in the composition of the Magistrates Commission effected by the 1996
amendment brought the composition
of that Commission closer to that of the
Judicial Service Commission, which the Constitution itself recognises as a body
appropriately
constituted for the purpose of matters concerned with the
appointment and impeachment of judges.
[58]
            The
High Court attached no weight to these similarities, holding that “the
composition of the Judicial Service
Commission was a political choice made by
the Constitutional Assembly within the framework of the constitutional principles”,
5
7
and that the Magistrates
Commission had to be evaluated independently in the context of the other
requirements of the Constitution.Â
This fails to have regard to the fact that
the Constitutional Principles required the Constitution to make provision for
an independent
and impartial judiciary,
5
8
and the Constitution containing
these provisions concerning the appointment of judges was certified by this
Court as complying with
the Constitutional Principles.  The High Court thus
erred by refusing to consider the constitutional template provided by the
constitution,
in the form of the Judicial Service Commission.
[59]
            In
the
First Certification Judgment
5
9
this Court held that the appointment
of judges by the executive or a combination of the executive and Parliament was
not inconsistent
with the requirement that the judiciary be impartial and
independent.
6
0
  There was accordingly no need to establish an independent body to make
such appointments.  It was in this context that it was
said that the
establishment of such a body and its composition was a “political choice”.
[60]
            I
am unable to agree with the High Court that the provisions of the Constitution
dealing with the Judicial
Service Commission are of no relevance to the issues
in the present case.  The Constitution makes provision for the manner in which
judges are to be appointed and impeached.  What it sets as a standard for such
matters in the case of the higher judiciary is clearly
relevant to the
standards required for the lower judiciary.  Whilst the conditions of judicial
independence for all courts may not
have to be “the most rigorous”, it could
hardly be suggested that the Constitution contemplates that the legislation
that regulates
the appointment and impeachment of magistrates will be more
rigorous than comparable provisions of the Constitution dealing with
the higher
judiciary. On the contrary, as I have indicated above,
6
1
there are powerful
considerations that point in the opposite direction.
[61]
            The
changes made in 1996 are consistent with and reflect the change that has taken
place in our country since
1993 – a transformation required by the Constitution
itself.  The Magistrates Commission is now more broadly representative of
South
African society as a whole.  This was important particularly at this stage of
our history.  The overwhelming majority of
the population is black and at least
half the population is female.  Yet the great majority of the legal profession
and senior judicial
officers are still white and male. In the light of our
history and the commitment made in the Constitution to transform our society,
these racial and gender disparities cannot be ignored.  The recomposition of
the Magistrates Commission viewed thus by an objective
observer, could not
fairly be seen as an attempt to exert executive control over the magistracy.Â
There was a pressing need for
the racial and gender disparities within the
Commission to be changed, and for the Commission to be re-composed so as to
become more
representative of South African society.  The changes made
facilitated this, and that would have been understood by an objective
observer
taking a balanced view of all the relevant circumstances.
[62]
            Whether
the changes that have been made affect the independence of the Commission is a
matter to which I now
turn.  In doing so it is necessary to have regard to the
constitutional requirements pertaining to the composition of the Judicial
Service
Commission, bearing in mind the distinction made in the Constitution between
the appointment of judges and the appointment
of other judicial officers.
The Magistrates Commission
in comparison with the Judicial Service Commission
[63]
            Although
there are similarities between the Judicial Service Commission and the
Magistrates Commission, there
are also differences.  Magistrates are
represented on the Magistrates Commission whereas they have no representation
on the Judicial
Service Commission.  There can be no objection to this.Â
Magistrates are judicial officers and are required to be independent and
impartial in the discharge of their duties.  This is a quality that they share
with the judges that are members of the Judicial
Service Commission, and a
quality that they must bring to their functions as members of the Magistrates
Commission.  They are closer
to the day to day functioning of magistrates’
courts than judges are, and are probably better placed than judges to know the
stresses
and demands that candidates will face if appointed as magistrates.Â
The head of Justice College sits on the Magistrates Commission
but not on the
Judicial Service Commission.  This, too, is not open to objection.  Justice
College has an important role in the
judicial education and training of
magistrates and the head of Justice College is well placed to assess issues
that might arise in
relation to the enquiry demanded by the Constitution that
judicial officers be “appropriately qualified”.
[64]
            There
are four members of the National Assembly on the Magistrates Commission and not
six, and five executive
appointments and not four, as is the case with the
Judicial Service Commission.  These differences are of no significance.  As
mentioned previously, judicial officers and the legal profession have greater
representation on the Magistrates Commission than they
do on the Judicial
Service Commission.  They are, however, selected by a different procedure.
[65]
            What
is emphasised in the judgment of the High Court is that eight of the persons
coming from the legal profession
and the magistracy are appointed by the
executive after consultation with interested bodies from whose ranks the
appointments are
to be made.  In addition, the Minister is a member of the
Commission, the executive appoints five persons, the governing party in
Parliament appoints two persons and the head of Justice College (an executive
appointment) is also a member of the Commission.Â
Thus the governing party
controls the appointment of seventeen of the twenty seven members of the
Commission.  It also has an important
say in the appointment of the judge who
is to chair the Commission, and the four members to be appointed by the
National Council
of Provinces.  It is only in the case of the three
representatives of the various magistrates and the two members from opposition
parties, that it has no say at all.
[66]
            The
judgment of the High Court referring to this describes the Magistrates
Commission as no longer being “the
autonomous body it was intended to be”.  The
Constitutional Principles did not, however, require a Magistrates Commission,
6
2
let alone an autonomous
one.  An objection that the Constitution was inconsistent with the
Constitutional Principles because it
failed to make provision for a Magistrates
Commission, as the interim Constitution had done, was rejected by this Court in
the
First Certification Judgment
.  The Court held that as far as
magistrates’ courts were concerned, the guarantee of independence accorded to
all courts by section
165 of the Constitution and the provisions of section
174(7) dealing specifically with magistrates, was sufficient guarantee of
independence.Â
The Court also held that the legislation governing the
appointment of magistrates and functioning of magistrates’ courts would
be
subject to constitutional control.
6
3
  I will deal later with the question
whether the relevant legislation meets the requirements of section 174(7) of
the Constitution.
[67]
            The
High Court judgment refers to the fact that it is no longer necessary for the
President or the Minister
to consult with the organised professions, or any
other clearly defined professional organisations or peer groups.
“How or with
whom the President and the Minister now consult is a mystery.  It is now
possible for the President and the Minister
to decide who they will consult.Â
The persons consulted may or may not be representatives of the designating
authority”.
6
4
[68]
            The
“organised professions” or “clearly identified professional organisations” are
not however given
a privileged position in appointments to the Judicial Service
Commission.  Sections 178(1)(e) and (g) of the Constitution refer
to
nominations from within the “advocates’ profession” and the “attorneys’
profession” and to the designation by “teachers
of law”.  Section 178(2)
provides that when there are more than two nominations from within each of the
“professions”, the
President “after consulting the relevant profession” has the
power to determine which of the nominees should be appointed.
[69]
            The
language of the Magistrates Act is similar to this.  It requires that the
Minister consult the advocates’
profession and the attorneys’ profession on
such matters.  How that consultation is to be undertaken is not prescribed; but
it
is also not prescribed by the Constitution in the case of appointments to
the Judicial Service Commission.  Although the Minister
determines how the
consultation is to take place, the question whether there has been adequate
consultation is subject to constitutional
control.  If he chooses a method
which is not appropriate for ascertaining the views of the two professions, his
decision would
be invalid.  The same applies to the appointments to be made by
the President from the ranks of regional magistrates and chief magistrates.
Conclusion on the
Magistrates Commission
[70]
            Section
4 of the Magistrates Act deals with the objects of the Commission.  The first
two objects specified
are:
“(a)      to ensure that the appointment, promotion, transfer or
discharge of, or disciplinary steps against, judicial officers
in the lower
courts take place without favour or prejudice, and that the applicable laws and
administrative directions in connection
with such action are applied uniformly
and correctly;
(b)        to ensure that no influencing or victimization of judicial
officers in the lower courts takes place”.
[71]
            The
fact that the executive has a strong influence in the appointment of the
members of the Magistrates Commission
does not mean that magistrates’ courts
lack institutional independence.  Nor does it follow from this that the
Commission “is
unlikely to take any decisions, express any views or make
recommendations which do not find favour with the Minister”.
6
5
[72]
            The
chairman of the Commission is a judge.  The two regional magistrates and the
two chief magistrates are
senior judicial officers.  All the magistrates are
required to exercise impartiality and independence in the discharge of their
duties, and take an oath of office requiring them to do so.  The practising
advocates and practising attorneys are officers of the
court.  The other
members of the Commission are also responsible members of the community,
including members of opposition political
parties.  There is no reason to
believe that the members of the Commission will not discharge these and their
other duties with
integrity, or that viewed objectively there is any reason to
fear that they will not do so.
[73]
            The
changes to the composition of the Commission did have the effect of giving the
legislature and executive
a greater say in the composition of the Commission.Â
This in itself is not constitutionally objectionable, as discussed above.Â
To
hold that the influence of the legislature and the executive in the Magistrates
Commission and magistracy undermines the institutional
independence and
impartiality of courts ignores the constitutional norm set by the Judicial
Service Commission.  It also overlooks
the powerful constitutional and judicial
safeguards that are in place and which prevent the executive and legislature
from taking
“control” of the magistracy.
[74]
            It
follows that I am unable to agree with the findings made in the judgment of the
High Court concerning the
Magistrates Commission.  That, however, does not
dispose of the matter.  Various provisions of the Magistrates Act, the
Magistrates’
Courts Act and the regulations made by the Minister under those
Acts were found by the High Court to be inconsistent with the Constitution.Â
It
is necessary now to consider each of the provisions found to be invalid and to
decide whether or not it is inconsistent with the
Constitution.
Judicial independence as
an evolving concept
[75]
            In
doing so it must be kept in mind, as Le Dain J said in
Valente
, that
judicial independence is an evolving concept.
6
6
  It is relevant therefore to have
regard to the legal and constitutional history of magistrates’ courts and
higher courts in South
Africa in order to determine whether magistrates’ courts
as presently constituted have institutional independence.
[76]
            Although
the use of a landdrost’s court can be traced as far back as the late 1600s,
magistrates’ courts
were themselves first introduced in the Cape Colony in 1830
6
7
and were later
established in Natal in 1846.
6
8
  In the Orange Free State and Transvaal, magistrates’
courts replaced the landdrost’s court as the principal inferior tribunal
in
1902.
6
9
  The different
magistrates’ courts shared two primary characteristics; a relatively limited
jurisdiction for both civil and criminal
matters and the fact that magistrates
were part of the civil service, performing both judicial and administrative
functions.
[77]
            The
magistrates’ courts forming part of the civil service were thus a well
established feature of the judicial
system by the time of Union in 1910.  When,
in 1917, the legislature passed the Magistrates’ Courts Act
7
0
to establish a uniform
pattern of magistrates’ courts for the whole country, it had the effect of
significantly increasing the
jurisdiction of magistrates’ courts in the Cape
and Free State, which had previously had the most limited jurisdiction.
7
1
  In terms of the 1917
Act, the Governor-General was responsible for appointing all magistrates,
although the Public Service Commission
had some powers of recommendation in
line with its general powers with regard to all civil servants.  The same
appointment procedures
applied after the passing of the
1944 Act
7
2
except that the Act made
the Minister of Justice responsible for appointments.
[78]
            In
1956, the establishment of regional magistrates’ courts for criminal matters
resulted in a significant
expansion of the criminal jurisdiction of
magistrates’ courts.
7
3
This was followed, in 1965, by an amendment
7
4
requiring that any person
appointed as a regional magistrate had to hold an LLB degree or have passed the
Public Service Senior Law
Examination or an equivalent.  The 1965 amendment
also provided that a Regional Divisions Appointment Advisory Board was to be
established
that would advise the Minister on suitable candidates for
appointment to regional courts.  The Board consisted primarily of members
of
the Department of Justice, together with the Chief Magistrates. The
jurisdiction of district and regional magistrates’ courts
was again
significantly increased for criminal cases by the Lower Courts Amendment Act of
1977.
7
5
  Throughout this period
the magistrates continued to form part of the civil service.
[79]
            The
1993 Magistrates Act
7
6
was passed following recommendations by the Hoexter
Commission that magistrates should be made independent of the public service
and their appointment, discipline and discharge should be governed by
recommendations of advisory bodies consisting of judicial officers.
7
7
  In terms of the 1993
Act, the Minister of Justice remained responsible for the appointment of
magistrates, but had to consult with
the Magistrates Commission before doing
so.  Provision was also made for a Senior Civil and Family Magistrates
Appointments Advisory
Board which was to make recommendations to the Minister
regarding possible appointments.  Section 14(2) of the Act also makes it
clear
that, as in the past, magistrates can be required to perform at least some
administrative functions – these functions being
assigned by the Minister
through regulations after consultation with the Magistrates Commission.
7
8
  Despite this, however,
the 1993 Act constituted a decisive shift from past practice in that it set out
mechanisms for the appointment,
discipline and removal of magistrates instead
of, as was the case previously, regarding magistrates as public servants to
whom the
Public Service Act applied.  Further changes are contemplated in draft
legislation introduced into Parliament towards the end of
last year, but which
has not yet been adopted.
7
9
[80]
            To
complete the picture it should be added that in 1995 the civil jurisdiction of
magistrates’ courts was
significantly increased to amounts of up to R100 000
8
0
and in 1998 the criminal
jurisdiction was also significantly extended with regional courts able to
impose sentences of 15 years imprisonment
or a fine of R300 000 while other
magistrates’ courts can impose sentences of 3 years imprisonment and fines of
R60 000.
8
1
[81]
            The
superior courts have never been part of the public service.  Since the time of
Union they have been presided
over by judges whose tenure has been protected.Â
Prior to the adoption of the interim Constitution, judges were appointed by the
executive and had their salaries determined by Parliament.
8
2
  Judges could be
impeached by a resolution of Parliament
8
3
and their conditions of service were
determined by regulations formulated by the Governor-General.
8
4
[82]
            Yet
in
Minister of the Interior and Another v Harris and Others
,
8
5
Schreiner JA could refer
with confidence to the fact that
“[t]he
Superior Courts of South Africa have at least for many generations had
characteristics which, rooted in the world’s experience,
are calculated to
ensure, within the limits of human frailty, the efficient and honest
administration of justice according to law.Â
Our Courts are manned by full-time
Judges trained in the law, who are outside party politics and have no personal
interest in the
cases which come before them, whose tenure of office and
emoluments are protected by law and whose independence is a major source
of the
security and well-being of the state.”
[83]
            Under
our new constitutional order much has changed since then and more changes are
foreshadowed in the bill
presently before Parliament.
8
6
  As was previously
mentioned, judges are now appointed by the President on the recommendation of
the Judicial Service Commission.
8
7
  Their salaries and benefits cannot be reduced,
8
8
and a decision of the
Judicial Service Commission supported by a resolution of two thirds of the
members of the National Assembly
is required for impeachment.
8
9
  Salaries and conditions
of service are still fixed by regulation, but the Bill makes provision for an
independent commission to
make recommendations to government on the
remuneration of judges.
[84]
            As
this history makes clear, there has always been a distinction between the
higher courts and the lower courts.Â
At the time of the
Harris
case
magistrates were still part of the public service as they had been since that
office was first created in South Africa.  Unlike
judges who have never had
such duties, magistrates had extensive administrative responsibilities
particularly in rural areas where
they discharged important functions for the
government.
9
0
[85]
            During
the past decade there has been a greater acceptance of the need to break the
links that existed between
government and magistrates.  The Magistrates Act
passed in 1993 removed magistrates from the public service, gave them greater
protection
against impeachment than they previously had, and established the
Magistrates Commission to ensure that appointments, promotions,
transfers and
disciplinary action were carried out without favour or prejudice.  But
magistrates continued to perform administrative
duties, and had less
institutional security than judges did.
[86]
            This
was the position that existed when the interim Constitution was adopted and was
still the position when
the 1996 Constitution came into force.  The 1996
Constitution states that “[t]he courts
are
independent”.
9
1
  Yet, as has been
mentioned previously, it pointedly excluded magistrates from the special
protection given to judges by sections
176 and 177 of the Constitution.
The correct approach to constitutional adjudication
[87]
            In
dealing with the legislation that was the subject matter of the constitutional
challenge, the High Court
seems not to have had regard to two important
considerations.  First, that decisions of the Magistrates Commission and the
Minister
in giving effect to powers vested in them by the legislation are
subject to constitutional control.  If they take decisions or conduct
themselves in a manner inconsistent with judicial independence, or with the
right that everyone (including magistrates) have to just
administrative action,
such decisions or conduct will be invalid, and liable to be set aside by the
higher judiciary.  The well-informed,
thoughtful and objective observer would
pay due regard to this.
[88]
            Secondly,
that the legislation must be construed consistently with the Constitution
9
2
and thus, where possible,
interpreted so as to exclude a construction that would be inconsistent with
judicial independence.  If
held to be unconstitutional, the appropriate remedy
ought, if possible, to be in the form of a notional or actual severance, or
reading
in,
9
3
so as to bring the law within acceptable constitutional standards.  Only
if this is not possible, must a declaration of complete
invalidity of the
section or sub-section be made.
[89]
            It
is against this background, and in the light of these comments, that I turn now
to consider the findings
made concerning specific provisions of the Magistrates
Act, the Magistrates’ Courts Act and the regulations made in terms of the
Magistrates Act.
Section 3(1) of the
Magistrates Act
[90]
            Section
3(1) of the Magistrates Act deals with the composition of the Magistrates
Commission.  The High Court
declared this section to be inconsistent with the
Constitution.  For reasons already given, I am unable to agree with this
conclusion.Â
The appeal against that part of the order must therefore be
upheld.
Section 3(2) of the
Magistrates Act
[91]
            Section
3(2) deals with the term of office of the members of the Commission.  That is
specified as being for
five years, but provides that
“any such
appointment or designation may be withdrawn by the appointing or designating
authority, as the case may be, at any time
after consultation with the
Commission if in his, her or its opinion there are sound reasons for doing so.”
[92]
            It
is relevant for reasons already given, that the Constitution makes provision
for members of the Judicial
Service Commission to be replaced by those who
designated or nominated them.  Section 178(3) of the Constitution provides:
“Members of
the Commission designated by the National Council of Provinces serve until they
are replaced together, or until any
vacancy occurs in their number.  Other
members who were designated or nominated to the Commission serve until they are
replaced
by those who designated or nominated them.”
There is, however, a
difference between nominations or designations to the Judicial Service
Commission and nominations and designations
to the Magistrates Commission.  In
the case of the Judicial Service Commission, the nominations or designations of
members of the
legal profession are not made by the executive.  They are made
by the professions themselves, though the President has the power
to make the
appointment from among those nominated, if the number of nominees exceeds the
number of vacancies to be filled.  In
the case of the Magistrates Commission
the designations are made by the executive after consulting the profession.
[93]
            There
is a difference between being nominated by the executive to perform a duty
which calls for an independent
decision and being chosen by the executive to
perform that duty in accordance with its wishes.  If the power to recall is
subject
to objective criteria consistent with the Constitution, that power is
not constitutionally objectionable.  However, section 3(2)
empowers the
“appointing or designating authority . . . after consultation with the
Commission” to recall a member “
if in his, her or its opinion
there are
sound reasons for doing so”.
9
4
  This is not an objective test.  That is not
appropriate, particularly in the case of appointments or designations of
magistrates,
advocates, attorneys and a teacher of law, who account for 11 of
the members of the Commission.  To be consistent with independence,
objective
criteria should be set for this purpose.
[94]
            If
objective criteria are set for recall, there would be no objection to that
power being vested in the executive.Â
The exercise of the power, subject to
constitutional control, would meet the requirements of the Constitution.
[95]
            As
section 3(2) presently reads, it is unconstitutional.  This can and ought to be
remedied by deleting the
words “in his, her or its opinion”from section 3(2).Â
This should be done to avoid any perception that the power to recall permits
the executive to exercise control over members of the Commission.  The order of
the High Court declaring the whole of section 3(2)
invalid is set aside and replaced
by an order deleting the words “in his, her or its opinion” from section 3(2).
Section 6A of the
Magistrates Act
[96]
            Section
6A of the Magistrates Act deals with complaints against magistrates.  It
provides:
“The Minister
shall make regulations –
(a)        creating a structure and prescribing procedures in terms of
which members of the public may report to such structure
any alleged improper
conduct or any conduct which has resulted or might result in any impropriety or
prejudice on the part of a magistrate;
and
(b)        determining the powers and functioning of such structure.”
Section 6B of the Act
requires the Commission to establish a committee or committees to deal with
complaints pending the establishment
of such a committee.  Section 6C states
that the provisions of these sections
“[s]hall not
be construed as empowering the structure, committee or the Commission to
interfere with the judicial independence or
the judicial functioning of a
magistrate.”
This emphasises the
requirements of the Constitution that exist independently of section 6C, and
would have been applicable to the
functioning of the complaints committee and
the Commission, even if such provisions had not been enacted in the Magistrates
Act.
[97]
            Regulations
governing the procedure to be followed in making and dealing with complaints
have been made.Â
They are referred to as the Complaints Procedure Regulations
9
5
and make provision for
complaints to be considered by committees established for each cluster
9
6
and regional division.
9
7
  The complaints committee
can either deal with the complaint itself or refer it to the Commission to be
dealt with in accordance
with regulation 26.  It seems to be contemplated that
only those complaints that might warrant the imposition of a sanction will
be
referred to the Commission, to be dealt with under regulation 26.  I deal later
with this regulation.
9
8
[98]
            Section
180 of the Constitution provides that
“National
legislation may provide for any matter concerning the administration of justice
that is not dealt with in the Constitution,
including –
(a)        training programmes for judicial officers;
(b)        procedures for dealing with complaints about judicial
officers; and
(c)        the participation of people other than judicial officers in
court decisions.”
The fact that the
Magistrates Act makes provision for a complaints system is therefore not open
to objection.
[99]
            The
judgment of the High Court, however, holds that the provisions of section 6 and
the Complaints Procedure
Regulations made in terms of that section, are
inconsistent with the Constitution because they give the executive the
exclusive power
to create a mechanism for dealing with improper conduct of
magistrates.  According to the judgment
“Such a system
is clearly open to manipulation and would be perceived by the objective,
reasonable and informed person to be a method
whereby undue influence could be
exercised on a magistrate.”
9
9
[100]
            There is no
basis for this finding.  It fails to have regard to the fact that section 180(c)
of the Constitution
makes provision for a complaints system to be determined by
national legislation.  National legislation is defined in section 239
of the
Constitution as including “subordinate legislation made in terms of an Act of
Parliament.”  It fails also to have regard
to the fact that the regulations
passed by the Minister are subject to constitutional control.  If they contain
provisions that
are inconsistent with the independence of the courts they will
be invalid for that reason, not because they were made at the instance
of the
executive.  But if their provisions are consistent with the independence of the
courts, they are not open to objection.
[101]
            The appeal
against the order insofar as it pertains to the declaration of invalidity made
in respect of section
6A of the Magistrates Act must therefore be upheld.
Section 10 of the
Magistrates Act and section 9 of the Magistrates’ Courts Act
[102]
            The High Court
held that the provisions of the Magistrates’ Courts Act
10
0
and the Magistrates Act,
10
1
dealing with the
appointment of magistrates are inconsistent with the Constitution.  The
relevant provisions are section 10 of the
Magistrates Act which provides that
“[t]he
Minister shall, after consultation with the Commission, appoint magistrates in
respect of lower courts under and subject
to the Magistrates’ Courts Act”
and section 9(1) of the
Magistrates’ Courts Act:
“(a)      Subject to the
Magistrates Act, 1993
, and the provisions of
paragraph (b) of this subsection and of
section 10
, the Minister may appoint
for any district or subdistrict a magistrate, one or more additional
magistrates or one or more assistant
magistrates and for every regional
division a magistrate or magistrates.
(aA)     The Minister may, in a particular case or generally and subject
to such directions as he or she may deem fit, delegate
the power conferred upon
him or her by paragraph (a) to the Director-General of his or her department or
another officer of that
department with the rank of director or an equivalent
or higher rank or a magistrate at the head of a regional division or a person
occupying the office of chief magistrate, including an acting chief
magistrate.”
[103]
            Other
provisions of section 9 of the Magistrates’ Courts Act deal with the
qualifications for appointment
as a regional magistrate or a magistrate, and
make provision for the appointment of acting or temporary magistrates.  It is
not
necessary to consider these provisions now.
10
2
  The judgment of the High Court
correctly points out that the effect of the sections just quoted is that the
Minister appoints magistrates
after consultation with the Commission, which
means that he must consult the Commission before making an appointment, but is
not
bound by its recommendation.
10
3
[104]
            This, and the
finding that the Magistrates Commission is an executive structure that is not
independent, provided
the basis for the conclusion that the appointment
procedures do not provide the institutional independence required by the
Constitution.Â
This meant that
“[t]he
objective, reasonable and informed person would perceive the appointment of
magistrates to be open to manipulation in favour
of persons well disposed to
the Executive and therefore likely to favour the Executive; ie that Magistrates
are the instruments of
the Executive.”
10
4
[105]
            I have already
dealt with the finding concerning the Magistrates Commission.
10
5
The judgment of the High
Court seems to have proceeded on the assumption that the Constitution requires
a strict and complete separation
of powers between the executive (the Minister
of Justice) and the judiciary (the magistracy).  However it was made clear in
the
First Certification Judgment
that total separation of powers was
neither feasible nor required by the Constitutional Principles or the
Constitution itself:
“ . . . in
democratic systems of government in which checks and balances result in the
imposition of restraints by one branch of
government upon another, there is no
separation that is absolute . . . . the scheme is always one of partial
separation.”
10
6
[106]
            In particular,
the judgment of the High Court seems to assume that the involvement of members
of the executive
and the legislature in the appointment of judicial officers
contravenes the separation of powers required by the Constitution.Â
The mere
fact, however, that the executive and the legislature make or participate in
the appointment of judges is not inconsistent
with the separation of powers or
the judicial independence that the Constitution requires.
10
7
[107]
            This is
supported by an examination of the appointment procedures of other countries.Â
A justice of the High
Court of Australia is appointed by the Governor General
in Executive Council following consultation between the Attorney-General
of the
Commonwealth and Attorneys-General of the States.
10
8
  Judges of the Supreme Court of the
USA are nominated “by and with the advice and consent of the Senate” and
appointed by the
President.
10
9
  In Canada, judges are appointed by the Governor in
Council by letters patent under the Great Seal.
11
0
  In Germany, half of the judges of
the Federal Constitutional Court are elected by the Bundestag (House of
Representatives) and
half by the Bundesrat (The Federal Council of the
Provinces
11
1
)
11
2
and the judges of each of the five Federal Supreme Courts are selected
jointly by  the appropriate Federal Minister and a selection
committee composed
of the appropriate Provincial (Land) ministers and an equal number of members
elected by the Bundestag.
11
3
  Yet in none of these countries would anyone contend
that the highest court is a “personal fiefdom” of the executive or legislature.
[108]
            The emphasis
in the judgment of the High Court on the powers of the executive in relation to
the appointment
of members of the Commission, and thus in its affairs, is
reminiscent of the argument specifically rejected by this Court in the
First
Certification Judgment
, where objection was  taken on these grounds to the
composition of the Judicial Service Commission.  In rejecting this contention
this Court held,Â
“The mere fact
. . . that the Executive makes or participates in the appointment of judges is
not inconsistent with the doctrine
of separation of powers or with the judicial
independence required by CP VIII.  In many countries in which there is an
independent
judiciary and a separation of powers, judicial appointments are
made either by the Executive or by Parliament or by both.  What
is crucial to
the separation of powers and the independence of the judiciary is that the
judiciary should enforce the law impartially
and that it should function
independently of the legislature and the executive.  NT 165 is directed to this
end.  It vests the
judicial authority in the courts and protects the courts
against any interference with that authority.  Constitutionally, therefore,
all
judges are independent.
Appointment of
judges by the executive or a combination of the executive and parliament would
not be inconsistent with the CPs.Â
The JSC contains significant representation
from the judiciary, the legal professions and political parties of the
opposition.  It
participates in the appointment of the Chief Justice, the
President of the Constitutional Court and the Constitutional Court judges,
and
it selects the judges of all other courts.  As an institution it provides a
broadly based selection panel for appointments to
the judiciary and provides a
check and balance to the power of the executive to make such appointments.  In
the absence of any obligation
to establish such a body, the fact that it could
have been constituted differently, with greater representation being given to
the
legal profession and the judiciary, is irrelevant.”
11
4
[109]
            It is thus
clear that the fact that the Minister is not bound by the recommendations of
the Magistrates Commission
is not constitutionally objectionable.  The
First
Certification Judgment
held that the executive could have retained the
power to appoint judges (and magistrates) itself without infringing the
institutional
independence required by the Constitutional Principles.
11
5
  Thus, the appointment of
a Magistrates Commission, presided over by a judge, and drawn from diverse
sections of the legal community
to advise the executive in relation to the
appointment of magistrates is a check on the exercise of executive power, and
not a flaw
in the appointment process.
[110]
            For these
reasons, the provisions of
section 10
of the
Magistrates Act and
section 9(1)
of the Magistrates’ Courts Act are not inconsistent with the Constitution.  The
appeal, insofar as it pertains to
the order made in respect of these
provisions, must therefore be upheld.
Sections 11
and
16
(1) of
the
Magistrates Act
>
[111]
          Â
Section 11
of
the
Magistrates Act provides
:
“Subject to
the provisions of this Act, the conditions of service of a Magistrate shall be
determined in accordance with the regulations
under section 16.”
Section 16(1) provides
that
“[t]he
Minister may, after the Commission has made a recommendation, make regulations
regarding the following matters in relation
to judicial officers in the lower
courts.”Â
The subject matter of the
power to make regulations is spelt out in 16 subparagraphs dealing with
conditions of service of magistrates,
and concludes with a general power to
make regulations in respect of any matter
“which is not
in conflict with this Act, which is reasonably necessary for the regulation of
the conditions of service of judicial
officers or any matter in connection with
the rights, powers, functions and duties of a judicial officer.”
11
6
[112]
            In the High
Court, sections 11 and 16(1) were held to be inconsistent with the
Constitution.  Two reasons
were given for this conclusion.  First, that the
vesting of the power in the Minister to make regulations is questionable on the
grounds that this is an impermissible delegation of legislative authority.Â
Secondly, that section 16(1) allows the Minister to
establish a system for
exercising control over magistrates, and in particular,  empowers him to
prescribe a code of conduct for
magistrates and to make regulations dealing
with the circumstances under which magistrates can be held to be guilty of
misconduct.
[113]
            Although it is
not clear from the judgment of the High Court to what extent the finding
concerning section
16 is based on an impermissible delegation, the question
must be dealt with given the reference to it in the judgment. Also, ARMSA
and
Bekker rely on an impermissible delegation of legislative power by the National
Assembly to the Minister of Justice to support
their challenge to the validity
of regulations 16, 19, 25, 26 and 27.
Old order legislation
[114]
            The
Magistrates Act is
classified under the Constitution as “old order
legislation”.  Schedule 6 of the Constitution defines “old order legislation”
as “legislation enacted before the previous Constitution [the interim
Constitution] took effect.”  The
Magistrates Act was
assented to on 23 June 1993
and its sections came into force on 1 October 1993 and 11 March 1994 – that is
before the adoption
of the interim Constitution.  Likewise, most of the
regulations in question are old order legislation.
11
7
[115]
          Â
Section 229
of
the interim Constitution provided that:
“Subject to
this Constitution, all laws which immediately before the commencement of this
Constitution were in force in any area
which forms part of the national
territory, shall continue in force in such area, subject to any repeal or
amendment of such laws
by a competent authority.”
Item 2(1)(b) of Schedule 6
of the 1996 Constitution provides that all law in force on 4 February 1997
(when the Constitution took
effect) continues in force subject to “consistency
with the new Constitution”.  This includes “old order legislation”.
[116]
            The question
of the delegation of legislative power prior to the interim Constitution taking
effect has already
been dealt with by this Court.  In
Ynuico Ltd v Minister
of Trade and Industry and Others
11
8
it was argued that section 2(1)(b)
of the Import and Export Control Act
11
9
constituted an impermissible
delegation of legislative power in that it allowed the Minister of Trade and
Industry by notice in the
Gazette to prescribe a kind or class of goods that
should be prohibited from being imported to South Africa.  On behalf of a
unanimous
Court, Didcott J rejected this contention, holding that the interim
Constitution operated prospectively and, even if it placed constraints
on the
power to delegate (and he expressed no opinion on that issue), this would have
no application to the exercise of power in
terms of the Act that took place
before the adoption of the interim Constitution.
12
0
[117]
            The decision
in
Ynuico
applies to the regulations made in terms of section 16(1)
prior to the coming into force of the interim Constitution.  It is necessary,
however, to consider whether the power to make regulations for the purposes
identified in section 16(1) is a legitimate power and,
in particular, whether
the power to prescribe a code of conduct, is inconsistent with the
Constitution.  It is also necessary to
consider whether the provisions of the
regulations themselves are inconsistent with the Constitution.
The power to delegate
[118]
            The interim
Constitution neither prohibited nor allowed Parliament to delegate authority to
legislate – it
was silent on the issue.  In
Executive Council, Western Cape
Legislature and Others v President of the Republic of South Africa and Others
12
1
this Court recognised
that delegating subordinate regulatory authority was not only constitutionally
permissible but necessary for
effective governance.
12
2
  That was accepted by all
the members of the Court.  There was, however, a difference of opinion as to
the limits of that authority.Â
Whilst the majority accepted that the delegation
in issue in that case was impermissible – it empowered the President to amend
or repeal Acts of Parliament including the Act from which he derived his power
– there were differences within the majority as
to whether Parliament can
delegate to the executive a power to amend an Act of Parliament.  It is not
necessary to revisit that
issue.  Here the delegation does not empower the
Minister to repeal or amend an Act of Parliament.  It empowers him to prescribe
regulations for magistrates.  It was not suggested that the regulations made by
the Minister were not within the purview of the
powers vested in him by section
16(1).
[119]
            Whether the
vesting of such a power in the Minister is consistent with section 174(7) of
the Constitution and
the independence of the judiciary are issues to which I
will turn later.  The validity of the regulations depends, however, on those
issues.  There is nothing in the decision of this Court in
Executive Council,
Western Cape
that supports the submission that the power vested in the
Minister to make regulations for the purposes prescribed by section 16(1)
of
the Act is inconsistent with the Constitution.  The reliance by the second and
third applicants on this decision is misplaced.
Section 174(7) of the
Constitution
[120]
            A related
argument, relevant not only to this issue but also to other provisions of the
Magistrates Act, is
directed to the provisions of
section 174(7)
of the
Constitution.  The section states:
“Other
judicial officers must be appointed in terms of an Act of Parliament which must
ensure that the appointment, promotion, transfer
or dismissal of, or
disciplinary steps against, these judicial officers take place without favour
or prejudice.”
The question is whether
this precludes delegation and requires all material provisions dealing with
such matters to be contained in
the Act of Parliament itself.  That seems to
have been the view of the High Court, and if it is correct, it would be
relevant to
this issue.
[121]
            What the
Constitution requires is that the Act of Parliament must
ensure
that
these important matters take place without favour or prejudice.  The
Magistrates Act does
not contain detailed provisions dealing with all such
matters.  However, it makes provision for the Magistrates Commission whose
principal object is to ensure that this is done.
12
3
  The vesting of this power in the
Magistrates Commission was in fact the means specifically chosen in the interim
Constitution for
ensuring the absence of favour and prejudice in relation to
such matters.
[122]
            There are no
material differences between the interim Constitution and the 1996 Constitution
as far as the
independence of courts is concerned.  Although the 1996
Constitution does not require the same means to be adopted, as were adopted
in
the interim Constitution for ensuring the absence of favour or prejudice, this
omission does not render unconstitutional the means
which passed constitutional
muster under the interim Constitution.  Establishing an appropriately
constituted and empowered body
is an effective and suitable means of securing
this constitutional objective.
[123]
            The
Magistrates Commission has been vested with significant powers to enable it to
carry out its mandate.Â
In terms of
section 7
of the
Magistrates Act, the
Commission may:
“(a)      carry out or cause to be carried out any investigation that the
Commission deems necessary;
(b)        obtain access to official information or documents;
(c)        hear any person or summon any person to appear before the
Commission for questioning, or require from any person
a written explanation in
respect of any matter falling within the ambit of the Commission’s objects;
(d)        advise the Minister with regard to any matter or provide him
or her with a recommendation;
(e)        make known any finding, point or view or recommendation of the
Commission in the manner which and to whom the Commission
deems fit.”
Furthermore,
sections
7(1)(f)
and
7
(2) provide that the Commission may report to the Minister for the
information of Parliament on any matter it deems fit and that such
a report
shall be tabled in Parliament by the Minister within 14 days after it was
presented to him or, if Parliament is not then
in session, within 14 days after
the commencement of its next ensuing session.
[124]
            This, and the
fact that persons who are not dealt with fairly in relation to any of the
matters referred to
in
section 174(7)
are entitled to bring their grievances to
the attention of the Magistrates Commission, and if they do not get
satisfaction there,
to apply to the higher courts for relief, is sufficient to
meet the requirements of section 174(7) of the Constitution.
Are sections 11 and 16(1)
inconsistent with the separation of powers
[125]
            The High Court
also held that sections 11 and 16(1) of the Act were inconsistent with the
separation of powers.Â
In this regard the judgment focussed on the power to
prescribe a code of conduct in terms of section 16(1)(e):
“the judiciary
is a branch of government and is required to be independent of the other two
branches, the Legislature and the Executive.Â
Experienced members of the
judiciary have all the knowledge and expertise necessary to draw up a code of
conduct . . . .”
12
4
The judgment goes on to
hold that these provisions enable the executive to
“define what
misconduct is and the circumstances under which and the conditions and manner
in which a judicial officer may be found
guilty of misconduct.  [It also] has
the power to provisionally suspend the magistrate and thereafter confirm his
suspension.
The objective,
reasonable and informed person would perceive the provisions of s 16(1)(e) and
(j) to impinge on the independence of
the magistrates profession because they
could be used to influence the way in which magistrates perform their judicial
functions.”
12
5
I am unable to agree with
this conclusion.
[126]
            Section
16(1)(e) provides:
“The Minister
may, after the Commission has made a recommendation, make regulations regarding
. . . a code of conduct to be complied
with by judicial officers.”
[127]
            The power to
compile a code of conduct for magistrates is vested in the Magistrates Commission.
12
6
  As there cannot be two
inconsistent codes of conduct, the Minister will be bound by the decision of
the Magistrates Commission
as to what the code of conduct should be.  The High
Court judgment also overlooks the fact that the power to make a code is subject
to three constraints.  First, regulations may only be made after the Commission
has made recommendations regarding such matters.Â
Secondly, the regulations
when made are subject to Parliamentary control.
12
7
  They have to be tabled in
Parliament and Parliament is given the power to disapprove of any regulation by
way of resolution.Â
Finally,  and most importantly, the regulations are subject
to constitutional control by the higher judiciary which is required
by the
Constitution to declare any legislation inconsistent with the Constitution to
be invalid to the extent of such inconsistency.
12
8
[128]
            If the
Minister acts without having received a recommendation from the Commission, the
regulation will not
be valid.  If, after having received a recommendation, he or
she departs from it, that decision would also be invalid. Furthermore,
if
regulations are made which are inconsistent with judicial independence they
will be invalid.  Viewed objectively, therefore,
the power to make regulations
for the conditions of service of magistrates is a limited power, which does not
entitle the Minister
to impair the independence guaranteed by the Constitution.
[129]
            The code of
conduct is contained in Schedule E to the regulations and is introduced by
regulation 54A.  There
was no challenge to any specific provisions of the code
of conduct.  The only question raised in argument and in the High Court
judgment is whether the power to make such a code can only be vested in the
judiciary.
[130]
            It is no doubt
desirable that any code of conduct for the judiciary should be determined by
the judiciary itself.Â
That would be consistent with judicial independence and
with the separation of powers.  For instance, Parliament regulates how its
members are expected to behave, and what their ethical duties are.  It would be
appropriate for the judiciary to do the same.Â
This, in fact, is the case as
far as the higher judiciary is concerned where a code of conduct has been
adopted by consensus amongst
the judges themselves.  The question is, however,
whether legislation authorising the Magistrates Commission, or the Minister of
Justice (within the constraints mentioned) to prescribe a code of conduct for
magistrates is inconsistent with judicial independence.Â
[131]
            I have come to
the conclusion that it is not unconstitutional to vest this power in the
Commission.  The making
of the code is subject to the controls that have been
mentioned, and the higher judiciary can ensure that nothing appears in the
code
that would in any way be inconsistent with judicial independence.  Viewed
objectively, there is no risk that the code could
ever impair judicial
independence, and that being so, there is no basis for holding that the section
16(1)(e) is inconsistent with
the Constitution.  The consequential finding made
by the High Court that regulation 54A and Schedule E (the code of conduct) are
inconsistent with the Constitution cannot be sustained and the appeal is
therefore upheld.
[132]
            Similar
considerations apply to section 16(1)(j) which provides:
“The Minister
may, after the Commission has made a recommendation, make regulations regarding
. . . the circumstances under which
and the conditions and manner in which a
judicial officer may be found guilty of misconduct, or to be suffering from
continued ill-health,
or of incapacity to carry out his or her duties of office
efficiently.”
[133]
            Regulations
can only be made in terms of this power after the Commission has made
recommendations.  When made
they are subject to parliamentary control and
ultimately to constitutional control by the higher courts.  If, viewed
objectively,
the regulations are consistent with the Constitution and the
judicial independence required by it, they pose no threat to magistrates.Â
If
not, they are not valid.
[134]
            The same
applies to other regulations made in terms of section 16(1).  Although the
Minister has the power
to prescribe the framework regulating the conditions of
service of magistrates, that framework must be consistent with the Constitution
and judicial independence.
[135]
            The provisions
of sections 11 and 16(1), seen alone, or in the context of the Act as a whole,
do not therefore
impinge on the independence of magistrates.  The appeal
against the High Court’s finding to the contrary must therefore be upheld.
Section 12
of the
Magistrates Act
>
[136]
          Â
Section 12
of
the
Magistrates Act deals
with the determination of magistrates’ salaries.  The
relevant provisions are:
“(1)      (a)        Subject to the provisions of this section, any
person occupying the office of magistrate shall,
in respect of that office, be
paid a salary in accordance with the scale determined from time to time for his
or her rank and grade
by the Minister by notice in the Gazette in consultation
with the Commission and with the concurrence of the Minister of Finance.
(b)        Different categories of salaries and salary scales may be soÂ
determined in respect of different categories of
magistrates.
(2)        A notice in terms of subsection (1) or any provision thereof
may commence with effect from a date which may not
be more than one year before
the date of publication thereof.
(3)        The first notice in terms of subsection (1) shall be issued as
soon as possible after the commencement of this Act,
and thereafter such a
notice shall be issued if circumstances, including any revision and adjustment
of salaries and allowances of
public servants since the latest revision and
adjustment of salaries of magistrates, so justify.
(4)        (a)        A notice issued in terms of subsection (1) shall be
tabled in Parliament within 14 days after
publication thereof, if Parliament is
then in session, or, if Parliament is not then in session, within 14 days after
the commencement
of its next ensuing session.
(b)        If Parliament by resolution disapproves such a notice or any
provision thereof, that notice or that provision, as
the case may be, shall
lapse to the extent to which it is so disapproved with effect from the date on
which it is so disapproved.
(c)        The lapsing of such a notice or provision shall not affect –
(i)         the validity of anything done under the notice or provision
up to the date on which it so lapsed;
(ii)        any right, privilege, obligation or liability acquired,
accrued or incurred as at that date under or by virtue
of the notice or
provision.
(5)        The amount of any salary payable in terms of subsection (1),
shall be paid from moneys appropriated by Parliament
for that purpose.
(6)        The salary payable to a magistrate shall not be reduced except
by Act of Parliament: Provided that a disapproval
contemplated in subsection
(4)(b) shall, for the purposes of this subsection, not be deemed to result in a
reduction of such salary.
(7)        If an officer or employee in the public service is appointed
as a magistrate, the period of his or her service as
a magistrate shall be
reckoned as part of and continuous with his or her service in the public
service for the purposes of leave,
pension and any other condition of service.”
[137]
            The High Court
held that in terms of this section the salaries of magistrates are in effect
determined by the
executive.  This, and the fact that there is no guarantee
against salaries once determined being reduced, meant that “they would
be
perceived to be open to manipulation”.
12
9
  That, the Court held, meant that
section 12 was inconsistent with the Constitution.
[138]
            The
determination of salaries of judicial officers raises difficult questions to
which there are no easy solutions.Â
Adequate remuneration is an aspect of
judicial independence.  If judicial officers lack that security, their ability
to act independently
is put under strain.  Moreover, if salaries are inadequate
it would be difficult to attract to the judiciary persons with the skills
and
integrity necessary for the discharge of the important functions exercised by
the judiciary in a democracy.  Thus, the requirement
mentioned by Ackermann J
in
De Lange v Smuts
that judicial officers must have “a basic degree of
financial security”.
13
0
  But who is to determine what that is?  If it is the
legislature or the executive this may give rise to the tensions between the
judiciary and the other arms of government, and the judiciary itself could then
be thrust into the position of having to deal with
litigation in which the
issue is whether the salaries are consistent with the constitutional
requirement of judicial independence.Â
That is obviously undesirable.  Although
judges could exercise that function in relation to the remuneration of
magistrates, it
would be invidious to have to be judges in their own cause ifÂ
their own salaries were in issue.
[139]
            Judicial
officers ought not to be put in a position of having to do this, or to engage
in negotiations with
the executive over their salaries.  They are judicial
officers, not employees, and cannot and should not resort to industrial action
to advance their interests in their conditions of service.  That makes them
vulnerable to having less attention paid to their legitimate
concerns in
relation to such matters, than others who can advance their interest through
normal bargaining processes open to them.
[140]
            Parliament and
the executive, the other two arms of government, are in a different position.Â
They have control
over the public purse and are entitled through legislation
and executive action to determine their own remuneration and conditions
of
service.  A mechanism has, however, been put in place to avoid the conflict
inherent in such a situation.  Sections 219(1) and
(2) of the Constitution
require an independent commission to be established to make recommendations
concerning such remuneration.Â
The Independent Commission for the Remuneration
of Public Office Bearers performs that function.
13
1
[141]
            In the High
Court, and again in this Court, counsel for ARMSA and Bekker contended that an
independent remuneration
commission was needed to determine salaries of
magistrates and to protect them against pressure that could be brought to bear
on
them by the government through its power to fix salaries.  They relied on
the decision of the Supreme Court of Canada in the
Provincial Judges
case
13
2
where it was held that
“the
imperative of protecting the courts from political interference through
economic manipulation requires that an independent
body – a judicial
compensation commission – be interposed between the judiciary and the other
branches of government.”
13
3
Such an institutional
go-between serves two purposes.  It avoids bargaining between judges and the
executive or the legislature over
judicial salaries.  It also avoids any
perception that through the exercise of the power to determine judicial
salaries, the legislature
or the executive might be perceived to be interfering
with judicial independence.
[142]
            In Canada at
the time of that case there were commissions established by the various
provincial legislatures
to advise them on judicial salaries.  In some cases,
the advice of the commission was binding, in others, the advice was non-binding.Â
The Court held that it was not a requirement of judicial independence in Canada
that the advice of the commission be binding on the
executive or the
legislature.  It was sufficient that the commission be required to give advice,
that the legislature or the executive
be required to consider that advice
before taking a decision, and that if it did not follow the advice, that it be
required to give
reasons for its decision.  The reasons need only be rational
since the manner in which public funds are spent is a power that resides
with
the legislature and the executive.
[143]
            The judgment
of the majority of the Supreme Court of Canada in the
Provincial Judges
case was delivered by Lamer CJ.  It appears from his judgment that he was
particularly anxious about the relationship that existed
then between the
provincial judges on one hand, and the provincial legislatures and executives
on the other.  That relationship
had been the subject of considerable strain
which had reached breaking point as a result of salary reductions that had been
prescribed
for provincial judges in various provinces.  Lamer CJC said,
“[l]itigation,
and especially litigation before this Court, is a last resort for parties who
cannot agree about their legal rights
and responsibilities.  It is a very
serious business.  In these cases, it is even more serious because litigation
has ensued between
two primary organs of our constitutional system – the
executive and the judiciary – which both serve important and interdependent
roles in the administration of justice.”
13
4
The task of the Court was
thus
“to explain
the proper constitutional relationship between provincial court judges and
provincial executives, and thereby assist
in removing the strain on the
relationship.”
13
5
The Court did not order
that Commissions be established.  They already existed.  What it did was to
explain how the system should
function, and set aside salary reductions that
had been made.  It did so not because reduction was not permissible (it held that
there may be circumstances in which salary reductions could be justified)
13
6
but because the
reductions had been made without consulting the Commissions.  It is clear from
the judgment that what the Court
required was some institutional protection to
ensure that the power to set judicial salaries was perceived to be subject to
safeguards
to prevent it from being abused.
[144]
            Conditions in
South Africa are not the same as conditions in Canada.  Although the
Constitution affords special
protection to judges, it does not deal with the
manner in which their salaries are to be determined.  It provides only that
their
salaries, allowances and benefits “may not be reduced”
13
7
and requires that
national legislation establish a framework for determining the salaries,
allowances and benefits of judges.
13
8
  However, such a framework has not
been established.  Their salaries and benefits are still dealt with under the
pre-constitutional
legislation, the Judges Remuneration and Conditions of
Employment Act.
13
9
  In terms of this Act the remuneration is determined
by the President by proclamation in the Gazette.
14
0
  No provision is made for the
President to consult or to act on the advice of any person or body.  The
proclamation must, however,
be tabled in Parliament within 14 days of having
been made, and Parliament has the power to reject its provisions.  The Act also
regulates the pension rights of judges, and provides that other conditions of
service are to be determined by regulations made by
the President after
consulting the Minister, the Chief Justice, the President of the Supreme Court
of Appeal and the Judges President
of the various divisions of the High Court,
and courts of equal status.  These conditions include matters such as leave,
provision
of transport facilities, and other related matters.
14
1
[145]
            There is thus
no remuneration commission to advise the government on salaries of judges and
magistrates.Â
The Magistrates Commission, however, plays an important role in
the determination of magistrate’s salaries.  As stated previously,
it is a
diverse body consisting of representatives of the legislature, the executive,
magistrates, and persons from the legal profession
and is presided over by a
judge.  Although the majority of the members of the Commission are nominees of
the legislature and the
executive, I do not think that in itself, this
undermines the role of the Commission as an independent intermediary in the
determination
of magistrates’ salaries.
[146]
            Unlike the
magistrates, there is no filter between the judges and the executive to mediate
the determination
of their remuneration.  Recognising this, the Minister has
submitted a Bill to Parliament
14
2
to vest the Independent Commission for the
Remuneration of Public Office Bearers with the power also to make
recommendations on the
salaries of judges and magistrates.  This is part of the
evolving process of judicial independence in South Africa.
[147]
            Although
magistrates do not have the same protection as judges do concerning the
reduction of their salaries
– they can be reduced but only by Parliament – the
Minister has to consult the Magistrates Commission and the Minister of Finance
before determining their salaries.  Adjustments have to be made if
circumstances, including “any revision and adjustment of salaries
and
allowances of public servants”
14
3
justify this.
[148]
            This means
that, by law, magistrates’ salaries must be brought under revision at regular
intervals.  When
this happens, the Magistrates Commission has an important role
in determining what the salaries will be.  If agreement cannot be
reached
between the Commission and the Minister on such matters, the Commission would
be obliged to make known that such difference
exists, and the Minister would
have to be able to justify his refusal to agree with the Commission’s
recommendations.  The Minister
of Finance also has to be consulted.  The
Commission and the Minister must act in accordance with section 165 of the
Constitution
to ensure that the salaries are consistent with the independence
of magistrates.  Only Parliament is empowered to reduce salaries.Â
A resolution
to reduce the salaries of magistrates must be justifiable, and if this cannot
be done, the decision can be set aside
by the higher judiciary as being
inconsistent with judicial independence; so too a decision not to adjust
salaries in circumstances
that call for an adjustment to be made.
14
4
  Moreover, a decision of
the Magistrates Commission on salaries would itself be subject to
constitutional control by the higher
judiciary.  These are significant
guarantees against the power to set salaries being used as a means of exerting
pressure on magistrates.
[149]
            If regard is
had to the safeguards that exist to protect magistrates against the possible
abuse of the power
to determine their salaries and the position of magistrates
in the court hierarchy, I am not persuaded that
section 12
of the
Magistrates
Act is
inconsistent with judicial independence as it is evolving in South
Africa.  The appeal, insofar as it pertains to
section 12
, must therefore be
upheld.
The retirement of
magistrates:
sections 13(1)
and
13
(5)(a) of the
Magistrates Act
>
[150]
          Â
Section 13(1)
of the
Magistrates Act provides
that the retiring age for magistrates is 65.Â
Section 13(1)(a)
contains a proviso to
section 13(1)
which states that:Â
“the Minister
may, after consultation with the Commission, allow a magistrate
(i)         who, on attaining the age of 65 years wishes to continue to
serve in such office; and
(ii)        whose mental and physical health enables him or her to do so,
to continue to
hold such office for the period that the Minister may determine”.
[151]
            This requires
the extension of tenure to be for a “period” to be determined by the Minister.Â
The consultation
contemplated by the proviso includes not only whether tenure
should be extended, but also the period of the extension should that
be
allowed.  A magistrate holds office under such an arrangement for a fixed and
predetermined period and not at the discretion
of the executive.
14
5
  The terms of the
extended tenure are thus not inconsistent with judicial independence, and this
was not questioned by the High
Court.
[152]
            The High Court
held, however, that the proviso is inconsistent with the Constitution for a
different reason.Â
It enables the executive to allow a magistrate to continue
in office after reaching retiring age, and to determine the period for
which
the magistrate may do so.  It regarded the requirement that there be
consultation with the Magistrates Commission as providing
no safeguard against
possible executive abuse, and concluded that there might be a perception
“that the
prospect of continuing in office would induce the magistrate to tailor his
judgments with that object in mind:  i.e.
to win the favour of the executive.”
14
6
[153]
            The same
approach was taken by the High Court in dealing with section 13(5)(a). This
section provides:
“The Minister
may, at the request of a magistrate, allow such magistrate to vacate his or her
office –
(i)         on account of continued ill-health; or
(iA)      in order to effect a transfer and appointment as contemplated
in section 15(1) of the Public Service Act, 1994 (Proclamation
No. R. 103 of
1994); or
(ii)        for any other reason which the Minister deems sufficient.”
[154]
            The High Court
held that
“The Minister
is not required to consult with any independent body or to act on the
recommendation of any independent body.  A
magistrate who wishes to be
permitted to vacate office on account of continued ill-health is accordingly
completely dependent upon
the discretion of the Minister.  Such a mechanism
will be perceived by the reasonable and informed person to be open to
manipulation.Â
The regulation is inconsistent with the requirement of
independence of the magistrates’ courts and with the requirements of s 174(7)
of the Constitution.”
14
7
[155]
            Where
permission is given to a magistrate to retire early, this has the effect of
protecting pension rights
that would otherwise be prejudiced by early
retirement without such permission.  To that extent the Minister’s consent is
to the
benefit of the magistrates concerned.  So too is permission to remain in
office after reaching the normal retiring age.  I cannot
accept, however, that
viewed objectively this impairs the institutional independence of magistrates.Â
In
Valente
’s case the Supreme Court of Canada had to deal with a similar
contention raised in that case concerning the control exercised by
the
executive over certain discretionary benefits or advantages.  These included
post retirement re-appointment or continuation
in office to enable a provincial
judge to complete service entitling her or him to a pension.  Le Dain J said in
that case,
“it would not
be reasonable to apprehend that a provincial court judge would be influenced by
the possible desire for one of these
benefits or advantages to be less than
independent in her or his adjudication.”
14
8
I agree, and that applies
equally to magistrates in South Africa.
[156]
            The judgment
of the High Court does not deal specifically with section 13(5)(a)(iA) or
13(5)(a)(ii).
14
9
  In the text of the judgment, the High Court declared the whole of
section 13(5) to be inconsistent with the Constitution.
15
0
 In its order, it only
refers to sections 13(5)(a) and (c).  The reasoning applicable to the
declaration of invalidity made concerning
retirement on the grounds of
ill-health was presumably considered to be applicable to the early vacation of
office for any of the
reasons mentioned in section 13(5)(a).
[157]
            Section
13(5)(a)(iA) enables a magistrate to be transferred to the public service.  The
High Court did not
consider whether this link with the public service is
inconsistent with judicial independence, nor was any argument addressed to
us
in that regard.  No evidence was directed to the reasons for such a provision,
or its implications.  In the circumstances it
would not be appropriate to
express any opinion on this.  This judgment is confined to the grounds on which
the constitutionality
of section 13(5)(a) was held by the High Court to be
inconsistent with the Constitution.  In my view the finding of
unconstitutionality
on those grounds cannot be sustained.
[158]
            It follows
that the appeal against the finding of unconstitutionality made in regard to
sections 13(1) and
13(5) must be upheld.
[159]
            Regulation 30,
which deals with the procedure to be followed by a magistrate seeking early
retirement on the
grounds of ill-health, was declared to be inconsistent with
the Constitution because of the finding made by the High Court in respect
of
section 13(5)(a)(i).  In view of the contrary conclusion to which I have come
concerning that section, the appeal against the
finding  of the High Court that
regulation 30 is inconsistent with the Constitution must also be upheld.
The impeachment of
magistrates:
sections 13(2)
, (3) and (4) of the
Magistrates Act
>
[160]
          Â
Section 13(2)
of the
Magistrates Act provides
that a magistrate may not be suspended or
removed from office otherwise than in accordance with the provisions of the
Act.  Sections
13(3) and (4) of the Act deal with the grounds on which
magistrates may be removed from office, and the procedure to be followed
in
such cases.  They provide as follows:
“(3)      (a)        The Commission may provisionally suspend a
magistrate from office pending an investigation by the
Commission into such
magistrate’s fitness to hold office.
(aA)     The Minister may confirm such suspension if the Commission
recommends that such magistrate be removed from office—
(i)         on the ground of misconduct;
(ii)        on account of continued ill-health; or
(iii)       on account of incapacity to carry out the duties of his or
her office efficiently.
(b)        A magistrate so suspended from office shall receive, for the
duration of such suspension, no salary or such salary
as may be determined by
the Minister on the recommendation of the Commission.
(c)        A report in which the suspension in terms of paragraph (aA) of
a magistrate and the reason therefor are made known,
shall be tabled in
Parliament by the Minister within 14 days of such suspension, if Parliament is
then in session, or, if Parliament
is not then in session, within 14 days after
the commencement of its next ensuing session.
(d)        Parliament shall, within 30 days after the report referred to
in paragraph (c) has been tabled in Parliament, or
as soon thereafter as is
reasonably possible, pass a resolution as to whether or not the restoration to
his or her office of a magistrate
so suspended is recommended.
(e)        After a resolution has been passed by Parliament as
contemplated in paragraph (d), the Minister shall restore the
magistrate
concerned to his or her office or remove him or her from office, as the case
may be.
(4)        The Minister shall remove a magistrate from his or her office
if Parliament passes a resolution recommending such
removal on the ground of
misconduct of the magistrate or on account of his or her continued ill-health
or his or her incapacity to
carry out his or her duties of office efficiently.”
I deal first with the
grounds for removal and then with the procedure prescribed by the Act and the
regulations for the removal of
a magistrate from office.
The grounds for removing
magistrates from office
[161]
            Protection
against removal from office lies at the heart of judicial independence.  The
fact that members
of the higher judiciary have greater protection than members
of the lower judiciary, does not mean that the protection given to the
lower
judiciary is inconsistent with judicial independence.  That question depends
upon the nature of the protection given to members
of the lower judiciary
viewed in the context of the functions that they are required to perform.
[162]
            The grounds
for removal of the lower judiciary prescribed by the Act – “misconduct,
continued ill-health
or incapacity” – are not materially different to grounds
on which judges may be removed in countries such as Australia,
15
1
Canada,
15
2
New Zealand
15
3
and the United Kingdom.
15
4
  The grounds are also
similar to the grounds on which the Public Protector, the Auditor-General or a
member of the South African
Human Rights Commission, the Commission on Gender
Equality and the Electoral Commission may be removed from office.  In their
case
the standard prescribed by the Constitution is “misconduct, incapacity, or
incompetence”.
15
5
[163]
            All these
institutions are entitled under the Constitution to similar protection to that
given to courts and
their independence is also guaranteed.  This is dealt with
in section 181 of the Constitution which applies to all these institutions.Â
In
language tracking that used in sections 165(2), (3) and (4), it provides:
“(2)      These institutions are independent, and subject only to the
Constitution and the law, and they must be impartial
and must exercise their
powers and perform their functions without fear, favour or prejudice.
(3)        Other organs of state, through legislative and other measures,
must assist and protect these institutions to ensure
the independence,
impartiality, dignity and effectiveness of these institutions.
(4)        No person or organ of state may interfere with the functioning
of these institutions.”
[164]
            The protection
that these functionaries have against removal from office is entrenched in the
Constitution.Â
They are entitled to at least the same protection of their
independence as magistrates are.  Indeed, in the case of the Auditor-General
and the Public Protector, whose functions involve matters of great sensitivity
in which there could well be confrontation between
the functionaries concerned
and members of the legislature and the executive, a higher level of protection
would certainly not be
inappropriate.
[165]
            In the
circumstances I am not persuaded that the provisions of the
Magistrates Act
dealing
with the grounds upon which magistrates may be removed from office are
inconsistent with their judicial independence.
The procedure to be
followed
[166]
            Sections
13(2), (3) and (4) of the Act prescribe the procedure that has to be followed
in order to remove a
magistrate from office.  An initial enquiry must be
undertaken by the Commission, which is empowered provisionally to suspend a
magistrate pending its investigation.
15
6
  If, in the light of its
investigation, the Commission recommends that the magistrate be removed from
office, section 13(3)(aA)
of the Act provides that “[t]he Minister may confirm
such suspension”.
[167]
            Parliament, however,
has the final say.  If the Minister confirms the suspension, a report dealing
with the
suspension and the reasons therefor must be tabled in Parliament by
the Minister within 14 days of the suspension.  Within 30 days
of the report,
“or as soon thereafter as is reasonably possible” Parliament must resolve
whether or not the magistrate concerned
should be restored to office.
15
7
  The Minister is obliged
to act in accordance with that resolution, and either restore or remove the magistrate
from office, as
the case may be.
15
8
[168]
            The High Court
held that this procedure does not “safeguard magistrates against removal in a
discretionary
or arbitrary manner”.  Various reasons are given for this
conclusion:
“The decision
to suspend the magistrate provisionally in terms of s 13(3) is taken by the
Magistrates Commission, which is an extension
of the Executive.  Such
suspension takes place before an inquiry has been held into the magistrate’s
fitness to hold office.Â
The decision to confirm the suspension is taken by the
Minister, a member of the Executive, on the recommendation of the Magistrates
Commission, also before an inquiry has been held.  During such suspension the
magistrate shall receive no salary or such salary
as may be determined by the
Minister on the recommendation of the Commission.  On considering a report from
the Minister, Parliament
may decide to recommend that the magistrate be
restored to office or removed from office.  The Minister is obliged to give
effect
to such resolution.”
15
9
[169]
            The
Constitution deals with the impeachment of judges but not magistrates.  It makes
provision for a two-stage
process to be followed where impeachment of a judge
is under consideration.  Section 177(1) requires an initial investigation to
be
carried out by the Judicial Service Commission.  If the Commission finds that
grounds exist for the removal of the judge from
office, that finding is subject
to confirmation by the National Assembly by a resolution supported by at least
two thirds of its
members.  Section 177(3) of the Constitution provides that
“[t]he President, on the advice of the Judicial Service Commission,
may suspend
a judge” whose capacity to remain in office is being considered by the Judicial
Service Commission.  These provisions
provide an indication of how the
Constitution seeks to make provision for the removal of judges from office in a
manner consistent
with judicial independence.
Suspension of magistrates
pending investigation
[170]
            Since the
Constitution makes provision for a judge to be suspended on the advice of the
Judicial Service Commission
pending its investigation, there can be no
constitutional objection to a similar power being vested in the Magistrates
Commission,
pending an investigation by it into whether or not a particular
magistrate is fit to remain in office.
[171]
            The fact that
such a suspension takes place before the impeachment enquiry is held, is not
necessarily open
to objection.  The nature of the allegation against the
magistrate may, in itself, be so serious as to make it inappropriate for
the
person concerned to continue to sit as a magistrate while the allegation is
being investigated.  The Commission would have to
have reliable evidence before
it to warrant such action and it would have to conduct its affairs in a manner
consistent with natural
justice.  If in the particular circumstances of the
case its decision cannot be justified or if it has failed to comply with the
requirements of natural justice, its decision would be liable to be set aside
on review by the higher courts.  That constitutes
adequate protection against
any possible abuse of this power.
[172]
            It follows
that section 13(3)(a) is not inconsistent with judicial independence and that
the appeal relating
to this section must be upheld.
[173]
            Section
13(3)(b) of the Act provides that a magistrate “so suspended” from office,
“shall
receive, for the duration of such suspension, no salary or such salary as may
be determined by the Minister on the recommendation
of the Commission”.
It is not clear whether
this refers to a provisional suspension under section 13(3)(a) as well as a
confirmed suspension under section
13(3)(aA), or only to a confirmed suspension
under section 13(3)(aA).  In the view I take of the matter it is not necessary
to decide
this question in this judgment.
[174]
            The High Court
held that the provisions of section 13(3) “do not safeguard the salary of
magistrates from
being reduced in a discretionary or arbitrary manner”.
16
0
[175]
            Suspension is,
however, only competent where there is an investigation into the “fitness” of a
magistrate
to hold office.  The decision to investigate has to be taken by the
Commission and that will be competent only when the allegations,
if
established, are sufficiently serious to warrant removal from office.  Such
allegations are likely to be made only rarely.Â
If they are, and if good reason
exists for suspension, a withholding of salary during suspension is not
necessarily disproportionate.Â
That is so even if the withholding of salary can
take place from the time of a provisional suspension.  There is no reason why a
magistrate who is not fit to hold office, and is removed from office for that
reason, should be paid for the period during which
she or he is under
suspension prior to removal.  If the magistrate is not removed from office the
salary withheld has to be paid.
[176]
            The conclusion
of the High Court that there is no safeguard against the salary being reduced
in a “discretionary
or arbitrary manner” ignores the fact that the Commission
must discharge its functions consistently with judicial independence
and the
right that every person has under the Constitution to just administrative
action.
16
1
[177]
            Section
13(3)(b) leaves it to the Minister to determine the payability of salary on the
recommendation of the
Commission.  For the reasons that follow immediately,
this is not appropriate.  The Minister should not have the power to depart
from
decisions of the Commission on such matters.  That can be remedied by deleting
from section 13(3)(b) the words “the Minister
on the recommendation of”.  The
order of the High Court declaring the whole of section 13(3)(b) invalid is set
aside and replaced
with an order deleting from the section the words “the
Minister on the recommendation of”.
The Minister’s role in the
proceedings
[178]
            In terms of
section 13(3)(aA) the Minister “may” confirm the recommendation.  If this means
that the Minister
has a discretion to confirm a recommendation by the
Commission that a magistrate be suspended, Parliament will be engaged only if
such confirmation is given.  The regulations that supplement the Act
contemplate that the Act does give the Minister a discretion
to confirm the
suspension, or to decline to do so and instead to impose lesser penalties on
the magistrate concerned.  I deal more
fully with this later.
16
2
  For the moment it is
sufficient to say that the vesting of such powers in the Minister would not be
consistent with judicial independence.
[179]
            The Minister,
a member of the government, should not have the power to exercise discipline
over judicial officers
and to punish them for misconduct.  That would place the
judicial officers concerned in a subordinate position in relation to the
government which is inconsistent with judicial independence.
[180]
            The first
question to consider is whether it is possible to read the Act and the
regulations in a way that
would be consistent with judicial independence, and
if not, whether it is possible to remedy such constitutional invalidity by
means
of severance, notional severance or reading in.
[181]
            As far as the
Act is concerned, if “may” in section 13(3)(aA) is read as conferring a power
on the Minister
coupled with a duty to use it, this would require the Minister
to refer the Commission’s recommendation to Parliament, and deny
him any
discretion not to do so.  In that event the reference in section 13(3)(c) to a
report on the reasons for the suspension
would be construed as referring to the
Commission’s reasons for its decision.Â
[182]
            In my view
this is the constitutional construction to be given to section 13(3)(aA).
16
3
  On this construction,
the procedure prescribed by section 13(3) of the Act for the removal of a
magistrate from office is not inconsistent
with judicial independence.  It
would be similar to the process prescribed by the Constitution for the removal
of judges.  The
proceedings would be initiated by the Magistrates Commission
and a recommendation that the magistrate be removed would have to be
referred
to Parliament.  Removal could only take place if Parliament resolves that this
should happen.  This is the same as the
procedure for removing a judge, save
that the investigation is by the Magistrates Commission and not the Judicial
Service Commission
and the confirmation required is a resolution of Parliament
and not a resolution of two thirds of the National Assembly.
[183]
            Though the
special majority of the National Assembly required in the case of judges gives
them added protection,
this in itself does not make the procedure for the
removal of magistrates inconsistent with judicial independence.  Impeachment
on
the basis of an independent investigation subject to confirmation by Parliament
is generally recognised as a high degree of protection
against executive power,
consistent with judicial independence.
16
4
  The fact that it differs from the
protection given to judges is an incident of the Constitution itself which does
not prescribe
the same degree of protection for magistrates as it does for
judges.
[184]
            The appeal,
insofar as it pertains to section 13(3)(aA) must therefore be upheld.
[185]
            In the text of
the judgment of the High Court the findings concerning removal from office are
summarised.
16
5
  According to this summary, sections 13(3)(d) and (e) “are found to be
inconsistent” with the Constitution.  No reasons are
given, but presumably this
was a consequence of the declarations made concerning the other sub-paragraphs
of section 13(3).  However,
the formal order at the conclusion of the judgment
does not refer to sections 13(3)(d) and (e).  In the light of the conclusions
to which I have come concerning section 13(3), sections 13(3)(d) and (e) cannot
be said to be inconsistent with the Constitution.
[186]
            If section
13(4) is intended to make clear that the Minister must act on a resolution of
Parliament, it adds
nothing to section 13(3).  The only substantive meaning it
can have is to vest a power in Parliament to remove a magistrate from
office on
the grounds of misconduct, ill-health or incapacity, without a preliminary
investigation into such matters by the Magistrates
Commission. But that is
inconsistent with judicial independence.  A parliamentary resolution is
required as a safeguard and not
as a means of avoiding the consequences of an
independent investigation called for by section 13(3).  The finding of the High
Court
that section 13(4) is inconsistent with judicial independence must therefore
be confirmed and the appeal in this regard is dismissed.
The regulations on the
impeachment of magistrates
[187]
            The
regulations deal with the procedures to be followed where impeachment may be in
issue.  The relevant regulations
assume that the Act allows the Minister a
discretion to confirm a recommendation for suspension or to impose a lesser
penalty on
the magistrate concerned. That is not consistent with the Act as I
have construed it, nor is it consistent with judicial independence.Â
As appears
from what follows, some of the regulations will have to be re-drafted to bring
them into conformity with the Constitution.
[188]
            In effect what
the regulations contemplate is this.  If a complaint is received about a
particular magistrate,
a preliminary investigation may be undertaken to
determine whether or not a formal charge should be brought against that
person.Â
The Commission determines whether or not to call for this
investigation, but may decide to embark upon an enquiry itself if it is
satisfied that there is sufficient evidence to warrant that being done.Â
Detailed provisions are then made as to the manner in which
the investigation
is to be conducted.
Regulation 25
[189]
            Regulation 25
provides:
“A magistrate
may be accused of misconduct if he –
(a)        is found guilty of an offence;
(b)        contravenes any provision of these regulations;
(c)        contravenes the Code of Conduct, if there is one;
(d)        is negligent or indolent in the carrying out of his duties;
(e)        uses intoxicants or stupefying drugs excessively;
(f)        accepts, without the permission of the Minister, or demands in
respect of the carrying out of or the failure to
carry out his duties any
commission, fee or pecuniary or other reward, not being the emoluments payable
to him in respect of his
duties, or fails to report to the Minister the offer
of such a commission, fee or reward;
(g)        misappropriates or makes improper use of any property of the
State;
(h)        absents himself from his office or duty without leave or valid
cause;
(i)         makes a false or incorrect statement, knowing it to be false
or incorrect, with a view to obtaining any privilege
or advantage in relation
to his official position or his duties or to the prejudice of the
administration of justice; or
(j)         refuses to execute a lawful order.
[190]
            The judgment
of the High Court refers to this definition of misconduct, saying that it is
“so broad that
even a parking offence could lead to disciplinary proceedings, so too every
“contravention” of the Code of Conduct”.
16
6
[191]
            Regulation 25
deals with conduct which may give rise to an accusation of misconduct.  That
accusation can
only form the subject matter of a charge of misconduct if as a
result of a preliminary investigation conducted in terms of regulation
26, a
recommendation is made that such charge be brought, or if a preliminary
investigation is considered to be unnecessary because
there is “prima facie
evidence to support the charge”.
16
7
  The Commission must be satisfied
that sufficient grounds exist for a charge of misconduct before such a charge
can be brought against
a magistrate.  A trivial offence such as a “parking
offence” or a minor contravention of the regulations or the Code of Conduct
would not constitute “sufficient grounds” for a charge.
[192]
            What
constitutes misconduct by a judicial officer cannot really be defined with any
precision.  It depends
upon the nature of the conduct complained of, and the
particular circumstances in which that conduct was committed.  Regulation
25
defines the circumstances in which an accusation of misconduct can be made.  If
the regulation had simply provided that an accusation
of misconduct should be
the subject of a preliminary investigation in order to determine whether or not
there are grounds for bringing
a charge of misconduct against a magistrate,
there could have been no objection to it.  In defining circumstances in which
an accusation
can be brought, regulation 25 draws attention to conduct which
may give rise to a charge.  Whether that conduct in fact justifies
the charge
will depend upon all the circumstances including the nature of the offence, or
the respects in which the regulations have
been breached or the Code of Conduct
has been contravened.  Regulation 25 is capable of being construed as indicated
above and applied
consistently with judicial independence, and in the
circumstances I cannot agree with the conclusion of the High Court that the
regulation
is inconsistent with the Constitution.
16
8
The appeal is therefore upheld.
Regulation 26
[193]
            Regulation 26
deals in considerable detail with the procedure to be followed in preliminary
investigations.Â
The terms of the regulation are set out in the schedule to
this judgment.  The proceedings are initiated by the Commission where
an
accusation of misconduct has been made against a magistrate.  Regulation 26(1)
provides:
“If a
magistrate is accused of misconduct, the Commission may appoint a magistrate or
a person (hereinafter called the investigating
officer) to conduct a
preliminary investigation and to obtain evidence in order to determine whether
there are any grounds for a
charge of misconduct against the magistrate: Provided
that, if the Commission is of the opinion that there is prima facie evidence
to
support the charge, the Commission may charge the magistrate concerned in
writing with misconduct without the said preliminary
investigation.”
[194]
            The procedure
to determine whether or not a formal charge should be brought thus involves
either a preliminary
investigation by an investigator appointed by the
Commission to deal with that issue and make recommendations to the Commission
as
to what should be done, or, if the Commission is of the opinion that there
is sufficient evidence to support a charge, a decision
by the Commission itself
to lay a formal charge.  The preliminary investigation, if required, can be
undertaken by a “magistrate
or a person”.  The preliminary investigation is for
the limited purpose of deciding whether or not to bring a formal charge.Â
The
investigator has no authority to make any finding against the magistrate and
there is thus no need at this stage of the proceedings
to require that they be
conducted by a judicial officer.
[195]
            If a charge is
brought and there is a need for a formal hearing then the regulations provide
that the Commission
shall appoint “a magistrate or person” to preside at the
enquiry
16
9
and a “magistrate or person” to lead the evidence.
17
0
  The presiding officer is
required to make a finding as to whether or not the magistrate concerned is
guilty of misconduct and if
so whether there are any “aggravating or mitigating
circumstances”.
17
1
Those findings must then be submitted to the
Commission for its consideration.
17
2
  The Commission, in turn, considers
the record and the recommendation and makes its own recommendation as to what
should be done.
17
3
  Whilst the person leading the evidence need not
necessarily be a magistrate, the person charged with the responsibility of
making
a finding as to whether or not the magistrate concerned has been guilty
of misconduct, should be a judicial officer.  It is not
consistent with
judicial independence that a person other than a judicial officer should be
charged with this responsibility.
[196]
            Apart from
this, the procedure prescribed in the regulations for the conduct of the
investigation is consistent
with fairness and not open to objection.  Moreover,
any investigation would also have to be conducted in a manner consistent with
natural justice.
17
4
[197]
            The flaw in
the regulation concerning the status of the presiding officer can be corrected
by deleting from
regulation 26(6) the words “or person” where they appear for
the first time immediately before the words “hereinafter called
the presiding
officer”.  Regulation 26(6) would then read as follows:
“If the
magistrate charged in terms of subregulation (1) or (3)–
(a)        denies the charge; or
(b)        fails to comply with the direction referred to in
subregulation (4),
the Commission
shall appoint a magistrate (hereinafter called the presiding officer) to
preside at the investigation, and a magistrate
or person to lead evidence:
provided that the Commission may dispense with the appointment of a presiding
officer and establish a
committee to conduct the investigation, in which case a
reference in this regulation to ‘presiding officer’ shall be deemed to
be a
reference to such a committee.”
[198]
            There is,
however, another issue arising from the provisions of regulation 26 that calls
for consideration.Â
Regulation 26(17) vests in the Minister a discretion as to
the sanction to be imposed.  The Minister may “suspend” the magistrate,
“relieve” the magistrate from office, or impose a lesser penalty.  The
penalties which may be imposed are:
1.         A caution or reprimand.
2.         Directing that the magistrate shall not be promoted to a
higher salary scale or a  higher position for a period
not exceeding five
years.
3.         Transferring the magistrate to other “headquarters”.
4.         Imposing a fine not exceeding R10 000
5.         Postponing the decision as to the penalty “with or without
conditions” for a period of 12 calendar months.
[199]
            The vesting of
a power in the Minister to determine an appropriate sanction is inconsistent
with judicial independence.Â
Where sanctions are appropriate they must be
imposed by an independent body charged with the investigation of the complaint
–Â
in this case the Magistrates Commission.  Moreover, the vesting of such a
power in the Minister  is inconsistent with the only
construction of section
13(3)(aA) that would be consistent with the Constitution.
17
5
  It follows that
regulation 26(17) as presently formulated is inconsistent with judicial
independence.  That inconsistency cannot
be remedied by reading in or actual or
notional severance.
[200]
            Before leaving
this issue it is necessary to draw attention to the reference in regulation
26(17) to the possible
sanctions of a fine or transfer to other headquarters.Â
The regulation does not say to whom the fine prescribed in item 4 is payable.Â
Presumably it is contemplated that the fine will be payable to the Department
of Justice.  But that implies a relationship that
is inconsistent with judicial
independence.  Judicial officers are not accountable to the government.  They
are accountable to
the Constitution and the law and to the courts as
independent institutions.  If the misconduct attracts criminal sanctions the
magistrate
concerned will be liable to the penalties prescribed by the criminal
law for such misconduct.  But the penalty must be imposed by
a criminal court
in an ordinary prosecution and not as a sanction for a breach of the code of
conduct.  The payment of a fine to
an organ of state for misconduct that does
not constitute a criminal offence is not a sanction compatible with judicial independence.
[201]
            A compulsory
transfer designed to serve as a penalty is also not a sanction compatible with
judicial independence.Â
There may be reasons for transferring a magistrate to
another district for operational reasons and not as a penalty where the
circumstances
of particular complaints found to be justifiable make it
desirable that this be done.
17
6
  But if this is not the case, a compulsory transfer is
not rationally related to the misconduct.  A sanction not rationally related
to
the misconduct is not consistent with judicial independence.
[202]
            If regulation
26(17) is declared to be invalid, and the presiding officer at any enquiry is a
magistrate, the
remainder of the regulation will serve the legitimate and
important purpose of providing a framework for conducting enquiries into
serious allegations that might warrant the removal of a magistrate from
office.  Lesser complaints can be dealt with in terms of
the Complaints
Procedure Regulations.
17
7
  If it is considered necessary that provision be made
for the Commission to have the power to impose appropriate sanctions other
than
recommending removal from office, that power can be given to the Commission
through an amendment to regulation 26.  The appropriate
order, therefore, is
not to declare the whole regulation to be inconsistent with the Constitution,
but to sever the offending portions
from the regulation.
[203]
            The order of
the High Court declaring the whole of regulation 26 invalid is set aside and is
replaced by an
order deleting the words “or person” where they appear for the
first time in regulation 26(6) immediately before the words “hereinafter
called
the presiding officer” and deleting the whole of regulation 26(17).
Regulations 27, 28 and 29
[204]
            Regulations
27, 28 and 29 deal with the procedure to be followed in respect of an
investigation into the alleged
incapacity or ill-health of a magistrate that
prevent the magistrate concerned from carrying out his or her duties
efficiently.Â
The terms of the regulations are set out in the schedule to this
judgment.  The procedures to be followed are consistent with fairness.Â
They
involve a full investigation into the allegations during which the magistrate
concerned has the opportunity of making representations
and disputing any of
the allegations made.  The investigations would also have to be conducted in a
manner consistent with natural
justice.
[205]
            Two matters
call for consideration.  First, the reference to the investigations being
carried out in the first
instance by “a magistrate or any person”.  A judicial
officer is not  the only person qualified to carry out such investigations.Â
For instance, medical practitioners or persons skilled in the field of the
particular incapacity alleged to impair the magistrate’s
ability, would often
be suitably qualified persons to carry out the investigation.
[206]
            Secondly, the
role of the Minister in the process.  For reasons already given, the
investigation should not
be initiated by the Minister, or conducted by persons
designated by the Minister.  That role should be vested in the Commission.
[207]
            The only other
matter that calls for consideration is whether the final decision to give
effect to the recommendation
of the Commission after investigations have been
completed, can be vested in the Minister.  There are two problems in this
regard.Â
First, the regulation is formulated in a way which would permit the
Minister to dismiss the magistrate, even if the Commission were
to find that
there are insufficient grounds for the magistrate to be removed from office
because of incapacity or continued ill-health.Â
Secondly, it vests the power to
make the final decision in the Minister.
[208]
          Â
Section 13(3)
of the
Magistrates Act contemplates
that removal on the grounds of misconduct,
ill-health, or incapacity depends upon a resolution passed by Parliament.  The
discretion
vested in the Minister by the regulations, is therefore inconsistent
with the Act unless it is construed as vesting in the Minister
only a
discretion not to refer the Commission’s findings to Parliament.  Construed
thus, the Act and the Regulation would permit
the removal of a magistrate from
office by a resolution of Parliament on the grounds of misconduct, incapacity
or ill-health on the
basis of a finding to that effect made by the Commission.
[209]
            However, the
interposition of the Minister into this process is not appropriate.  It enables
the Minister
to intervene between the Commission and Parliament to save a
magistrate found by the Commission to be unfit to continue performing
his or
her duties.  Confirmation of a resolution of the Magistrates Commission by
Parliament is a safeguard that allows for transparency.Â
The power to withhold
a recommendation from Parliament is calculated to frustrate rather than to
enhance what is otherwise a transparent
procedure.
[210]
            The
regulations are accordingly constitutionally invalid as they stand and must be
so declared.  The appropriate
remedy is to delete the words “the Minister or”
wherever they appear in regulations 27(1), 27(2), 29(1), 29(2), 29(3), and
29(4),
and to delete regulations 28(4) and (5) which contemplate that the
Minister may withhold from Parliament a recommendation by the
Commission, and
regulation 29(9) which vests the final decision in regard to removal on the
grounds of ill-health in the Minister.Â
This replaces the portion of the High
Court order which declared the whole of regulations 27, 28 and 29 invalid.
[211]
            Interpreting
section 13(3)(aA)
of the
Magistrates Act in
the manner set out in paragraphÂ
above, reformulating
regulation 26
, and severing the offending passages from
the regulations as set out immediately above, will leave in place an equitable
procedure
according to which material decisions are taken by the Commission
after a proper investigation by a suitably qualified investigator.Â
If the
Commission recommends that the magistrate should be removed from office, that
recommendation must be forwarded to Parliament
by the Minister, who must then
act in accordance with Parliament’s decision.  That is a proper procedure for
the impeachment of
a judicial officer.
Promotion of magistrates
[212]
          Â
Regulation 16
dealing with the promotion of magistrates was found by the High Court to be
inconsistent with the Constitution.  The regulation
provides
“A magistrate
with more than five years’ appropriate experience may on the recommendation of
the Commission be promoted by the
Minister to a higher post with a clearly
distinguishable higher level of work which is accompanied by the granting of
the rank and
salary of that higher post, absorption into that post and the
performance of the duties attached to that post: Provided that there
is a
vacancy in a higher post: Provided further that a magistrate who performs
certain duties in terms of section 14 of the Act conferred
upon him by the
Minister in a specific case after consultation with the Commission may be
promoted to a higher post without absorption
into such higher post.”
[213]
            The High Court
held that this regulation will be perceived to affect the independence of
magistrates, because
“[t]he Magistrates Commission cannot prevent manipulation
of promotions. . . .”
17
8
  I am unable to agree with this conclusion.  The
Minister’s power, save in respect of cases falling under section 14, is
dependent
upon the recommendation of the Commission.  If the Minister does not
give effect to a recommendation, the failure to do so must
be justified.  The
absence of a vacancy in a higher post would be an adequate reason.  There may
possibly be other adequate reasons,
but if there are, they must be capable of
proof and able to withstand constitutional scrutiny by a reviewing court in the
higher
judiciary.  This is adequate protection against the possibility of
manipulation of promotions.
[214]
            The proviso
dealing with the promotion of a magistrate for the purpose of performing duties
in terms of section
14 of the Act, are directly related to that section.  I
deal later with section 14 and hold that the power vested in the Minister
by
that section to confer duties on a magistrate in a specific case is
inconsistent with the Constitution.
17
9
  It follows from that finding that
the basis for the words
“[p]rovided
further that a magistrate who performs certain duties in terms of section 14 of
the Act conferred upon him by the Minister
in a specific case after
consultation with the Commission may be promoted to a higher post without
absorption into such higher post”
falls away, and those
words must be deleted from Regulation 16.
[215]
            The High Court
also held that matters dealing with promotion should have been dealt with in
the Act itself,
and not in regulations.  For the reasons already given,
18
0
I am unable to agree with
that conclusion.
[216]
            The order of
the High Court declaring the whole of regulation 16 invalid is therefore set
aside and replaced
with an order deleting the words “provided further that a
magistrate who performs certain duties in terms of section 14 of the
Act
conferred upon him by the Minister in a specific case after consultation with
the Commission may be promoted to a higher post
without absorption into such
higher post” from the regulation.
Regulation 17
[217]
            The High Court
held that the wording of regulations 17(1) and 17(2) is inconsistent with the
Constitution.Â
These regulations provide:
“(1)      For purposes of seniority and salary, the actual date of
absorption into the post concerned shall be deemed to be
the date of entry to
the rank concerned, except in the cases falling under section 14, in which case
the date of entry shall be determined
by the Minister.
(2)        For purposes of seniority the names of the magistrates shall
be arranged by the Director-General according to rank
(where the post promotion
basis applies) and experience on comparable hierarchical levels in sequence of
date of entry into those
ranks.”
[218]
            The High Court
held that the exception made in regulation 17(1) concerning promotions linked
to cases falling
under section 14(1) was inconsistent with the Constitution.Â
This was a consequence of its finding in respect of section 14(1) which
is
dealt with later in this judgment.  For the reasons given later, I agree that
the provisions of section 14 relevant to regulation
17(1) are inconsistent with
the Constitution.
18
1
  That flaw can be remedied by severing the offending
words from the regulation.  The words to be severed are: “except in the
cases
falling under section 14, in which case the date of entry shall be determined
by the Minister”.
[219]
            The High Court
also considered that the reference in regulation 17(2) to the Director-General
preparing seniority
lists is inconsistent with the Constitution because it
gives “a discretion to arrange the names of magistrates for purposes of
seniority”.
18
2
  The regulation does not, however, vest any discretion in the
Director-General.  It requires him to prepare a list recording the
dates upon
which the particular magistrates entered into particular ranks.  That involves
an objective enquiry which should not
give rise to any dispute.  But if it
does, the dispute would have to be determined on objective grounds, which will
be subject to
review by the Higher Courts.
[220]
            It follows
that the appeal against the order of the High Court concerning regulation 17(1)
must be dismissed,
but that the appeal concerning regulation 17(2) must be
upheld.
Regulation 22
[221]
            The High Court
held that regulation 22 dealing with the transfer of magistrates is
inconsistent with the Constitution.Â
The regulation provides:
“(1)      The Director-General may transfer a magistrate from his
headquarters to other headquarters when it is expedient.
(2)        A magistrate who feels aggrieved because of a transfer may
make representations to the Director-General.
(3)        If the representations referred to in subregulation (2) are
unsuccessful and not dealt with to the satisfaction
of the magistrate
concerned, the magistrate may make representations to the Commission.
(4)        The Commission makes a final decision regarding the transfer
of the magistrate.”
[222]
            According to
the High Court
“[t]he
relevant regulation provides that the question of transfer is completely in the
hands of the director-general who may make
a transfer ‘when it is expedient’.Â
This is not ameliorated by the fact that the magistrate’s recourse is to the
Magistrates
Commission.”
18
3
[223]
            I am unable to
agree with this conclusion.  At the time the affidavits were lodged in the High
Court there
were 532 Magistrates’ Offices in South Africa staffed by 1758 magistrates.Â
The magistrates hold office in courts of various sizes.Â
In the smaller courts
(where there may be only a single magistrate in some instances) it is
imperative that vacancies that arise
because of resignation, ill-health,
promotion or other causes be filled promptly.  The procedure prescribed by
regulation 30 facilitates
this.  The process is initiated by the
Director-General.  If the proposal is acceptable to the magistrate there is no
need to trouble
the Magistrates Commission.  If, however, the proposal is not
acceptable to the magistrate and the Director-General persists in
it, the
magistrate can then turn to the Commission, which makes a decision as to
whether or not a transfer should be effected.
[224]
            That procedure
itself is not open to objection.  It is necessary, however, to consider whether
it is permissible
to vest the Magistrates Commission with the power to effect a
transfer without the consent of the magistrate concernedÂ
[225]
            There is no
doubt that a transfer to a post in a place other than that in which the
magistrate is then holding
office may cause inconvenience, and disrupt
important aspects of the personal life of the magistrate concerned.  It has a
bearing
on family life including the schooling of children, is likely to result
in the loss of contact with friends that have been made,
and has all the other
difficulties that go with a relocation.  The proper functioning of the system
is, however, dependent upon
there being an ability to transfer magistrates from
one post into another when it is necessary to do so.  When magistrates accept
appointment they know that transfers are a condition of service, and one that
they have to agree to if they wish to pursue a career
in the lower judiciary.Â
What is important is that transfers should be made for good reasons and without
favour or prejudice.Â
That is one of the responsibilities of the Magistrates
Commission, and there is no reason to believe that it will not discharge its
functions properly, when that issue comes before it.  If it should not, its
decision would be subject to review by the higher judiciary.Â
I am therefore
unable to agree with the conclusion of the High Court that the provision is
inconsistent with the Constitution.
18
4
[226]
            In the
judgment of the High Court it is also suggested that this provision ought to
have been dealt with in
the Act itself, and not in regulations.  For the
reasons already given,
18
5
that is not necessary.
[227]
            The appeal,
insofar as it relates to Regulation 22, must therefore be upheld.
Assignment of duties to
magistrates: section 14
[228]
            Section 14 of
the Act provides:
“(1)      A magistrate shall possess the powers and perform the duties
conferred on or assigned to him or her by or under the
laws of the Republic,
or, in any specific case, by the Minister after consultation with the
Commission.
(2)        The Minister may, after consultation with the Commission, make
regulations conferring on or assigning to magistrates
administrative powers and
duties which do not affect the judicial independence of magistrates, including
regulations empowering the
Minister, after consultation with the Commission, to
confer or assign administrative powers and duties of a general nature on or
to
magistrates.
(3)        The provisions of section 16(2) shall apply with the necessary
changes in respect of any regulation made under subsection
(2).”
[229]
            These provisions
were introduced into the Act during 1998 at a time when the Constitution was
already in force.Â
The High Court held that the words in section 14(1) “or, in
any specific case, by the Minister after consultation with the Commission”
are
inconsistent with the Constitution because they undermine the independence of
magistrates’ courts.
18
6
[230]
            I agree that
magistrates can have only those powers vested in them by law, and that it is
not consistent with
institutional independence to permit the Minister to assign
judicial powers to magistrates in addition to those that are ordinarily
vested
in them.  The appeal against this finding must therefore be dismissed and the
words “or, in any specific case, by the Minister
after consultation with the
Commission” are to be deleted.
[231]
            Section 14(2)
makes provision for the assignment of administrative duties and functions to
magistrates.  Ideally,
magistrates should not be required to perform
administrative duties unrelated to their functions as judicial officers.  To
require
them to do so may make them answerable to the executive, and if that
happens, the separation of powers that should exist between
the executive and
judiciary would be blurred.
18
7
[232]
            I have
previously drawn attention to the fact that there are certain statutes which
confer administrative powers
and duties on magistrates.
18
8
  In effect, section 14(2)
empowers the Minister to make regulations which would add to those
administrative powers and duties.
[233]
            This Court has
previously had occasion to draw attention to the difficulties confronting
government in attempting
to carry out its constitutional mandate to transform
our society, to the extensive demands made upon it in relation to basic needs
such as housing, health, education and social welfare and to the need to make
prudent use of scarce resources.
18
9
  There may be reasons why existing
legislation that makes provision for administrative functions and duties to be
performed by magistrates
is necessary, and is not at present inconsistent with
the evolving process of securing institutional independence at all levels of
the court system.
[234]
            The question
whether administrative duties unrelated to their judicial functions can
properly be assigned to
magistrates was not the basis on which the
constitutionality of section 14(2) was challenged.  I accordingly refrain from
dealing
with that question.  The only objection taken to section 14(2) was that
the power to make the regulations was vested in the Minister.Â
That power may
only be exercised after consultation with the Commission and is subject to the
qualification that the functions assigned
should not “affect the judicial
independence of magistrates”.  If regulations are made that are inconsistent
with judicial independence
they will be invalid.  Since the regulations
themselves will be subject to constitutional control, there is, in my view, adequate
protection against any possible abuse of this power.  The appeal against the
declaration of invalidity made concerning section 14(2)
must therefore be
upheld.  It follows that the appeal against the consequential finding made by
the High Court concerning section
14(3) must also be upheld.
Regulations 32 and 33
[235]
            Regulation 31
makes provision for magistrates to lodge complaints concerning “an official act
or omission”.Â
The procedure prescribed by regulation 31 is for the complaint
to be lodged with the magistrate’s head of office, or if there is
no such
person, for the complaint to be lodged with the Magistrates Commission.  Where
the complaint is lodged with the head of
office, and the magistrate concerned
disagrees with the decision given, she or he may then refer the complaint to
the Magistrates
Commission for its decision. The Magistrates Commission is
therefore the ultimate authority in respect of such complaints.
[236]
            Regulations 32
and 33 deal with what is to happen after a complaint has been investigated.Â
They provide:
“32.      (1)        After completion of the investigation with regard to
the complaint or grievance referred to in
regulation 31 the Commission shall –
(a)        take such steps as it may deem fit with regard to the
complaint or grievance concerned; and
(b)        in writing, inform the Magistrate concerned, accordingly.
(2)        If the Magistrate concerned is not satisfied with the steps
referred to in subregulation (1) (a), he may within
10 working days after
receipt of the notice referred to in subregulation (1) (b), in writing, submit
to the Commission the reasons
for his dissatisfaction, together with copies of
the relevant documentation regarding his complaint or grievance, with the
request
that it must be submitted to the Minister.
(3)        The Commission then forwards the relevant documents to the
Minister.
33.        The Minister shall –
(a)        make a decision regarding the complaint or grievance concerned
after consideration of all the relevant documents
and if he deems it expedient
he may order any further investigation; and
(b)        advise the magistrate concerned, in writing, of his decision.”
[237]
            The High Court
held
“Since the
complaint of the magistrate will be directed against the Minister, his
department or the Magistrates Commission, these
provisions provide no
satisfactory remedy for the magistrate concerned.  Since the magistrate cannot
direct his complaint to any
independent body for investigation and action, this
provision will have a chilling effect on the independence of the magistrate.Â
These provisions will be perceived as affecting indirectly the independence of
magistrates.  They are therefore inconsistent with
the independence of the
magistrates’ courts.”
19
0
[238]
            Regulations 32
and 33 do not deprive magistrates of any remedies they might have concerning
“official acts”
that affect them adversely.  If the complaint is about matters
in respect of which the magistrate concerned has no rights, then
it is
difficult to understand how the mechanism provided by regulations 32 and 33 can
have a “chilling effect” on the independence
of the magistrate concerned.  If
there are complaints against the Minister or the Commission they are likely to
relate to issues
where the regulations empower the Minister or the Commission
to take certain decisions affecting the magistrate.  If those decisions
are
taken properly, the magistrate concerned has no legitimate grievance.  If they
are not taken properly, the magistrate concerned
is not deprived of his or her
remedies by regulations 32 and 33, and is entitled to approach the High Court
to have the decision
of the Minister or the Commission (as the case may be) set
aside on review.  Where the decisions are not taken by the Minister or
the
Commission, and relate to grievances concerning the functioning of the department
or functionaries within the court structure
itself, it is appropriate for the
complaint to be considered by the Magistrates Commission.  Where the magistrate
concerned is dissatisfied
with the decision of the Commission, the fact that
she or he has the further right to ask the Minister to order that the
investigation
be re-opened is an additional remedy, and not an infringement of
judicial independence.
[239]
            The procedure
laid down by regulations 32 and 33 allows avenues for grievances to be aired,
and I fail to see
how it can be said to detract from the institutional
independence of magistrates’ courts.  The appeal against the High Court’s
order
concerning these regulations must therefore be upheld.
Regulation 55
[240]
            Regulation 55
provides:
“Any act,
measure, arrangement or direction which is applicable to an officer in the
Department, shall mutatis mutandis apply to
any person who has been appointed
in a temporary or acting capacity or as assistant-magistrate as a judicial
officer in terms of
section 9 of the Magistrates’ Courts Act.”
[241]
            It is
reasonably possible to construe the words “mutatis mutandis” as limiting the
application of the regulation
to any “act, measure, arrangement or direction”
which may appropriately be applied to judicial officers.  Thus construed the
regulation is not inconsistent with judicial independence.  The appeal against
the High Court’s finding to the contrary must therefore
be upheld.
Sections 9(3), (4) and (5)
of the Magistrates’ Courts Act
[242]
            Sections 9(3),
(4) and (5) of the Magistrates’ Courts Act deal with the appointment of acting
and temporary
magistrates.  The sections read as follows:
“(3)      Whenever by reason of absence or incapacity a magistrate,
additional magistrate or assistant magistrate is unable
to carry out the
functions of his or her office or whenever such office becomes vacant, the
Minister, or an officer in the Department
of Justice or a magistrate at the
head of a regional division or a person occupying the office of chief
magistrate, including an
acting chief magistrate authorized thereto in writing
by the Minister, may appoint any other competent person to act in the place
of the
absent or incapacitated magistrate, additional magistrate or assistant
magistrate, as the case may be, during such absence
or incapacity or to act in
the vacant office until the vacancy is filled: Provided that no person shall be
appointed as an acting
magistrate of a regional division unless he or she has
satisfied all the requirements for the degree referred to in subsection (1)
(b)
or has passed an examination referred to in that subsection: Provided further
that when any such vacancy has remained unfilled
for a continuous period
exceeding three months the fact shall be reported to the Magistrates
Commission.
(4)        The Minister or an officer in the Department of Justice or a
magistrate at the head of a regional division or a
person occupying the office
of chief magistrate, including an acting chief magistrate authorized thereto in
writing by the Minister,
may appoint temporarily any competent person to act
either generally or in a particular matter as magistrate of a regional division
in addition to any magistrate or acting magistrate of that division or as
additional or assistant magistrate for any district or
sub-district in addition
to the magistrate or any other additional or assistant magistrate.
(5)        The Minister may, with the concurrence of the Minister of
Finance, determine the remuneration and allowances and
the method of
calculation of such remuneration and allowances payable to a person appointed
under subsection (3) or (4), if such
person is not an officer of the public
service.”
[243]
            The Constitution
recognises that it may be necessary to appoint acting judges
19
1
and there can be no
constitutional objection, therefore, to the appointment of acting or temporary
magistrates.  There are practical
reasons that make this necessary.  This, the
High Court accepted.  It held, however, that the provisions dealing with the manner
of appointment, the tenure of acting magistrates or temporary magistrates, and
their remuneration, were inconsistent with the Constitution:
“These
provisions empower the Executive to select and appoint acting and temporary
magistrates, to limit their tenure for reasons
unrelated to capacity,
competence or behaviour and to determine the cases to be heard.  These
provisions would give rise to a perception
on the part of the reasonable,
objective and informed person that acting and temporary magistrates are not
independent.”
19
2
[244]
            In dealing
with the method of appointment, the High Court drew attention to the fact that
there is no comparable
safeguard to that provided in the Constitution for the
appointment of acting judges, whose appointments can only be made by the
Minister
after consultation with the senior judge of the court to which she or
he is to be appointed.
19
3
[245]
            It does not
follow from the fact that the Constitution makes provision for consultation
prior to the appointment
of an acting judge, that the absence of a comparable
provision in the case of the appointment of acting magistrates, is inconsistent
with judicial independence.  Different requirements may be appropriate for
appointments to different courts.  Thus, in the case
of the Constitutional
Court whose powers are greater than those of other courts, an acting
appointment can only be made with the
concurrence
of the Chief Justice.
19
4
  In the case of the
Supreme Court of Appeal and high courts, the Minister does not require the
concurrence of the head of the court
to which a judge is appointed as an acting
judge; all that is required is consultation with the head of court, which means
that the
Minister is free to make the final decision.  Powers of magistrates
are significantly less than those of high court judges.  There
are also many
more magistrates than there are judges.  Some magistrates sit in courts where
there may be only one or two magistrates,
with no ability to manage all the
work that has to be done if a particular magistrate is absent or
incapacitated.  In such circumstances
there may be a need for urgent decision
making, and the provisions of sections 9(3) and (4) enable that to be done.
[246]
            Section 9(3)
makes provision for a “competent person” to be appointed to act during the
“absence” or
“incapacity” of the magistrate whose post is being filled, or in
the case of a vacant post, “until the vacancy is filled”.Â
These are determinate
periods which means that the acting magistrate has security of tenure during
the period for which the appointment
is made, and does not hold office at the
discretion of the Minister.  The appeal against the order made concerning
section 9(3)
must therefore be upheld.
[247]
            Section 9(4)
does not require the temporary appointment made in terms of that section to be
for a fixed or
determinate period.  Bekker refers in his affidavit to a form of
agreement entered into between the state and temporary magistrates.Â
Clause 7
of what is said to be a standard contract provides as follows:
“7.1      The STATE may terminate this CONTRACT summarily or after notice
of less that [sic] one month as it may deem expedient,
in the event of a breach
of the terms of this CONTRACT by the ACTING MAGISTRATE.  The STATE, before
exercising its rights under
this clause, has the right to suspend the ACTING
MAGISTRATE from his/her office, without payment of salary, for the purpose of
making
enquiry into any such breach of contract, and nothing herein contained
shall debar the STATE, after such enquiry, from declaring
this CONTRACT
terminated as from the date of such suspension.
7.2        The STATE shall have the right to terminate this CONTRACT if
the ACTING MAGISTRATE does not successfully complete
the prescribed course and
probationary period or if the ACTING MAGISTRATE is at any time during his
period of service prior to appointment
found by the Magistrates Commission to
be unsuitable for appointment as Magistrate.”
An appointment to hold
office at the discretion of “the state” is clearly inconsistent with security
of tenure that is an essential
element of judicial independence.
[248]
            Section 9(4)
also makes provision for the appointment of a “competent person” to act
“generally” or
“in a particular matter” in a regional or district court.  There
may be occasions on which it will be necessary to appoint an
acting magistrate
to deal with a particular case.  For instance where the magistrates of the
division concerned are not qualified
to hear the case because of a perceived
personal interest in the outcome.  This happens on occasions where, for that
reason, judges
from one high court are appointed to hear a particular case in
another high court.  Section 9(4) does not, however, require that
the person to
be appointed to deal with a particular case be another magistrate.  It requires
only that the person appointed be
a “competent person”.  Whilst there can be no
objection to appointing a “competent person” as a temporary magistrate to
act
generally in a particular court, to appoint a person who is not a magistrate
and who does not have security of tenure to hear
a particular case would, in my
view, be inconsistent with judicial independence.  The constitutional flaws in
section 9(4) cannot
readily be resolved through reading in, severance or
notional severance, and the section needs to be redrafted.  The appeal against
the High Court’s order must therefore be dismissed and the order of invalidity
made concerning this section is confirmed.
[249]
            The principal,
though not the only, sources from which appointments to the magistracy are
made, are the prosecuting
service and the Department of Justice.  Where a
person employed in these sectors of the public service is appointed as an
acting
magistrate for a limited period, this has the undesirable consequence
that the person concerned returns to the public service when
the acting
appointment comes to an end.  However, if such persons could not be appointed
as acting magistrates, there would be considerable
difficulty in filling
temporary vacancies in the magistracy that need to be filled.  There are
accordingly practical reasons at
this stage of the evolving process of judicial
independence that call for such appointments to be made.  Section 9(5)
contemplates
that if this happens the persons concerned will continue to receive
the salary ordinarily payable to them as members of the public
service.  It is
only if persons are appointed from outside of the public service that a salary
has to be determined.  Because magistrates’
salaries are geared to particular
grades, a decision has to be made at the time of appointment as to where within
those grades the
acting magistrate will rank for salary purposes.  Section 9(5)
empowers the Minister to fix a salary in consultation with the Minister
of
Finance.  The salary has to be paid out of public revenue and this is a
practical arrangement.  Since the salary has to be fixed
before the acting
appointment is made, and the acting appointment is only for a limited period,
the procedure does not impinge on
judicial independence.  The appeal against
the declaration of invalidity made concerning this section must therefore be
upheld.
Section 12(2) of the
Magistrates’ Courts Act
[250]
            Section 12(2)
of the Magistrates’ Courts Act provides:
“An additional
magistrate or an assistant magistrate—
(a)        may hold a court;
(b)        shall possess such powers and perform such duties conferred or
imposed upon magistrates as he is not expressly prohibited
from exercising or
performing either by the Minister or by the magistrate of the district.”
[251]
            The order made
by the High Court declares section 12(2)(b) to be inconsistent with the
Constitution.  However,
no reasons for this order are given in the judgment.
Notwithstanding this, I am satisfied that the section is inconsistent with
judicial
independence.  All magistrates whether appointed permanently or
temporarily, must have the powers vested in them by law, and it
is wholly
inconsistent with judicial independence to vest in the Minister or any other
person the authority to prohibit any magistrate
from exercising or performing
such powers.  The appeal concerning section 12(2)(b) must therefore be
dismissed and the High Court’s
declaration of invalidity must be confirmed.
Alleged executive
interference in the functioning of the magistrates’ courts
[252]
            Reference is
made in the papers to an enquiry that was conducted into allegations made
against a particular
magistrate, and to correspondence dealing with the
appointment of assessors, to support the contention that the executive is able
to interfere with the functioning of magistrates’ courts.  There is also a
dispute as to whether Van Rooyen and Tshabalala can
tender evidence concerning
allegations of executive interference made by certain magistrates.  That issue
is the subject of review
proceedings which had not been heard when the matter
was dealt with by this Court.  It was also the subject of an application by
Van
Rooyen and Tshabalala to supplement the appeal record in the present matter.
[253]
            None of this
is relevant to the issues that have to be decided in this case.  This case is
concerned with
institutional independence, and not with the interference by the
executive with judicial independence in particular cases.  Van
Rooyen and
Tshabalala do not suggest that there were any irregularities in their cases, or
that the magistrates before whom they
appeared acted otherwise than impartially
and independently in dealing with them.Â
[254]
            If in
particular cases, members of the executive have acted in a manner inconsistent
with judicial independence,
or should they ever attempt to do so in the future,
that would be inconsistent with the Constitution, and could be challenged by
persons affected thereby as being unlawful conduct.  There is, however, no
substance in the contention that the proceedings taken
against Van Rooyen and
Tshabalala should be set aside because of alleged irregularities committed on
other occasions in cases to
which they were not party.  The application to
supplement the record is therefore refused.
Tshabalala and Van
Rooyen’s appeals
[255]
            The
applications by Tshabalala and Van Rooyen for leave to appeal must now be
considered.  In Van Rooyen’s
case the application involves an appeal against
the conviction and sentence imposed on him by the Regional Court.  Tshabalala’s
case involves an application to review and set aside the proceedings pending
against him in the Magistrates’ Court.  In the High
Court, Van Rooyen’s appeal
and Tshabalala’s review were dismissed and a negative certificate was furnished
by the judge in terms
of rule 18(2) concerning the prospects of success on
appeal.
[256]
            The merits of
Van Rooyen’s appeal are not in issue.  The only question raised on his behalf
is whether his
right to a fair trial under section 35(3) of the Constitution
was infringed.  He contended that section 35(3)(c) entitled him “to
a public
trial before an ordinary court”, and that the regional court in which he was
convicted was not ordinary court within the
meaning of the Constitution because
it lacked the institutional independence that “ordinary courts” must have.  As
a result,
so he contends, the conviction and sentence were nullities.
[257]
            Tshabalala’s
appeal raises the same issue but in a different form.  It is his contention
that because of
the lack of institutional independence, a regional court is not
competent to try him and that the proceedings before that court should
be set
aside.
[258]
            Magistrates’
courts and regional courts handle the great majority of criminal prosecutions.Â
The Constitution
protects the independence of these courts and the core values
of the independence of the judicial officers presiding in them.  Their
decisions are subject to appeal and review in the higher courts.  This was the
system that had existed for many years before the
interim Constitution was
adopted in 1994.  It was the system in place when the interim Constitution came
into force in April 1994
and when the 1996 Constitution came into force in
February 1997.  Both Constitutions guaranteed judicial independence.  Both Constitutions
recognised the existing magistrates’ courts.
19
5
  Section 170 of the 1996
Constitution provides that:
“Magistrates’
Courts and all other courts may decide any matter determined by an Act of
Parliament, but a court of a status lower
than a High Court may not enquire
into or rule on the constitutionality of any legislation or any conduct of the
President.”
[259]
            Regional
courts have authority to deal with Van Rooyen’s case and Tshabalala’s case in
terms of the Magistrates’
Courts Act and in view of the provisions of the
Constitution it can hardly be said that they are not “ordinary courts” within
the meaning of section 35(3)(c).
[260]
            It was
contended, however, that because magistrates lack institutional judicial independence
they are not competent
to preside at criminal trials.  Although the conclusions
to which I have come differ from those reached by the High Court, there
are
provisions of the of the Magistrates’ Courts Act, the
Magistrates Act and
the
regulations made in terms of the
Magistrates Act that
are inconsistent with
institutional independence.  That does not mean, however, that magistrates’
courts must stop functioning,
that all decisions taken by magistrates must now
be set aside as nullities, and that the persons convicted by magistrates of
criminal
offences must be released from jail.
[261]
            The High Court
declined to declare that Van Rooyen’s trial was a nullity or that magistrates
lack the competence
to preside over criminal trials, holding
“that is not
competent relief in terms of the Constitution and even if it is, it is not an
order which I consider just and equitable.Â
Obviously what is required is a
declaration of invalidity in respect of each statutory provision and regulation
that is attacked
and not a declaration that magistrates’ courts are
unconstitutional because they lack institutional independence . . . . Van
Rooyen,
Tshabalala and Thelemaros cannot benefit from a declaration of
invalidity in respect of the statutory provisions because the order
of this
Court is subject to confirmation by the Constitutional Court . . . and it is
very unlikely that the Constitutional Court
itself will order that such
declaration of invalidity will have an immediate effect.  The dictates of good
governance require that
the Executive and Legislature be given an opportunity
to put these matters right so that there can be no disruption or dislocation
in
the administration of justice . . . .”
19
6
[262]
            I agree that
there is no basis for granting to Van Rooyen and Tshabalala the relief that
they seek.  It is
clearly in the interests of justice that the magistrates’
courts and the regional courts should continue to function.  There is
no reason
to believe that the magistrates presiding in those courts will not administer
justice, as they have done in the past, impartially,
independently and in
accordance with the law.  Their oath of office and the Constitution, by which
they are bound, requires no less.
[263]
            If there is
any attempt to interfere improperly with the way that a magistrate hearing a
particular case conducts
or decides the case, an accused person affected
adversely has a remedy that can be exercised in that case; there is, however no
reason
to believe that there will be any occasion for this to be done.
[264]
            There is no
reason why Van Rooyen and Tshabalala should be treated differently from other
convicted and accused
persons.  Van Rooyen does not suggest that any improper
influence was brought to bear on the magistrate who decided his case and
convicted him.  He accepts that “subjectively” the Court in which he was tried
functioned as an independent and impartial court,
but contends that viewed
objectively there was an absence of institutional independence which meant that
the magistrate was not competent
to try him.  In effect, he seeks to set aside
a conviction imposed on him by a properly appointed judicial officer, whose
authority
is derived from statute, and who conducted the proceedings themselves
fairly, because the conditions of service of all magistrates
do not meet to the
fullest extent the standards of judicial independence required by the
Constitution.
[265]
            That is not
“appropriate relief” in respect of the findings that have been made. Although
there are provisions
of the two Acts and the regulations that fall short of
what is required to meet the evolving standard of judicial independence, the
core values of judicial independence remain intact.  Magistrates, and persons
appearing before them, are protected by the specific
provisions of section 165
of the Constitution against any attempt to interfere with the way in which
magistrates discharge their
judicial duties.  The Magistrates Commission is
charged with the responsibility of ensuring that appointments, promotions,
transfers,
or discharge of, or disciplinary steps against judicial officers in
the lower courts take place without favour or prejudice, and
that no improper
influencing or victimisation of such judicial officers takes place.  It is a
properly constituted body that is
required to discharge its functions in
accordance with the provisions of the Constitution.  If it should fail to do
so, the law
provides safeguards enabling aggrieved persons to secure
appropriate relief from the high courts, and if necessary the Supreme Court
of
Appeal and ultimately this Court.
[266]
            The provisions
of the Acts and regulations that have been found to be inconsistent with the
Constitution do
not detract from the core values of judicial independence and
do not affect the capacity of the overwhelming majority of the judicial
officers ordinarily presiding in these courts to conduct fair trials.  It is in
my view beyond doubt that magistrates’ courts
and regional courts are “ordinary
courts” within the meaning of section 35(3) of the Constitution, and that
Travers and the overwhelming
majority of magistrates who ordinarily preside in
these courts are competent to determine cases within their jurisdiction.
[267]
            I am
satisfied, therefore, that there is no prospect that an appeal to this Court by
Van Rooyen against the
conviction and sentence imposed upon him will succeed.Â
I am also satisfied that there is no prospect that the appeal by Tshabalala
against the dismissal of his claim to stay and set aside the proceedings that
he faces in the regional court will succeed.  In the
circumstances the
application for leave to appeal by Van Rooyen and Tshabalala must be refused.
Summary
[268]
            A summary of
the conclusions reached in this judgment appear from the following table:
Provision
Conclusion
Para
Magistrates Act 90 of 1993
Section 3(1)
Appeal
upheld.
Section 3(2)
The order of
the High Court is set aside and replaced with an order deleting the words “in
his, her or its opinion” from
section 3(2).
Section 6A
Appeal
upheld.
Section 10
Appeal
upheld.
Section 11
Appeal
upheld.
Section 12
Appeal
upheld.
Section
13(1)
Appeal
upheld.
Section
13(3)(a)
Appeal
upheld.
Section
13(3)(aA)
Appeal
upheld.
Section
13(3)(b)
The order of
the High Court is set aside and replaced with an order deleting from the
section the words “the Minister on the
recommendation of”.
Section
13(3)(d)
and (e)
Not
inconsistent with the Constitution.
Section
13(4)
Appeal
dismissed – order of invalidity confirmed.
Section
13(5)
Appeal
upheld.
Section
14(1)
Appeal
dismissed – the words “or, in any specific case, by the Minister after
consultation with the Commission” are to be
deleted from the section.
Section
14(2)
Appeal
upheld.
Section
14(3)
Appeal
upheld.
Section
16(1)
Appeal
upheld.
Magistrates’ Courts Act 32 of 1944
Section 9(1)
Appeal
upheld.
Section 9(3)
Appeal
upheld.
Section 9(4)
Appeal
dismissed – order of invalidity confirmed.
Section 9(5)
Appeal
upheld.
Section
12(2)(b)
Appeal
dismissed – order of invalidity confirmed.
Regulations for Judicial Officers in the Lower
Courts, 1993
Regulation
16
The order of
the High Court is set aside and is replaced with an order deleting the words
“provided further that a magistrate
who performs certain duties in terms of
section 14 of the Act conferred upon him by the Minister in a specific case
after consultation
with the Commission may be promoted to a higher post
without absorption into such higher post” from regulation 16.
Regulation
17(1)
Appeal
dismissed – the words “except in the case falling under section 14, in which
case the date of entry shall be determined
by the Minister” to be deleted
from regulation 17(1).
Regulation
17(2)
Appeal
upheld.
Regulation
22
Appeal upheld.
Regulation
25
Appeal
upheld.
Regulation
26
The order of
the High Court  is set aside and is replaced by an order deleting the words
“or person” where they appear for
the first time in regulation 26(6)
immediately before the words “hereinafter called the presiding officer” and
deleting the
whole of regulation 26(17).
Regulation
27
The order of
the High Court is set aside and replaced with an order deleting the words
“the Minister or” in regulations 27(1)
and 27(2).
Regulation
28
The order of
the High Court is set aside and replaced with an order deleting regulations
28(4) and 28(5).
Regulation
29
The order of
the High Court is set aside and replaced with an order deleting the words
“the Minister or” in regulations 29(1),
29(2), 29(3), and 29(4) and deleting
regulation 29(9).
Regulation
30
Appeal
upheld.
Regulation
32
Appeal
upheld.
Regulation
33
Appeal
upheld.
Regulation
54A
Appeal
upheld.
Regulation
55
Appeal
upheld.
Schedule EÂ
(the code of conduct)
Appeal
upheld.
Other
The
Complaints Procedure Regulations are not inconsistent with the Constitution.
The
application by Van Rooyen and Tshabalala to supplement the record is refused.
The
application for leave to appeal by Van Rooyen and Tshabalala is refused.
[269]
            In
the result there are provisions of the
Magistrates Act, the
Magistrates’ Courts
Act and
the Regulations for Judicial Officers in the Lower Courts as presently
formulated that fall short of what is required to ensure the
institutional
independence of magistrates’ courts.  However, in the context of the protection
given to magistrates’ courts and
magistrates at an institutional level by the
Constitution itself and by the other safeguards referred to in this judgment,
the legislation
viewed as a whole is consistent with the core values of
judicial independence.
Costs
[270]
            The
applications by Van Rooyen and Tshabalala relate to criminal proceedings in
which orders for costs are
not ordinarily made.
19
7
  This, however, was not raised in
the notice of appeal or in argument.  In substance, Van Rooyen, Tshabalala and
Themelaros failed
to secure the relief they sought, which was to have the
criminal proceedings against them set aside.  Notwithstanding this, the
High
Court ordered the Minister of Justice and Director of Public Prosecutions to
pay their costs as well as the costs of Bekker
and ARMSA.  The awarding of
costs was a matter within the discretion of the High Court. Van Rooyen,
Tshabalala, Bekker and ARMSA
have succeeded on some but not all of the
constitutional issues raised by them.   Although there have been alterations to
the orders
made by the High Court in favour of Bekker, ARMSA, Van Rooyen and
Tshabalala, I do not consider it appropriate in the circumstances
of this case
to interfere with the way the High Court exercised its discretion as to costs.Â
[271]
            As
far as the appeal and application for leave to appeal are concerned, the
constitutional issues are important.Â
In the circumstances, although the appeal
succeeded in part and the application for leave to appeal has been dismissed, I
consider
that this is a case in which it would be appropriate to make no order
as to the costs of the appeal and the application for leave
to appeal.
Order
[272]
            The
orders of constitutional invalidity that must be made, other than the order
concerning
section 9(4)
of the
Magistrates’ Courts Act, do
not affect the
structures and functioning of the courts in any material respects and there is
accordingly no need to suspend such
orders.  All that is necessary is to make
the orders prospective so that completed matters are not affected.  The order
concerning
section 9(4)
should however be suspended to permit temporary
magistrates to be appointed when that is necessary pending an appropriate
amendment
to the section.  Suspension for a period of twelve months should be
adequate for such purpose.
[273]
            The
following order is made:
1.         The
application by Van Rooyen and Tshabalala to supplement the record is refused.
2.         The
application for leave to appeal by Van Rooyen and Tshabalala against paragraphs
III(1), (2) and (5) of the
order made by the High Court is refused.
3.         The
appeal by the State and the Minister of Justice against paragraphs III(3) and
(5), and IV(1) and (3) of the
order made by the High Court succeeds.  The
orders made in those paragraphs are set aside and the following order is
substituted
for them:
(A)      The
words “in his, her or its opinion” in
section 3(2)
of the
Magistrates Act 90 of
1993
are declared to be inconsistent with the Constitution and invalid.
(B)      The
words “the Minister on the recommendation of” in
section 13(3)(b)
of the
Magistrates Act are
declared to be inconsistent with the Constitution and
invalid.
(C)    Â
Section
13(4)
of the
Magistrates Act is
declared to be inconsistent with the
Constitution and invalid.
(D)      The
words “or, in any specific case, by the Minister after consultation with the
Commission” in
section 14(1)
of the
Magistrates Act are
declared to be
inconsistent with the Constitution and invalid.
(E)     Â
Sections
9(4)
and
12
(2)(b) of the
Magistrates’ Courts Act 32 of 1944
are declared to be
inconsistent with the Constitution and invalid.
(F)       The
words “provided further that a magistrate who performs certain duties in terms
of section 14 of the Act conferred
upon him by the Minister in a specific case
after consultation with the Commission may be promoted to a higher post without
absorption
into such higher post” in regulation 16 of the Regulations for
Judicial Officers in the Lower Courts promulgated in Government
Gazette 15524
GN R361, 11 March 1994 (as amended) are declared to be inconsistent with the
Constitution and invalid.
(G)      The
words “except in the case falling under section 14, in which case the date of
entry shall be determined by the
Minister” in regulation 17(1) of the
Regulations for Judicial Officers in the Lower Courts are declared to be
inconsistent with
the Constitution and invalid.
(H)      The
words “or person” where they appear for the first time in regulation 26(6) of
the Regulations for Judicial Officers
in the Lower Courts immediately before
the words “hereinafter called the presiding officer” are declared to be
inconsistent with
the Constitution and invalid.
(I)        The
words “the Minister or” in regulations 27(1), 27(2), 29(1), 29(2), 29(3) and
29(4) of the Regulations for
Judicial Officers in the Lower Courts are declared
to be inconsistent with the Constitution and invalid.
(J)       Regulations
26(17), 28(4), 28(5) and 29(9) of the Regulations for Judicial Officers in the
Lower Courts are declared
to be inconsistent with the Constitution and invalid.
4.         The
order in paragraph 3(E) concerning
section 9(4)
of the
Magistrates’ Courts Act
32 of 1944
is suspended for a period of 12 months from the date of this order.Â
The other orders in paragraph 3 shall come into force on the
date of this
order, and shall be prospective only.
5.         The
orders for costs made in paragraphs III(6) and IV(4) of the High Court order
are not set aside and remain in
force.
6.         No
order is made as to the costs of the appeal and the application for leave to
appeal.
Langa DCJ, Ackermann J, Kriegler J, Madala J, Mokgoro
J, O’Regan J, Sachs J, Yacoob J, Du Plessis AJ and Skweyiya AJ concur in the
judgment of Chaskalson CJ.
For the first
appellant and second respondent:       BH Pieters and WA Smit instructed by
Naude Rademeyer & Joubert, Pretoria
and Laubscher Attorneys, Pretoria.
For the second
and third applicants:                        KS Tip SC, GI Hulley and H
Maenetje instructed
by the Legal Resources Centre, Johannesburg.
For the first
and fourth respondents:                       HJ Fabricius SC and SM Lebala
instructed by the
State Attorney, Pretoria.
For the
intervener:                                                    MJD Wallis
SC,
AA Gabriel and M Du Plessis.
Schedule –
Regulations 26
,
27
,
28
and
29
Regulation 26
(1)        If
a magistrate is accused of misconduct, the Commission may appoint a magistrate
or a person (hereinafter called
the investigating officer) to conduct a
preliminary investigation and to obtain evidence in order to determine whether
there are
any grounds for a charge of misconduct against the magistrate:
Provided that, if the Commission is of the opinion that there is prima
facie
evidence to support the charge, the Commission may charge the magistrate
concerned in writing with misconduct without the said
preliminary
investigation.
(2)        After
the conclusion of the preliminary investigation referred to in subregulation
(1), the investigating officer
shall recommend to the Commission whether or not
the magistrate concerned should in his opinion be charged, and if so, what in
his
opinion the contents of the charge concerned should be.
(3)        If
the Commission is of the opinion that there are sufficient grounds for a charge
of misconduct against the magistrate
concerned, the Commission may, in writing,
charge the magistrate with misconduct.
(4)        A
charge referred to in subregulation (1) or (3) shall contain or shall be
accompanied by a direction calling upon
the magistrate charged to send or
deliver within a reasonable period specified in the direction to a person
likewise specified, a
written admission or denial of the charge and a written
explanation regarding the misconduct with which he is charged.
(5)        If
the magistrate charged admits that he is guilty of the charge, he shall be
deemed to have been found guilty of
misconduct as charged.
(6)        If
the magistrate charged in terms of subregulation (1) or (3) –
(a)        denies
the charge; or
(b)        fails
to comply with the direction referred to in subregulation (4),
the Commission shall
appoint a magistrate or person (hereinafter called the presiding officer) to
preside at the investigation, and
a magistrate or person to lead evidence:
Provided that the Commission may dispense with the appointment of a presiding
officer and
establish a committee to conduct the investigation, in which case a
reference in this regulation to ‘presiding officer’ shall
be deemed to be a
reference to such a committee.
(7)        The
magistrate or person who leads the evidence contemplated in subregulation (6)
may, for the purposes of the investigation
–
(a)        summon
any person, who, in his opinion may be able to give material information
concerning the subject of the investigation,
or who he suspects or believes has
in his possession or custody or under his control any book, document or object
which has any bearing
on the subject of the investigation, to appear before the
presiding officer at the time and place specified in the summons, to be
questioned or to produce such book, document or object;
(b)        retain
a book, document or object referred to in paragraph (a) for the duration of the
investigation;
(c)        lead
evidence and arguments in support of the charge and cross-examine witnesses;
and
(d)        call
upon and administer an oath to or accept an affirmation from any person present
at the investigation who was
or might have been summonsed in terms of paragraph
(a), and question him and order him to produce any book, document or object in
his possession or custody or under his control that he suspects or believes to
have a bearing on the subject of the investigation.
(8)        The
law relating to privilege, as applicable to a witness summonsed to give
evidence in a civil trial before a court
of law or to produce a book, document
or object, shall mutatis mutandis apply in relation to the examination of, or
the production
of any book, document or object to the presiding officer by, any
person called as a witness in terms of this regulation.
(9)        At
an investigation the magistrate charged shall have the right –
(a)        to
be personally present, to be assisted or represented by another person, to give
evidence and, either personally
or through a representative –
(i)         to
be heard;
(ii)        to
call witnesses;
(iii)       to
cross-examine any person called as a witness in support of the charge; and
(iv)       to
have access to documents produced in evidence;
(b)        notwithstanding
a denial or failure by him referred to in subregulation (6), to admit at any
time that he is guilty
of the charge, whereupon he shall be deemed to be guilty
of the misconduct as charged; and
(c)        if
the misconduct with which he is charged amounts to an offence of which he was
convicted by a court of law, to
show cause why, in his opinion, he is not
guilty of misconduct.
(10)      At
an investigation the presiding officer has, at the commencement of the
proceedings or later, the right to require
from the magistrate charged a full
explanation of his defence on the charge and to question him in clarification
about that.
(11)      After
the conclusion of the investigation, the presiding officer shall notify the
Commission and the magistrate charged
of his finding and recommendation and
supply a copy of the minutes to the Commission.
(12)      (a)        The
recommendation of the presiding officer will be to the effect that the
magistrate charged be
found guilty or not guilty by the Commission of the
misconduct as charged.
(b)        If
the presiding officer recommends that the magistrate charged be found guilty of
the misconduct as charged, or
if the magistrate charged admits that he is
guilty of the charge, the presiding officer or the magistrate charged, as the
case may
be, shall state or furnish to the Commission any aggravating or
mitigating circumstances, as well as any written comment by the magistrate
charged.
(13)      The
Commission may, for the purposes of the determination of aggravating or
mitigating circumstances, request any information
from any person or officer in
the Public Service.
(14)      After
consideration of the relevant documents, the Commission shall make a
recommendation to the Minister and submit
to him, together with its
recommendation, all the relevant documents with regard to the investigation, as
well as the finding and
recommendation of the presiding officer: Provided that
if the magistrate charged lodges representations in terms of subregulation
(15), any recommendation or documents relating to aggravating or mitigating
circumstances shall not be submitted to the Minister
until the Commission has
made a finding regarding the representations of the magistrate charged.
(15)      If
the magistrate charged is found guilty of misconduct by the presiding officer,
the magistrate charged may, if he
feels aggrieved because of the finding of the
presiding officer, address his representations to the Commission in writing
within
21 working days after conviction, giving his grounds of his
representations, and he shall forward a copy of this notice of representation,
together with his grounds of representations, to the presiding officer.
(16)      Within
21 working days after receipt of the notice of representations referred to in
subregulation (15) the presiding
officer shall forward his reasons for
conviction to the Commission.
(17)      If
the magistrate charged is found guilty or has admitted that he is guilty, and
the Minister does not suspend or relieve
him from office for misconduct the
Minister may impose one or more of the following sentences:
(a)        Caution
or reprimand him;
(b)        withhold
his translation to a higher salary scale or promotion to a higher post for a
period not exceeding five
years;
(c)        transfer
him to other headquarters;
            (d)        impose
a fine not exceeding R10 000 on him;
(e)        postpone
his decision under paragraphs (a) to (d), with or without conditions, for a
period of 12 calendar months.
(18)      A
person summonsed as witness to appear before a presiding officer for the
purposes of attending the investigation
referred to in subregulation (6) shall
receive allowances in accordance with the tariff of allowances prescribed by
Government Notice
No. R. 2596 of 1 November 1991 as if he was a witness in
criminal proceedings.
(19)      A
summons shall be issued on a form prescribed by the Commission and shall be
served in a way determined by the Commission.
(20)      The
investigation shall take place in camera unless the presiding officer orders
otherwise.
(21)      Evidence
obtained during the preliminary investigation referred to in subregulation (1)
which is not disputed by the
magistrate may be admitted at the investigation
referred to in subregulation (6).
Regulation 27
(1)        The
Minister or the Commission may order that an investigation be held into the
capacity of a magistrate to carry
out his duties of office efficiently.
(2)        An
investigation referred to in subregulation (1) shall be held as soon as
possible by a magistrate or any person
designated by the Minister or the
Commission and such magistrate or person shall have the powers referred to in
regulation 26
(7).
(3)        The
magistrate with regard to whom the investigation referred to in subregulation
(1) is to be held –
(a)        shall
in writing be informed by the person who is to conduct the investigation of the
date, time and place of the
investigation; and
(b)        shall
have the right –
(i)         to
a statement in writing of the grounds upon which it is alleged that he does not
have the capacity to carry
out his duties of office in an efficient manner;
(ii)        to
be present at the investigation;
(iii)       to
be assisted or represented by another person;
(iv)       to
testify; and
(v)        either
personally or through a representative, to –
(aa)      be
heard;
(bb)      call
witnesses;
(cc)      cross-examine
any person who is called as a witness in support of the said allegations; and
(dd)      have
access to documents which were produced as evidence.
(4)        The
magistrate in respect of whom the investigation is held, shall answer relevant
questions of the person who conducts
the investigation.
(5)        After
completion of the investigation referred to in subregulation (1) the person who
conducted the investigation
shall make a finding and inform the magistrate
concerned and the chairman of the Commission of the finding.
Regulation 28
(1)        If
the person who conducts the investigation in terms of
regulation 27
finds that
the magistrate concerned does not have the capacity to carry out his duties of
office in an efficient manner –
(a)        he
shall furnish the magistrate concerned with a statement, in writing, of his
finding and the reasons for the finding;
and
(b)        he
shall forward without delay to the chairman of the Commission, the record of
the proceedings of the investigation
and all documentary evidence or certified
copies thereof admitted at the investigation, as well as a written statement of
his reasons
for the finding and any observations on the case which he may
desire to make.
(2)        The
magistrate concerned may, within 10 working days after the date on which he was
notified of the finding, submit
to the chairman of the Commission written
comment regarding the findings and the reasons therefor.
(3)        The
chairman of the Commission shall forward to the Minister any documents
regarding the investigation, together
with the comment of the magistrate
referred to in subregulation (2), if any, and the recommendation of the
Commission.
(4)        The
Minister may personally order that a further investigation be conducted into
the magistrate’s capacity to
carry out his duties of office.
(5)        The
Minister shall without delay inform the chairman of the Commission and the
magistrate concerned of his decision.
Regulation 29
(1)        The
Minister or the Commission may order that an investigation be held regarding
the removal of a magistrate from
office on account of continued ill-health.
(2)        The
Minister or Commission shall before the commencement of the investigation
referred to in subregulation (1) inform
the magistrate of the investigation.
(3)        The
magistrate in respect of whom the investigation referred to in subregulation
(1) is conducted, shall without
delay after receipt of the notice of the
investigation submit a medical report from a medical practitioner of his own
choice to the
Minister or the Commission, as the case may be.
(4)        The
Minister or Commission may order that the magistrate subject himself to a
medical examination by a medical practitioner
designated by the Minister or
Commission, whereafter the medical practitioner shall submit a medical report
to the Commission
(5)        The
costs of the medical examinations referred to in subregulations (3) and (4)
shall be paid by the State.
(6)        After
considering the medical report, together with any relevant information, the
Commission shall make a recommendation
to the Minister.
(7)        The
Commission shall provide to the magistrate concerned a copy of its
recommendation referred to in subregulation
(6), together with a copy of the
medical report referred to in subregulation (4).
(8)        The
magistrate may within 15 days after receipt of the recommendation and medical
report referred to in subregulation
(7), submit written comment thereon to the
Minister.
(9)        The
Minister shall consider the medical reports and the recommendation of the
Commission and make a final decision.
1
         Â
In terms
of
section 43(1)(a)
of the
National Prosecuting Authority Act 32 of 1998
anyone
holding office as Attorney-General was deemed to have been appointed as
Director of Public Prosecutions under that Act.Â
This change occurred after the
institution of the proceedings, but before judgment had been given by the High
Court.
[1811] EngR 232
;
2
         Â
Act 32
of 1944.
3
         Â
Act 90
of 1993.
4
         Â
Regulations
for Judicial Officers in the Lower Courts, 1993 promulgated in Government
Gazette 15524 GN R361, 11 March 1994 (as amended)
and Complaints Procedure
Regulations promulgated in Government Gazette 19309 GN R1240, 1 October 1998.
5
         Â
The
judgment has been reported as
Van Rooyen and Others v The State and Others
2001 (4) SA 396
(T);
2001 (9) BCLR 915
(T). References in this judgment will be
to the report in the South African Law Reports.
6
         Â
Id at
416I.
7
         Â
Section 17(2) of Act 59 of 1959 provides:
“If at any stage during the hearing of any matter by a
full court, any judge of such court dies or retires or is otherwise incapable
of acting or is absent, the hearing shall, if the remaining judges constitute a
majority of the judges before whom it was commenced,
proceed before such
remaining judges, and if such remaining judges do not constitute such a majority,
or if only one judge remains,
the hearing shall be commenced de novo, unless
all the parties to the proceedings agree unconditionally in writing to accept
the
decision of the majority of such remaining judges or of such one remaining
judge as the decision of the court.”
8
         Â
Section
8(1)(a) of Act 13 of 1995.
9
         Â
Rule 15(1) provides:
“The registrar of a court which has made an order of constitutional
invalidity as contemplated in section 172 of the Constitution
shall, within 15
days of such order, lodge with the registrar of the Court a copy of such
order.”
10
        Â
Dawood
and Another v Minister of Home Affairs and Others; Shalabi and Another v
Minister of Home Affairs and Others; Thomas and Another
v Minister of Home
Affairs and Others
[2000] ZACC 8
;
2000
(3) SA 936
(CC)(cc);
2000 (8) BCLR 837
(CC) at para 11;
Booysen and Others v
Minister of Home Affairs and Another
[2001] ZACC 20
;
2001 (4) SA 485
(CC);
2001 (7) BCLR
645
(CC) at para 1;
Minister of Home Affairs v Liebenberg
2002 (1) SA
33
;
2001 (11) BCLR 1168
(CC) at para 9.
11
        Â
Section 167(6) of the Constitution
provides:Â
“National legislation or the rules of the
Constitutional Court must allow a person, when it is in the interest of justice
and with
leave of the Constitutional Court –
(a) to bring a matter directly to the
Constitutional Court; or
(b) to appeal directly to the
Constitutional Court from any other court.”
Section 16(2)
of the
Constitutional Court
Complementary Act 13 of 1995
provides that:
“The rules [of the Constitutional Court]
shall, when it is in the interests of justice and with leave of the Court,
allow a person
–
(a) to bring a matter directly to the
Court; or
(b) to appeal directly to the Court from any other
court.”
12
        Â
Rule
18(2)
would only be applicable if the appeal noted is not within the purview of
rule 15.
13
        Â
Section
174(6)
of the Constitution.  The composition of the Judicial Service Commission
is set out in
section 178
of the Constitution.  The provisions of this section
are recorded in n  below and are discussed in paras -2.
14
        Â
Section
174(7).
15
        Â
Section
1(c) of the Constitution.
16
        Â
South
African Association of Personal Injury Lawyers v Heath and Others
[2000] ZACC 22
;
2001 (1) SA 883
(CC); 2001(1) BCLR 77 (CC)
at para 31;
In re: Certification of the Constitution of the Republic of
South Africa
[1996] ZACC 26
; ,
1996
1996 (4) SA 744
(CC);
1996 (10) BCLR 1253
(CC) at para
123.
17
        Â
[1998] ZACC 6
;
1998 (3)
SA 785
(CC);
1998 (7) BCLR 779
(CC) at para 69.
18
        Â
(1986) 30
DLR (4
th
) 481 (SCC).
19
        Â
(1986) 24
DLR (4
th
) 161 (SCC).
20
        Â
(1992) 88
DLR (4
th
) 110 (SCC).
21
        Â
Above nÂ
at 491.
22
        Â
In para 71 of
De Lange v Smuts
,
above n , Ackermann J referred to a passage from the judgment of Le Dain J at
page 169-170 of
Valente
which captures this distinction between
individual and institutional independence.  According to Le Dain J, judicial
independence
“connotes not merely a state of mind or
attitude in the actual exercise of judicial functions, but a status or
relationship to others,
particularly to the Executive Branch of government,
that rests on objective conditions or guarantees.
See also the passage at page 171 of
Valente
cited by O’Regan J at para 159 of
De Lange v Smuts
:
“It is generally agreed that judicial independence
involves both individual and institutional relationships: the individual
independence
of a judge, as reflected in such matters as security of tenure,
and the institutional independence of the court or tribunal over
which he or
she presides, as reflected in its institutional or administrative relationships
to the executive and legislative branches
of government . . . . The relationship
between these two aspects of judicial independence is that an individual judge
may enjoy the
essential conditions of judicial independence but if the court or
tribunal over which he or she presides is not independent of the
other branches
of government, in what is essential to its function, he or she cannot be said
to be an independent tribunal.”
23
        Â
Id at
para 72.
24
        Â
Id.
25
        Â
ParaÂ
below.
26
        Â
Emphasis
added.
27
        Â
Section
170.
28
        Â
Section
174(6).
29
        Â
Section
176(3).
30
        Â
Section
177.
31
        Â
Above nÂ
at para 70.
32
        Â
Id at
para 160.
33
        Â
Above n
3.
34
        Â
Above n
2.
35
        Â
Above nÂ
at 433E-G.
36
        Â
Above nÂ
at 172.
37
        Â
Findlay
v United Kingdom
[1997] ECHR 82
;
(1997) 24
EHRR 221
at para 73.
38
        Â
Committee
for Justice and Liberty et al v National Energy Board
(1976) 68 DLR (3d) 716 at 735.
39
        Â
Above nÂ
at 172.
40
        Â
[1999] ZACC 9
;
1999 (4)
SA 147
(CC);
1999 (7) BCLR 725
(CC) at para 48.
41
        Â
Above nÂ
at 433E-G. A similar approach had been adopted by the Cape High Court in
Freedom
of Expression Institute and Others v President, Ordinary Court Martial &
Others
1999 (2) SA 471
(C);
1999 (3) BCLR 261
(C) at 483F-G.
42
        Â
US v
Jordan
[1995] USCA5 798
;
49 F.3d 152
(5
th
Cir. 1995) at 156. See also
In Re Mason
[1990] USCA7 924
;
916 F.2d 384
(7
th
Cir. 1990) at 386.
43
        Â
S v
Dodo
[2001] ZACC 16
;
2001 (3) SA 382
(CC);
2001 (5) BCLR 423
(CC) at para 17.
44
        Â
Tribe
American
Constitutional Law
Vol 1, 3 ed (Foundation Press, New York 2000) at 127
(citation omitted).
45
        Â
Which provides:
“The courts are independent and subject only to the
Constitution and the law, which they must apply impartially and without fear,
favour or prejudice.”
46
        Â
Above nÂ
at 453G-455J (citations omitted).
47
        Â
The same
point has been made by this Court, albeit in a different context, in
Bernstein
and Others v Bester and Others NNO
[1996] ZACC 2
;
1996 (2) SA 751
(CC);
1996 (4) BCLR 449
(CC) at para 52.
48
        Â
In terms of s 178(1) of the Constitution,
the Judicial Service Commission consists of:
“a)           the Chief
Justice, who presides at meetings of the Commission.
b)            the President
of the Constitutional Court;
c)             one Judge
President designated by the Judges President;
d)            the Cabinet
member responsible for the administration of justice, or an alternate
designated by that Cabinet
member;
e)             two
practising advocates nominated from within the advocates’ profession to
represent the profession
as a whole, and appointed by the President;
f)             two
practising attorneys nominated from within the attorneys’ profession to
represent the profession
as a whole, and appointed by the President;
g)            one teacher of
law designated by the teachers of law at South African universities;
h)            six persons
designated by the National Assembly from among its members, at least three of
whom must be members
of opposition parties represented in the Assembly;
i)              four
permanent delegates to the National Council of Provinces designated together by
the Council with
a supporting vote of at least six provinces;
j)              four persons
designated by the President as head of the national executive after consulting
the leaders
of all the parties in the National Assembly; and
k)             when considering matters
specifically relating to a provincial or local division of the High Court, the
Judge President of that division and the Premier of the province concerned, or
an alternate designated by each of them.”
49
        Â
In terms
of section 3(1)(a).
50
        Â
Above nÂ
at 454D-E.
51
        Â
Id at
455F.
52
        Â
In fact,
all but one of the eleven members were white men.
53
        Â
The
resolution on National Unity and Reconciliation which forms part of the interim
Constitution read with section 232(4) of the interim
Constitution.
54
        Â
S v
Makwanyane and Another
[1995] ZACC 3
;
1995 (3) SA 391
(CC)
;
1995 (6) BCLR 665
(CC) at para 262;
Du Plessis
and Others v De Klerk and Another
[1996] ZACC 10
;
1996 (3) SA 850
(CC);
1996 (5) BCLR 658
(CC) at para 157;
Soobramoney v Minister of Health, KwaZulu-Natal
[1997] ZACC 17
;
1998
(1) SA 765
(CC);
1997 (12) BCLR 1696
(CC) at para 8.
55
        Â
Section
109.
56
        Â
This is
now s 178(2) of the 1996 Constitution.
57
        Â
Above nÂ
at 451H.
58
        Â
CP VII required that:
“The judiciary shall be appropriately qualified,
independent and impartial and shall have the power and jurisdiction to
safeguard
and enforce the Constitution and all fundamental rights.”
59
        Â
Above n
.  The 1996 Constitution adopted by the Constitutional Assembly had to comply
with certain Constitutional Principles which
had been agreed upon and were
incorporated into the interim Constitution.  This Court had to determine
whether or not the Constitution
complied with the Constitutional Principles.Â
The purpose served by the Constitutional Principles and their relevance to the
Constitution
adopted in 1996 are explained in the Court’s judgment at paras
32-43.
60
        Â
Id at
para 124.
61
        Â
ParaÂ
above.
62
        Â
First
Certification Judgment
above n  at paras 135-6.
63
        Â
Id.
64
        Â
Above nÂ
at 454C.
65
        Â
Id at
454E-F.
66
        Â
Above nÂ
at 174.
67
        Â
Hahlo and
Kahn
The Union of South Africa: The Development of its Laws and Constitution
(Stevens & Sons, London 1960) at 206.
68
        Â
Id at
223.
69
        Â
Id at 239
and 247.
70
        Â
Act 32
of
1917.
71
        Â
Hahlo and
Kahn above n  at 270.
72
        Â
Above n .
73
        Â
Magistrates’
Courts Amendment Act 40 of 1952.
74
        Â
Magistrates’
Courts Amendment Act 48 of 1965.
75
        Â
Act 91
of
1977.
76
        Â
Above n .
77
        Â
Commission
of Enquiry into the Structure and Functioning of the Courts, part I of the
Fifth Report at para 4.4.1.
78
        Â
The
Minister has not yet made use of his power to issue such regulations under
section 14(2).  It should be noted, however, that
both currently and in the
past magistrates have been required to perform functions that are at least
partly administrative in nature.Â
These functions have generally been assigned
to magistrates by legislation.  Examples of such functions are: the
administration
of estates (regulation 3(1) promulgated under the Black
Administration Act 38 of 1927); receiving applications for advances against
the
security of mortgage (section 23(2) of the Land Bank Act 13 of 1944); issuing
temporary liquor licences (section 23 of the Liquor
Act 27 of 1989) or licences
for the exhibition and training of performing animals (section 2 of the
Performing Animals Protection
Act 24 of 1935); and reporting to the
Director-General of Health on visits to patients detained in private dwellings
on grounds of
mental health (section 45 of the Mental Health Act 18 of 1973).
79
        Â
Judicial
Officers Amendment Bill 72 of 2001.
80
        Â
Government
Gazette 16318 GN 459 of 24 March 1995.
81
        Â
Government
Gazette 19435 GN 1411 of 30 October 1998 and
Magistrates Amendment Act 66 of
1998
.
82
        Â
Section
100 of the South Africa Act, 1909.
83
        Â
Section
101 of the South Africa Act, 1909.
84
        Â
Section 7
of the Judges’ Salaries and Pensions Act 16 of 1912 and section 4 of the
Judges’ Salaries and Pensions Act 73 of 1959.
85
        Â
1952 (4)
SA 769
(A) at 789.
86
        Â
Judicial
Officers Amendment Bill above n .
87
        Â
Section
174(6) of the Constitution.
88
        Â
Section
176(3) of the Constitution.
89
        Â
Section
177 of the Constitution.
90
        Â
Hahlo and
Kahn above n  at 274-5.
91
        Â
Section
165(2).  Emphasis added.
92
        Â
S v
Dzukuda and Others; S v Tshilo
2000 (4) SA 1078
(CC);
2000 (11) BCLR 1252
(CC) at para 37(a);
Investigating
Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors
(Pty) Ltd and Others: In re: Hyundai
Motor Distributors (Pty) Ltd and Others v
Smit NO and Others
[2000] ZACC 12
;
2001 (1) SA 545
(CC);
2000 (10) BCLR 1079
(CC) at paras
21-6;
Bernstein v Bester
above n  at para 59;
De Lange v Smuts NO
above n  at para 85.  See also
Olitzki Property Holdings v State Tender
Board and Another
[2001] ZASCA 51
;
2001 (3) SA 1247
(SCA);
2001 (8) BCLR 779
(SCA) at para
20.
93
        Â
National
Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs
and Others
[1999] ZACC 17
;
2000 (2) SA 1
(CC);
2000 (1) BCLR 39
(CC) at paras 64-70;
S v Manamela and Another
(Director-General of Justice Intervening)
[2000] ZACC 5
;
2000 (3) SA 1
(CC);
2000 (5) BCLR
491
(CC) at paras 55-7.
94
        Â
Emphasis
added.
95
        Â
Above n .
96
        Â
A cluster
is defined as a “cluster of magistrates’ offices as established by the
Commission and also an administrative region
as established by the Minister
after consultation with the Commission”.
97
        Â
A
regional division is defined as “a regional division established in terms of
section 2
of the
Magistrates’ Courts Act, 1944
".
98
        Â
Paras -
below.
99
        Â
Above nÂ
at 456C-D.
100
      Â
Above n .
101
      Â
Above n .
102
      Â
They are
dealt with later in paras - below.
103
      Â
Above n  at
443F.
104
      Â
Id at 457I.
105
      Â
Paras -
above.
106
      Â
Above n  at
paras 108-9.  See also
S v Dodo
above n  at paras 14-17 for a discussion
of the principles involved in developing a “distinctly South African model of
separation
of powers”.
107
      Â
Id.
108
      Â
Sections 5
and 6 of the High Court of Australia Act, 1979.
109
      Â
Section 2[2]
of Article II of the Constitution of the USA.
110
      Â
Section
4(2) of the Supreme Court Act R.S.C. 1985.
111
      Â
The Länder.
112
      Â
Article
94(1) of the German  Basic Law (Grundgesetz). The procedures for election by
the Bundestag and Bundesrat are laid down in
the implementing statute.
113
      Â
Article
95(1) and (2) of the Basic Law.
114
      Â
Above n  at
paras 123-4.
115
      Â
Id at para
124.
116
      Â
Section
16(1)(o) of the Act.
117
      Â
The bulk of
the challenged regulations formed part of the Regulations for Judicial Officers
in the Lower Courts which were promulgated
on 11 March 1994 – before interim
Constitution had come into force.  However, Regulation 54A and Schedule E were
promulgated on
27 October 1994 after the interim Constitution had come into
force and regulations 16, 17, 19, 26 and Schedule E were subsequently
amended
after the interim Constitution had come into force.  The dates of the relevant
amendments were: 17 November 1995 (Regulation
19), 2 August 1996 (Regulation
19), 8 August 1997 (Regulation 26), 7 August 1998 (Regulations 16 and 17) and
17 December 1999 (Schedule
E).  The Complaints Procedure  Regulations were
promulgated on 1 October 1998.
118
      Â
[1996] ZACC 12
;
1996 (3) SA
989
(CC);
1996 (6) BCLR 798
(CC).
119
      Â
Act 45
of
1963.
120
      Â
At paras
5-7.
121
      Â
[1995] ZACC 8
;
1995 (4) SA
877
(CC);
1995 (10) BCLR 1289
(CC).
122
      Â
At para 51.
123
      Â
Section
4(a)
of the
Magistrates Act provides
as follows:
“The objects of the Commission shall be to ensure that
the appointment, promotion, transfer or discharge of, or disciplinary steps
against, judicial officers in the lower courts take place without favour or
prejudice, and that the applicable laws and administrative
directions in
connection with such action are applied uniformly and correctly . . .”
124
      Â
Above n  at
473C.
125
      Â
Id at
473D-E.
126
      Â
Section
4(d)
of the
Magistrates Act provides
that one of the objects of the Commissions
shall be “to compile a code of conduct for judicial officers in the lower
courts”.
127
      Â
Section
16(2)(a)
of the
Magistrates Act provides
that:
“A regulation made under this section shall be in
force unless and until Parliament during the session in which the list referred
to in section 17 of the Interpretation Act, 1957 (Act No. 33 of 1957), which
relates to that regulation, has been laid upon the Table
in Parliament, by
resolution disapproves the regulation, in which event the regulation shall
lapse with effect from a date to be
specified in the resolution.”
128
      Â
Section
172(1).
129
      Â
Above n  at
461I.
130
      Â
Above n  at
para 70.
131
      Â
Act 92
of
1997.
132
      Â
Reference
re: Public Sector Pay Reduction Act (P.E.I.), s. 10; Attorney General of Canada
et al., Interveners; Reference re: Independence
of Judges of Provincial Court,
Prince Edward Island, Provincial Court Act and Public Sector Pay Reduction Act;
Attorney General of
Canada et al., Interveners
(1997) 150 DLR (4
th
) 577.
133
      Â
Id at para
147.
134
      Â
Id at para
7.
135
      Â
Id at para
8.
136
      Â
At para
133, the Court held that:
“as a general constitutional principle, the salaries
of provincial court judges can be reduced, increased, or frozen, either as
part
of an overall economic measure which affects the salaries of all or some
persons who are remunerated from public funds, or as
part of a measure which is
directed at provincial court judges as a class. . . . As I explain below, when
governments propose to
single out judges as a class for a pay reduction, the
burden of justification will be heavy.”
137
      Â
Section
176(3).
138
      Â
Section
219(5).
139
      Â
Act 88
of
1989.
140
      Â
Section
2(1).
141
      Â
Section 12.
142
      Â
Judicial
Officers Amendment Bill above n .
143
      Â
Section
12(3)
of the
Magistrates Act.
>
144
      Â
See the
statement of the
Provincial Judges
case recorded above n .  There, the
Canadian Supreme Court suggested that it may at times be necessary to reduce
the salaries of
provincial court judges as part of an overall economic measure
which affects the salaries of all or some persons who are remunerated
from
public funds.
145
      Â
An
appointment at the discretion of the executive, as pointed out in
Valente
n  above at 183, would be inconsistent with judicial independence.
146
      Â
Above n  at
464C.
147
      Â
Id at
475H-J.
148
      Â
Above n  at
192.
149
      Â
Section
13(5)(a)
provides:
“The Minister may, at the request of a
magistrate, allow such magistrate to vacate his or her office—
(i)            on account of
continued ill-health; or
(iA)         in order to
effect a transfer and appointment as contemplated in section 15 (1) of the
Public Service Act, 1994
(Proclamation No. R. 103 of 1994); or
(ii)           for any other reason which
the Minister deems sufficient.”
150
      Â
Above n  at
469I.
151
      Â
Section
72(ii) of the Australian Constitution provides that judges may be removed on
grounds of  “proved misbehaviour or incapacity”.
152
      Â
Section
99(1) of the Canadian Constitution Act provides that “Judges of the Superior
Courts shall hold office during good behaviour”.
153
      Â
Section 23
of the New Zealand New Constitution Act of 1986 provides that judges may be
removed “only on the grounds of that Judge’s
misbehaviour or of that Judge’s
incapacity to discharge the functions of that Judge’s office.”
154
      Â
Section
11(3) of the Supreme Court Act, 1981 provides that judges hold office during
good behaviour.
155
      Â
Section
194(1)(a) of the Constitution.
156
      Â
Section
13(3)(a).
157
      Â
Section
13(3)(d).
158
      Â
Section
13(3)(e).
159
      Â
Above n  at
465G-I.
160
      Â
Above n  at
468B.
161
      Â
Section 33.
162
      Â
ParaÂ
below.
163
      Â
Consistent
with what is said in para  above, this is the interpretation of section
13(3)(aA) that should be adopted.  That such
an interpretation is permissible
has been made clear by a number of decisions.  See for example,Â
Weissglass
NO v Savonnerie Establishment
[1992] ZASCA 95
;
1992 (3) SA 928
(A) at 937,
Commissioner
for Inland Revenue v I H B King; Commissioner for Inland Revenue v A H King
1947 (2) SA 196
(A) at 209-210 and
South African Railways and Harbours v New
Silverton Estate, Ltd
1946 AD 830
at 842.Â
The point is also made by Wade and Forsyth
in
Administrative Law
(eighth ed, Oxford University Press, Oxford 2000)
at 239:
“The hallmark of discretionary power is permissive
language using words such as ‘may’ or ‘it shall be lawful’, as opposed
to
obligatory language such as ‘shall’.  But this simple distinction is not always
a sure guide, for there have been many decisions
in which permissive language
has been construed as obligatory. This is not so much because one form of words
is interpreted to mean
its opposite, as because the power conferred is, in the
circumstances prescribed by the Act, coupled with a duty to exercise it in
a
proper case.”
164
      Â
A simple
majority in Parliament is needed to remove judges in the United Kingdom
(section 11(3) of the Supreme Court Act, 1981), Ireland
(Clause 4 of Article 35
of the Constitution of Ireland) and Australia (Section 72(1)(ii) of the
Constitution of Australia).  Likewise
only  a simple majority is required to
remove judges of superior courts in Canada (Section 99(1) of the Canadian
Constitution Act,
1867).  In
Valente
above n  at 176 the Canadian
Supreme Court commented that this requirement was generally regarded as
representing “the highest
degree of constitutional guarantee of security of
tenure” and held that it was not necessary that provincial judges received the
same degree of protection.
165
      Â
Above n  at
469G-J.
166
      Â
Above n  at
468G.
167
      Â
Regulations
26(1), (2) and (3) provide:
“(1)         If a magistrate
is accused of misconduct, the Commission may appoint a magistrate or a person
(hereinafter
called the investigating officer) to conduct a preliminary
investigation and to obtain evidence in order to determine whether there
are
any grounds for a charge of misconduct against the magistrate:  Provided that,
if the Commission is of the opinion that there
is prima facie evidence to
support the charge, the Commission may charge the magistrate concerned in
writing with misconduct without
the said preliminary investigation.
(2)           After the
conclusion of the preliminary investigation referred to in subregulation (1),
the investigating
officer shall recommend to the Commission whether or not the
magistrate concerned should in his opinion be charged, and if so, what
in his
opinion the contents of the charge concerned should be.
(3)           If the
Commission is of the opinion that there are sufficient grounds for a charge of
misconduct against the
magistrate concerned, the Commission may, in writing,
charge the magistrate with misconduct.
.
. .”
168
      Â
This
conclusion is consistent with the approach of the Canadian Supreme Court in
Valente
above n .  At 179, Le Dain J dealt with the argument that all judges should
enjoy a tenure expressly defined as being “during
good behaviour”:
“It may be desirable that the tenure of judges should
be expressed as being during good behaviour, which leaves cause for removal
to
be determined according to the common law meaning of those words . . . rather
than have the grounds for removal specified in legislation,
but I do not think
it is reasonable to require that as an essential condition of judicial
independence for purposes of s. 11(d) of
the Charter.  It is sufficient if a
judge may be removed only for cause related to the capacity to perform judicial
functions.”
169
      Â
Regulation
26(6).
170
      Â
Id.
171
      Â
Regulations
26(11) and (12).
172
      Â
Id.
173
      Â
Regulation
26(14).
174
      Â
Du Preez
and Another v Truth and Reconciliation Commission
[1997] ZASCA 2
;
1997 (3) SA 204
(A) at 231.Â
175
      Â
See paraÂ
above.
176
      Â
Regulation
22, which governs the transfer of magistrates, is discussed in paras - below.
177
      Â
See paraÂ
above.
178
      Â
Above n  at
474B.
179
      Â
At paras -
below.
180
      Â
At paras -
above.
181
      Â
Paras  toÂ
below.
182
      Â
Above n  at
474G-H.
183
      Â
Id at
475B-C.
184
      Â
This is in
line with the approach of the Supreme Court of India in two decisions
concerning the transfer of judges.  In
Union of India v Sankalchand
(A.I.R.
1977 S.C. 2328)
, the constitutional validity of a notification issued
by the President of India, transferring a judge from one High Court to another,
was upheld by a majority of Judges of the Supreme Court.  At para 112, the
Court noted that in order to uphold and protect the independence
of the
judiciary, it is not necessary to construe the Constitution as meaning that a
judge cannot be transferred to another High
Court without his consent.
A
similar question arose in
S.P. Gupta v Union of India
(1981 Supp.  S.C.C
87), where the transfer of the Chief Justice of the Patna High Court was
challenged.  The Court, by a majority,
held that the consent of the Judge
concerned is not a pre-condition for a transfer and upheld the transfer stating
that if the transfer
is in public interest, the personal inconvenience of the
judge is to be disregarded.  At paras 307-9, however, the Court also cautioned
that this power of transfer should not be used by way of punishment for an
oblique purpose, for example against a judge who does
not give judgments in
favour of the government.
185
      Â
At paras -
above.
186
      Â
Above n  at
470F-G.
187
      Â
South
African Association of Personal Injury Lawyers v Heath
above n  at para 35.
188
      Â
Above n .
189
      Â
Fose v
Minister of Safety and Security
[1997] ZACC 6
;
1997 (3) SA 786
(CC)
;
1997 (7) BCLR 851
(CC) at para 72;
Soobramoney v Minister of Health, KwaZulu-Natal
above n  at paras 11 and
40;
Government of the Republic of South Africa and Others v Grootboom and
Others
2001 (1) SA 46
(CC);
2000 (11) BCLR 1169
(CC) at para 46.
190
      Â
Above n  at
476E-F.
191
      Â
Section 175
of the Constitution provides:
“(1)         The President
may appoint a woman or a man to be an acting judge of the Constitutional Court
if there is a
vacancy or if a judge is absent.  The appointment must be made on
the recommendation of the Cabinet member responsible for the administration
of
justice acting with the concurrence of the Chief Justice.
(2)           The Cabinet member
responsible for the administration of justice must appoint acting judges to
other courts
after consulting the senior judge of the court on which the acting
judge will serve.”
192
      Â
Above n  at
459E-F.
193
      Â
Section
175(2) of the Constitution.
194
      Â
Section
175(1) of the Constitution.  At the time the proceedings were initiated the
Chief Justice sat in the Supreme Court of Appeal
and the Constitution then
required acting appointments to be made with the concurrence of the President
of the Constitutional Court
and the Chief Justice.
195
      Â
Section
241(1) of the interim Constitution provides:
“Every court of law existing immediately
before the commencement of this Constitution in an area which forms part of the
national
territory, shall be deemed to have been duly constituted in terms of
this Constitution or the laws in force after such commencement,
and shall
continue to function as such in accordance with the laws applicable to it until
changed by a competent authority . . .
.”
Item 16(1) of Schedule 6 of the 1996
Constitution provides:
“Every court . . . existing when the new
Constitution took effect, continues to function and to exercise jurisdiction in
terms of
the legislation applicable to it, and anyone holding office as a
judicial officer continues to hold office in terms of the legislation
applicable to that office, subject to—
(a)           any amendment
or repeal of that legislation; and
(b)           consistency with the new
Constitution.”
196
      Â
Above n  at
477E-H.
197
      Â
Sanderson
v Attorney-General, Eastern Cape
1998 (2) SA 38
(CC);
1997 (12) BCLR 1675
(CC) at para 44.