Summary of Judgment

Introduction

These proceedings concerned reasons furnished by the Constitutional Court for the postponement of two matters that had been enrolled for oral argument. The text provided does not deal with the merits of the underlying applications; it is confined to explaining why the Court could not hear the matters on the initially scheduled date and why a later date was allocated.

The applicant in both matters was Judge President Mandlakayise John Hlophe. In CCT 41/11, the respondent was the Premier of the Western Cape Province. In CCT 46/11, the respondents included Freedom Under Law, the Acting Chairperson of the Judicial Service Commission, the Judicial Service Commission, and a number of individual Justices (including then-serving and retired members of the Constitutional Court) who were connected to the complaint underlying the broader dispute.

Procedurally, the Court had issued directions calling first for written argument on specified issues, and later set the matters down for oral argument on 22 September 2011. Shortly before that date, further directions removed the matters from the roll and re-enrolled them for 29 November 2011. The reasons for postponement were given at this stage because the attorneys for the Premier wrote to the Court querying the identity of the judges unable to participate, the reasons for their inability to participate, and whether the Court would be quorate on the new hearing date.

The general subject-matter underlying the set-down (as reflected in the directions reproduced in the judgment) related to the Court’s ability to deal with the applications where a majority of its members might be disqualified, including questions about recusal, the possible appointment of acting judges, and whether any purpose would be served by granting leave to appeal if the Court could not determine the merits. However, the present text addresses only the postponement and quorum implications flowing from recusals.

Material Facts

The Court had originally issued directions on 30 May 2011 in CCT 41/11 and on 6 June 2011 in CCT 46/11 calling for written argument on particular issues. Further directions dated 8 August 2011 set the matters down for oral argument on 22 September 2011.

On 12 September 2011, the Court issued further directions removing the matters from the roll for 22 September 2011 and setting them down for hearing on 29 November 2011. Those directions stated that the change occurred because three present judges of the Court found themselves unable to participate in determining the issues.

On 20 September 2011, the attorneys acting for the Premier of the Western Cape Province addressed a letter to the Court requesting disclosure of (a) the identity of the three judges unable to participate; (b) the reasons for their inability to participate; and (c) the basis upon which the date of 29 November 2011 was allocated, expressing concern that the Court would not be quorate on that date.

The Court explained that two Justices, Jafta J and Nkabinde J, had recused themselves from consideration of the cases from the outset. As a result, they were not parties to the earlier directions (including those calling for written argument and those setting the matters down for 22 September 2011).

The Court further explained that the term of office of Ngcobo CJ ended on 14 August 2011, and that he did not participate in the decision to issue the 8 August 2011 directions setting the matters down for oral argument on 22 September 2011. Moseneke DCJ had been party to that decision but, upon reconsideration, concluded on 12 September 2011 that he too needed to recuse himself from further participation.

The Court treated it as material that the three judges who recused themselves (Jafta J, Nkabinde J, and Moseneke DCJ) were complainants in the matter against the applicant, and that—unlike other complainants—they had been called as witnesses and testified before the Judicial Service Commission. The Court recorded that they considered they might be required to testify again depending on the outcome of the applications for leave to appeal, and that this possibility was the reason they regarded recusal as necessary.

The Court accepted that, until Moseneke DCJ’s recusal on 12 September 2011, there had been a quorum to hear the cases. After that recusal, the number of judges available to hear oral argument in those cases during that term was reduced to seven, which was one fewer than the constitutional quorum requirement.

The Court also recorded that the retirement of the former Chief Justice necessitated an acting appointment until a permanent appointment could be made to fill the vacancy, and that an acting appointment for the Court’s fourth term was expected soon. The Court indicated that this would incidentally result in the Court having a quorum to hear these cases in the fourth term.

Legal Issues

The immediate issue addressed in this text was a procedural one: why the matters were postponed and whether the Court’s inability to proceed on the scheduled date arose from a lack of a constitutionally compliant quorum.

This required the Court to determine, as a matter of application of constitutional and procedural requirements to the facts, whether the recusals reduced the sitting members below the minimum number required for the Court to hear the matters. The question also entailed an evaluative procedural decision about whether reasons that would ordinarily be given later should be provided immediately, given the “exceptional circumstances” created by the parties’ enquiries.

Although the broader litigation (as reflected in the reproduced directions) raised questions about disqualification, acting appointments, and the doctrine of necessity, the present text did not decide those broader questions. It confined itself to identifying the judges who recused themselves, stating the reasons for their recusals, and explaining the quorum consequences for the hearing date.

Court’s Reasoning

The Court indicated that reasons for postponement would ordinarily have been furnished in the judgment after hearing oral argument, but held that it had become necessary to provide the reasons at this stage because of the correspondence from the Premier’s attorneys raising concerns about participation and quorum. The Court characterised the circumstances as exceptional, which justified acceding to the request for information and providing reasons immediately.

The Court then identified the source of the quorum difficulty. Two judges, Jafta J and Nkabinde J, had recused themselves from the outset, and were therefore not involved in earlier directions, including those that initially set the matters down. A further recusal occurred later: after reconsideration, Moseneke DCJ concluded on 12 September 2011 that he needed to recuse himself. The Court treated this later recusal as the event that necessitated the postponement because it reduced the number of available judges for that term below what the Constitution requires.

In explaining why the three judges recused themselves, the Court relied on their role as complainants in the underlying matter and, importantly, their having testified as witnesses before the Judicial Service Commission. The Court recorded their view that they might be called upon to testify again depending on the outcome of the applications for leave to appeal. The Court presented this as the basis upon which they considered recusal necessary, distinguishing them from other complainants who did not occupy the same procedural position.

The Court then applied the constitutional quorum requirement. It referred to section 167(2) of the Constitution, which requires that a matter before the Constitutional Court be heard by at least eight judges. Once the number of available judges for oral argument fell to seven during that term, the Court could not sit as a quorate court on 22 September 2011, and thus could not proceed with the hearing on that date.

Finally, the Court connected the postponement date to institutional arrangements arising from a vacancy on the Court. It noted that the retirement of the former Chief Justice necessitated the appointment of an acting judge until a permanent appointment could be made. The Court explained that an acting appointment for the fourth term was expected, and that this would have the incidental effect of enabling the Court to be quorate to hear these matters in that term. On that basis, the Court stated that the reason for postponing the matters to 29 November 2011 was that the Court would have lacked a quorum on 22 September 2011.

Outcome and Relief

The matters were removed from the roll for hearing on 22 September 2011 and were set down for hearing at 10h00 on 29 November 2011, due to the Court lacking a quorum following recusals.

The Court identified the three judges who recused themselves as Jafta J, Nkabinde J, and Moseneke DCJ, and recorded the reason for their recusals, namely their status as complainants who had testified before the Judicial Service Commission and might be required to testify again.

No order as to costs was made in the text provided. The Court expressed regret for the inconvenience to the parties. It also recorded that Jafta J and Nkabinde J, while not parties to the postponement decision, consented to the reasons for their earlier recusal being recorded.

Cases Cited

No reported cases were cited in the text provided.

Legislation Cited

Constitution of the Republic of South Africa, 1996, section 167(2).

Constitution of the Republic of South Africa, 1996, section 174(3).

Constitution of the Republic of South Africa, 1996, section 174(4).

Constitution of the Republic of South Africa, 1996, section 174(5).

Constitution of the Republic of South Africa, 1996, section 175(1).

Rules of Court Cited

Rules of the Constitutional Court, Rule 11(4).

Held

The Constitutional Court postponed the hearing because recusals reduced the number of available judges to seven, which was below the constitutional quorum of eight judges required by section 167(2) of the Constitution.

The Court held it appropriate, in exceptional circumstances prompted by the Premier’s attorneys’ enquiries, to disclose at that stage the identities of the judges who had recused themselves and to provide the reasons for postponement, including the basis on which the new hearing date was selected.

The Court recorded that the recusals occurred because the three judges concerned were complainants in the underlying matter and had testified before the Judicial Service Commission, and they considered that they might have to testify again depending on the outcome of the applications for leave to appeal.

LEGAL PRINCIPLES

A matter before the Constitutional Court must be heard by at least eight judges, as required by section 167(2) of the Constitution, and the Court cannot proceed to hear a matter on a date when recusals reduce the available judges below that quorum.

Where judges have a direct involvement in an underlying dispute that includes having testified as witnesses in related proceedings, and where they may be required to testify again depending on the outcome of pending applications, recusal may be considered necessary; the practical consequence may be that the Court cannot be quorate at a given time.

In terms of Rule 11(4) of the Rules of the Constitutional Court, the Chief Justice may issue directions on how an application is to be dealt with, including whether it is set down for hearing or dealt with on written argument; the Court may also provide procedural reasons earlier than usual where exceptional circumstances require it to address parties’ concerns about participation and quorum.