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[2012] ZACC 4
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Hlophe v Premier of the Western Cape Province, Hlophe v Freedom Under Law and Other (CCT 41/11, CCT 46/11) [2012] ZACC 4; 2012 (6) SA 13 (CC); 2012 (6) BCLR 567 (CC) (30 March 2012)
Links to summary
CONSTITUTIONAL
COURT OF SOUTH AFRICA
[2012]
ZACC 4
Case
CCT 41/11
In
the matter between:
JUDGE
PRESIDENT MANDLAKAYISE JOHN HLOPHE
…........................
Applicant
and
PREMIER
OF THE WESTERN CAPE PROVINCE
….................................
Respondent
and
Case
CCT 46/11
In
the matter between:
JUDGE
PRESIDENT MANDLAKAYISE JOHN HLOPHE
…........................
Applicant
and
FREEDOM
UNDER LAW
….................................................................
First
Respondent
ACTING
CHAIRPERSON:
JUDICIAL
SERVICE COMMISSION
…
...........................................
Second
Respondent
JUDICIAL
SERVICE COMMISSION
….............................................
Third
Respondent
CHIEF
JUSTICE PIUS NKONZO LANGA
…...................................
Fourth
Respondent
DEPUTY
CHIEF JUSTICE DIKGANG MOSENEKE
….....................
Fifth
Respondent
JUSTICE
THOLAKELE HOPE MADALA
…......................................
Sixth
Respondent
JUSTICE
JENNIFER YVONNE MOKGORO
….............................
Seventh
Respondent
JUSTICE
CATHERINE MARY ELIZABETH O’REGAN
…............
Eighth
Respondent
JUSTICE
ALBERT LOUIS SACHS
….................................................
Ninth
Respondent
JUSTICE
SIRRAL SANDILE NGCOBO
…........................................
Tenth
Respondent
JUSTICE
THEMBILE LEWIS SKWEYIYA
…..............................
Eleventh
Respondent
JUSTICE
JOHANN VAN DER WESTHUIZEN
…..........................
Twelfth
Respondent
JUSTICE
ZAKERIA MOHAMMED YACOOB
…......................
Thirteenth
Respondent
JUSTICE
BAAITSE ELIZABETH NKABINDE
….....................
Fourteenth
Respondent
JUSTICE
CHRISTOPHER NYAOLE JAFTA
…............................
Fifteenth
Respondent
JUSTICE
FRANKLIN KROON
….................................................
Sixteenth
Respondent
and
CENTRE
FOR APPLIED LEGAL STUDIES
…...............................
First
Amicus Curiae
GENERAL
COUNCIL OF THE BAR
….......................................
Second
Amicus Curiae
LAW
SOCIETY OF SOUTH AFRICA
….......................................
Third
Amicus Curiae
BLACK
LAWYERS ASSOCIATION
….......................................
Fourth
Amicus Curiae
Heard
on : 29 November 2011
Decided
on : 30 March 2012
JUDGMENT
THE
COURT:
The
applicant in these two applications for leave to appeal to this
Court is the Judge President of the Western Cape High Court.
He
seeks leave to appeal against two judgments of the Supreme Court of
Appeal. Both judgments
1
concern a decision made by the Judicial Service Commission (JSC) on
15 August 2009 (JSC decision) in relation to a complaint
of judicial
misconduct by certain Constitutional Court Justices against the
applicant and a counter-complaint by him against
the same
Constitutional Court Justices. The two judgments were delivered by
separately constituted benches of the Supreme Court
of Appeal.
2
The
complaint against the applicant was that he had sought to influence
the decision of the Constitutional Court in matters pending
before
it. His counter-complaint was that by making a media statement
regarding their JSC complaint, the Constitutional Court
Justices had
infringed his dignity.
The
JSC decision was effectively that the evidence in respect of both
complaints did not justify a finding that either the applicant
or
the Constitutional Court Justices in question were guilty of gross
misconduct and that the matters were “accordingly
finalised”.
3
The Supreme Court of Appeal judgments set aside the JSC decision on
different grounds.
4
The
applications raise issues fundamental to the integrity of our
judicial process. They arise primarily because the Court as
constituted for this hearing includes complainant Justices before
the JSC.
5
Without their participation this Court will not be quorate and thus
will be unable to consider and determine the applications.
6
In
this judgment we will: (1) set out the relevant factual background;
(2) deal specifically with the situation that developed
in this
Court; (3) summarise the issues that need to be decided; (4) discuss
and come to a conclusion on those issues; and (5)
arrive at an
appropriate remedy and order.
Background
In
March 2008, the Constitutional Court heard argument in four matters
relating to the prosecution of the current President of
the Republic
of South Africa and Thint (Pty) Ltd on corruption charges. Before
judgment was delivered, the applicant approached
two Constitutional
Court Justices in their chambers. As a result of what allegedly
transpired during these visits the Constitutional
Court Justices on
the bench at the time lodged a complaint against the applicant with
the JSC. They alleged that he had attempted
to influence the two
Justices in the corruption cases. The applicant in turn lodged a
complaint of judicial misconduct against
the Justices, alleging that
his constitutional rights had been violated when the Justices
published a media statement about their
decision to lodge the
complaint.
After
many delays and changes in the composition of the JSC, it eventually
considered the complaints, and on 15 August 2009 reached
the
decision that the evidence before it did not justify a finding of
gross misconduct on the part of the applicant or the Constitutional
Court Justices.
Two
separate applications were launched challenging the JSC decision,
the one in the Western Cape High Court (Premier’s
challenge)
7
and the other in the North Gauteng High Court (Freedom Under Law’s
challenge).
8
The
Premier’s challenge was brought by the Premier of the Western
Cape Province (Premier) on the basis that (1) she should
have been
notified of the JSC proceedings in order to allow her to participate
in the proceedings in terms of section 178(1)(k)
of the
Constitution;
9
(2) only ten members of the JSC participated in the decision when it
should have been composed of 13 members; and (3) the JSC
decision
was not supported by a majority, as required by section 178(6) of
the Constitution.
10
The
Western Cape High Court upheld each of the Premier’s
contentions and set aside the JSC decision. The JSC and the
applicant
appealed to the Supreme Court of Appeal. The Supreme Court
of Appeal came to a similar conclusion to the High Court on all
three
grounds and dismissed the appeal.
Freedom
Under Law’s challenge to the JSC decision in the North Gauteng
High Court took a different course. Freedom Under
Law sought to set
aside an earlier decision of the JSC to hold a preliminary inquiry,
on the basis of which it arrived at its
final decision. The North
Gauteng High Court dismissed a challenge to its standing, but held
that it was not entitled to the
relief it sought. The Supreme Court
of Appeal disagreed and set aside the High Court order, replacing it
with one setting aside
that part of the JSC decision dismissing the
complaint by the Constitutional Court Justices against the
applicant, but leaving
the part dismissing the applicant’s
counter-complaint intact.
The
effect of the Supreme Court of Appeal’s judgment and order on
the Premier’s challenge is that the JSC must now
reconsider
both the Constitutional Court Justices’ complaint, and the
applicant’s counter-complaint. The effect of
its judgment in
Freedom Under Law’s challenge is of a lesser nature: it must
reconsider the Constitutional Court Justices’
complaint, but
not the applicant’s counter-complaint.
In
this Court
The
applicant seeks leave to appeal against both Supreme Court of Appeal
judgments. The JSC has not sought leave to appeal.
In
relation to the Premier’s challenge, the applicant contends
that the Supreme Court of Appeal reached an incorrect conclusion
on
contextual and separation of powers grounds regarding the necessary
composition of the JSC when conducting disciplinary proceedings
involving a High Court Judge. He also contends that its
determination of what a majority vote of the JSC means, in terms of
the Constitution, is unnecessarily inflexible and wrong.
As
far as the Freedom Under Law challenge is concerned, the applicant
contends that the Supreme Court of Appeal’s judgment
is, in
effect, contradictory to its judgment in the Premier’s
challenge. The two orders, one declaring the whole of the
JSC
decision invalid and the other declaring only part of that decision
invalid, cannot stand side-by-side. He also contests
the substantive
reasoning of the Supreme Court of Appeal, namely that the JSC
decision that the evidence before it did not justify
findings of
gross misconduct was irrational.
In
neither of the applications for leave to appeal did the applicant
raise any initial objection to this Court determining the
applications for leave to appeal. It was only in the directions from
this Court that the issue, whether this Court is in a position
to
hear and determine them, came to the fore.
11
Since those directions were issued the composition of this Court as
constituted for these applications has changed, but the difficulty
remains live.
The
problem is this. Section 167(1) of the Constitution provides that
this Court consists of eleven Judges.
12
The Court usually sits
en banc
, but section 167(2) provides
that a matter before the Constitutional Court must be heard by at
least eight Judges.
13
Six of the serving Justices currently appointed to the Court were
serving as Constitutional Court Judges when the complaint against
the applicant was lodged with the JSC. Three of them recused
themselves from the hearing before it was argued.
14
This left the Court with a bare constitutional quorum of eight,
including three Justices who were parties to the complaint lodged
with the JSC against the applicant
15
and two others who had been involved in attempted mediation. If
these Judges are disqualified from hearing the applications for
leave to appeal because of their perceived or actual interest in the
outcome of the matter, there would be no quorum for this
Court to
hear and determine the matters.
It
was this potential conundrum that the parties and admitted friends
of the court
16
were initially asked to address in written and oral argument.
17
It
is fair to say that their responses crystallised the broad issue for
decision into the question whether it was necessary for
this Court,
as presently constituted, to hear and determine the applications for
leave to appeal.
In
directions issued subsequent to the oral hearing, the parties’
attention was drawn to correspondence between the Chief
Justice and
Freedom Under Law, and they were directed to indicate whether any of
them sought the recusal of the Chief Justice
from the matter in view
of that correspondence. In a separate letter, their attention was
also drawn to the position of Zondo
AJ in relation to his
involvement in the attempted mediation of the dispute whilst he was
Judge President of the Labour Appeal
Court. None of the parties
sought the recusal of either of them.
The
result of all of this is that all the parties accept that it is
necessary for us to make a determination in relation to the
issues
raised in the applications.
Issues
The
material issues for determination are—
(a)
whether Acting Judges may be appointed to the Constitutional Court in
terms of section 175 of the Constitution to hear the application
for
leave to appeal and the appeal; and, if not,
(b)
whether we should adjudicate upon the substantive merits of the
applications for leave to appeal.
These
issues must be determined with due regard to the constitutional and
legal context that governs the various interests at
stake in these
matters.
Constitutional
framework
The
Constitution vests the judicial authority of the Republic in the
courts.
18
The independence of the courts is guaranteed and subject only to the
Constitution and the law, which must be applied impartially
and
without fear, favour or prejudice.
19
This Court is the highest court in all constitutional matters;
20
it may decide only constitutional matters and issues connected with
decisions on constitutional matters;
21
and it makes the final decision on whether a matter is a
constitutional one or is an issue connected to a constitutional
matter.
22
The Judges of the Constitutional Court are appointed by the
President in accordance with the provisions of the Constitution.
23
The President may, on the recommendation of the Minister of Justice
and Constitutional Development acting with the concurrence
of the
Chief Justice, 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.
24
In
terms of section 34 of the Constitution, everyone has the right to
have any dispute that can be resolved by the application
of law
decided in a fair public hearing before a court or, where
appropriate, another independent and impartial tribunal or forum.
In
terms of section 167(6) of the Constitution, litigants only have a
right to consideration of any application for leave to appeal.
They
do not have an automatic right of appeal.
25
Leave must be granted if the Court concludes that it is in the
interests of justice to do so.
26
There
is no dispute that the issues relating to the composition and
processes of the JSC are constitutional matters of import.
The
composition of the JSC is determined by section 178(1) of the
Constitution.
27
The powers and functions assigned to it in the Constitution and
national legislation,
28
fall into three main categories: (a) the process of appointing
Judges;
29
(b) disciplinary matters involving Judges;
30
and (c) advice to the national government on any matter relating to
the judiciary or the administration of justice.
31
The JSC may determine its own procedures, but its decisions must be
supported by a majority of its members.
32
Of
particular importance here is section 177(1)(a), which provides that
a Judge may be removed from office only if—
“
the
Judicial Service Commission finds that the judge suffers from an
incapacity, is grossly incompetent or is guilty of gross misconduct”.
The
evaluation and resolution of the issues in the applications must
thus take place in the following context. This Court is the
final
and highest court in relation to the constitutional matters that
form the subject matter of the applications for leave
to appeal. The
Court, as constituted for these applications, includes members who
may have been perceived to have an interest
in the outcome of the
proceedings before the JSC. All the parties, however, consider it
necessary for the Court, as presently
constituted, to dispose of the
matter. The constitutional matters relate to procedural aspects of
the functioning of the JSC,
not to its substantive power to
investigate and make findings in relation to judicial misconduct.
And lastly, it is a fundamental
right of everyone under the
Constitution to have legal disputes decided in the courts or, where
appropriate, by an independent
and impartial tribunal or forum.
Can
Acting Judges be appointed?
Against
this constitutional background, and bearing in mind the potential
disqualifications of members of the Court, it is necessary
to
determine whether the Constitution permits the appointment of Acting
Judges who could adjudicate the merits.
Section
175(1) of the Constitution provides:
“
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.”
In
oral argument counsel for the applicant explicitly acknowledged that
the acting appointment option was the “first prize”
they
sought. If this was not a legitimate solution or remedy, counsel
urged this Court, without qualification, to decide the
applications
for leave to appeal. Counsel for the Black Lawyers Association (BLA)
supported the applicant’s argument on
the propriety of
appointing Acting Judges under section 175(1). The other parties
represented at the hearing did not support
the appointment of Acting
Judges as a proper or legitimate outcome. They were somewhat more
circumspect in their submissions
on the manner in which we should
dispose of the applications for leave to appeal if the acting
appointment option was not accepted.
It
is by now settled that constitutional provisions must be interpreted
according to their purpose, gleaned from the language
read in the
context of the Constitution as a whole.
33
Language, context and the scheme of the Constitution all show that
ad hoc acting appointments to cater for exceptional cases
like these
confronting us here are not permissible.
Section
175(1) provides for the appointment of an Acting Judge of the
Constitutional Court if there is a vacancy or if a Judge
is absent.
It was not argued that recusal from a particular case by a member of
this Court creates a vacancy under the section,
but it was argued
that the recusal does render the Judge “absent”. The
ordinary meaning of the word “absent”
carries some
ambiguity. It may mean merely “physically absent”.
34
It could reasonably be argued that a recusal creates a “physical
absence” for the purposes of a particular case.
However, any
possible ambiguity is removed when we consider that the recusal from
a particular case does not preclude Constitutional
Court Judges from
continuing to perform duties of their office. A recused Judge
remains required to perform the rest of her judicial
duties. The
action of recusal is the performance of a judicial duty. The effect
of a recusal therefore cannot be considered to
be an absence.
This
argument is strengthened by a comparison with the wording of other
sections in the Constitution allowing for acting or temporary
appointments to other constitutional offices.
The
circumstances in which Judges are appointed to other courts are not
as tightly defined. In terms of section 175(2) Acting
Judges may be
appointed to other courts without the requirements that there must
be a vacancy or that permanently appointed Judges
must be absent.
This suggests that considerations other than post vacancies or
physical absences of appointed Judges might justify
the appointment
of Acting Judges to those courts.
35
The
constitutional provisions concerned with the acting or temporary
filling of executive posts at the national and provincial
levels of
government all provide for acting or temporary filling of those
posts or the exercise of functions either in the absence
of the
office holders or, explicitly, where they are otherwise unable to
fulfil or exercise those duties or functions.
36
Clearly “absent” in those sections bears the ordinary
meaning of “physically absent” since specific provision
is made for situations where the temporary incapacity to fulfil
official duties exists as opposed to physical absence. There
is no
justification for giving a different meaning to “absent”
in section 175(1) than the ordinary meaning of “physically
absent” the word bears in these sections. To the contrary, the
wording of these sections shows that where something other
than
physical absence prevents the exercise of official duties, explicit
provision for that eventuality is made.
37
Recusal
leading to a lack of a necessary quorum in this Court is an
exceptional occurrence. Vacancies of Constitutional Court
posts
resulting from retirement, possible ill-health and death are not.
Nor are temporary physical absences of Justices of the
Court, caused
by periods of leave, personal circumstances or some illness unusual.
Viewed in a general context, it is clear that
the purpose of section
175(1) is to deal with these normal instances of vacancies and
physical absences.
The
conclusion that “absent” should be interpreted to mean
“physically absent” is fortified when regard
is had to
section 99(9) of the interim Constitution which regulated the
appointment of Acting Judges:
“
Whenever
a judge of the Constitutional Court
is
absent or unable to perform his or her functions, or if a vacancy
among the judges of the Constitutional Court arises
,
the President may, on the recommendation of the Minister responsible
for the administration of justice made in consultation with
the
President of the Constitutional Court and the Chief Justice, appoint
any person qualified in terms of subsection (2), as an
acting judge
of the Constitutional Court for the period of absence or inability of
the judge concerned or until the vacancy is
filled: Provided that at
all times at least four judges of the Constitutional Court, including
acting judges, shall be judges who
have been appointed from among the
judges of the Supreme Court.”
38
(Emphasis
added.)
The
exclusion of “or unable to perform his or her functions”
from the final text of the Constitution suggests that
the word
“absent” in the Constitution should be interpreted
narrowly to mean physically absent and not include temporary
incapacity.
The
textual interpretation dealt with above finds further support in the
context of the Constitution as a whole. Constitutional
provisions
relating to the appointment of Judges must be interpreted with due
regard to the constitutional imperatives of separation
of powers and
entrenchment of judicial independence.
39
The potential danger to judicial independence and the separation of
powers is ever present in the appointment of individual Judges
to
hear a specific case and we must be mindful of this.
Accordingly
it is not possible to interpret “absent” in section
175(1) as covering a situation where Constitutional
Court Judges
recuse themselves from hearing a specific matter.
Leave
to appeal – consideration by this Court?
With
the option of the appointment of Acting Judges under section 175(1)
not available, the applications for leave to appeal must
be dealt
with in another way by this Court. It is convenient to recap the
road travelled thus far.
The
applications for leave to appeal raise constitutional issues. This
Court is the court of final instance on constitutional
matters and
aspects incidental to these matters. In terms of section 167(6) the
Court is obliged to create a procedure to consider
applications for
leave to appeal to it from other courts.
40
The Rules of the Court provide for this.
41
The parties agree that it is necessary for us to consider the
applications.
But
consideration of the applications for leave to appeal, by virtue of
the concession by the parties that it is necessary for
us to
determine them, does not mean that we should determine the outcome
of the applications as we would normally have. We should
do so only
to the extent that it is necessary to avoid injustice.
42
A
balance needs to be struck between the Court’s obligation to
provide finality in this matter (as it would be intolerable
to have
a case pending indefinitely) and possible injustice to the
applicant. These factors weigh heavily in determining the
extent to
which it is in the interests of justice to enter into the merits,
and thus whether to grant leave to appeal.
All
the parties were in agreement that this matter cannot remain
pending. There is a need for finality. This was not disputed.
In
determining the extent to which we should consider the merits,
regard must be had to whether substantial injustice will be
done to
the applicant should this Court refuse to grant leave to appeal. The
underlying right which the applicant seeks to protect
on final
instance to this Court is, importantly, a procedural one: the
rejection of that right will result in the continuance
of a process
only and will not result, without more, in a finding against him on
the substance of the complaint. What is more,
the applicant has had
the benefit of an appeal. These considerations mitigate the threat
of injustice.
In
addition, although the parties have consented to the conflicted
Judges’ sitting in the present matter, regard must still
be
had to the fact that they would ordinarily have to recuse
themselves. For this reason, this Court should deny leave to appeal
to preserve the fairness of its own processes.
Costs
Although
the applications for leave to appeal stand to be dismissed, the
applicant raised important and arguable constitutional
issues. In
accordance with established practice there will be no order as to
costs.
Order
It
is ordered:
1.
Leave to appeal in applications CCT 41/11 and CCT 46/11 is refused.
2.
There is no order as to costs.
CORAM:
Mogoeng CJ, Cameron J, Froneman J, Khampepe J, Skweyiya J, van der
Westhuizen J, Yacoob J and Zondo AJ.
For
the Applicant: Advocate T Masuku, Advocate MK Mathipa and Advocate TS
Sidaki instructed by Xulu Liversage Inc.
For
the Respondent in CCT 41/11: Advocate SP Rosenberg SC, Advocate A
Katz SC and Advocate N Mayosi instructed by Fairbridges Attorneys.
For
the First Respondent in CCT 46/11: Advocate T Bruinders SC, Advocate
N Fourie and Advocate L Sisilana instructed by Bowman Gilfillan
Inc.
For
the First Amicus Curiae: Advocate A Bham SC, Advocate S Budlender and
Advocate I Goodman instructed by the Centre for Applied
Legal
Studies.
For
the Second Amicus Curiae: Advocate PJ Pretorius SC and Advocate I de
Vos instructed by the General Council of the Bar of South
Africa.
For
the Third Amicus Curiae: Mr KP Seabi instructed by the Law Society of
South Africa.
For
the Fourth Amicus Curiae: Advocate R Padayachee SC and Mr S Kunene
instructed by the Black Lawyers Association.
1
Acting
Chairperson: Judicial Service Commission & Others v Premier of
the Western Cape Province
2011 (3) SA 538
(SCA) (Premier’s
SCA challenge).
Freedom Under Law v Acting Chairperson, Judicial
Service Commission & Others
2011 (3) SA 549
(SCA) (Freedom
Under Law’s SCA challenge). Both judgments were delivered on
31 March 2011.
2
Section
12 of the Supreme Court Act 59 of 1959 provides:
“
Constitution
of [the Supreme Court of Appeal]
(1) The quorum of
the [Supreme Court of Appeal] shall, subject to the provisions of
subsection (2), be five judges in all criminal
and civil matters:
Provided that—
(a) an application
under subsection (2) of section four shall be heard and determined
by the [President] and two judges of appeal;
(b) on the hearing
of an appeal, whether criminal or civil, in which the validity of an
Act of Parliament (which includes any
instrument which purports to
be and has been assented to by the State President as such an Act)
is in question, eleven judges
of the [Supreme Court of Appeal] shall
form a quorum;
(bA) the
[President] or, in his or her absence, the senior available judge of
the [Supreme Court of Appeal] may direct that an
appeal in a
criminal or civil matter be heard before a court consisting of three
judges;
(c) whenever it
appears to the [President], or in his absence, the senior available
judge of the [Supreme Court of Appeal] that
any matter, not being an
appeal referred to in paragraph (b), should in view of its
importance be heard before a court consisting
of a larger number of
judges, he may direct that the matter be heard, or if the matter is
already being heard, that the hearing
be discontinued and commenced
anew before a court consisting of so many judges as he may
determine.”
3
Premier’s
SCA challenge above n 1 at para 3.
4
In
varying degrees, as explained in - below.
5
And
two members of the Court were involved in an attempted mediation of
the complaints. See [17] and [20].
6
Section
167 of the Constitution provides, in relevant part:
“
(2)
A matter before the Constitutional Court must be heard by at least
eight judges.
. . .
(4) Only the
Constitutional Court may—
(a) decide disputes
between organs of state in the national or provincial sphere
concerning the constitutional status, powers
or functions of any of
those organs of state;
(b)
decide on the constitutionality of any parliamentary or provincial
Bill, but may do so only in the circumstances anticipated
in
section
79
or
121
;
(c)
decide applications envisaged in
section
80
or
122
;
(d)
decide on the constitutionality of any amendment to
the
Constitution
;
(e) decide that
Parliament or the President has failed to fulfill a constitutional
obligation; or
(f)
certify a provincial constitution in terms of
section
144
.”
7
Premier,
Western Cape v Acting Chairperson, Judicial Service Commission
2010
(5) SA 634 (WCC); 2010 (8) BCLR 823 (WCC).
8
Freedom
Under Law v The Acting Chairperson: Judicial Service Commission and
Others
Case No 63513/09 North Gauteng High Court, 10 December
2010, unreported.
9
Section
178(1) provides in relevant part:
“
(1)
There is a Judicial Service Commission consisting of—
. . .
(k) when
considering matters relating to a specific High Court, the Judge
President of that Court and the Premier of the province
concerned,
or an alternate designated by each of them.”
10
Section
178(6) provides:
“
The
Judicial Service Commission may determine its own procedure, but
decisions of the Commission must be supported by a majority
of its
members.”
11
Directions
issued on 30 May 2011 in matter CCT 41/11 stated in relevant part:
“
1.
Seven of the eleven judges of this Court, Chief Justice Ngcobo,
Deputy Chief Justice Moseneke, Justice Jafta, Justice Nkabinde,
Justice Skweyiya, Justice van der Westhuizen and Justice Yacoob,
were complainants in the complaint that underlies this matter.
2. A further member
of the Court, Justice Mogoeng, was involved in efforts to mediate
the dispute between the Justices concerned
and the applicant.
3. In light of the
above, the parties are directed to lodge written argument by
Wednesday 15 June 2011 on the following questions:
(a) Can the Court
determine the merits of the dispute between the parties?
(b) What is the
position if eight of the eleven members of the Court consider
themselves disqualified from determining the merits
of the dispute,
with the result that only three judges are available?
(c) In this regard,
does section 175(1) of the Constitution read with section 174(3),
(4) and (5), contemplate—
(i) the appointment
of an acting judge or judges when a judge or judges of this Court
recuse themselves from determining a matter;
and
(ii) acting
appointments where the majority of the Court considers itself
disqualified from considering the merits of a matter?
(d) If not, would
any purpose be served by granting the application for leave to
appeal?
(e) Is the doctrine
of necessity in recusal applicable, and, if so, how and to what
extent?
(f) If so, what
order should the Court make?”
Directions
issued on 6 June 2011 in matter CCT 46/11 were identical to these,
except for the cut-off date for lodging of written
argument, which
was set at 22 June 2011.
Further
directions for both matter CCT 41/11 and CCT 46/11 were issued on 8
August 2011. They stated in relevant part:
“
1.
The application for leave to appeal against the judgment of the
Supreme Court of Appeal is set down for oral argument on Thursday
22
September 2011 at 10h00 on solely the following issues:
Since the majority
of the members of the Court consider themselves disqualified from
determining the merits of the dispute,
with the result that only
three judges are available, to what extent, if any, can or should
the Court deal with the application?
Does section
175(1) of the Constitution read with section 174(3), (4) and (5)
contemplate the appointment of acting judges when
the majority of
the members of the Court consider themselves disqualified from
considering the merits of an application?
If the answer to
(b) is No, would any purpose be served by granting the application?
What
order should the Court make?”
12
Section
167(1) provides:
“
The
Constitutional Court consists of the Chief Justice of South Africa,
the Deputy Chief Justice and nine other judges.”
See
Judge President
Hlophe v Premier of the Western Cape
Province; Judge President Hlophe v Freedom under Law and Others
(Centre for Applied Legal
Studies and Others as Amici Curiae)
[2011] ZACC 29
;
2012 (1) BCLR 1
(CC) (
Hlophe
), where the
developments and changes in the composition of this Court since the
applications were lodged are explained more fully.
Three Judges
recused themselves from the proceedings. Jafta J and Nkabinde J (the
two Judges whom the applicant allegedly sought
to influence) as well
as Moseneke DCJ. They are the only remaining serving Justices who
also testified before the JSC in the
proceedings that are the
subject matter of the applications for leave to appeal.
13
Above
n 6. See also
President of the Republic of South Africa and
Others v South African Rugby Football Union and Others
[1999]
ZACC 9
;
1999 (4) SA 147
(CC);
1999 (7) BCLR 725
at para 9.
14
Hlophe
above n 12.
15
And
who are also accused of judicial misconduct by the applicant in his
counter-complaint.
16
The
General Council of the Bar, the Law Society of South Africa,
Advocates for Transformation, the Black Lawyers’ Association
and the National Association of Democratic Lawyers were invited by
the Court to submit written argument on the issues set out
in n 11
above. However, only the General Council of the Bar, the Law Society
of South Africa, and the Black Lawyers’ Association
submitted
written argument and made oral submissions on the day of the
hearing. The Centre for Applied Legal Studies successfully
applied
for admission as amicus curiae, submitted written argument and made
oral submissions on the day of the hearing.
17
See
above n 11.
18
Section
165(1).
19
Section
165(2).
20
Section
167(3)(a).
21
Section
167(3)(b).
22
Section
167(3)(c).
23
Section
174(3) and (4). See also
Justice Alliance of South Africa v
President of the Republic of South Africa and Others
[2011] ZACC
23
;
2011 (5) SA 388
(CC);
2011 (10) BCLR 1017
(CC) (
Justice
Alliance
).
24
Section
175(1).
25
Section
167(6) reads in relevant part:
“
National
legislation or the rules of the Constitutional Court must allow a
person, when it is in the interests of justice and
with leave of the
Constitutional Court—
. . .
(b) to appeal
directly to the Constitutional Court from any other court.”
Rule
19 of the Constitutional Court Rules deals with appeals. In
particular, Rule 19(6)(a) notes that “[t]he Court shall
decide
whether or not to grant the appellant leave to appeal”.
26
S
v Pennington
and Another
[1997] ZACC 10
;
1997 (4) SA 1076
(CC);
1997 (10) BCLR 1413
(CC) (
Pennington
).
27
Section
178(1) reads:
“
(1)
There is a Judicial Service Commission consisting of—
(a) the Chief
Justice, who presides at meetings of the Commission;
(b) the President
of the Supreme Court of Appeal;
(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 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 relating to a specific High Court, the
Judge President of that Court and the Premier of the province
concerned, or an alternate designated by each of them.”
28
Section
178(4).
29
Section
174(3), (4)(a), (4)(c) and (6).
30
Section
177(1)(a) and (3).
31
Section
178(5).
32
Section
178(6), quoted above at n 10.
33
Member
of the Executive Council for Development Planning and Local
Government, Gauteng v Democratic Party and Others
[1998] ZACC 9
;
1998 (4) SA 1157
(CC);
1998 (7) BCLR 855
(CC) at paras 43 and 45;
Du
Plessis and Others v De Klerk and Another
[1996] ZACC 10
;
1996
(3) SA 850
(CC);
1996 (5) BCLR 658
(CC) at para 123;
Ferreira v
Levin NO and Others; Vryenhoek and Others v Powell NO and Others
[1995] ZACC 13
;
1996 (1) SA 984
(CC);
1996 (1) BCLR 1
(CC) at para
172;
S v Mhlungu and Others
[1995] ZACC 4
;
1995 (3) SA 867
(CC);
1995 (7) BCLR 793
(CC) at paras 15, 45 and 105; and
S v
Makwanyane and Another
[1995] ZACC 3
;
1995 (3) SA 391
(CC);
1995
(6) BCLR 665
(CC) at para 10.
34
Natal
Rugby Union v Gould
[1998] ZASCA 62
;
1999 (1) SA 432
(SCA) at 440H-441A.
35
For
example to clear accumulated backlogs in case rolls.
36
Section
90 in relevant part provides:
“
Acting
President
When the President
is absent from the Republic or otherwise unable to fulfil the
duties of President, or during a vacancy in
the office of
President, an office-bearer in the order below acts as President:
The Deputy
President.
A Minister
designated by the President.
A Minister
designated by the other members of the Cabinet.
The Speaker, until
the National Assembly designates one of its other members.”
(Footnote Omitted.)
Section
98 provides:
“
Temporary
assignment of functions
The President may
assign to a Cabinet member any power or function of another member
who is absent from office or is unable to
exercise that power or
perform that function.”
Section
131 provides in relevant part:
“
Acting
Premiers
When the Premier
is absent or otherwise unable to fulfil the duties of the office of
Premier, or during a vacancy in the office
of Premier, an
office-bearer in the order below acts as the Premier:
A member of the
Executive Council designated by the Premier.
A member of the
Executive Council designated by the other members of the Council.
The Speaker, until
the legislature designates one of its other members.”
Section
138 provides:
“
Temporary
assignment of functions
The Premier of a
province may assign to a member of the Executive Council any power
or function of another member who is absent
from office or is unable
to exercise that power or perform that function.”
37
There
is thus no textual justification to dislodge the interpretational
presumption that the same words and phrases in the Constitution
bear
the same meaning. See
S v Dlamini; S v Dladla and Others; S v
Joubert; S v Schietekat
[1999] ZACC 8
;
1999 (4) SA 632
;
1999 (7)
BCLR 771
(CC) at para 47 where this Court noted that the legislature
is presumed to use language consistently.
38
Constitution
of the Republic of South Africa Act 200 of 1993.
39
See
Justice Alliance
above n 23.
40
Pennington
above n 26 at para 25.
41
Rule
19.
42
See
Laws v Australian
Broadcasting Tribunal
[1990] HCA 31
;
(1990)
93 ALR 435
(HC) at 454 (Australia) and
Reference
re Remuneration of Judges of the Provincial Court of Prince Edward
Island
[1998] 1 SCR 3
at 11-4 (Canada).