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[2010] ZAWCHC 80
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Premier of the Western Cape Province v Acting Chairperson: Judicial Service Commission and Others (25467/2009) [2010] ZAWCHC 80; 2010 (8) BCLR 823 (WCC) (31 March 2010)
Reportable
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
Case
No: 25467/2009
Date:
31 March 2010
In
the matter between:
PREMIER
OF THE WESTERN CAPE PROVINCE
Applicant
and
THE
ACTING CHAIRPERSON: JUDICIAL SERVICE
COMMISSION
First
Respondent
THE
JUDICIAL SERVICE COMMISSION
Second
Respondent
CHIEF
JUSTICE SIRRAL SANDILE NGCOBO
Third
Respondent
DEPUTY
CHIEF JUSTICE DIKGANG MOSENEKE
Fourth
Respondent
JUSTICE
CHRISTOPHER NYAOLE JAFTA
Fifth
Respondent
JUSTICE
BAAITSE ELIZABETH NKABINDE
Sixth
Respondent
JUSTICE
THEMBILE LEWIS SKWEYIYA
Seventh
Respondent
JUSTICE
JOHANN VINCENT VAN DER WESTHUIZEN
Eighth
Respondent
JUSTICE
ZAKERIA MOHAMMED YACOOB
Ninth
Respondent
JUSTICE
PIUS NKONZO LANGA
Tenth
Respondent
JUSTICE
THOLAKELE HOPE MADALA
Eleventh
Respondent
JUSTICE
JENNIFER YVONNE MOKGORO
Twelfth
Respondent
JUSTICE
CATHERINE MARY ELIZABETH O'REGAN
Thirteenth
Respondent
JUSTICE
ALBERT LOUIS SACHS
Fourteenth
Respondent
JUSTICE
PRESIDENT MANDLAKAYISE JOHN HLOPHE
Fifteenth
Respondent
JUSTICE
FRANKLYN KROON
Sixteenth
Respondent
Summary
The Constitution of the Republic of South Africa, 1996 - Judicial
Services Commission -composition of the JSC - interpretation
of
section 178(1)(k) of the Constitution - the premier of a province is
entitled to sit as a member of the JSC when it considers
a matter
relating to the composition of a court of the province - this
includes a sitting of the JSC to consider an allegation
of gross
misconduct which might lead to proceedings for the impeachment of a
judge of the court in question - also considered was
the required
numerical composition of the JSC where members were absent, and the
majority necessary for a valid decision.
Coram:
JONES and EBRAHIM JJ
Dates
of hearing: 11 and 12 March 2010
JUDGMENT
JONES J:
[1]
The 15
th
respondent is the Judge President of the Western Cape High Court,
Cape Town. On 30 May 2008 judges of the Constitutional Court
laid a
complaint of misconduct against him with the Judicial Services
Commission ('the JSC'), which is represented herein by its
acting
chairperson, the 1
st
respondent, and which is cited as the 2
nd
respondent
1
.
Subsequently,
the 15
th
respondent laid a counter-complaint against the Constitutional Court
judges which arose out of the lodging of the complaint that
they had
made against him. Over the period 20 to 22 July 2009, and again on 15
August 2009, the JSC met to consider the complaint
and the
counter-complaint. It dismissed them both. The applicant in this
application challenges the outcome of these proceedings.
She does so
in her capacity as Premier of the Western Cape Province. Her
challenge is to the legal validity of the complaint proceedings
on
procedural grounds. The substantive relief in the notice of motion is
for orders
1'Condoning the
non-compliance with the time periods laid down in the rules of Court
and declaring this matter to be one of urgency;
2. Declaring that
Premiers of the provinces of the Republic of South Africa
contemplated in section 103(1) of the Constitution of
the Republic of
South Africa, 1996 ('the Constitution'), or an alternate designated
by them, must be given a reasonable opportunity
to participate as
members in all meetings of the Judicial Service Commission ('the
JSC') when it considers matters relating to
a specific High Court in
the Premiers' respective province, failing which such meetings are
inconsistent with the Constitution
and invalid for want of compliance
with section 178(1)(k) of the Constitution;
3. Declaring that the
proceedings and decisions taken pursuant thereto of the JSC conducted
on 20 to 22 July 2009 and 15 August
2009 ('the proceedings') in
relation to the complaint lodged by the Third to Fourteenth
Respondents and the Sixteenth Respondent
against the Fifteenth
Respondent and the counter-complaint lodged by the Fifteenth
Respondent were unconstitutional and invalid'.
[2] Initially, only the
JSC, through the persons cited as the 1
st
and 2
nd
respondents, filed notices of opposition and opposing affidavits. At
the commencement of the hearing, a late opposing affidavit
by the
15
th
respondent was handed in without opposition, and, also without
opposition, an affidavit in answer thereto by the applicant. In
addition, an affidavit by Johan Christiaan Kriegler, a retired judge
of the Constitutional Court, was placed before us in answer
to
certain allegations in the affidavit by the 15
th
respondent relating to Judge Kriegler. The contents of Judge
Kriegler's affidavit and the matter to which it gave answer in the
15
th
respondent's affidavit were not referred to in argument, and although
Judge Kriegler appeared by counsel to hand in the affidavit,
he took
no further part. No more need be said about his affidavit. The 15
th
respondent based his opposition partly on allegations of bias on the
part of the applicant which are made in his opposing affidavit,
which
are dealt with in the applicant's reply thereto, and which are now
properly before us. The other respondents, the judges
of the
Constitutional Court, have not filed papers or taken part in the
proceedings.
[3] The complaint before
the JSC in this matter, and also the counter-complaint, were
complaints of judicial misconduct. They were
dealt with together by
the JSC because the counter-complaint by the 15
th
respondent arose directly out of the laying of the complaint against
him by the judges of the Constitutional Court. The alleged
acts of
judicial misconduct, however, have nothing in common. The focus in
this application is on the complaint against the 15
th
respondent which, if established, might make him guilty of gross
misconduct in terms of section 177(1) of the Constitution. That
section provides that 'A judge may be removed from office only if-
(a) the Judicial Service
Commission finds that the judge suffers from an incapacity, is
grossly incompetent or is guilty of gross
misconduct; and
(b) the National Assembly
calls for that judge to be removed, by a resolution adopted with a
supporting vote of at least two thirds
of its members'. If the JSC
finds that a judge is guilty of gross misconduct, and if a resolution
of the National
Assembly
for the judge's impeachment is adopted with the requisite majority,
the President
is
obliged by section 177(2) to remove him or her from office.
[4] The issue of whether
the misconduct has been established is not before us in this
application. The applicant seeks to impugn
the decision of the JSC by
reason of its constitutional invalidity on a procedural basis and not
on the merits. She has three grounds
for doing so. She alleges
1. that when the JSC took
its decision it was not properly constituted for want of compliance
with the provisions of section 178(1)(k)
which provides for the
applicant to be a member of the JSC when considering matters relating
to the High Court of her province.
It is common cause that she was
not part of the JSC when it took its decision. The bulk of the
argument before us was devoted to
the interpretation of section
178(1)(k);
2.
in the alternative and in any event, that the JSC was not properly
constituted when it took the decision because only ten of
its members
participated in the decision-making process when there should have
been at least thirteen members (on the JSC's interpretation
of
section 178(1)) to consider complaints against judges; and
3.
as a further alternative, that the decision of the JSC was not
supported by a majority of the JSC's members as required by section
178(6) of the Constitution.
[5] Before dealing with
each of these grounds one by one, I should mention that counsel for
the applicant enjoined us, in the interests
of justice and to avoid a
piecemeal hearing possibly involving different tiers of courts, to
deal with all the issues raised in
the arguments. That is a salutary
approach in a matter such as this. It is not necessary, however, for
us to deal with issues which
are raised in the papers but abandoned
or not pursued in argument.
Thus, the applicant's
heads give answer to potential arguments raised in the papers that
the
Promotion of Administrative Justice Act No 3 of 2000
was not of
application in this matter and that the applicant has no standing to
bring proceedings under that Act. But nobody contends
in this court
that the Act does not apply or that the applicant does not have
standing. Furthermore, an antecedent objection was
raised in the 1
st
and 2
nd
respondents' papers and heads of argument that section 167(4) of the
Constitution deprives this court of jurisdiction to hear this
application because only the Constitutional Court can decide disputes
between organs of State within the national or provincial
sphere. It
also raised a second related objection that the applicant should be
non-suited by reason of the provisions of sections
40 and 41 of the
Constitution which provide for co-operative government and which, so
the heads submitted, preclude litigation
between the parties except
as a last resort. These points were not specifically abandoned, and
they remain in the heads. Mr
Rosenberg
dealt
with the first point as part of his main argument, and stated that he
would, if necessary, deal with the second in reply.
However, Mr
Maleka
for the
1
st
and 2
nd
respondents presented no argument at all in respect of either
antecedent objection, and it was not necessary for Mr
Rosenberg
to say
more in reply than that they had not been argued. I do not believe
that it is necessary for me to say anything about any
of these
matters, other than perhaps to comment that they seem to me to be
without merit.
[6] There is no longer
opposition to allowing the matter to proceed as a matter of urgency.
For the rest, I shall try to deal with
all issues arising in the
papers.
[7] It is convenient, by
way of introduction, to give a brief description of the JSC. It is
created by section 178 of the Constitution
of the Republic of South
Africa, 1996. Section 178(5) empowers it to advise the national
government on any matter relating to the
judiciary and the
administration of justice. Section 174 and section 177, read with
section 178, lay down its duties and functions
in the appointment and
removal of judges. Its independence from the legislative and
executive organs of state is conceded by the
parties and is of
fundamental constitutional importance. This does not, however, mean
that members of the legislative and executive
organs of government
are excluded from membership of the JSC. Its composition is laid down
by section 178. It comprises the Chief
Justice, the President of the
Supreme Court of Appeal, a judge president designated by the judges
president, the cabinet minister
responsible for the administration of
justice, two practising advocates, two practising attorneys, one
teacher of law, and four
persons designated by the head of the
national executive (the President) after consultation with the
leaders of all parties in
the National Assembly. These members,
thirteen in all, may be described as the core members. There are two
additional categories
of member. First, there are six members
designated by the National Assembly (of which three must be members
of opposition parties)
and four members designated by the National
Council of Provinces (who must have the support of at least six
provinces). In terms
of section 178(5), the JSC must sit without them
when it considers all matters except the appointment of a judge.
Second, when
the JSC considers matters relating to a specific High
Court, the Judge President of that court and the Premier of the
province
concerned are also members of the JSC (section 178(1)(k)).
Provision is made for the appointment of alternate members and for
the
replacement of members.
The interpretation of
section 178(1)(k)
[8] The applicant's
contention is that because she, as Premier of the Western Cape
Province, was not part of the JSC when it met
to consider the
complaint of judicial misconduct against the Judge President of the
Western Cape High Court, the proceedings were
a nullity. The
correctness of this contention will depend on the meaning of section
178(1) of the Constitution, which says:
178 Judicial Service
Commission
(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.
At issue is the meaning
to be given to section 178(1)(k)
2
.
The
subsection makes the Premier
of
a province a member of the JSC only
when
considering matters relating to a specific High Court
.
The
applicant argues that the clear wording and intention of that phrase
required
her participation in the JSC proceedings of 20 to 22 July 2009 and 15
August 2009
when it considered the
complaint against the 15
th
respondent. The JSC and the 15
th
respondent
contend that, properly interpreted, the subsection has no application
to a matter
involving
the alleged misconduct of a judge, and that her exclusion was
accordingly not an
irregularity.
[9] The intention of the
legislature in determining the composition of the JSC when
considering matters relating to a specific High
Court must be seen in
the light of section 178(1) as a whole. When considering matters
relating to a specific High Court, the section
enacts that the JSC
shall consist of all the members referred to subsection 178(1)(a) to
(g)
(the judges, the Minister
of Justice, members of the legal profession, and the law teacher).
These members sit on the JSC in all
matters. So do the four members
designated by the President in terms of subsection 178(1)(j). This
obviously includes matters relating
to a specific High Court. In
addition there are two special members in terms of subsection
178(1)(k): the Judge President of the
High Court, and the Premier of
the province. The ten members referred to subsection 178(1)(h) and
(i) (the members designated by
the two legislative bodies) are
excluded. Regard being had to the plain wording of sections 178(1)(k)
and section 178(5) and the
different choice of the wording of the two
sections, it is clear to me that the JSC has been constructed in a
structured and careful
manner to include the members who sit in all
JSC matters and to add two members with a special interest in the
High Court in question.
The involvement of the two additional members
is not limited to particular matters relating to their High Court.
They are involved
in all matters relating to their High Court. That
is the plain meaning of the phrase
'
when
considering matters relating to a specific High Court'
in the
section.
[10] Mr
Newdigate
for the
15
th
respondent commenced his argument before us by making the point that
'the phrase
"relating
to"
3
may connote
either a remote connection or a close relationship. It may be used in
a wide sense embracing almost anything which has
any reference to
another matter or in a more restricted sense . . .'
(United
Dominions Corporation (SA) Ltd
v
Tyrer
1960
(3) SA 321
(T) at 323A-B and
Johannesburg
City Council
v
Victteren
Towers (Pty) Ltd
1975
(4) SA 334
(W) 336A-B). That is so. But the first question is not
whether the phrase must be given a narrow or a wide interpretation.
It is
whether or not the meaning of the phrase in the context of
section 178 and in the context of the Constitution as a whole is
clear
and unambiguous. If its meaning is unambiguous, it is the duty
of the court to give effect to it. Whatever the boundaries of a
purposive interpretation may be, the court has no power to depart
from the clearly expressed intention of the Constitution because
it
thinks that the Constitution should have said and meant something
else. See S v
Zuma
[1995] ZACC 1
;
1995
(2) SA 642
(CC) para 17.
[11] I can see no reason
to conclude that the Constitution is
unclear
or
ambiguous
when it
makes the Premier of a province a member of the JSC when considering
matters relating to the specific High Court of his
or her province.
It is so that the provision is of general import. But that is surely
intentional, just as intentional as the provision
which excludes
members of the national and provincial legislatures from sitting when
the JSC considers all matters other than the
appointment of a judge.
There is nothing vague or inconsequential or irrational about making
him or her a member when the JSC sits
for the purpose of considering
a matter relating to
the
composition
of
the High Court of his or her province. There is certainly nothing in
the wording of the section which can justify a restrictive
interpretation that he or she is a member for the purpose of
considering the composition of 'his or her' High Court except where
the matter involves the misconduct of one of the judges of that Court
and hence that judge's possible exclusion from its composition.
Unlike the exclusion of members of the national and provincial
legislatures, provision is not expressly made for it, which makes
it
unlikely that that is what the Constitution really intends. Mr
Rosenberg
's
argument on behalf of the applicant is compelling that the
composition of the High Court - the judges who make up its compliment
- is clearly a matter relating to a specific High Court. Indeed, the
role of the JSC in the appointment of judges under section
174 and
the removal of judges under section 177 is described as pivotal in
the
First
Certification Judgment (Ex parte the Chairperson of the
Constitutional Assembly: In re certification of the Constitution of
the RSA
1996
(4) SA 744
para 120). Equally compelling is his argument that,
because the appointment of a judge is a matter relating to the
composition
of a specific High Court (which, it is common cause,
entitles the Premier to membership of the JSC when it considers
appointments),
so, too, matters which could result in the removal of
a judge from the compliment of its judges. To hold otherwise is
inconsistent
and illogical.
[12] Mr
Maleka
(for
the 1
st
and 2
nd
respondents) and Mr
Newdigate
(for
the 15
th
respondent)
attempted to circumvent the inconsistency and illogicality. They
point to differences between the procedure and consequences
of
appointment on the one hand and removal (which requires a judicial
process of adjudication) on the other, and argue that it
is
artificial to regard one as the flip side of the coin of the other
for the purposes of interpreting the section. Of course there
are
differences. But these differences do not imply that they do not both
relate to the composition of the High Court in question,
and it seems
to me that the real artificiality is an interpretation which does not
recognize that relationship.
[13] Mr
Maleka's
main
argument was that in the case of a complaint of judicial misconduct
the JSC does not sit to consider a matter relating to a
specific High
Court within the meaning of section 178(1(k). It sits to consider the
particular conduct of an individual judge,
which is something
different. The argument is that a complaint against a judge is not a
complaint against the court in which the
judge sits. It may have
nothing to do with the conduct of litigation in that court or his or
her membership of it. It is his or
her personal conduct which is the
matter to be considered by the JSC. In principle, therefore, so the
argument goes, the JSC does
not consider matters relating to a
specific High Court when it sits to investigate a complaint of
misconduct which is laid against
an individual judge. Its
consideration is confined to an investigation of the facts upon which
the allegation of misconduct is
grounded. Mr
Maleka
argued
that the principle is well illustrated by the facts of this
complaint. The Constitutional Court judges do not complain that
the
15
th
respondent acted as the Judge President of the Western Cape High
Court, or in his capacity as a judge of that Court. He is alleged
to
have made suggestions designed to influence judges of the
Constitutional Court in their judgment in a particular case pending
before them. But he is not alleged to have done so in his Court, in
his official capacity as a judge of his Court, or in respect
of a
case which emanated from his Court. The argument is that on the facts
the complaint investigated by the JSC on 20 to 22 July
2009 and 15
August 2009 had nothing to do with the Western Cape High Court.
[14] This argument is
ill-conceived. In seeking to support it, Mr
Maleka
submitted
that the applicant's case erroneously conflates a matter relating to
a specific High Court and a matter relating to an
individual member
of that Court. That is not so. The error is Mr
Maleka
's
assumption that because judicial misconduct involves, as it always
must, the particular conduct of an individual judge in particular
circumstances, it is therefore not a matter relating to his or her
specific High Court when that conduct comes to be investigated
following a formal allegation of judicial misconduct. It should not
be forgotten that all judges are members either of the Constitutional
Court, or the Supreme Court of Appeal, or the High Court of a
province. Their alleged misconduct is a matter of the utmost
importance
not only to the administration of justice as a whole, but
also to that of the Court in which they operate on a daily basis. I
do
not understand the suggestion that the consideration of the
alleged misconduct of a judge is not a matter which relates to his or
her Court. The details of the misconduct - whether it be, for
example, taking a bribe from a litigant (which arises directly out
of
the performance of judicial duties), or whether it be an act of
dishonesty where the judge seeks, for example, to defraud his
or her
personal creditors (which need not arise out of the performance of
judicial duties) - is of secondary importance to the
present inquiry.
Of prime importance is the need to hold an investigation into the
allegation against the judge in question, an
investigation properly
conducted before the constitutional body created to carry it out.
Such an investigation is, in my view,
unquestionably a matter which
relates to the specific High Court of which the judge is a member
because of the consequences of
its outcome to that Court. That it
also relates to the good administration of justice as a whole does
not take it out of the category
of matters which, at the same time,
relate to the specific High Court. My conclusion is that the narrow
meaning of section 178(1)(k)
for which the 1
st
and
2
nd
respondents contend is unsustainable.
[15] Mr
Newdigate
for the
15
th
respondent also argued for a narrow interpretation. His argument is a
principled one, based on the independence of the judiciary
and the
doctrine of separation of powers. The submission is that the
applicant placed undue emphasis on the ordinary meaning of
the words
'matters
relating to'
a
specific High Court, which, according to her, signify and require no
more than a connection between the matter being considered
and a
specific High Court, and which is, according to her, sufficiently
established if the judge concerned is a member of that
Court. Mr
Newdigate
submitted
that the context of the section not only justifies but requires a
more confined interpretation. This context is provided
by the
independence of the judiciary and the doctrine of separation of
powers. These are principles which go to the root of constitutional
interpretation in a matter such as this. It is indeed so, as he
argued, that the doctrine of separation of powers is enshrined
in the
structure and spirit of the Constitution, and that the independence
of the courts from the executive and legislative branches
of the
State is of fundamental constitutional importance. See
South
African Association of Personal Injury Lawyers
v
Heath
[2000] ZACC 22
;
2001
(1) SA 883
(CC) paras 25-26. It is also so, as he argued, that the
procedure for the removal of judges under section 177 can potentially
make
serious inroads into the rights, duties and functions of a
particular judge and the judiciary generally. He accordingly argued
that that section and those related to it should be interpreted so as
to avoid as far as possible placing the independence of the
courts in
jeopardy. This can and should be done by interpreting the
Constitution to exclude members of the executive branches of
government, such as the applicant, from the process of disciplining
or impeaching a judge. Both he and Mr
Maleka
make
the point that there are no sound reasons of policy for specially
including the premier of a province among those called upon
to
investigate and discipline a judge for misconduct or to recommend his
or her removal from office. He or she has no special skills
or
knowledge as head of the provincial executive which call for him or
her to be part of the adjudicative process of section 177(1)(a)
in
determining whether a judge is guilty of gross misconduct. There is,
he submitted, no constitutional purpose in making him or
her part of
an inquiry into the alleged misconduct of a judge. He accordingly
argued that the narrow interpretation of section
178(1)(k) for which
he contended was consistent with a proper understanding of the
Constitution, the true purpose of the section,
and the proper
functioning of the JSC.
[16] These arguments are
all very well as far as they go. I can see merit in the suggestion
that judges, or at any rate lawyers,
are in the best position to
determine whether or not a judge is guilty of gross misconduct. But I
can also see merit in a dispensation
which, for reasons of both
constitutional policy and social accountability (as to which see
section 1(d) of the Constitution),
particularly in the light of the
history of the administration of justice in this country, widens the
adjudicative process to include
in the investigation tribunal persons
who are not judges or lawyers. Mr
Newdigate
's
argument is sound only if it is in line with what the Constitution
says and intends. The Constitution gives its considered attention
to
persons who sit on the JSC when it is called upon to determine,
inter
alia,
matters
relating to judicial misconduct. It specifically excludes the ten
members of the national and provincial legislatures. It
also says and
intends that persons other than judges or persons with a legal
background should be part of the process. Included
are the Minister
of Justice as the cabinet minister responsible for the administration
of justice (section 178(1)(d)) and the four
members designated by the
President as head of the national executive, after consulting the
leaders of all parties in the National
Assembly (section 178(1)(j)).
These members are there by reason of their designation, and not as
lawyers. Clearly, the Constitution
considered and required the
inclusion of a member of national government and representatives of
the leader of national government.
On the face of it, it also
considered and admitted to membership the leader of provincial
government in matters relating to the
High Court of his or her
province. It is not, in my view, possible to conclude that the
Constitution did not have the doctrine
of separation of powers and
the independence of the judiciary very much in mind when it
constructed the JSC. I can find no justification
for concluding that
the Constitution does not mean what it says when it includes members
of the executive branch of national government
(the Minister and the
President through his nominees) and provincial government (the
Premiers) as member of the JSC in matters
involving the High Court of
the province in question. I can see reason for restricting the wide
terms in which it has chosen to
do so. The reasons for the narrow
interpretation for which the 15
th
respondent contends have a measure of attraction, but in my view they
cannot prevail.
Whether, in any event,
the JSC was improperly constituted
[17] When the JSC sat
on 20 to 22 July 2009 and 15 August 2009 to consider the complaint
and the counter-complaint, it was composed
of only ten members.
Absent were the Chief Justice, Mr Ntsebeza SC, and one of the
practising advocates who had been or should
have been appointed in
terms of section 178(1)(e). The applicant contends that the JSC was
not properly constituted because its
full complement was not in
attendance during the proceedings and the decision-making process.
The argument is based on the principle
laid down in
Schierhout
v
Union
Government (Minister of Justice)
1919
AD 30
and the line of
cases which follow it,
particularly in respect of adjudication processes
4
.
Innes CJ puts the general rule thus in the
Schierhout
case
(at p 44):
When several persons are
appointed to exercise judicial powers, then in the absence of
provision to the contrary, they must all
act together; there can only
be one adjudication, and that must be the adjudication of the entire
body
(Billings
v
Prinn,
2
W. B1., p. 1017). And the same rule would apply whenever a number of
individuals were empowered by Statute to deal with any matter
as one
body; the action taken would have to be the joint action of all of
them (see
Cook
v
Ward,
2 CPD
255
;
Darcy
v
Tamar
Railway Co,
L.R.
3 Exch., p. 158, etc.), for otherwise they would not be acting in
accordance with the provisions of the Statute.
The rule is not absolute.
Proceedings need not be regarded as a nullity if there are sound
reasons for the non-attendance of a member.
The papers explain that
the Chief Justice was excluded because he is one of the parties (the
10
th
respondent). The papers also explain that Mr Ntsebeza recused himself
because he had been the 15
th
respondent's legal representative in other related proceedings.
Although Mr
Rosenberg
pointed
out that an
ad
hoc
member
could have been appointed in substitution of Mr Ntsebeza, the
applicant appeared to accept the soundness of the reasons for
the
non-participation of these two members. But she takes the view that
the second practising advocate's absence is notsatisfactorily
explained and she therefore complains that the JSC was not properly
constituted because at least one member was not present.
[18] I agree that the
absence of at least one member of the JSC was not satisfactorily
explained. This was despite the applicant's
invitation to the 1
st
and 2
nd
respondents to give a proper explanation in a fourth affidavit (see
Tantoush
v
Refugee
Appeal Board
[2007] ZAGPHC 191
;
2008
(1) SA 232
(T) para 70 and 71)
5
.
On the face of it, therefore, this objection is good. Mr
Maleka
argued
that the situation was rescued by section 2(5)(a) of the Judicial
Services Commission Act which provides that a vacancy in
the
Commission shall not affect the validity of the proceedings or
decisions of the Commission. This provision only applies once
it has
been established that there was a vacancy. There is no evidence
before us that there was a vacancy. The evidence on behalf
of the 1
st
and 2
nd
respondents was simply that the second representative of the
advocates' profession had not yet been appointed which, in my view,
is an admission that the JSC was not properly constituted. I conclude
that the second objection to the validity of the proceedings
before
the JSC is well taken.
The absence of a
majority
[19] Section 178(6) of
the Constitution provides that decisions of the JSC must be
'supported by a majority of its members'. The
debate between the
applicant and the 1
st
and 2
nd
respondents is whether this means a majority of members who compose
the JSC, or whether it is a majority of those who attended.
Mr
Maleka
's
heads submitted that for good reasons of policy the JSC does not
disclose how the voting on a particular decision went, and that
there
was insufficient evidence to conclude that the majority was not a
sufficient majority. His argument in this court, however,
was that it
was common cause that there was a majority of six to four, and he
confined himself to the bald submission (a) that
the section requires
no more than a bare majority of members present; and (b) that on the
facts presented by the applicant, this
majority - six out of the ten
members present - was indeed attained. In view of the conclusion that
the JSC should have been composed
of fifteen members, a majority of
six to four is not a majority. Even if the JSC should have been
composed of thirteen and not
fifteen members, six does not make up a
majority. It is only a majority if the JSC can be regarded as having
been properly constituted
when it sat with only ten members. I am of
opinion that a majority merely of those who happened to attend is
insufficient. The
result is that in my view the third objection -
that the JSC decision was not supported by the requisite majority -
was also well
taken.
The applicant's
entitlement to relief
[20] There are two
further points to be considered. They both relate to the relief which
should be ordered if the application is
successful. At the close of
argument, the applicant confined her claim for relief to an order in
terms of paragraph 3 of the notice
of motion, and a costs order
against the 1
st
and 2
nd
respondents. The 1
st
,
2
nd
and 15
th
respondents argued that even if she is successful on the law, her
relief should be confined to a declarator in terms of paragraph
2 of
the notice of motion that the Premiers of the provinces are entitled
to sit on the JSC when it considers matters relating
to the High
Court of their province, but that she should not be granted an order
in terms of paragraph 3. Paragraph 3 is for an
order declaring that
the proceedings and decisions taken in pursuance of the JSC hearing
of 20 to 22 June 2009 and 15 August 2009
were unconstitutional and
invalid.
[21] First is the
argument by the 15
th
respondent that, regardless of how section 178(1)(k) of the
Constitution should be interpreted, the applicant has not made out
a
case for the relief in paragraph 3 of the notice of motion because
the point is moot and an order in those terms would be meaningless.
The basis for this argument is that an order in terms of paragraph 3
would require a re-hearing of the complaint and counter-complaint
by
the JSC with the applicant as a member, which would be an exercise in
futility because the applicant has disqualified herself
from sitting
as a member of the JSC by reason of statements she has made in public
about the 15
th
respondent. These statements are set out in the 15
th
respondent's
opposing affidavit. I prefer not to deal with their content. It is
sufficient to reject the 15
th
respondent's argument on the basis that the constitutional importance
of the interpretation of section 178(1)(k) is, in my opinion,
not
moot and neither are any of the other points raised in this judgment;
that the fitness of the applicant to sit as a member
of the JSC in
any particular matter in the future is not before us; and that it is
in my judgment inappropriate for this court
to consider, let alone to
determine, her possible disqualification from being part of a JSC
hearing in the future, or, if she should
decide not to sit, her
possible disqualification from appointing an alternate.
[22] The second point is
an argument by the 1
st
and 2
nd
respondents that we should exercise a discretion in terms of section
172(1)(b) to refuse the order sought by the applicant in terms
of
paragraph 3 on the ground that it is just and equitable to do so. The
suggestion is that it is just and equitable in the circumstances
of
this case to limit the retrospective effect of our decision by
allowing the decisions of the JSC to stand even though they are
unconstitutional and invalid. I have difficulty with the notion that
it is just and equitable to allow an unconstitutional decision
to
stand where the decision relates to allegations of serious judicial
misconduct. In my judgment there are insufficient reasons
placed
before us in this case to justify the exercise of a discretion to
refuse the applicant relief in the terms sought, if we
indeed have
such a discretion.
Order
[23] There will be the
following order.
1. The proceedings before
of the Judicial Services Commission on 20 to 22 July 2009 and 15
August 2009, and the decision to dismiss
the complaint and
counter-complaint which were the subject of those proceedings, are
declared to be unconstitutional and invalid
and are set aside.
2.
The
1
st
and
2
nd
respondents
are ordered to pay the costs of this application, which shall include
the costs of two counsel.
RJW
JONES
Judge
of the High Court
31
March 2010
EBRAHIM
J I agree
S
EBRAHIM
Judge
of the High Court
1
In making the complaint the judges of the Constitutional Court acted
collectively as a group of individual judges and not institutionally
as a court. See
Langa
CJ
v
Hlophe
2009
(4) SA 382
(SCA) 390E.
2
Subparagraph
(k) was substituted by s. 2 of the Constitution Second Amendment Act
of 1998 and by s. 16 (b) of the Constitution
Sixth Amendment Act of
2001. The wording of the original subsection, the amendments, and
the subsection's predecessor, section
105(1)(j) of the Interim
Constitution, 1994, does not assist one way or the other in the
interpretation of the present subsection.
The provisions of the
Judicial Services Commission Act No 9 of 1994 also do not assist.
3
My emphasis.
4
Watchenuka
v
Minister
of Home Affairs
2003
(1) SA 619
(C) 626F-627G approved by the full bench in
Ruyobeza
v Minister of Home Affairs
2003
(5) SA 51
(C), and see
2004 (4) SA 326
(SCA);
Minister
of Health
v
New
Clicks (SA) (Pty) Ltd
2006
(2) SA 311
(CC) paras 170-171;
Yates
v
University
of Bophuthatswana
1994
(3) SA 815
(B)
847I-849B;
Schoultz
v
Personeel-Advies
Komitee van die MunisipaleRaad van George
1983
(4) SA 689
(C) 707F-H;
S
v
Naude
1975
(1) SA 681
704G-H;
R
v
Price
1955
(1) SA 219(A)223E-G.
5
See
also
Sigaba
v
Minister
of Defence and Police
1980
(3) SA 535
(Tk) 550E-G;
Pretoria
Portland Cement Co Ltd
v
Competition
Commissioner
2003
(2) SA 385
(SCA) para 63;
Da
Mata
v
Otto
NO
1972
(3) SA 858
(A) 868G-869E;
Thint
(Ply) Ltd
v
NDPP:
Zuma
v
NDPP
[2008] ZACC 13
;
2008
(2) SACR 421
(CC) para 325 and footnote 112 (Ngcobo J, dissenting).