Cape Bar Council v Judicial Service Commission and Others (11897/2011) [2011] ZAWCHC 388; 2012 (4) BCLR 406 (WCC); [2012] 2 All SA 143 (WCC) (30 September 2011)

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[2011] ZAWCHC 388
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Cape Bar Council v Judicial Service Commission and Others (11897/2011) [2011] ZAWCHC 388; 2012 (4) BCLR 406 (WCC); [2012] 2 All SA 143 (WCC) (30 September 2011)

IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT, CAPE TOWN)
CASE NO: 11897/2011
In the matter between:
THE CAPE BAR COUNCIL
…....................................................................
Applicant
and
THE JUDICIAL SERVICE COMMISSION
…..................................
First
Respondent
THE CHAIRPERSON,
JUDICIAL SERVICE COMMISSION
….....................................
Second Respondent
THE CENTRE FOR CONSTITUTIONAL RIGHTS
….................
First
Amicus Curiae
NORTONS INC
….................................................................
Second
Amicus Curiae
______________________________________________________________
J U D G M E N T
______________________________________________________________
KOEN J
:
Introduction
[1] The applicant, the governing body of the Cape
Bar, a society of duly admitted advocates, applies for the following
relief, as
amplified during argument
1
,
against the Judicial Service Commission, as the first respondent, and
the chairperson of the Judicial Service Commission, as the
second
respondent:
‘
1.
Condoning non-compliance with the rules of court and directing that
the application be heard as one of urgency in terms of rule
6(12);
2. Declaring that the
proceedings of the first respondents (‘the JSC’) on 12
April 2011 were inconsistent with the Constitution,
unlawful and
consequently invalid;
3. Declaring that the failure by
the JSC on 12 April 2011 to fill two judicial vacancies on the Bench
of this Court (‘the
WCHC’) is unconstitutional and
unlawful;
4. Directing the JSC, properly
constituted, to reconsider afresh the applications of the short
listed candidates who were not selected
on 12 April 2011 for two
vacancies on the WCHC (and who persist with their applications) in
the light of the judgment of this Court;
5. Granting further or
alternative relief.'
[2] The application is supported by two amici curiae. The first
amicus curia is the Centre for Constitutional Rights, a non-party

political and non-profit unit of the F W de Klerk foundation, a
registered charitable trust. The second amicus curiae is Nortons
Inc,
a specialist firm of attorneys practising primarily in competition
law, specialist litigation and general regularity work,
which it
maintains gives it an interest in the important public interest
issues at stake in the application.
The meeting of the JSC sought to be
reviewed
:
[3] The application concerns the validity of the proceedings and
actions of the JSC at its meeting of 12 April 2011 (‘the

meeting’) when it convened to interview and select candidates
for judicial appointment in respect of three vacancies on the
bench
of the WCHC. One candidate, Henney J, was recommended by the JSC for
appointment and was subsequently appointed by the President
of the
Republic of South Africa in terms of s 174(6) of the Constitution on
that advice of the JSC. No candidates were recommended
in respect of
the other two vacancies and they thus remained vacant.
Factual background
:
[4] Earlier during 2011, the JSC advertised three vacancies for
judicial appointment in respect of the WCHC and invited persons
to
apply. Numerous persons applied. A sub-committee of the first
respondent produced a short list of seven candidates for the three

vacancies. The seven candidates were advocate R A Brusser SC, Ms J I
Cloete, advocate N Fitzgerald SC, Mr (now Judge) RCA Henney,
Mr SJ
Koen, advocate S Olivier SC, and advocate O L Rogers SC.
[5] The first respondent interviewed the short listed candidates on
12 April 2011. Thereafter it took a decision to recommend one,
namely
Henney J, for one of the posts. No other recommendations were made.
[6] When the aforesaid shortlisted candidates were interviewed and
their selection decided upon, the President of the Supreme Court
of
Appeal (‘the SCA’) was not present at the meeting. Nor
was the Deputy President of the SCA present at the meeting.
The 12
th
of April 2011 was the last day of a session of the JSC which had
commenced on the 4
th
April 2011 and terminated on the 12
th
April 2011. The President of the SCA had left the meetings of the JSC
on the evening of the 11
th
April 2011 with the permission
of the Chief Justice as President of the JSC. The Deputy President of
the SCA was not invited to
join the meeting as an alternate to the
President of the SCA. Neither the President nor Deputy President of
the SCA accordingly
played any part in the deliberations of the
meeting on 12 April 2011.
[7] The JSC has not sought to provide any reasons for its failure to
request the attendance of the Deputy President of the SCA.
[8] When accused that the failure by the JSC to fill the two judicial
vacancies on the WCHC was irrational, unfairly discriminatory
and
unreasonable and otherwise unconstitutional and unlawful, the
respondents advanced two explanations. The first is that the
‘reason’
for the failure to select any of the remaining six unsuccessful
candidates was that none of them received
a majority of votes from
the members of the JSC. The second was that it is not possible for
the respondents to provide reasons,
and that it is in any event not
legally required to do so.
[9] Three of the unsuccessful candidates, who were supported by the
applicant namely advocates Fitzgerald SC, Olivier SC, and Rogers
SC,
and in particular Rogers SC who is referred to by all in glowing
terms, were acknowledged by the spokesman of the JSC, as ‘excellent

in terms of technical competence’.
[10] The answering affidavit records that ‘there is no dispute
that the three candidates who are referred to are fit and
proper and
are appropriately qualified persons.’
[11] After the private deliberations by the members of the JSC, the
members present at the meeting voted on each of the candidates.

Thirteen or more members
2
of the JSC voted in favour of Mr Acting Justice Henney, twelve
members voted in favour of Advocate Rogers SC. The other short listed

candidates did not receive a sufficient number of votes. Fitzgerald
SC and Olivier SC (as with Rogers SC) subsequently consented
to the
number of votes cast in their favour being made public. Fitzgerald SC
secured nine votes and Olivier SC secured one vote.
The numbers of
votes cast in favour of Brusser SC, Ms Cloete, and Mr Koen are not
known.
The locus standi in iudicio of the applicant
:
[12] Although the respondents record that they dispute that the
rights or interests of members of the applicant would be adversely

affected by the decision of the JSC to recommend only one candidate,
the deponent states that he does not wish to take issue with
the
legal standing of the applicant to bring the application. That
concession is correctly made as the applicant’s members
in the
course of performing their functions as advocates and appearing in
the WCHC in pursuing justice for those they represent,
would clearly
have an interest in any appointment of judges to this division. More
specifically, they would have a legal interest
in the extended sense
contemplated in s 38 of the Constitution.
The legal framework relevant to this judgment
:
[13] The Republic of South Africa is founded on the values inter alia
of supremacy of the constitution and the rule of law
3
.
The Constitution is the supreme law. All law including the common law
derives its source from the Constitution
4
.
[14] In terms of section 2 of the Constitution:
(a) the Constitution is the supreme law of the Republic; and
(b) obligations imposed by it must be fulfilled.
[15] The first respondent is an organ of state as per the definition
of ‘organ of state’ in section 239(b)(i) of the

Constitution, being a ‘functionary or institution …
exercising a power or performing a function in terms of the
Constitution...’
[16] Accordingly, the JSC is bound by the Bill of Rights in terms of
s 8(1) of the Constitution.
[17] The composition of the first respondent is regulated by s 178(1)
of the Constitution, the relevant parts of which provide:
‘
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;
(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.
…
(4) The Judicial Service
Commission has the powers and functions assigned to it in the
Constitution and national legislation.
…
(6) The Judicial Service
Commission may determine its own procedure, but decisions of the
Commission must be supported by a majority
of its members.
(7) If the Chief Justice or the
President of the Supreme Court of Appeal is temporarily unable to
serve on the Commission, the Deputy
Chief Justice or the Deputy
President of the Supreme Court of Appeal, as the case may be, acts as
his or her alternate on the Commission.
(8) The President and the
persons who appoint, nominate or designate the members of the
Commission in terms of subsection (1) (c),
(e), (f) and (g), may, in
the same manner appoint, nominate or designate an alternate for each
of those members, to serve on the
Commission whenever the member
concerned is temporarily unable to do so by reason of his or her
incapacity or absence from the
Republic or for any other sufficient
reason.’
[18] The JSC has determined its own procedure, referred to as
‘Procedure of Commission’
5
.
Paragraph 1 to the Schedule to the Procedure of Commission provides
that:
‘
a
selection made by "majority vote" is one made with the
support of at least an ordinary majority of all the members of
the
Commission…’
Paragraph 2 deals with Judges of the Constitutional Court.
Paragraph 2(k) provides in respect of the appointment of Judges of
the Constitutional Court, that ‘(a)fter completion of
the
interviews, the Commission shall deliberate in private and shall, if
deemed appropriate, select the candidates to be recommended
for
appointment in terms of section 174 (4) of the Constitution by
consensus or, if necessary, by majority vote’.
Paragraph 2(l) provides that ‘(t)he chairperson and deputy
chairperson of the Commission shall distil and record the
Commission's
reasons for recommending the candidates selected’.
Paragraph (2) (m) provides that ‘(t)he Commission shall advise
the President of the Republic of the names of the candidates

recommended for appointment and of the reasons for their
recommendation’.
Paragraph 3 deals with the procedure for the selection of candidates
for appointment as Judges of the High Court and reads as follows:
‘
3. The
procedure for the selection of candidates for appointment as judges
of the High Court in terms of section 174 (6) of the
Constitution
shall be as follows:
(a) The President of the Supreme
Court of Appeal or responsible Judge President shall inform the
Commission when a vacancy occurs
or will occur in the Supreme Court
of Appeal or any provincial or local division of the High Court.
(b) The Commission shall inform
the institutions of the vacancy and shall call for nominations by a
specified closing date.
(c) A nomination contemplated in
paragraph (b) shall consist of -
(i) a letter of nomination which
identifies the person making the nomination, the candidate and the
division of the High Court for
which he or she is nominated;
(ii) the candidate's written
acceptance of the nomination;
(iii) a detailed
curriculum
vitae
of the candidate which shall disclose his or her formal
qualifications for appointment as prescribed in section 174(1) of the
Constitution,
together with a questionnaire prepared by the
Commission and completed by the candidate; and
(iv) such further pertinent
information concerning the candidate as he or she or the person
nominating him or her, wishes to provide.
(d) After the closing date, all
the members of the Commission shall be provided with a list of the
candidates nominated with an
invitation to -
(i) make additional nominations
should they wish to do so and such nominations shall comply with the
requirements of paragraph (c)
above; and
(ii) inform the screening
committee of the names of the candidates, if any, who they feel
strongly should be included in the short
list of candidates to be
interviewed.
(e) The screening committee may,
in its discretion, receive and consider nominations received after
the specified closing date and
shall prepare a short list of
candidates to be interviewed, which shall include all candidates who
qualify for appointment and
who -
(i) are referred to in paragraph
(d) (ii); or
(ii) in the opinion of the
screening committee or any of its members, have a real prospect of
selection for appointment.
(f) (i) The short list of
candidates proposed by the screening committee shall forthwith be
submitted to the members of the Commission.
(ii) Within 7 days of receipt of
the short list any member of the Commission may request the Secretary
of the Commission in writing
to add to the short list the name of any
candidate who was duly nominated but who was not included in the
short list and who the
member feels strongly should be added to the
short list of candidates to be interviewed.
(iii) The name of any such
candidate shall thereupon be added to the short list.
(g) The short list shall be
distributed to the institutions for comment by a specified closing
date.
(h) After the closing date
referred to in paragraph (g), the short list and all the material
received on short-listed candidates
shall be distributed to all the
members of the Commission.
(i) The Commission shall
interview all short-listed candidates.
(j) The interviews contemplated
in paragraph (i) shall be open to the public and the media subject to
the same rules as those ordinarily
applicable in courts of law and
shall not be subject to a set time limit.
(k) After completion of the
interviews, the Commission shall deliberate in private and shall, if
deemed appropriate, select the
candidates for appointment by
consensus or, if necessary, majority vote.
(l) The Commission shall advise
the President of the Republic of the name of the successful candidate
for each vacancy.
(m) The Commission shall
announce publicly the name of the successful candidate for each
vacancy.’
[19] Section 174 of the Constitution provides for the 'appointment of
judicial officers in the following terms:
‘
(1) Any appropriately qualified woman or
man who is a fit and proper person may be appointed as a judicial
officer. Any person to
be appointed to the Constitutional Court must
also be a South African citizen.
(2) The need for the judiciary to reflect broadly the racial and
gender composition of South Africa must be considered when judicial

officers are appointed.
(3) The President as head of the national executive, after consulting
the Judicial Service Commission and the leader of parties
represented
in the National Assembly, appoints the Chief Justice and the Deputy
Chief Justice and, after consulting the Judicial
Service Commission,
appoints the President and Deputy President of the Supreme Court of
Appeal.
(4) The other judges of the Constitutional Court are appointed by the
President, as head of the national executive, after consulting
the
Chief Justice and the leaders of parties represented in the National
Assembly, in accordance with the following procedure:
a) The Judicial Service Commission must prepare a list of nominees
with three names more than the number of appointments to be
made, and
submit the list to the President.
(b) The President may make appointments from the list, and must
advise the Judicial Service Commission, with reasons, if any of
the
nominees are unacceptable and any appointment remains to be made.
(c) The Judicial Service Commission must supplement the list with
further nominees and the President must make the remaining
appointments
from the supplemented list.
…
(6) The President must appoint the judges of all other courts on the
advice of the Judicial Service commission.
…’
[20] Section 195 of the Constitution requires that public
administration be governed by inter alia 'the democratic values and
principles enshrined in the Constitution' including principles that
it must be ‘accountable’
6
and that ‘(t)ransparency must be fostered …’
7
.
The role of the JSC:
[21] The JSC serves a unique and crucial function in the South
African judicial system, whether one accepts the construction that
it
has sole responsibility for deciding who should be appointed as
judges to the various High Courts
8
,
or whether one inclines to the view that the President retains some
limited form of discretion as the respondents contended. The
latter
construction is however difficult to reconcile with the imperative
terms of s 174(6) of the Constitution.
[22] The role of the Judicial Service Commission in the appointment
of judges under s 174 and their removal under s 177 was, not

surprisingly, described as "pivotal" in the first
certification judgment
9
.
The nature of the powers exercised by the JSC in considering
appointments to the High Court and the review thereof:
[23] In selecting judges for appointment to the various High Courts,
the JSC exercises a public power conferred in terms of a
constitutionally imposed mandate.
[24] The control of public power is always a constitutional matter
10
.
[25] An incident of the Rule of Law referred to in s 1(c) of the
Constitution, is the principle of legality. The principle of legality

entails that a body exercising public power ‘may exercise no
power and perform no function beyond that conferred upon them
by
law’
11
.
[26] A further principle of the Rule of Law is that the exercise the
public power may not be arbitrary, but must be rational
12
.
[27] The test for rationality is whether there is 'a rational
objective basis justifying the connection made by the administrative

decision maker between the material properly available to him and the
conclusion he or she eventually arrived at'
13
.
[28] Public administration is governed by “the democratic
values and principles enshrined in the Constitution” including

that of accountability and transparency
14
.
It has been held referring to sections 1, 49 (1) and 195 of the
Constitution that ‘accountability of those exercising public

power is one of the founding values of our Constitution and its
importance is repeatedly asserted in the Constitution’
15
.
[29] A public body created to serve the public’s interest must
perform its functions openly and transparently and only reach

decisions which are not irrational or arbitrary
16
.
That is consistent with a ‘culture of justifications and a
central principle of accountable governance’
17
.
This culture of accountability, transparency and decisions not being
irrational or arbitrary “signals a decided rejection
of past
odious laws, policies and practices
18
.
The requirement of accountability extends to all organs of State and
Public Enterprises
19
.
[30] ‘(T)he duty to give reasons when rights or interests are
affected has been stated to constitute an indispensable part
of the
sound system of judicial review. Unless the person affected can
discover the reason behind the decision, he or she may be
unable to
tell whether it is reviewable or not and so may be deprived of the
protection of the law. Yet it goes further than that.
The giving of
reasons satisfies the individual that his or her matter has been
considered and also promotes good administrative
functioning because
the decision makers know that they can be called upon to explain
their decisions and thus be forced to evaluate
all the relevant
considerations correctly and carefully. Moreover, as in the present
case, the reasons given can help to crystallize
the issues should
litigation arise'
20
.
An analysis of the applicant’s relief
:
[31] In paragraph 2 of the Notice of Motion the applicant seeks a
declaratory order to the effect that the proceedings of the first

respondent on 12 April 2011 were inconsistent with the Constitution,
unlawful and consequently invalid. Paragraph 4 of Notice of
Motion is
consequential upon that relief in that it directs the first
respondent, should the relief in paragraph 2 be granted,
to
reconsider afresh the applications of the short listed candidates who
were not selected on 12 April 2011 for the two remaining
vacancies on
the WCHC. The basis for this relief is the applicant’s
contention that the first respondent was not properly
composed on
that day due to the absence of the President of the Supreme Court of
Appeal and his Deputy (referred to as the ‘composition
argument
issue’).
[32] In paragraph 3 of the Notice of Motion the applicant claimed a
declaratory order that the failure by the first respondent
on 2 April
2011 to fill the two judicial vacancies on the bench of the WCHC is
unconstitutional and unlawful. Consequential upon
that relief would
also be the relief in paragraph 4 of the Notice of Motion directing
the first respondent to reconsider afresh
the applications of the
short listed candidates who were not selected on 12 April 2011 for
the two vacancies. The basis for this
relief is the applicant’s
contention that the first respondent had acted arbitrarily or
irrationally and further possibly
unreasonably in not recommending
any candidate, particularly the candidates the CBC supported and then
specifically Rogers SC for
appointment (referred to as the
‘substantive issue’).
[33] The relief in paragraphs [31] and [32] will be dealt with
seriatim. Before doing so it is, however, necessary to refer to
two
preliminary points raised by the respondents in opposition to the
relief claimed.
The preliminary points raised by the respondents
[34] The respondents have raised two points which they submit should
be considered first because if successful, these would result
in the
application either being dismissed or adjourned. They are:
(a) the failure of the applicant to demonstrate that the application
is based on a valid legal cause of action (the ‘cause
of
action’ issue); and
(b) the effect of the failure of the applicant to join the
unsuccessful candidates as co-respondents (the ‘non-joinder’

issue, which issue was extended also to include the non-joinder of
the successful candidate, Henney J).
As regards the cause of action issue, the respondents have proceeded
from the premise that the conduct of the JSC could potentially
only
be reviewable in terms of the provisions of the Promotion of
Administrative Justice Act No 3 of 2000 (‘PAJA’),
and
because decisions and the failure to take decisions regarding the
appointment of judges, is specifically excluded from the
definition
of ‘administrative action’ in that Act, the conduct of
the JSC did not amount to administrative action and
therefore was not
reviewable at all.
The scheme of this judgment
:
[35] The applicant pursues two separate declaratory orders, referred
to in paragraphs 2 and 3 of the Notice of Motion. The relief
in
paragraph 4 of the Notice of Motion is consequential to the
declaratory orders being granted. The respondents’ preliminary

objection of lack of a valid cause of action, will first be
considered in respect of both.
[36] The judgment will thereafter deal firstly with the composition
issue and then the substantive issue.
[37] The non-joinder issue is inextricably linked to the nature of
the claims made, the nature of the relief claimed, and the impact
of
the relief claimed. It is convenient to deal with that issue
(notwithstanding it having been raised as a “preliminary

point”) after having examined the applicant’s claims.
The alleged lack of a valid cause of action:
[38] In the founding affidavit the applicant states that it relies
both on the principle of legality and PAJA, in the alternative,
as
the basis for reviewing the conduct of the JSC.
[39] The respondents proceed from the premise that the conduct of the
JSC is only reviewable in terms of PAJA and that entertaining
a
review on the basis that the conduct of the JSC is inconsistent with
the Constitution and is an infringement of the rule of law
principle,
is impermissible as it essentially treats the Constitution as
instrument made up of discrete sections, s 1 being separate
from and
independent of s 33. The respondents submit that allowing a litigant
two separate and independent causes of action based
on two sections
of the Constitution, is misconceived.
[40] Their argument proceeds as follows. Section 1 of the
Constitution sets out the foundational values of our constitutional
democracy. Section 1 (c) lays down the general principle that our
Constitutional democracy is based on the rule of law. The other

sections of the Constitution, particularly, those outlined in the
Bill of Rights in chapter 2, give greater content to the principle
of
the Rule of Law, often referred to as the legality principle
21
.
They continue that it is important to bear in mind that when a
litigant basis her or his cause of action on the provisions of
the
Constitution, especially a cause of action based on one of the
sections found in the Bill of Rights, the litigant must found
the
cause of action on the relevant provision in the Bill of Rights and
not on the general provision found in s 1 (c) of the Constitution.

Section 1, they argue, is not a self-standing section that can be
invoked independently of other sections when the other sections

already provide a remedy. They find support for this approach in the
words of the Constitutional Court stating:
'
The values enunciated in s 1 of
the Constitution are of fundamental importance. They inform and give
substance to all the provisions
of the Constitution. They do not,
however, give rise to discrete and enforceable rights in themselves.
This is clear not only from
the language of s 1 itself, but also from
the way the Constitution is structured and in particular the
provisions of Ch 2, which
contains the Bill of Rights'
22
.
[41] The argument is further that chapter 2 of the Constitution
establishes a ‘Bill of Rights’, being the cornerstone
of
democracy in South Africa, which enshrines the rights of all people
in our country (s 7 (1)) of the Constitution. In terms of
s 8 (1) of
the Constitution, the Bill of Rights binds inter-alia, ‘all
organs of State’. S 33 of the Constitution is
part of the Bill
of Rights and provides that everyone has a right to ‘just
administrative action’. It required the
legislature to enact
legislation to give effect to this right of ‘just
administrative action’. PAJA is that legislation.
It is a
comprehensive statute covering every legal ground of review there is
in South African law. Accordingly, there is no ground
of review in ss
1 (c) and 33 of the Constitution that is not included in PAJA as PAJA
gives content and meaning to the provisions
of s 33 of the
Constitution. The respondents find support for this view in the
statement by the Constitutional Court that ‘PAJA
is the
national legislation that was passed to give effect to the rights
contained in s 33. It was clearly intended to be, and
in substance
is, a codification of those rights. It was required to cover the
field and purports to do so’
23
.
[42] The purpose of s 33, according to the respondents, is that PAJA
has now put an end to any further claims for judicial review
based on
the common law as it contains all the grounds of review under the
Constitution, which is wider in scope than the grounds
of review in
the common law
24
.
Support for this construction they find in the judgment of Chaskalson
CJ in
Minister of Health v New Clicks SA (Pty) Ltd and Others
25
where he held that the purpose of s 33 was ‘to establish a
coherent and overarching system for the review of all administrative

action.’ It is argued that it is on this basis that the
Constitutional Court has found that delegated legislation can be

reviewed in terms of the provisions of PAJA, even though the
definition of "administrative action" in s 1 of PAJA does

not make any mention of delegated legislation
26
.
[43] The respondents refer to the judgment in New Clicks, where the
Constitutional Court, per Ngcobo J held
27
that:
‘
Our
Constitution contemplates a single system of law which is shaped by
the Constitution. To rely directly on s 33 (1) of the Constitution

and on the common law when PAJA which was enacted to give effect to s
33, is applicable, is, in view, inappropriate. It will encourage
the
development of two parallel systems of law. Yet this court has held
that there are not two systems of law regulating administrative

action - the common law and the Constitution. And in
Bato
Star
we
underscored this, holding that 'the Courts' power to review
administrative action no longer flows directly from the common law

but from PAJA and the Constitution itself'.
Where, as here, the Constitution requires Parliament to enact
legislation to give effect to the constitutional rights guaranteed
in
the Constitution, and Parliament enacts such legislation, it will
ordinarily be impermissible for a litigant to found a cause
of action
directly on the Constitution without alleging that the statute in
question is deficient in the remedies it provides.
Legislation
enacted by Parliament to give effect to a constitutional right ought
not to be ignored. And where a litigant founds
a cause of action on
such legislation, it is equally impermissible for a court to bypass
the legislation and to decide the matter
on the basis of the
constitutional provision that is being given effect to by the
legislation in question.’
[44] They submit that the provisions of PAJA are not merely consonant
with, but give effect to the principle of the rule of law
(the
legality principle) as spelt out in s 1 of the Constitution. Section
6 (2) of PAJA specifies the grounds of review and s 6(2)(i)
provides
for a review of administrative action that ‘is otherwise
unconstitutional and unlawful’. The respondents argue
that this
includes conduct which would otherwise be reviewable in accordance
with the principle of legality. To ignore the provisions
of PAJA and
to go directly to the provisions of s 1(c) of the Constitution for
relief based on the grounds of review specified
in PAJA is, according
to their submission, to render the provisions of PAJA nugatory, which
itself would be contrary to the principle
of the rule of law as it
would deny Parliament the roll or status conferred upon it by the
Constitution.
[45] Founding a cause of action outside the parameters of PAJA, it is
submitted by the respondents, is anathema to our Constitutional

democracy. As there is no cause of action that can be founded outside
the provisions of PAJA, and as PAJA specifically precludes
a review
of any decision by the JSC relating to the nomination, selection and
appointment of a judicial officer, the concluding
submission is that
the claim by the applicant accordingly fails to disclose a legal
cause of action. As only this one category
of decision is immunised
from the review provisions of PAJA, they submit that this clearly
indicates that the legislature took
a deliberate policy decision to
exclude decisions regarding the ‘nomination, selection and
appointment of judicial officers’
from any review. Absent a
constitutional challenge to the provisions of PAJA, more particularly
the exclusion, which they submit
is clear, crisp and unambiguous, no
legal cause of action has been disclosed.
[46] I am not persuaded that the submissions by the respondent are
correct.
[47] The Constitutional Court has held that the exercise of all
public power must comply with the Constitution. In
Fedsure Life
Assurance Limited and Others v Greater Johannesburg Transitional
Metropolitan Council and Others
28
Goldstone J held:
'It seems central to the conception of our constitutional order that
the Legislature and Executive in every sphere are constrained
by the
principle that they may exercise no power and perform no function
beyond that conferred upon them by law. At least in this
sense, then,
the principle of legality is implied within the terms of the interim
Constitution. Whether the principle of the rule
of law has greater
content than the principle of legality is not necessary for us to
decide here. We need merely hold that fundamental
to the interim
Constitution is a principle of legality.'
[48] In
President of the Republic of South Africa and Others v
South African Rugby Football Union and Others
29
the Court held:
“
It is
clear that under our new constitutional order the exercise of all
public power, including the excise of the President’s
powers
under s 84 (2), is subject to the provisions of the Constitution,
which is the supreme law. If this is not done, the exercise
of the
power can be reviewed and set aside by the Court. That is what this
Court held in
President
of the Republic of South Africa and Another v Hugo.
It is
clear also that s 84 (2) (f) of the Constitution confers the power to
appoint commissions of enquiry upon the President alone.
The
Commissions Act also confers the power to declare its provisions
applicable to a commission of enquiry upon the President alone.
The
Judge was therefore, correct in law when he held that, if the
President had indeed abdicated either of these powers to another

person, that abdication would have been invalid.”
[Footnotes
omitted]
[49] In
Pharmaceutical Manufacturers Association of SA and
Another: In re ex parte President of the Republic of South Africa and
Others
30
,
after referring to the
Fedsure
judgment and that of
President
of the Republic of South Africa and Others v South African Rugby
Football Union and Others,
Chaskalson P said:
'One of the constitutional
controls referred to is that flowing from the doctrine of legality.
Although Fedsure was decided under
the interim Constitution, the
decision is applicable to the exercise of public power under the 1996
Constitution, which in specific
terms now declares that the rule of
law is one of the foundational values of the Constitution.'
[Footnotes omitted]
Further on
31
he held:
'The exercise of all public
power must comply with the Constitution, which is the supreme law,
and the doctrine of legality, which
is part of that law. The question
whether the President acted
intra vires
or
ultra vires
in bringing the Act into force when he did is, accordingly, a
constitutional matter. The finding that he acted
ultra vires
is a finding that he acted in a manner that was inconsistent with the
Constitution.'
[50] Significant are the following portions of that judgment:
'[85] It is a requirement of the
rule of law that the exercise of public power by the Executive and
other functionaries should not
be arbitrary. Decisions must be
rationally related to the purpose for which the power was given,
otherwise they are in effect arbitrary
and inconsistent with this
requirement. It follows that in order to pass constitutional scrutiny
the exercise of public power by
the executive and other functionaries
must, at least, comply with this requirement. If it does not, it
falls short of the standards
demanded by our Constitution for such
action.
[86] The question whether a
decision is rationally related to the purpose for which the power was
given calls for an objective enquiry.
Otherwise a decision that,
viewed objectively, is in fact irrational, might pass muster simply
because the person who took it mistakenly
and in good faith believed
it to be rational. Such a conclusion would place form above substance
and undermine an important Constitutional
principle.
...
[89] ... What the Constitution
requires is that public power vested in the Executive and other
functionaries be exercised in an
objectively rational manner. ...
[90] Rationality in this sense
is a minimum threshold requirement applicable to the exercise of all
public power by members of the
Executive and other functionaries.
Action that fails to pass this threshold is inconsistent with the
requirements of our Constitution
and therefore unlawful ...'
[Footnotes omitted]
[51] In
Affordable Medicines Trust and Others v Minister of Health
and Others
32
,
Ngcobo J said the following:
'[48] Our Constitutional
democracy is founded on, among other values, the "(s) supremacy
of the Constitution and the rule of
law". The very next
provision of the Constitution declares that the "Constitution is
the supreme law of the Republic
..."
[49] The exercise of public
power must therefore comply with the Constitution, which is the
supreme law, and the doctrine of legality,
which is part of that law.
The doctrine of legality, which is an incident of the rule of law, is
one of the constitutional controls
through which the exercise of
public power is regulated by the Constitution. It entails that both
the Legislature and the Executive
“are constrained by the
principle that they may exercise no power and perform no function
beyond that conferred upon them
by law". In this sense the
Constitution entrenches the principle of legality and provides the
foundation for the control of
public power.
...
[74] The exercise of all
legislative power is subject to at least two constitutional
constraints. The first is that there must be
a rational connection
between the legislation and the achievement of a legitimate
government purpose. As this Court has observed,
the idea of the
constitutional State presupposes a system whose operation can be
rationally tested. Thus when Parliament enacts
legislation that
differentiates between groups and individuals, it is required to act
in a rational manner. In
New
National Party of South Africa v Government of the Republic of South
Africa and Others,
the
Court held that the rational connection test is the standard for
reviewing legislation holding that:
"The first of the
constitutional constraints placed upon Parliament is that there must
be a rational relationship between the
scheme which it adopts and the
achievement of a legitimate governmental purpose. Parliament cannot
act capriciously or arbitrarily.
The absence of such a rational
connection will result in a measure being unconstitutional".
[75] The same is true of the
exercise of public power by members of the Executive and other
functionaries. The Constitution places
"significant constraints
upon the exercise of public power through the bill of rights and the
founding principle enshrining
the rule of law". The exercise of
such power must be rationally related to the purpose for which the
power was given. As this
Court held in the Pharmaceutical case:
“
[85]
It is requirement of the rule of law that the exercise of public
power by the Executive and other functionaries should not
be
arbitrary. Decisions must be rationally related to the purpose for
which the power was given, otherwise they are in effect arbitrary
and
inconsistent with this requirement. It follows that in order to pass
constitutional scrutiny the exercise of public power by
the Executive
and other functionaries must, at least, comply with this requirement.
If it does not, it falls short of the standard
demanded by our
Constitution for such action.
[86] The question whether a
decision is rationally related to the purpose for which the power was
given calls for an objective inquiry.
Otherwise a decision that,
viewed objectively, is in fact irrational, might pass muster simply
because the person who took it mistakenly
and in good faith believed
it to be rational. Such a conclusion would place the form above
substance and undermine an important
constitutional principle”.
[76] The other Constitutional
constraint is the Bill of Rights. Legislation must not infringe any
of the fundamental rights enshrined
in the Bill of Rights. The rights
in the Bill of Rights may, however, be limited by a law of general
application. But such a limitation
is limited by the limitations
contained in s 36 (1) of the Constitution or "elsewhere in the
Bill [of Rights]". A limitation
that does not comply with such
limitations, infringes the right in question.' [Footnotes omitted]
[52] The aforesaid dicta must be understood in the light of the
provisions of paragraph (aa) of the definition of ‘administrative

action’ in PAJA, which expressly excludes inter alia ‘the
executive powers or functions of the National Executive…’

from constituting ‘administrative action’ and hence being
reviewable in terms of PAJA.
[53] In
Masetlha v President of the Republic of South Africa and
Another
33
,
the Constitutional Court found that the decision to dismiss the
Head of the National Prosecuting Authority was not reviewable under

the provisions of PAJA but said as follows:
'[81] It is therefore clear that the exercise of the power to dismiss
by the President is constrained by the principle of legality,
which
is implicit in our constitutional ordering. Firstly, the President
must act within the law and in a manner consistent with
the
Constitution. He or she therefore must not misconstrue the power
conferred. Secondly the decision must be rationally related
to the
purpose for which the power was conferred. If not, the exercise of
the power would, in effect, be arbitrary and at odds
with the rule of
law.'
[54] More recently in
Albutt v Centre For the Study of Violence
and Reconciliation and Others
34
,
in which the Constitutional Court set aside a decision of the
President to pardon prisoners because it offended the principle
of
rationality, the following was said:
‘
[81]
What must be stressed here is the point that I have already made:
this case concerns applications for pardon that are brought
under the
special dispensation, the question being whether the victims of the
crime that fall under this category of applications
for pardon are
entitled to a hearing. Once this question is answered in the
affirmative in the light of the context - specific
features of the
special dispensation, it is not necessary to consider the question
whether the exercise or the power to grant pardon
under s 84 (2) (j)
constitutes administrative action. That broad, general question was
not before the High Court, which should
not have posed and answered
it, and we need not answer it in this case. Nor should we reach the
question whether PAJA, upon its
proper construction, includes within
its ambit the exercise of the power the grant pardon under s 84 (2)
(j)’.
This follows after Ngcobo CJ earlier held:
‘
[49] It is by now axiomatic that the
exercise of all public power must comply with the Constitution, which
is the supreme law, and
the doctrine of legality, which is part of
the rule of law. More recently, and in the context of s 84 (2) (j),
we held that, although
there is no right to be pardoned, an applicant
seeking pardon has a right to have his application "considered
and decided
upon rationally, in good faith, [and] in accordance with
the principle of legality." It follows therefore that the
exercise
of the power to grant pardon must be rationally related to
the purpose sought to be achieved by the exercise of it.
[50] All this flows from the supremacy of the Constitution. The
President derives the power to grant pardon from the Constitution
and
that instrument proclaims it own supremacy and defines the limits of
the powers it grants. To pass constitutional muster therefore,
the
President's decision to undertake the special dispensation process,
without affording victims the opportunity to be heard,
must be
rationally related to the achievement of the objectives of the
process. If it is not, it falls short of the standard that
is
demanded by the Constitution.
[51] The Executive has a wide discretion in selecting the means to
achieve its constitutionally permissible objectives. Courts
may not
interfere the means selected simply because they do not like them, or
because there are other more appropriate means that
could have been
selected. But, where the decision is challenged on the grounds of
rationality, courts are obliged to examine the
means selected to
determine whether they are rationally related to the objectives
sought to be achieved. What must be stressed
is that the purpose of
the enquiry is to determine not whether there are other means that
could have been used, but whether the
means selected are rationally
related to the objectives sought to be achieved. And if, objectively
speaking, they are not, they
fall short of the standard demanded by
the Constitution. This is true of the exercise of the power to pardon
under s 84 (2) (j).’
[55] The JSC is enjoined in terms of provisions of s 174 of the
Constitution to make recommendations regarding the appointment
of
Judges to the High Court. That constitutes the exercise of a public
power. How that power is exercised, or not exercised, or
whether it
is appropriately exercised i.e. the control thereof, is always a
constitutional matter. It is a principle of the rule
of law which
requires that the exercise of that public power may not be arbitrary
but must be rational. That is the basis upon
which public power may
be reviewed; in accordance with the principle of legality.
[56] If the exercise of a particular constitutional power also
amounts to administrative action, which is reviewable in terms of

PAJA, then additional grounds of review, such as provided for in s 6
of PAJA, may also come into play. However, even where PAJA
might not
find application, any organ of State exercising public power will
still be accountable for the exercise of any constitutionally

mandated power conferred upon it.
[57] This requirement of accountability is one of the founding values
of the Constitution. In exercising, or not exercising a
constitutional power, the particular organ of state must be
accountable and transparent as required by s 195(1)(f) and (g) of the

Constitution. It does so by showing that there is a rational
objective basis between the power conferred and its decision.
[58] Where a public power is to be exercised, it is thus reviewable
in accordance with the principle of legality, quite apart from

whether it is reviewable in terms of PAJA.
[59] Not all administrative action involves the exercise of a public
power and would therefore be constitutional matter. Where
the power
exercised is not a public power, the only grounds of review, if it
constitutes administrative action, may be in terms
of PAJA. If PAJA
applies, the grounds of review would be wider than would be
applicable if conduct is reviewed simply on the basis
of the
principle of legality (which is confined to arbitrariness and
rationality). Certain conduct may be excluded from the definition
of
administrative action in PAJA and thus not be reviewable on the wider
grounds provided for in PAJA, but this does not mean,
if it involves
the exercise of a public power, that the same conduct, even if not
reviewable in terms of PAJA for example due to
it being excluded from
the definition of "administrative action", it is not
reviewable in accordance with the principle
of legality. However if
conduct falls outside the definition of administrative action for the
purposes of PAJA and does not involve
the exercise of a public power
or constitutional power, then it might not be reviewable at all, more
specifically the common law
35
.
[60] The conduct of the JSC in failing to fill the two vacancies is
reviewable on the principle of legality and then specifically
on the
grounds that as a body enjoined with the constitutional function of
making recommendations regarding the appointment of
Judges, it must
be accountable for its failure to do so in a transparent manner to
demonstrate that its failure was not arbitrary
or irrational. Unless
what is sought to be reviewed falls within one of the exclusions in
the definition of ‘administrative
action’ or any other
provision of PAJA, its conduct would also be reviewable in terms of
the provisions of PAJA
36
.
[61] I turn next specifically to the relief claimed and the basis
upon which such relief was claimed.
[62] In support of the relief in paragraphs 2 and 4 of the Notice of
Motion, the applicant relies on the Constitution for its cause
of
action.
[63] It is common cause between the parties, and undoubtedly a
correct statement of the law, that all conduct of the JSC constitutes

an exercise of public power
37
.
Indeed, the respondents contend that the JSC ‘had exercised its
powers and performed it constitutional mandate in accordance
with the
dictates of the Constitution and the law.’
[64] The issue whether the JSC was properly constituted when it
exercised its constitutional powers, concerns a constitutional
issue,
reviewable in accordance with the principle of legality.
[65] In any event, the Supreme Court of Appeal has held that the
issue of the correct composition of the JSC has nothing to do
with
PAJA and is an issue of legality
38
.
This court is bound by that decision unless it is distinguishable.
Although that decision was sought to be distinguished from
the
present case on the basis that it dealt with the composition of the
JSC when considering the removal and not the appointment
of a judge,
and with the issue whether the Premier of the Province where the
judge was appointed was required to be invited to
serve on the JSC,
and not whether the President of the Supreme Court of Appeal and his
deputy should be present when considering
the appointment of a judge,
the principle established by the SCA that the composition of the JSC
is an issue of legality is in
my view clearly correct.
[66] The applicant’s claim for the relief in paragraphs 2 and 4
of the Notice of Motion is accordingly founded on a valid
legal cause
of action, namely the principle of legality.
[67] As regards the relief claimed in paragraphs 3 and 4 of the
Notice of Motion (‘the substantive issue’), the
respondents
submit that that the applicant’s complaint relates
to the failure of the JSC to take decisions to fill the two
vacancies.
This they maintain would only be reviewable in terms of
the provisions of PAJA, that it amounted to a failure to take a
decision,
and that such failure to take a decision related to "any
aspect regarding the nomination, selection or appointment of a
judicial
officer by the Judicial Service Commission, as contemplated
in exclusion (gg) to the definition of ‘administrative action’

in PAJA. Accordingly the respondents submit that as the applicant
brought the application in terms of the provisions of PAJA, it
has no
valid cause of action available to it.
[68] In addition the respondents contend that the decision is not
reviewable in terms of PAJA on the basis that the decision to

recommend only one candidate for the three vacant posts does not
adversely affect the rights of any person.
[69] The first point to note is that the applicant did not base its
cause of action in this regard only on PAJA but also on the
basis
that the failure to fill the two vacancies is inconsistent with the
Constitution and is an infringement of the rule of law
principle as
enunciated in s 1 of the Constitution. Insofar as the latter is
concerned, the relief claimed is based on a valid
cause of action.
Although the applicant’s argument focused largely on that
principle as the basis for the relief claimed,
it did not confine the
review of the JSC’s failure to fill the remaining two vacancies
to an infringement of the rule of
law and the principle of legality,.
It therefore remains necessary to consider whether a review in terms
of PAJA was also available
as a valid cause of action.
[70] Regarding PAJA, the issue specifically is whether the JSC’s
failure to take decisions to fill the two vacancies, fall
within the
definition of ‘administrative action’.
[71] ‘administrative action’ is defined in section 1 of
PAJA (omitting the irrelevant parts thereof) to mean:
‘
..any
decision taken, or any failure to take a decision, by –
an organ of state, when –
exercising a power in terms of
the Constitution…
…
.
…
.
which adversely affects the
rights of any person and which has a direct, external legal effect,
but does not include –
the executive powers or
functions of the National Executive…
…
a decision relating to any
aspect regarding the nomination, selection, or appointment of a
judicial officer or any other person,
by the Judicial Service
Commission in terms of any law;
…
."
[72] Although the definition of ‘administrative action’
initially covers both ‘any decision taken, or any failure
to
take a decision’, it is significant that the exclusion refers
only to a ‘decision relating to any aspect regarding
the
nomination, selection, or appointment of a judicial officer or any
other person, by the Judicial Service Commission’
and not to
the failure to take such a ‘decision’. The provisions of
paragraph (gg) contrast with that of paragraph
(hh) which covers not
only ‘any decision taken…’ but also a ‘…failure
to take a decision’.
The omission of any reference to a
‘failure to take a decision’ in paragraph (gg) therefore
appears to be deliberate.
In accordance with the well established
principle that different words in a statute connote different
concepts, especially where
the change occurs in immediately
successive sections within the same statute
39
,
the exclusion in subparagraph (gg) could only have been intended to
refer to a decision taken and not the failure to take a decision.
[73] Accordingly, the applicant submits that the action by the JSC on
12 April 2011 in failing to fill the two vacancies constituted
a
‘failure to take a decision’ as contemplated in the
definition of administrative action in PAJA.
[74] The respondents, no doubt mindful of the absence of any
reference to a ‘failure to take a decision’ make the
submission
40
that the JSC made one decision in relation to the three vacant posts,
namely, it took a decision to recommend only Judge Henney
and not to
recommend any of the unsuccessful candidates’. They do so with
reference to the contents of paragraph 118 of the
answering affidavit
where the deponent states that ‘the JSC took a decision not to
recommend any of the unsuccessful candidates’,
in the sense
that none of the unsuccessful candidates secured a majority. That
paragraph however contrasts with the contents of
paragraph 106.5 of
the answering affidavit where it is recorded that ‘the JSC did
not take a conscious and deliberate decision
not to fill the two
vacancies’.
[75] The aforesaid submissions by the deponent appear to have been
influenced by an attempt to mould the facts to fit the law.
The true
facts can only be established from a reading of the answering
affidavit as a whole. A decision is taken by the JSC when
the votes
are cast. Although no conscious and deliberate decision not to fill
the two vacancies was taken, the fact is that the
JSC was faced with
a decision to be made as to whether the individual unsuccessful
candidates were to be appointed to the two vacancies.
That is a
decision in respect of Rogers SC (decided by a vote), Fitzgerald SC
(decided by a vote), Olivier SC (decided by a vote)
and the others.
Because the required majority could not be secured in respect of the
unsuccessful candidates, the ‘decision’
in each instance
in respect of each unsuccessful candidate was not to appoint them due
to not obtaining the required majority.
Those were the ‘decisions’
of the JSC in respect of each of the individual unsuccessful
candidates.
[76] It is not an instance where it can be said that there was a
‘failure to take a decision’. Individual decisions
were
taken. Particularly, in respect of each unsuccessful candidate it was
a decision ‘relating to any aspect regarding the
…
selection or appointment of a judicial officer … by the
Judicial Service Commission’. Accordingly, the failure
to fill
the vacancies did not amount to ‘administrative action’
as contemplated in section 1 of PAJA, and is not reviewable
in terms
of the provisions of PAJA.
[77] The aforesaid construction is reinforced by the definition of
‘decision’ in s 1 of PAJA, which in paragraph (a)
thereof
includes ‘making, suspending, revoking or
refusing to make
an order, award or
determination
’ and subparagraph (g)
which refers to ‘doing or
refusing to do
any other act
or thing of an administrative nature, and a reference to
a failure
to take the decision must be construed accordingly
’
(emphasis added). The JSC did not refuse or fail to make a
determination in respect of each of the unsuccessful candidates
as to
whether or not they could secure the required majority.
[78] In the light of the conclusion that the failure by the JSC to
fill the vacancies is not reviewable in terms of PAJA, it is
not
strictly necessary to consider the further argument that the decision
to recommend only one candidate and not fill the other
two vacancies,
did not adversely affect the rights of the applicant. If that failure
was otherwise reviewable in terms of PAJA,
then I would certainly
incline to the view that the rights of the applicant, representing
its members, were affected adversely.
[79] But the JSC process culminating in the result where the
vacancies were not filled, remains the exercise of a public power.
It
remains reviewable in accordance with the principle of legality. On
that basis there is a valid legal cause of action on which
the relief
claimed in paragraphs 3 and 4 of the Notice of Motion may be founded.
The respondents’ initial objection that
the founding affidavit
does not disclose a valid cause of action accordingly falls to be
dismissed.
The composition of the first respondent on 12 April 2011
:
[80] The composition of the JSC is constitutionally mandated,
reflecting a balance between members with legal training and other

members appointed by the Government. Section 178 (1), set out in
paragraph [17] above prescribes the composition thereof.
[81] The first respondent serves a unique and crucial function as it
has sole responsibility for deciding who should be appointed
as
Judges to the High Courts
41
.
[82] Neither s 178 prescribing the composition of the JSC nor any
other provision in the Constitution provides that the first
respondent may be comprised and consist of only some of the persons
referred to in s 178 (1). The Constitution does not stipulate
a
quorum for the JSC. Nor does it provide that the JSC may determine a
quorum
42
.
The Procedure of Commission, determined by the first respondent,
similarly makes no provision for a quorum of the JSC either.
The
Judicial Service Commission Act
43
also does not provide for a quorum.
[83] Section 178(7) of the Constitution provides:
‘
If the
Chief Justice or the President of the Supreme Court of Appeal is
temporarily unable to serve on the Commission, the Deputy
Chief
Justice or the Deputy President of the Supreme Court of Appeal, as
the case may be, acts as his or her alternate on the Commission.’
[84] In making provision for alternates for certain members of the
JSC, it is clearly implied that at least those positions (if
not all
the positions on the JSC) must be occupied either by the member named
or his alternate. Indeed, in providing for alternates
it is ensured
that the work and the functions of the JSC would not be hamstrung by
the inability of one of its members temporarily
to attend a
particular meeting.
[85] The Judicial Service Commission in s 2(3)(a) provides that a
vacancy shall not affect the validity of the proceedings or decisions

of the commission. I am not persuaded that this provision is
necessarily constitutional, but even assuming it is, it simply
ensures
that proceedings and decisions of the first respondent are
not invalidated by the fact that a vacancy has not yet been filled.
It does not deal with the position of the ‘temporary absence’
of members of the JSC during a meeting, as distinct from
a ‘vacancy’
occurring.
[86] In all the provisions of the Constitution and also the Procedure
of Commission, particularly paragraph 3 thereof, it is significant

that the powers in each instance to interview short listed candidates
and perform other functions in relation to the appointment
of judges,
are conferred upon ‘the Commission’, which could only be
to the Commission, comprised as defined in s 178
of the Constitution.
[87] The definition section of the Procedure of Commission, apart
from defining ‘the Commission’ as the ‘the
Judicial
Service Commission’ provides that ‘a selection made by
"majority vote" is one made with the support
of at least an
ordinary majority of
all the members of the Commission
.’
(emphasis added). A selection cannot be made simply by a majority of
some unspecified lesser number, but not ‘all
the members’
of the JSC.
[88] In
Premier, Western Cape v Acting Chairperson, Judicial
Services Commission
44
,
Jones J with Ebrahim J concurring, found that for the first
respondent to be properly constituted when considering the removal
of
a Judge, its full complement must be in attendance during the
proceedings and the decision making process, unless there are
sound
reasons for the non-attendance of the member. The Court relied on the
general rules stated by Innes CJ in
Schierhout v Union Government
(Minister of Justice)
45
‘
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
vs Prinn
,
2 W. B. 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
Cooke
v Ward
2
CPD 255
;
Darcy
vs Tamar Railway Co.
,
LR 3 Exch, p 158, etc.), for otherwise they would not be acting in
accordance with the provisions of the Statute.’
This rule was held not be absolute and that proceedings would not be
regarded as a nullity if there are sound reasons for the
non-attendance of a member of such a body
46
.
However on an analysis of the facts, Jones J concluded that the
absence of at least one member of the first respondent was not

satisfactorily explained and accordingly the first respondent not
properly constituted
47
.
On appeal, the SCA considered it unnecessary to decide whether the
first respondent had been properly constituted and left the
point
open
48
.
[89] After
Schierhout v Union Government (Minister of Justice)
a line of cases followed. It was held that in regard to a
contravention of s 6 (1) of the Commissions Act, in respect of a
commission
which was purely advisory, that such commission could
function without all of its members being present
49
although Corbett JA in a dissenting judgment held that on the facts
of that case entailing the commission of an offence before
a
commission, that ‘commission’ in that context meant all
the members of the Commission sitting together
50
.
Where a statutory provision determined a membership of a quasi
judicial body without providing for a quorum, it was held that
the
inquiry or hearing had to be conducted by the full complement of
members
51
.
In respect of a disciplinary committee constituted to hear a
complaint against a staff member, where two members were unavoidably

absent, it was held that the committee was not properly composed and
that a time should have been fixed for all of them to be present
in
order to consider what were very serious and strong allegations
52
.
Where a Committee is one such as a pricing Committee whose work would
involve research, the gathering of information and the making
of
inquiries before making its recommendations, the position is
different to that pertaining to Commissions concerned with the

adjudication such as in the Schierhout case, and given the nature of
the work of such pricing committee it has been held that it
could not
have been contemplated that all its members would have to attend all
meetings or participate personally in all its decisions
53
As was held in New Clicks
54
,
‘(i)n each case what will be required will depend on the
interpretation of the empowering legislation and relevant
regulations,
prescribing how a commission should function’.
[90] The JSC is not a ‘pricing’ or similar committee. Nor
is it a media research and information gathering body. It
is engaged
in a process of adjudication of the highest order. It carries out a
very important constitutional function in relation
to the appointment
of judges. The qualifications and number of members of the JSC have
been selected for a particularly constitutionally
significant
purpose, which could otherwise be defeated if it was deprived of the
services of one or more of its members. It makes
the recommendations
and the President ‘must' appoint. Accordingly, there must be
full attendance and participation by all
members of the first
respondent
55
.
[91] Although section 178(6) of the Constitution empowers the first
respondent to ‘determine its own procedure’ it
has not
sought to establish a quorum either in the Procedure of Commission or
elsewhere. When it decides on matters regarding the
appointment of
Judges, it performs a pivotal function in our constitutional
dispensation. There might be instances where for sound
reasons,
non-attendance of a member may not invalidate the proceedings (which
need not be dealt with in this judgment), but the
present, where no
reason was given why the President and the deputy president of the
SCA were unable to attend, is not such an
instance.
[92] The President of the Supreme Court of Appeal is an important, if
not vital member of the JSC. The position of the President
of the SCA
has been described as one of the thirteen ‘core members’
by Jones J in
Premier, Western Cape v Acting Chairperson, Judicial
Services Commission
56
.
Providing for alternates for the Chief Justice and the president of
the SCA, is unique in s 178 of the Constitution, their respective

deputies being the only ex officio alternates. All other alternates
have to be designated, nominated and appointed, as the case
may be,
by the person or body empowered by s 178 to do so. The Chief Justice
and the President of the SCA and their respective
deputies are also
positions of special constitutional importance. They are appointed
differently (in terms of s 174(3) of the Constitution)
from other
Judges (who are appointed in terms of s 174(4) of the Constitution).
In respect of the appointment of the Chief Justice
and the President
of the SCA and their deputies, the President of the Republic has
greater discretion than with any other judges.
His obligation is to
consult the JSC and the leader of parties represented in the National
Assembly before making those appointments.
[93] Section 178(7) of the Constitution ensures that in the temporary
absence (the term is synonymous with an inability ‘to
serve’)
of the President of the SCA, the Deputy President of the SCA is
present at the meetings of the JSC.
[94] The JSC presented a number of arguments in rebuttal of the
notion that the absence of the President of the SCA, or his deputy,

at the meeting, was unconstitutional or irregular. It proceeds
firstly from the premise that although the President of the SCA
did
not participate in the meeting of the 12 April 2011, he cannot be
regarded as ‘temporarily unable to serve on the Commission’

as envisaged by s 178 (7) of the Constitution. The submission is that
the meeting on the 12 April 2011 to consider candidates for

appointment to the bench of the WCHC was part of a ‘session’
of meetings from 4 April to 12 April 2011 and since the
President of
the SCA was available and attended all the other meetings up to the
11 April 2011, he cannot be said to be have been
‘temporarily
unable to serve on the JSC’ for that part of the session on 12
April 2011. Further it is argued that he
cannot be regarded as
temporarily unable to serve since his absence was not by reason of
‘incapacity or absence from the
Republic’. It is
contended in the answering affidavit that it often happens that a
member of the JSC must excuse himself
or herself from part of a
session of the JSC because of unforeseen and unavoidable
circumstances which may include a sudden emergency,
and that it would
be unrealistic and impractical for the remaining members to have to
wait idly for the absent member or his alternate
to join the session.
Finally, although not relied upon in argument, the point was made
that the President of the SCA was absent
on 12 April 2011 with the
permission of the Chairperson of the JSC.
[95] These arguments cannot be sustained. The term ‘session’
of the JSC is not found in the Constitution, the Judicial
Service
Commission Act, the Procedure of Commission or any other law
governing the composition of the JSC. Indeed, contrary to
the
submission, s 178 (1) (a) of the Constitution refers to and
contemplates ‘meetings’ and not ‘sessions’.

Whether a particular meeting is properly constituted must be decided
on an assessment of the membership of that particular meeting.
The
meeting on 12 April 2011 which dealt with the separate and distinct
aspect of filling vacancies on the bench of the WCHC, was
no
exception.
[96] The argument that the absence of the President of the SCA or his
deputy was not by reason of ‘incapacity or absence
from the
Republic’, misconstrues the provisions of s 178 (8) of the
Constitution. Section 178(8), in which those words appear,
applies to
members of the JSC other than the Chief Justice and the President of
the SCA. The temporary inability of the President
of the SCA to serve
on the Commission is governed by s 178 (7) which contains no
reference to ‘incapacity’, ‘absence
from the
Republic’ or ‘other sufficient reason’ and
therefore do not limit the circumstances in which the Deputy

President of the SCA must act as the alternate to the President of
the SCA to those instances.
[97] Section 178(7) refers to the President of the SCA being
‘temporarily unable to serve’. Effect must be given to

the ordinary meaning of the words ‘temporarily unable to
serve’, namely that he was unable to serve on the JSC i.e.

attend for any short tempus. According to The Shorter Oxford
Dictionary ‘temporarily’ denotes that which is ‘lasting

or existing only for a time; passing, temporary’. ‘Unable’
refers to ‘not able to do something specified‘.
‘Serve’
refers to being ‘a servant; to perform the duties of a
servant’. ‘Temporarily unable to serve’
thus refers
to an inability to perform that required of you for a short period of
time due to whatever reason. This seems, with
respect, to be exactly
what the absence of the President of the SCA entailed.
[98] There is no evidence that the absence of the President of the
SCA to attend another engagement was unforeseen or necessitated
by a
sudden emergency. There is also no allegation that it was unrealistic
or impractical to have made prior arrangements with
the Deputy
President of the SCA, even on short notice, to attend the proceedings
on 12 April 2011, or that doing so would have
caused any
interruption. The JSC has simply not sought to provide any reason for
the absence of the President of the SCA from the
meeting, nor its
failure to request the attendance of the Deputy President of the SCA.
[99] The fact that the President of the SCA was excused with the
consent of the Chairperson is irrelevant. Either the President
of the
SCA, or if he was temporarily unable to serve on the JSC for the
meetings on 12 April 2011 his deputy, was constitutionally
required
to attend or not.
[100] The Deputy President of the SCA was not requested to attend the
proceedings on 12 April 2011 as an alternate in terms of
s 178 (7) of
the Constitution, and he in fact did not attend. He was accordingly
not given a reasonable opportunity to participate
in the meetings of
the JSC on that day. Accordingly, the position is similar to that
which occurred in
Premier, Western Cape v Acting Chairperson,
Judicial Services Commission
where the Premier of the Western
Cape was not given an opportunity to participate in the meetings of
the JSC, albeit for a different
purpose.
[101] There is much to be said for the submission by the applicant
that the JSC’s interpretation of s 178 (7) can be tested
by
posing the question whether it would have been permissible for the
Deputy President of the SCA to have acted as the alternate
of the
President of the SCA on 12 April 2011 had he been present at the
venue of the meeting. He could only have done so if the
President of
the SCA was regarded as ‘temporarily unable to serve on the
Commission’ for that meeting. On the JSC’s

interpretation, notwithstanding the fact that the President of the
SCA was unable to participate in the meeting, that he was absent
with
the permission of the chairperson and that the meeting concerned a
separate and discrete issue, the Deputy President of the
SCA would
not have been permitted to attend the meeting of 12 April 2011.
An interpretation having that result would,
I agree, be untenable and
unsustainable.
[102] Section 178(6) of the Constitution requires that decisions of
the JSC must be ‘supported by the majority of its members’.

That means the majority of the members that compose the JSC and not
‘merely of those who happen to attend’ a meeting
57
.
Such an interpretation is also consistent with the definition of
‘majority vote’ in the Procedure of Commission.
[103] When considering the appointment of a Judge in terms of s 174,
the JSC comprises 25 members. A majority is therefore 13.
This is
accepted to be so by the JSC.
[104] The ‘advice’ of the JSC
58
to the President of the country to appoint Henney J would have
resulted from 13 or more votes having been cast in his favour. Even

if the President or the Deputy President of the SCA had been present
and voted against his appointment, Henney J would still have
obtained
the requisite majority.
[105] In the case of Rogers SC, the failure by JSC to properly
constitute itself could have had a material effect. He received
12
votes, one short of the requisite majority and had the President of
the SCA, or his deputy, been present and voted in his favour
(which
on the probabilities, having regard to his eminence as described in
the papers, might have happened), he would have been
recommended and
subsequently appointed as a judge. In his case the absence of the
President of the SCA, or his deputy, assumes
particular significance.
[106] In respect of Fitzgerald SC and Olivier SC the absence of the
President of the SCA or his deputy would not have made any

difference. The position in regard to the other three candidates,
namely Brusser SC, S J Koen and J Cloete is simply unknown. They

might have secured 12 votes, which if they did, would place them in
the same significant position as Rogers SC.
[107] The meeting of the JSC on 12 April 2011, which proceeded in the
absence of the President of the SCA and the Deputy President
of the
SCA is clearly not in accordance with the dictates of the
Constitution and hence unlawful and constitutionally invalid.
It is
therefore clear that the relief in paragraph 2 of the Notice of
Motion should, in the ordinary course, follow.
[108] Section 172(1)(a) of the Constitution requires a Court to
declare ‘conduct that is inconsistent with the Constitution’,

‘invalid to the extent of its inconsistency’. Section
172(1)(b) provides that a court making such an order ‘may
make
any order that is just and equitable’.
[109] In respect of the position of Henney J, the applicant’s
case from inception was that it does not seek an order setting
aside
the President’s appointment of Judge Henney. Its attack was
directed only at the failure of the JSC to recommend candidates
for
appointment in respect of the remaining two vacancies. The applicant
stated in the founding affidavit that it would not be
just and
equitable for Judge Henney's appointment to be set aside in
circumstances where the majority of the JSC (even inadequately

constituted) supported his application
59
.
The President appointed him and no setting aside of his appointment
is sought.
[110] In respect of the unsuccessful candidates, the relief in
paragraph 4 of the Notice of Motion as amended, follows necessarily,

logically and consequentially as just and equitable upon the
declaratory relief in paragraph 2 of the Notice of Motion.
The substantive issue:
[111] Section 174(1) of the Constitution provides that ‘Any
appropriately qualified woman or man who is a fit and proper
person
may be appointed as a judicial officer…'
[112] According to the answering affidavit there is no dispute that
the three candidates supported by the applicant namely Rogers
SC,
Fitzgerald SC and Olivier SC ‘are fit and proper and are
appropriately qualified persons
60
.
[113] The answering affidavit however explains that:
‘
Meeting these requirements, however, is
necessary, but not sufficient for each candidate to succeed in
acquiring a recommendation
from the JSC for the vacant post. The fact
of the matter is, that having applied the constitutional criteria for
selection and
appointment, as explained above, to the facts and
circumstances of each candidate, and after an interview and
deliberations, a
majority of members of the JSC have to arrive at the
determination that the candidate is suitable to be recommended for
appointment
to that particular post at that time. Such a
determination was not arrived at in the case of Adv Rogers SC and the
other unsuccessful
candidates’
61
.
[114] The JSC does not say that the unsuccessful candidates were
lacking in what the respondents refer to as ‘supplementary

criteria’ published in the ‘Summary of the Criteria Used
by the Judicial Service Commission when considering Candidates
for
Judicial Appointments’,
62
such as integrity, energy and motivation, competence, experience,
appropriate potential and symbolism (what message is given to
the
community at large by a particular appointment). Nor are they stated
to be deficient in any other respects such as judicial
temperament,
or humility.
[115] It is no doubt for this reason that the applicant maintains
that the JSC’s failure to fill the remaining two vacancies
from
these candidates for no reason other than that the required majority
of 13 was not received, remains inexplicable. The irresistible

conclusion, it maintains, is that the decision of the JSC therefore
appears to be arbitrary, ‘irrational, and unfairly
discriminatory,
unreasonable and otherwise unconstitutional and
unlawful’.
[116] There is much force in this submission of the applicant.
[117] It is thus incumbent upon the JSC to account for its failure to
have appointed at least those considered to be appropriately

qualified and fit and proper candidates.
[118] According to the respondents ‘the fact of the matter is
that no other candidate was able to muster the necessary majority’
63
.
No decision was taken to keep the two vacancies open. The consequence
of no other candidate securing the required majority had
the
consequence of the other two vacancies remaining open.
[119] The question thus arising is whether the process whereby the
JSC arrives at a conclusion as to whether to recommend a candidate

for appointment or not, which in the absence of consensus entails a
voting process adopted by it to determine whether a candidate
secured
a ‘majority of votes’ of all members on the JSC, is a
sufficiently transparent and accountable process, such
as to
demonstrate that the process of selection, or non selection, is not
arbitrary or irrational, but indeed consistent with the
principle of
legality.
[120] In answering that charge, the respondents affectively advance
two explanations. First, they say that the reason for the JSC's

failure to select any of the unsuccessful candidates is that none of
them received a majority of votes from the members of the
JSC. This
it claims is an adequate reason. The second justification, which it
claims is allied to the first, is that it is not
possible for the JSC
to provide reasons and that it is not legally required to do so.
[121] These are not really two explanations but part and parcel of
one explanation as to why none of the unsuccessful candidates
was
selected. In essence the JSC is saying that it cannot give reasons
why a particular candidate does not secure the required
majority,
because members of the JSC vote by secret ballot. Accordingly in
whose favour a particular member of the JSC might vote
and his or her
reasons for voting thus, are unknown.
[122] However, notwithstanding the claim of ignorance as to how
individual members may vote and their motivation for voting in
the
manner they do, the deponent to the answering affidavit nevertheless
maintains that in exercising their vote, members of the
JSC take
cognisance of their constitutional mandate. He explains that a
candidate who is qualified in terms of technical skills
and
knowledge, may be found to be wanting in other important and relevant
qualities and criteria, such as for example judicial
temperament,
patience and humility, which may render a particular candidate not
suitable for appointment. None of these were, however,
raised by the
respondent as having specifically disqualified any of the members of
the applicant. That is not surprising as on
the respondents’
version it does not know why individual members of the JSC voted or
did not vote for particular candidates.
[123] Nevertheless, the deponent to the answering affidavit further
explains that ‘during this process the factors referred
to in
sections 174 (1) and 174 (2) of the Constitution and in the
supplementary criteria were taken into account by each member’.

It is difficult to follow how that statement can be made. The
deponent clearly would not know what the individual members of the

JSC took into account, nor does he refer to the deliberations that
took place or indicate the source of his knowledge, such as
that
members of the JSC informed him of their reasoning. No other member
of the JSC has deposed to an affidavit confirming this
account
insofar as it concerns them, as being correct, that is unless the
reasons for the required majority not being secured can
be distilled
from the deliberations that took place, a point to which I shall
return below.
[124] While there are other considerations which members of the JSC
indeed might have to consider and which might render an otherwise

competent and suitable candidate unsuitable, the applicant correctly
points out that at issue in this application is what considerations

were in fact taken into account on 12 April 2011 to justify the
actions of the JSC on that day.
[125] There seems to be no reason why the JSC cannot provide reasons.
In relation to the nomination of Judges for the Constitutional
Court,
para 2 (l) of the Procedure of Commission requires that:
"The chairperson and deputy chairperson of the Commission shall
distil and record the Commission's reasons for recommending
the
candidates selected."
It is therefore possible for the JSC to distill and record its
reasons and deliberations. The question that irresistibly presents

itself is why, if the JSC’s reasons for recommending a
Constitutional court judge can be distilled, can the JSC not distil

its reasons for something as constitutionally important as
recommending or not recommending any other judge for appointment?
[126] Clearly, there are differences in the process leading to the
appointment of Judges of the High Court on the one hand and
judges of
the Constitutional Court on the other, but in both cases the
proceedings before the JSC are seemingly similar in that
the JSC
interviews the candidates in public, deliberates in private and
selects the candidates to be recommended by consensus or
by majority
vote. It is then difficult to see why, if the Chairperson and Deputy
Chairperson of the Commission must distil and
record the Commission’s
reasons for recommending candidates selected for the Constitutional
Court, why, in logic, they cannot
do so in respect of Judges of the
High Court. If reasons for recommending a candidate can be distilled
and recorded, then why not
reasons for not recommending a candidate.
In the absence of such reasons, the process is not transparent and
appears arbitrary
and irrational.
[127] If the procedure which the JSC has adopted under s 178 (6) does
not prescribe that such reasons be distilled or be provided,
then it
is the procedure which the JSC adopted which is at fault. It is
enjoined in terms of the Constitution to adopt procedures,
but these
must be lawful and such as to enable it to comply with all of its
legal obligations. It cannot adopt a procedure which
falls short of
its constitutional duties by making it impossible for it to provide
reasons for its decisions, and then rely on
that as justification for
its inability to account for a constitutionally transparent process.
[128] However, even if I am wrong in that regard, the justification
proffered by the JSC for its failure to fill the two remaining

vacancies, namely that the unsuccessful candidates did not achieve
the required majority of votes, itself necessitates a closer

examination of the voting procedure adopted to see whether it is
rational and not arbitrary.
[129] In an introductory part of the answering affidavit the deponent
states that:
‘
At the
conclusion of this discussion, if there is no unanimous support for a
candidate, each member of the JSC votes on whether
the candidate
should be recommended for appointment. Each member has one vote per
candidate. Hence each member has an equal say
on which candidate
should be recommended’
64
.
[130] According to this allegation each member of the JSC has one
vote per candidate i.e. in the context of this case a total of
seven
votes. The obvious difficulty with this voting procedure is that it
may result in more candidates achieving a majority support
than there
are vacancies. It has not been explained as to what might happen in
such a situation. One might in the ordinary course
expect that the
candidates who garnered the highest number of votes constituting a
majority of the members of the JSC, would be
recommended, but the
papers appear to be silent on this issue. No adverse conclusion has,
however, been drawn from the failure
to explain what is to happen in
such a situation, as the deponent to the answering affidavit might
not have dealt with it as it
was not the factual position that
confronted the JSC.
[131] However, later in the answering affidavit the deponent
described a different voting procedure. He states:
‘
46.3
Given the nature and structure of the JSC it can only perform its
constitutional mandate by utilising the time honoured process
of
voting. Each member is accorded a single vote. The decision to
recommend or not recommend a particular candidate is based on
whether
the said candidate is able to muster a majority of votes. Should a
candidate fail to muster a majority of votes then they
will not be
recommended to fill the vacancy. Should no candidates succeed in
requiring majority of votes then no candidate will
be recommended to
fill the vacancy.
46.4 It is perhaps necessary to
clarify that if, for example, there are three vacancies, each member
of the JSC is entitled to vote
for up to three candidates. If he or
she so wishes, they may vote for less.’
[132] The voting procedure adopted cannot be both a system of one
vote per candidate and one vote per vacancy. The apparent confusion

as to which of the two systems in fact applies is itself suspect and
suggestive that the voting procedure followed from time to
time might
fluctuate between a vote per candidate and a vote per vacancy. It is
simply not clear and transparent. If indeed there
is this fluctuation
then the voting process would be arbitrary and possibly irrational.
Certainty and transparency demands that
a known, clearly defined
uniform system of voting should apply to the selection of all
candidates. The deponent to the answering
affidavit is a respected
senior counsel. The conflict between the voting procedure he
describes at the commencement of the answering
affidavit, and the
voting procedure, the application of which he seeks to illustrate
with reference to a practical example later
in the affidavit, is
difficult to understand. Indeed, it has left me puzzled as I have
endeavoured to fathom how the voting procedure
which the JSC held out
as justification for it reaching the conclusions it did in respect of
the unsuccessful candidates, indeed
works.
[133] In view of the deponent taking trouble and considering it
‘necessary to clarify’ the voting procedure, it seems

that the procedure described in paragraph 46.4 is the one actually
employed. If it was not then he would immediately in setting
out his
practical example have realized that what he was describing was not
in accordance with what takes place when the JSC votes
on vacancies.
If my assumption is correct, then each member of the JSC has one vote
per vacancy, not per candidate i.e. in the
context of this case, each
member of the JSC had three votes in total to cast in respect of the
selection of candidates for the
WCHC.
[134] If each member has one vote per vacancy, then the prospect of
two theoretically identical or similarly suitable candidates
in two
different divisions of the High court securing a majority of votes,
will depend on the number of candidates short listed
in each
division. The greater the number of candidates competing for the vote
each member of the JSC would have per vacancy, the
more the value of
votes will be diffused. The fact that a shortlisted candidate’s
prospects of securing a majority of votes
may depend on something as
arbitrary as the number of candidates shortlisted with him or her for
interview and possible appointment,
is arbitrary and irrational.
Furthermore the inevitable result and effect of adopting such a
voting process is that a single candidate’s
prospects of
securing a majority vote might vary from one division to the next
depending on the number of candidates shortlisted
in respect of
separate divisions
65
.
Within a specific division, a particular candidate’s prospects
of securing a majority of votes, assuming he or she had been

unsuccessful in the first round of interviews by the JSC, but was
shortlisted again for the next round of interviews later in the
year
or in the next year, may vary from the first meeting of the JSC to
the next, due to a consideration as arbitrary as the number
of
candidates who happen to have been shortlisted by the short-listing
committee. That would also render the voting procedure adopted

arbitrary and irrational.
[135] The answering affidavit does not state, in fact does not
suggest, that in the circumstances which prevailed at the meeting
of
12 April 2011, the voting procedure adopted involved anything other
than one round of voting. If that is so, then it would effectively

prevent the transfer of a vote by an individual member of the JSC
from a candidate for whom he had voted and who it turned out
had
secured the least votes (his or her vote thus really being wasted),
to another candidate who had secured more votes and who
was more
likely to secure the necessary majority
66
.
[136] It is conceivable that if the voting procedure allowed for the
candidate with the lowest number of votes to be eliminated
after the
first round and the member or members of the JSC who had voted for
such unsuccessful candidate thereafter being able
to transfer their
vote to another candidate who had secured a greater number of votes,
in a second or further round of voting until
one is left with a
candidate who has secured a majority vote (assuming that to be
possible and that not more than twelve of the
members of the JSC
abstain), that a candidate, like for example Rogers SC, might have
obtained the requisite majority.
[137] However, even such a voting system might pose its own problems
where there is more than one vacancy. Should there, for example,
be
second and further rounds of voting until one ends up with a number
of candidates with the highest voting scores, corresponding
to the
number of vacancies, even if none of them might have secured a
majority of all the members, or should there be further rounds
until
the vote comes down for each member to a choice between two
candidates, where only one or both might then secure the requisite

majority, which inevitably will have the result that, in the context
of this case, for example, one vacancy will be filled but
not the
others? Whatever the voting system may be, it should be clear and
defined in advance to deal with any kind of situation
which might
present itself. To deal with possible scenarios which might arise, as
and when they arise, on an ad hoc basis will
itself not be consistent
with the requirements of rationality and transparency and would be
arbitrary.
[138] Whatever the voting procedure is supposed to be, it should be
clear and not left to the kind of vagaries on which I am now

speculating. It might be that the deponent has been mistaken and that
the process is indeed one of one vote per member per candidate,
with
the candidates who may secure the most number of votes, assuming them
all to be more than 13 votes, corresponding to the number
of
vacancies, then being recommended for appointment. That would seem to
be a much simpler and rational process not lending itself
to any
possible arbitrariness, but that is for the JSC to decide, and is not
the only procedure outlined in the answering affidavit.
[139] A voting procedure of one vote per vacancy
67
,
as opposed to one vote per candidate, is irrational in that it does
not ensure that decisions are taken by the majority of members.
[140] It was illustrated during argument that if there are six
candidates for one vacancy, three candidates may each receive four

votes, two may each receive five votes and one only three votes. No
decision to recommend would then be taken if there is only
one round
of voting. However, if the candidate with the lowest number of votes
was eliminated and successive rounds held to eliminate
the candidate
with the least number of votes, until one candidate remained, should
that candidate receive thirteen or more votes,
he or she would truly
have been elected by a majority of the members. If there are six
candidates for two positions, then the candidate
with the lowest
number of votes should be eliminated until there are two candidates
who may receive 13 or more votes. If there
are six candidates for
three positions, then the candidate with the lowest number of votes
should be eliminated until three candidates
68
,
who may receive 13 or more votes.
[141] Simply advancing as justification that the remaining two
vacancies were not filled because none of the unsuccessful candidates

were able to achieve the required majority, where the voting
procedure adopted resulted in the failure to obtain such majority

because votes per vacancy were spread over more candidates than the
number of vacancies for which they compete, was irrational
and failed
to provide the opportunity to the majority of the members of the JSC
to make a decision.
[142] The resultant failure of the JSC to fill the two vacancies was
thus unconstitutional and unlawful and falls to be set aside.
It
follows that an order in terms of paragraph 3 and consequential
thereto, as just and equitable relief, the relief provided for
in
paragraph 4 (as amended) of the Notice of Motion falls to be granted.
Some of the further arguments by the amicus curiae:
[143] The first amicus curiae has also advanced an argument that if
there are candidates who are appropriately qualified and fit
and
proper persons as contemplated in s 174 (1), that they must be
appointed and that s 174 (2) does not constitute a qualifying

requirement for appointment, but rather simply a factor to be
considered when performing a selective function between otherwise

qualifying candidates
69
.
The first amicus curiae finds support for that argument inter-alia in
the ‘looseness’ of language and the lack of
definition
contained in s 174 (2) of the Constitution. In addition, it submitted
that the qualification provision for judicial
officers contained in
the Constitution determine who may be appointed as judicial officers.
Thereafter the role of the JSC is a
selective and not a determining
one, consistent with the drafters of the Constitution having sought a
model for appointing Judges
which attempted to ‘objectivise’
the qualifications for appointment and to render the process by which
qualified candidates
were actually selected less open to criticism of
political favouritism or personal influence.
[144] The argument continues that if the shortlisted candidates
considered to be appropriately qualified and a fit and proper persons

do not include persons to give effect to the provisions of s 174 (2),
then the members of the JSC should use the right they have
to
themselves make additional nominations as contemplated in paragraph 3
(b) of the Procedure of Commission, which candidates will
then be
interviewed and can be recommended for appointment. Short of any such
additional nominations, the factors in s 174(2) of
the Constitution
would not be qualifying criteria.
[145] In view of the conclusion which I have reached earlier, it is
not necessary to consider this argument any further. It is
not an
argument advanced by the applicant. The applicant seems to accept
that the JSC may rely on the provisions of s 174 (2) to
not make a
specific appointment, but if that is the reason for failing to do so,
then this should be stated. In the answering affidavit
the JSC did
not seek to rely on s 174 (2) as their reason for not filling the
vacancies. The only justification advanced was that
the unsuccessful
candidates had not secured the required majority. The JSC also said
it could not give reasons why the unsuccessful
candidates were not
selected, other than that they did not secure the required majority
vote. I have commented on what I consider
to be the fallacy of the
latter and the arbitrariness and irrationality of the voting process.
I do not know, and the papers do
not disclose, that the unsuccessful
candidates were not selected merely because they did not satisfy or
advance the objectives
in s 174 (2). There are suggestions in the
papers referring to press releases and statements of a ‘balance’
which need
to be struck between potential candidates, which would
suggest the inter play of s 174 (2), but it was never expressly
stated to
have been the reason why the unsuccessful candidates were
not selected. Indeed, Ms Cloete would at least partially advance the
objectives relating to gender representation. The present matter is
not, in my view, an appropriate instance to decide whether the

requirements in s 174 (2) constitute a threshold requirement or
merely a balancing criterion amongst otherwise suitable candidates.

Any comment in that regard, interesting as the argument may be, would
be obiter.
[146] The heads of argument of the first amicus curiae also raised
the unsuccessful candidates’ rights to dignity and access
to
courts. In regard to the right to dignity, the submission is that the
JSC is not permitted to extend an open invitation to members
of the
legal fraternity to make themselves available for nomination as a
Judge, if some of its members have adopted a policy in
terms of which
non-black members will not be appointed
70
.
As indicated earlier, the JSC does not seek to rely on s 174 (2) as
the reason for not filling the vacancies. Had it done so,
this
argument would be entertained, but at present, the submission that a
policy has been adopted in terms of which non-black members
would not
be appointed, is speculative and without an evidential basis.
[147] The access to court argument relies on s 34 of the Constitution
and proceeds on the premise that because the WCHC is inundated
with
matters to be allocated trial dates with inevitable long delays,
continued vacancies on the bench will affect the time period
before
matters are heard. Failing to fill the vacancies and in particular to
appoint eminently qualified short listed candidates
amounts, in the
submission of the First Amicus Curiae, to the public being denied the
best judicial resources at the country’s
disposal. Accordingly,
the duty of the JSC is to fill those vacancies unless no suitable
candidates can be found. The reality of
course is that acting judges
can be and are appointed to assist with the case work load. Although
there are problems of continuity
and the like with acting judges,
making the appointment of permanent judges eminently preferable, it
has not been established on
the papers that the failure to fill the
two vacancies amounts to an actionable infringement of the rights of
s 34. In any event,
in the light of the conclusion I have reached, it
is not necessary to decide this issue further and it is best left
unanswered
and for debate on another day on more appropriate
circumstances, should they arise. Section 175 of the Constitution
provides for
the appointment of Acting Judges. It has been remarked
that:
‘
The
appointment of Acting Judges is a well established feature of the
judicial system in South Africa. Such appointments are made
to fill
temporary vacancies which occur between meeting of the JSC or when
Judges go on long leave, or are appointed to preside
over a
Commission. These appointments are necessary to ensure that the work
of the courts is not disrupted by temporary vacancies
or temporary
absence or disability of particular judges’
71
.
[148] The second amicus curiae in the main supported the relief
claimed by the applicant. No new submissions were raised requiring

any comment.
The non-joinder of Henney J and the unsuccessful candidates:
[149] The respondents contend that Judge Henney and the other short
listed candidates have a direct and substantial interest in
the
application as the relief sought has a direct bearing on their
interests and rights; and that they should have been joined
as
parties to the application. They accordingly pray that the
application be stayed pending such joinder, or alternatively that
the
application be dismissed.
[150] As the basis for their contention, the respondents maintain
that if the proceedings of the JSC on 12 April 2011 were declared

unconstitutional, unlawful and consequently invalid, the interview of
Henney J would either have to be declared null and void and
his
subsequent appointment set aside, or his appointment would remain
tainted forever, as to leave his appointment intact in these

circumstances is to require him to accept that his appointment is
tainted without giving him an opportunity to protect his interest
by
affording him a hearing to which he would be entitled
72
.
[151] In respect of the six unsuccessful candidates it is argued that
they would have to subject themselves to fresh interviews,

accordingly that the relief claimed has a direct bearing on their
interests and their rights to choose or not to choose to subject

themselves to a fresh interview. The respondents also point out that
of the unsuccessful candidates Ms J I Cloete, Mr S J Koen,
and
advocate Rogers SC have been shortlisted and will be re-interviewed
at a meeting of the JSC scheduled to be held in Cape Town
from 9 to
19 October 2011. These candidates will be required to attend another
interview specially set up for them, when they may
not want to
subject themselves to this second interview under those
circumstances, that they might be prejudiced by an order having
the
effect that they will be required to attend another interview
specially set up for them when they may not at all want to subject

themselves to this second interview under those circumstances, or may
not wish to be treated differently from the new candidates
who have
applied and have been shortlisted for interviews, or that they may
consider such special treatment an affront to their
dignity, or that
candidates who have not reapplied may not wish to be re-interviewed
at all and may not wish to refuse to be interviewed
for fear that it
may at some later stage prejudice their chances for future
appointment
73
.
[152] Some of the aforesaid alleged prejudice contended for by the
respondents is difficult to understand and cannot be said to
be the
kind of prejudice a court of law should entertain in considering
whether a party should have been joined. However, insofar
as there
may be any such potential prejudice to the unsuccessful candidates
arising from the original relief in paragraph 4 of
the Notice of
Motion, the applicant proposed the amendment to paragraph 4 of the
Notice of Motion to include the words ‘(and
who persist with
their applications)’ after ‘WCHC’
74
.
[153] The applicant maintains that the application should be
adjudicated and the alleged non-joinder assessed on the basis that

the setting aside of Judge Henney's appointment as a Judge was never
sought.
[154] Whether a party should be joined to proceedings, or not, is
determined not on '…the nature of the subject-matter of
the
suit… but… on the manner in which, and the extent to
which, the Court's order may affect the interests of third
parties'
75
.
[155] The applicant argues that the test for non-joinder is not
whether the persons not joined have a general interest in the
proceedings, but whether such persons are necessary parties in the
sense that they have a legal interest in the subject matter which
may
be affected prejudicially by the judgment of the court. In casu, they
maintain the short listed candidates did not have such
interest and
that the judgment granting the relief sought will not prejudicially
affect them. It will also not affect Judge Henney's
appointment as he
was appointed by the President and that appointment is not sought to
be set aside. The fact that there may be
further interviews and a
reconsideration afresh of the applications of the unsuccessful
candidates, particularly where that obligation
will be only in
respect of those who elect to persist with their applications, does
not, the applicant submits, prejudice the unsuccessful
candidates,
thus necessitating their joinder.
[156] In
Gordon v Department of Health, KwaZulu-Natal
76
the appellant was granted an order declaring the appointment of a Mr
Mkongwa to be an unfair labour practice and amounting to unfair

discrimination. Mr Mkongwa had been appointed to the post of Deputy
Director: Administration at Greys Hospital in Pietermaritzburg
and
the appellant was an unsuccessful applicant amongst others. The
appellant had not joined the successful applicant and the
unsuccessful applicants as respondents. The Labour Appeal Court
having raised the non-joinder of the successful applicant and the

unsuccessful applicants, the Supreme Court of Appeal rejected the
argument that the successful applicant Mr Mkongwa had a direct
and
substantial interest requiring him to be joined.
[157] The applicant submits that the relief sought in the
Gordon
case, as in the present case, was not directed against the setting
aside and reversal of the appointment of the successful candidate;

accordingly, the same principle and outcome should apply to the
present case. While the successful appointee will always have an

interest in the relief sought, he does not have a direct and
substantial interest requiring his joinder.
[158] The Gordon case might be sought to be distinguished on the
basis that the relief claimed was monetary. However, the significance

of the judgment lies in the fact that inherent in that award was a
finding of a declaratory nature, namely that the appointment
of the
successful candidate discriminated unfairly against Mr Gordon and
amounted to an unfair labour practice. Similarly in casu,
it is the
declaratory relief in paragraphs 2 and 3 of the Notice of Motion
which is the basis for the consequential relief in paragraph
4 of the
Notice of Motion.
[159] The principle in the Gordon case applies in respect of the
appointment of Henney J. His position as successful appointee
is even
more assured than the successful candidate in that case, as his
actual appointment flowed from an act of the President
of the
country, and not simply from the decision taken by the JSC, although
the decision by the JSC was the impetus for his appointment.
It is
one step removed from the proceedings sought to be declared
unconstitutional. His validity of his appointment has not been

‘directly implicated’.
[160] In respect of the unsuccessful candidates, the alleged possible
consequences that might follow upon the grant of the relief
sought
where they are not joined, being the alleged prejudice they may
suffer according to the respondents, is no different to
the position
they would have found themselves in and with the consequences that
would have followed, had they been joined in the
first place. It is
not the kind of direct and substantial interest which renders their
non-joinder fatal. Had they been joined,
they likewise, as allegedly
now when presented with the order, would have had to take a stance
and decide whether they were going
to abide by the relief claimed,
oppose it, or support it.
[161] The unsuccessful candidates are persons who have agreed to be
nominated for appointment as judges. As such they should be
prepared
for a milieu where they would be required to take a stance on matters
of conviction regardless of the consequences. It
is difficult to see
how they may now wish to refuse to be interviewed for fear that it
may at some later stage prejudice their
chances for future
appointment. It can hardly be a genuine fear unless it was to be
seriously contended that such refusal or unwillingness
on the part of
a candidate might indeed be a consideration the JSC may take into
account in a subsequent round of interviews in
deciding on the
suitability of a particular candidate. I certainly did not understand
that to be the case at all and would be extremely
surprised if it was
to be seriously advanced as a proposition, as that would make the
decision irrational. It perhaps illustrates
all the more why the JSC
should be required to provide reasons for its failure to appoint a
particular candidate, so as to remove
any of these concerns which
would arise where the process is not sufficiently transparent.
[162] If any of the unsuccessful candidates supported the relief
claimed in paragraphs 2 and 4 of the Notice of Motion, they could

suffer no prejudice due to their non joinder, as the relief claimed
accords with their own desires. The potential prejudice complained
of
in paragraph [151] would not concern them and would not affect their
rights. They would want to persist with their application
and be
re-interviewed.
[163] If any of the unsuccessful candidates opposed the relief in
paragraph 2 of the Notice of Motion, then they would also oppose
the
consequential relief in paragraph 4 of the Notice of Motion. Had they
been joined, they would have been required to formally
indicate their
opposition to the relief claimed, which is no different from them now
having to exercise an election not to persist
with their application
and presenting themselves to be re-interviewed, for whatever reason.
They are indeed now given the choice
in terms of paragraph 4 of the
Notice of Motion not to re-interviewed by default, and without having
to even explain themselves.
In terms of the amended paragraph 4
relief sought, if they want to be re-interviewed they have to
actually ‘persist with
their applications’. They do not
have to attend another interview specially set up for them when they
may not want to subject
themselves to this second interview under
those circumstances, or may not wish to be treated differently from
the new candidates
that have applied and have been shortlisted for
interviews, or should they consider such special treatment an affront
to their
dignity, or should they not wish to be re-interviewed. The
order (as amended) does not require of them to refuse to be
interviewed.
Accordingly, any fears that such refusal may at some
later stage prejudice their chances for future appointment, are
unfounded.
In fact, if they had been joined and that was their
concern, they would have been required to oppose the application
stating that
‘fear’ under oath. Now they can achieve that
result simply by doing nothing, which default will have the effect of
them not ‘persisting with their applications’. Similar
considerations would have applied if in response to their joinder

they simply did nothing or abided the decision of the court.
[164] The non-joinder of Henney J and the unsuccessful candidates
does not constitute a fatal non-joinder.
.
Costs:
[165] As regards costs, the applicant has been successful. The
applicant does not seek costs. No order as to costs is accordingly

made.
Order:
[166] An order is granted in terms of paragraphs 2, 3 and 4 (as
amended) of the Notice of Motion.
_____________________________
MOKGOHLOA J
:
I agree.
_____________________________
DATE OF HEARING: 23 August 2011
DATE OF DELIVERY: 30 September 2011
COUNSEL FOR APPLICANT: Les Rose-Innes SC
Sean Rosenberg SC
Ron Paschke
Ncumisa Mayosi
ATTORNEYS FOR APPLICANT: Herold Gie Attorneys
(Mr S. Sirkar)
Ref.: SS/jb/CAP82/0005
Tel: [021] 464 4700
RESPONDENTS' COUNSEL: Marumo T K Moerane SC
Bashier Vally SC
ATTORNEYS FOR RESPONDENTS' : The State Attorney
Ref.: L Manuel/1958/11/P12
Tel.: [021] 441 9283
COUNSEL FOR FIRST
AMICUS CURIAE: Deon Irish SC
Johan de Waal
ATTORNEYS FOR FIRST
AMICUS CURIAE: DLA Cliffe Dekker Hofmyer
Ref.: L Egypt/10084756
Tel.: [021] 481 6400
COUNSEL FOR SECOND
AMICUS CURIAE: Eduard Fagan SC
Max Du Plessis
Sarah Pudifin
ATTORNEYS FOR SECOND
AMICUS CURIAE: Webber Wentzel
Ref.: Mr A Magerman
Tel.: [021] 431 7288
1
During
argument the applicant added the words ‘(and who persist with
their applications)’ to paragraph 4 of the Notice
of Motion
2
i.e.
a majority of the members of the JSC, but the actual number has not
been disclosed
3
s1(c)
of the Constitution
4
s
2 of the Constitution; Chaskalson P in
Pharmaceutical
Manufacturers Association of South Africa and Another: In re Ex
parte President of the Republic of South Africa
and Others
[2000] ZACC 1
;
2000
(2) SA 674
(CC) para 44
5
published
in Government Notice R423, Government Gazette 24596 dated the 27
March 2003
6
s
195(1)(f) of the Constitution
7
s
195(1)(g) of the Constitution.
8
The
obligation of the President in terms of section 174(6) is that he
‘must’ appoint on the advice of the JSC, as
opposed to
his role in the appointment of the Chief Justice and Judges of the
Constitutional Court.
9
Ex
Parte Chairperson of the Constitutional Assembly: In Re
Certification of the Constitution of the Republic of South
Africa,
1996 (4) SA 744
(CC); [1996]10 BCLR 1253 at para 120
10
Pharmaceutical
Manufacturers Association of SA and Another: In Re Ex Parte
President of the Republic of South Africa and Others
[2000] ZACC 1
;
2000 (2)
SA 674
(CC) para 33.
11
Fedsure
Life Assurance Limited v Greater Johannesburg Transitional
Metropolitan Council
and Others
[1998] ZACC 17
;
1999 (1) SA 374
(CC) at
para 58.Pharmaceutical Manufacturers Association of SA and Another:
In Re Ex Parte
President of the Republic of South Africa and
Others
[2000] ZACC 1
;
2000 (2) SA 674
(CC) para 33.
12
Pharmaceutical
Manufacturers Association of SA and Another: In Re Ex Parte
President of the Republic of South Africa and Others
[2000] ZACC 1
;
2000 (2)
SA 674
(CC) para 85.
13
.
Care Phone (Pty) Limited v Marcus NO and Others
[1998] 11
BLLR 1093
(LAC) at para 37.
14
S195(1)
of the Constitution.
15
Rail
Commuters Action Group and Others v Transnet Limited t/a Metrorail
and Others
2005 4 BCLR 301
(CC.
16
Ekuphumleni
Resort (Pty) Limited and Another v Gambling and Betting Board,
Eastern Cape and Others
2010 (1) SA 228
(E) at para. 20.
17
Mohamed
DP in
Shabalala and Others v Attorney-General of Transvaal and
Another
[1995] ZACC 12
;
1995 (12) BCLR 1593
(1996 (1) SA 725)
(CC) para 10
quoting with approval a statement by Etienne Mureinik “A
Bridge to Nowhere. Introducing the Interim Bill of
Rights”
1994 (10) SALJ 31.
18
President
of RSA and Others v M&G Media Limited
2011 (4) BCLR 363
(SCA) at para 9 where the Supreme Court of Appeal held that the
Government had not provided sufficient justification for a refusal

to disclose information.
19
Rail
Commuters Action Group and Others v Transnet Limited t/a Metrorail
and Others
2005 4 BCLR 301
(CC) para 76.
20
’
[Footnotes omitted] (per Mokgoro and
Sachs JJ in their minority judgment in
Bel
Porto School Governing Body and Others v Premier, Western Cape and
Another
[2002] ZACC 2
;
2002
(3) SA 265
(CC) para 159).
21
Respondents
heads para 23.
22
Minister
of Home Affairs v Nicro and Others
[2004] ZACC 10
;
2005 (3) SA 280
(CC) at para
[21]
.
23
Minister
of Health v New Clicks SA (Pty) Limited and Others
2006 (2) SA
311
(CC) at para [95] (per Chaskalson CJ) and at para 423 (per
Ngcobo J.
24
Para
27 of the respondents heads of argument.
25
At
para [118]
26
Minister
of Health v New Clicks SA (Pty) Limited and Others para 134 and 135.
27
At
436- 437
28
[1998] ZACC 17
;
1999
(1) SA 374
(CC para 58
29
2000
(1) SA 1
(CC) at para [38]
30
[2000] ZACC 1
;
2000
(2) SA 674
(CC) at para 17
31
At
para [20]
32
2006
(3) SA 247 (CC)
33
[2007] ZACC 20
;
2008
(1) SA 566
(CC)
34
2010
(3) SA 293
(CC)
35
PAJA
representing a codification of the rights contained in s 33, which
it was required to cover and purports to do - See
Minister of
Health v New Clicks SA (Pty) Limited and Others
at para [95] and
[423].
36
Even
where the exercise of a pubic power does not constitute
administrative action to which the provisions of PAJA may apply,
it
is still constrained by the principle of legality, implicit in the
Constitution (see
Fedsure Life Assurance Limited and Others v
Greater Johannesburg Transitional Metropolitan Council and Others
[1998] ZACC 17
;
1999 (1) SA 374
(CC);
[1998] 12 BCLR 1458
(CC) para 58.
37
.
An allegation to that effect in the founding affidavit was admitted
in the answering affidavit - para 74 page 151.
38
Acting
Chairperson: Judicial Services Commission and Others v Premier of
the Western Cape Province
2011 (3) SA 538
(SCA).
39
Barrett
NO v Macquet
1947 (2) SA 1001
(A) at 1012 ;
Chairman
,
Board on Tariffs and Trade v Volkswagen of SA (Pty) Limited
and Another
[2000] ZASCA 84
;
2001 (2) SA 372
(SCA);
[2001] 1 ALL SA 519
para
13
40
Para
11 of the respondents heads
41
This
function under s 174 of the Constitution as well as its function of
removal of Judges under s 177 was described as "pivotal"

in the first certification judgment,
Ex parte
Chairperson of the Constitutional Assembly:
In
Re Certification of the Constitution of the Republic of South Africa
1996 (4) SA 744
(CC);
[1996] 10 BCLR 1253
(CC) para.
120.
42
This
is to be contrasted with s 53 of the Constitution which prescribes a
quorum for members of the National Assembly and s 75
(2) which
prescribes a quorum for the National Council of Provinces when its
delegates vote on ordinary bills not affecting provinces,
and s 112
(1) in relation to provincial legislatures, and s 167 (2) which
provides that a matter before the Constitutional Court
comprised of
eleven judges, must be heard by at least eight judges.
43
No
9 of 1994.
44
2010
(5) SA 634
(WCC) para. 17 - 18
45
1919
AD 30
at 44:
46
At
para. 17.
47
At
para. 18.
48
Judicial
Service Commission vs Premier, Western Cape supra.
49
S
v Naude
1975 (1) SA 681
A at 697G - 701F specially at 701E –
F
50
At
705A
51
Schoultz
v Voorsitter, Personneel - Advieskommittee van die Munisipale Raad
van George
en 'n Ander
1983 (4) SA 689
(C) at
707 F.
52
Yates
v The University of Bophuthatswana
and Others
1994 (3) SA
815
(B) at 848 G – I.
53
Chaskalson
CJ in
New Clicks, Minister of Health NO v New Clicks SA (Pty)
Limited
(TAC as amici curiae)
2006 (2) SA 311
(CC) (2006 (1)
BCLR1) (CC) paras. 147 - 181.
54
at
para. 171.
55
See
Baxter Administrative Law 1984 page 429).
56
2010
(5) SA 634
(WCC)
57
Per
Jones J para 19, and the Supreme Court of Appeal in
Judicial
Service Commission vs Premier, Western Cape
at para 20.
58
as
contemplated in s 174(6) of the Constitution
59
Had
the President of the SCA, or his deputy been present, the majority
vote in favour of Henney J could probably only have increased.
60
Para
103.1 of the answering affidavit.
61
Para
103.1 of the answering affidavit.
62
Published
in September 2010
63
Answering
affidavit paragraph 106.5.
64
Para
21 of the Answering affidavit
65
It
apparently happens that a particular candidate at times applies for
and is shortlisted in more than one division of the High
Court.
66
As,
it is commonly known, occurs with the procedure of Papal enclaves
for the selection of the Pope.
67
Unless
there is specific provision for further rounds for voting where
wasted votes could be directed to more deserving candidates
who had
already secured a greater number of votes.
68
Subject
to what I referred to in paragraph 137 above.
69
The
first amicus curiae compared the process to the position in
tender/employment law where it sometimes happens that there is
a
comparative balancing criterion (scoring) and not a threshold or
acceptability criterion.
70
Para
45 of the heads of argument of the first amicus curiae.
71
’
Ex parte Chairperson of the
Constitutional Assembly : in re certification of the Constitution of
the RSA
1996 (4) SA 744
(CC) at para [127].
72
The
respondents rely on
Selbourne Furniture Store
(Pty) Limited v Steyn NO
1970 (3) SA 774
(A)
at 780 H.
73
The
possibility that had the President of the SCA or his deputy been
present, his contribution during debate might have influenced
the
voting which followed, was not raised by any party as possible
prejudice. It would be extremely speculative and a very remote

consequence in my view, sufficiently so as to be disregarded. In the
absence of such argument I have proceeded on the basis of
only
considering the prejudice referred to by the respondents.
74
The
applicant suggested the addition of the words ‘and who
persists with their applications’ after the words "the

WCHC" in paragraph 4 of the Notice of Motion, during argument.
I did not understand this to be done because the applicant
conceded
to the correctness of the stance adopted by the respondents, but
rather to address any concerns there may be.
75
Amalgamated
Engineering Union v Minister of Labour
1949 (3) SA 637
(A) at
657.
76
[2008] ZASCA 99
;
2008
(6) SA 522
(SCA) at paragraphs 9 to11