Nkabinde and Another v Judicial Service Commission and Others (20857/2014) [2016] ZASCA 12; [2016] 2 All SA 415 (SCA); 2016 (4) SA 1 (SCA)  (10 March 2016)

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Nkabinde and Another v Judicial Service Commission and Others (20857/2014) [2016] ZASCA 12; [2016] 2 All SA 415 (SCA); 2016 (4) SA 1 (SCA)  (10 March 2016)

THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 20857/2014
In
the matter between:
BAAITSE ELIZABETH NKABINDE

FIRST

APPELLANT
CHRISTOPHER
NYAOLE JAFTA

SECOND APPELLANT
and
THE
JUDICIAL SERVICE
COMMISSION

FIRST RESPONDENT
PRESIDENT
OF THE JUDICIAL CONDUCT TRIBUNAL

SECOND RESPONDENT
THE
MINISTER OF JUSTICE AND CONSTITUTIONAL
THIRD

RESPONDENT
DEVELOPMENT
XOLISILE KHANYILE
NO

FOURTH RESPONDENT
Neutral
Citation:
Nkabinde
v The Judicial Service Commission
(20857/2014)
[2016] ZASCA 12
(10 March 2016).
Coram:
Navsa
ADP, Lewis, Leach, Pillay and Swain JJA
Heard:
15
February 2016
Delivered:
10
March 2016
Summary:
Complaint
against judge lodged with the Judicial Service Commission (JSC) in
2008, and investigated in terms of procedure for alleged
judicial
misconduct applicable at that time – investigation and outcome
set aside by court order, and inquiry begun de novo
in 2011, by which
time a new procedure was applicable in terms of amendments to the
Judicial Service Commission Act 9 of 1994 (JSCA)
– JSC
following new procedure and establishing a Judicial Conduct Tribunal
– whether the new procedure impermissibly
retrospectively
applied – no substantive rights affected – application of
new procedure sensible, fair and just –
not impermissible –
whether s 24 of the JSCA, by permitting a prosecutor to be
involved in the collection and leading
of evidence before the
Tribunal is in breach of the doctrine of the separation of powers and
unconstitutional and affects judicial
independence – prosecutor
not part of the executive, and independence guaranteed by s 179
of the Constitution –
Tribunal hearing conducted in an
inquisitorial manner – prosecutor not involved in making of
decision by Tribunal or JSC
– doctrine of the  separation
of powers not infringed and judicial independence not threatened –
s 24 of
the JSCA accordingly not unconstitutional.
ORDER
On
appeal from
:
The Gauteng Local Division of the High Court, Johannesburg (Mayat J,
Claassen and Kgomo JJ sitting as court of first instance).
1.
The application for leave to appeal is granted.
2.
The appeal is dismissed.
3.
The costs order in relation to the application for leave to appeal in
the court
below is set aside.
JUDGMENT
Navsa
ADP (Lewis, Leach, Pillay & Swain JJA concurring):
Introduction
[1]
In his well-known book
Judges
,
David Pannick refers to a statement made in 1952 by Justice Jackson
of the United States Supreme Court, that ‘men who make
their
way to the bench sometimes exhibit vanity, irascibility, narrowness,
arrogance and other weaknesses to which human flesh
is heir’.
In
The
Modern Judiciary: Challenges, Stresses and Strains
,
[1]
Sir Fred Phillips, after acknowledging that the statement is as true
now as it was then, goes on to consider a pronouncement by
Lord
Hailsham that judicial officers sometimes develop ‘judges’
disease’, the symptoms of which are ‘pomposity,

irritability, talkativeness, proneness to
obiter
dicta’.
The present case is concerned principally with whether steps taken in
relation to a contemplated inquiry into judicial impropriety
were
legitimate. However, the alleged conduct at the centre of the dispute
is not of the lesser kind of sin to which we as judges,
with our
human foibles, to which Phillips refers, are sometimes prone. It
touches upon something much more foundational to the
judicial
institution in a constitutional democracy, namely, integrity.
[2]
The
issues
[2]
This appeal is about the legality of steps taken by the JSC following
on a complaint lodged by 11 Justices of our Constitutional
Court with
the first respondent, the Judicial Service Commission (JSC),
established by s 178(1) of the Constitution and further
regulated by
The Judicial Service Commission Act 9 of 1994 (the JSCA). The essence
of the complaint is that the Judge President
of the Western Cape
Division of the High Court, Cape Town, Justice John Hlophe,
approached the appellants, two Justices of the
Constitutional Court,
in an attempt to influence that court’s pending judgment in a
number of related cases. The Judge President
is not a party to these
proceedings, nor was he involved in the proceedings leading up to
this appeal. I shall, however, in fairness
to him, in due course,
advert to his official response to the JSC.
[3]
At the outset it is necessary to emphasise that this case is not
about whether the complaint is justified, but, as already alluded
to,
the legitimacy of steps taken by the JSC, pursuant to the complaint
being lodged. It entails a consideration of two decisions:
First, the
decision by the JSC, to hold a preliminary inquiry and, second, to
constitute a tribunal to hear and adjudicate the
complaint. The
appellants also challenge the constitutionality of s 24(1) of the
JSCA, in terms of which a member of the National
Prosecuting
Authority (NPA) may assist a tribunal, established in terms of the
JSCA, by collecting and leading evidence. In this
regard, the
principal submission appears to be that the involvement in the
inquiry of a member of the NPA is an improper delegation
of power to
‘a member of the Executive’ and that it impermissibly
involves a non-member of the JSC in the adjudication
of the conduct
of a judge. Furthermore, it was contended that s 24(1) is in breach
of two fundamental principles, namely the doctrine
of the separation
of powers and the independence of the Judiciary.
[4]
Considering the principal actors in this litigation and the nature of
the complaint, it is a case of national significance.
Judicial
ethos
[5]
For a proper appreciation of the background culminating in the
present appeal, including the parties’ respective positions,

and to convey why continuing delay in the finalisation of this matter
that had its genesis in 2008 can only redound to the discredit
of the
judiciary, it is necessary, right at the beginning, to remind
ourselves of the place of a judge and the proper image of
the
judiciary in a constitutional democracy. The following fairly lengthy
extract from a decision of the Canadian Supreme Court
[3]
which, although relating to the position of a judge in Canada, is
equally applicable to our country and well worth noting:
‘
108.
The judicial function is absolutely unique. Our society assigns
important powers and responsibilities to
the members of its
judiciary. Apart from the traditional role of an arbiter which
settles disputes and adjudicates between the
rights of the parties,
judges are also responsible for preserving the balance of
constitutional powers between the two levels of
government in our
federal state. Furthermore, following the enactment of the
Canadian
Charter
,
they have become one of the foremost defenders of individual freedoms
and human rights and guardians of the values it embodies
. . . .
Accordingly, from the point of view of the individual who appears
before them, judges are first and foremost the ones who
state the
law, grant the person rights or impose obligations on him or her.
109.
If we then look beyond the jurist to whom we assign responsibility
for resolving conflicts between
parties, judges also play a
fundamental role in the eyes of the external observer of the judicial
system. The judge is the pillar
of our entire justice system, and of
the rights and freedoms which that system is designed to promote and
protect. Thus, to the
public, judges not only swear by taking their
oath to serve the ideals of Justice and Truth on which the rule of
law in Canada
and the foundations of our democracy are built, but
they are asked to embody them . . . .
110.
Accordingly, the personal qualities, conduct and image that a judge
projects affect those of the judicial
system as a whole and,
therefore, the confidence that the public places in it. Maintaining
confidence on the part of the public
in its justice system ensures
its effectiveness and proper functioning. But beyond that, public
confidence promotes the general
welfare and social peace by
maintaining the rule of law. In a paper written for its members, the
Canadian Judicial Council explains:
“
Public
confidence in and respect for the judiciary are essential to an
effective judicial system and, ultimately, to democracy founded
on
the rule of law. Many factors, including unfair or uninformed
criticism, or simple misunderstanding of the judicial role, can

adversely influence public confidence in and respect for the
judiciary. Another factor which is capable of undermining public
respect and confidence is any conduct of judges, in and out of court,
demonstrating a lack of integrity. Judges should, therefore,
strive
to conduct themselves in a way that will sustain and contribute to
public respect and confidence in their integrity, impartiality,
and
good judgment.”’ (References omitted.)
The
background
[6]
The litigation culminating in this appeal was launched in the Gauteng
Local Division of the High Court, Johannesburg, by the
two
appellants, Justices Baaitse Elizabeth Nkabinde and Christopher
Nyaole Jafta who, as will become apparent, are material witnesses
in
relation to the complaint. The particulars of their objections to the
decision by the JSC to hold a preliminary inquiry and
thereafter to
constitute a tribunal are dealt with later in this judgment. The
complaint was lodged in 2008, more than seven years
ago. The detailed
background to the appeal, including the reasons for the long delay in
finalising the inquiry into the complaint,
is set out hereafter.
[7]
In exploring the background, an appropriate starting point is the
statement in support of the complaint lodged with the JSC,
the only
body empowered to receive and deal with complaints concerning the
conduct of judges. The statement dated 17 June 2008
was penned by the
then Chief Justice, Pius Nkonzo Langa, who has since passed away. It
was made in Justice Langa’s capacity
as Chief Justice and head
of the Constitutional Court and commenced with an assertion that it
was made pursuant to a complaint
lodged on 30 May 2008 by 11 Justices
of the Constitutional Court. The following portion of the first
paragraph is significant:
‘
This
is a consolidated statement made on behalf of all the judges of the
Court containing the key information relevant to the complaint.
My
colleagues Moseneke DCJ, Jafta AJ, Mokgoro J, Nkabinde J and O’Regan
J have made confirming statements insofar as the
contents of this
statement relate to them. The other judges of the Court are willing
to make confirmatory statements as well, should
the Commission so
require.’
[8]
The statement was in response to a request for further particulars by
the JSC. The following extract from para 2 of the statement,

particularly from the perspective of the appellants, is important:
[4]
‘
On
12 June 2008, two of the judges, Jafta AJ and Nkabinde J, lodged a
statement with the JSC placing on record, among other things,
that
they were not willing to make any statement to the JSC, were not at
liberty to discuss the contents of their discussion with
the Chief
Justice and Deputy Chief Justice but that they would not object to
their disclosing the contents of those discussions
to the JSC. The
other judges of the Court had no knowledge that Jafta AJ and Nkabinde
J had taken this position.’
[9]
The relevant part of para 3 of the statement reads as follows:
‘
At
the outset, I confirm that the complaint having been collectively
lodged by the judges of the Court
is
being pursued by them
.
Those judges are myself, Moseneke DCJ, Jafta AJ, Kroon AJ (Jafta AJ
and Kroon AJ acted as judges of the Constitutional Court for
the
period 15 February 2008 till 31 May 2008), Madala J, Mokgoro J,
Ngcobo J, Nkabinde J, O’Regan J (O’Regan J acted
as ADCJ
for the period 15 February to 31 May 2008 and is sometimes referred
to as O’Regan ADCJ in this statement), Skweyiya
J, Van der
Westhuizen J and Yacoob J. The basis of that complaint is set out in
this statement, and confirmed in the attached statements
by Moseneke
DCJ, Jafta AJ, Mokgoro J, Nkabinde J and O’Regan J.’ (My
emphasis.)
[10]
It is necessary to record, as the statement does, that on 10 June
2008, Judge President Hlophe laid a counter-complaint with
the JSC
against the judges of the Constitutional Court. The basis of that
counter-complaint was that the Justices of the Constitutional
Court
had violated his constitutional rights, including his rights to
dignity, privacy and equality, by publishing a media release
about
their decision to lodge the complaint.
[5]
[11]
In paragraph 5 of the statement, Langa CJ explained that during March
2008 the Constitutional Court heard argument in the following

matters:
‘
5.1
Thint (Pty) Limited v National Director of Public Prosecutions &
others (CCT89/07);
5.2
J G Zuma & another v National Director of Public Prosecutions &
others (CCT91/07);
5.3
Thint Holdings (South Africa) (Pty) Limited & another v National
Director of Public Prosecutions (CCT90/07); and
5.4
J G Zuma v National Director of Public Prosecutions (CCT92/07).’
(These
cases are referred to collectively as the Zuma/Thint cases.
[6]
)
[12]
The judicial panel which heard the Zuma/Thint matters comprised Langa
CJ, O’Regan ADCJ, Ngcobo J, Madala J, Mokgoro J,
Skweyiya J,
Van der Westhuizen, Yacoob J, Nkabinde J, Jafta AJ and Kroon AJ. Both
Moseneke DCJ and Sachs J were on long leave and
their places were
filled by Jafta and Kroon AJJ.
[13]
Paragraph 8 of the statement explained the nature of the Zuma/Thint
cases as follows:
‘
[They]
concerned,
inter
alia
,
the lawfulness of certain searches and seizures undertaken in terms
of
section 29
of the
National Prosecuting Authority Act 32 of 1998
and the lawfulness of the issue of a letter of request to the
authorities in Mauritius in terms of the International Co-operation

in Criminal Matters Act 75 of 1996. Both the searches and seizures
and the issue of the letter of request related to the criminal

investigation concerning, amongst others, Mr J.G. Zuma, Thint
Holdings (Southern Africa) (Pty) Ltd and Thint (Pty) Ltd. Judgment
in
the Zuma/Thint cases has been reserved.’
[14]
Paragraphs 9 to 15 contain, in concise form, the material facts on
which the complaint is based:
‘
9.
Towards the end of March 2008, and after argument in the Zuma/Thint
cases had been
heard –
(a)
without invitation, Hlophe JP visited the chambers of Jafta AJ;
(b)
again without invitation, Hlophe JP raised the matter of the
Zuma/Thint cases that
had been heard by the Court; and
(c)
in the course of that conversation, Hlophe JP sought improperly to
persuade Jafta
AJ to decide the Zuma/Thint cases in a manner
favourable to Mr J G Zuma.
10.
On 23 April 2008, Hlophe JP contacted
Nkabinde J telephonically and requested to meet her on
Friday 25
April 2008. On that day –
(a)
Hlophe JP visited the chambers of Nkabinde J at the Constitutional
Court as agreed;
(b)
without invitation, Hlophe JP initiated a conversation with Nkabinde
about the Zuma/Thint
cases that had been heard by the Court; and
(c)
in the course of that conversation, Hlophe JP sought improperly to
persuade Nkabinde
J to decide the Zuma/Thint cases in a manner
favourable to Mr J G Zuma.
11.
The approach by Hlophe JP to both
Jafta AJ and Nkabinde J was then made known to Mokgoro J by
Nkabinde
J when the court term commenced in May 2008. Nkabinde J invited
Mokgoro J to her chambers saying that she needed some
advice on a
certain matter.
12.
Nkabinde J told Mokgoro J in
confidence that both she and Jafta AJ had been approached by Hlophe

JP. She said that she had been informed by Jafta AJ of the improper
approach by Hlophe JP to him prior to her being approached
by Hlophe
JP and she said that Jafta AJ had warned her of what Hlophe JP might
say.
13.
Nkabinde J then said that she had been
approached by Hlophe JP in her chambers towards the end
of April. She
told Mokgoro J that Hlophe JP had commenced the conversation
enquiring from her “Which Nkabinde are you?”
Nkabinde J
told him where she originated from, whereupon Hlophe JP then said
that he had always thought she was from one of the
Zulu-speaking
Nkabinde families. She told him that she had been married to a
“Nkabinde” and that after their divorce
she had retained
the surname.
14.
Nkabinde J then said that Hlophe JP
had told her “he had a mandate”. He then told
her that
the privilege issues in the Zuma/Thint cases had to be decided
“properly”. Nkabinde J was concerned because
she had been
writing a post-hearing note on the aspect of privilege. Both Mokgoro
J and Nkabinde J wondered how Hlophe JP had become
aware of the fact
that Nkabinde J had been writing on that aspect.
15.
Hlophe JP told Nkabinde J that he had
connections with the national intelligence. He also said
that some
people were going to lose their positions after the elections. Hlophe
JP also said that he had out-grown the Cape High
Court, that he was
going to make himself available for appointment at the Constitutional
Court and that Jafta AJ should also make
himself available for
appointment to the Constitutional Court.’
[15]
According to the statement, Mokgoro J had advised Nkabinde J to
report the matter to Langa CJ and/or Moseneke DCJ. It appears
that
Mokgoro J went on to state that the matter would affect the integrity
of the judiciary and, if not attended to, would place
it in peril.
Mokgoro J discussed the matter with O’Regan J who, at that
time, was Acting Deputy Chief Justice. They agreed
that Nkabinde J
should be encouraged to report the matter to either Langa CJ or
Moseneke DCJ. O’Regan ADCJ informed Moseneke
DCJ about what she
had been told by Mokgoro J and Nkabinde J, in turn, informed Langa CJ
about what had occurred. It is necessary
to repeat that the statement
recognised that Nkabinde J repeatedly expressed an unwillingness to
furnish an individual statement
regarding the matter.
[16]
On 28 May 2008 a meeting was convened, attended by Langa CJ, Moseneke
DCJ, Nkabinde J and Jafta AJ. The latter two judges were
asked to
recount what had occurred. The statement contains a detailed account
of what was expressed by them. In order to appreciate
the seriousness
with which the Chief Justice and his Deputy viewed the matter,
without venturing into issues such as context and
before setting out
Hlophe JP’s version of events as presented to the JSC, it is
necessary to repeat paragraphs 24 to 32 which
referred, in greater
detail, to the alleged interaction between Hlophe JP and Nkabinde J:
‘
24.
Hlophe JP then turned to discuss the Zuma/Thint cases; and said they
were important cases for
the future of Mr Zuma. He said that the
issue of privilege was an important aspect of the case for the
prosecution. If the point
raised by Mr Zuma’s counsel were to
be sustained there would be no case against Mr Zuma. Nkabinde J
expressed concern to
Langa CJ and Moseneke DCJ that she had composed
a post-hearing note on the specific issue of privilege and proposed a
preliminary
conclusion on it. (Post-hearing notes are circulated
amongst judges as a precursor to deliberations amongst judges). She
was also
puzzled as to why Hlophe JP had selected the issue of
privilege for discussion and wondered how he could have known that
she had
written on this issue. She was concerned as to how Hlophe JP
had obtained this information about the Zuma/Thint cases.
25.
Nkabinde J continued by saying that Hlophe JP had told her that he
had a mandate to act
as he was doing. He stated that he was
politically well-connected; and connected to members of national
intelligence. The implication
was that he was well informed about
what was happening at the Court. Hlophe JP added that there was no
real case against Mr Zuma
and that it was therefore important to hold
in his favour. Upon being asked by Nkabinde J what “besigheid”
it was of
his to discuss the case, Hlophe JP said that Mr Zuma was
being “persecuted” as he (Hlophe JP) had been persecuted.
Beyond that Nkabinde J reported that Hlophe JP had made other claims
that she referred to as “hogwash”. Nkabinde J made
it
clear that she had told Hlophe JP that he is not a member of the
Court to talk about the case and that even if he were a member,
he
would still not be entitled to discuss the case unless he had sat in
the case.
26.
Nkabinde J stated to Langa CJ and Moseneke DCJ that she had told
Hlophe JP that he should
not interfere with the workings of the
Court; and that Hlophe JP’s approach did not influence her.
27.
Nkabinde J also told Langa CJ and Moseneke DCJ that after the visit
by Hlophe JP she had
wrestled with what she should do about the visit
for some time. She then decided to speak to Mokgoro J to seek advice,
which she
did in early May just after the court term commenced.’
The
statement goes on to provide Jafta AJ’s recounting of his
interaction with Hlophe JP:
‘
28.
After Nkabinde J had provided her account to Langa CJ and Moseneke
DCJ, it was the turn of Jafta
AJ. He began by asking whether the
meeting was an official or unofficial one. Moseneke DCJ responded
that it may have both official
and unofficial consequences. He
confirmed that Langa CJ and he were acting in their capacity as Chief
Justice and Deputy Chief
Justice. Jafta AJ then went on to say that
he had known Hlophe JP for many years; that they had been colleagues
and friends. He
said that he did not want to breach a confidence but
that he could confirm in general terms what Nkabinde J had said.
29.
He stated that in March 2008, after the Zuma/Thint cases had been
heard, Hlophe JP had come
to his chambers and held a conversation
with him. He divided his account of his conversation with Hlophe JP
into two parts. The
first part he was willing to relate; the second
he said he had been told in confidence and refused to relate it. He
related the
first part of the meeting by saying that Hlophe JP had
said that the case against Mr Zuma should be looked at properly or
words
to a similar effect and added words to the effect that you are
our last hope (“Sesithembele kinina”).
30.
In response to a question, Jafta AJ stated that he gained the
impression that Hlophe JP
wished for a particular result in the
matter. Jafta AJ explained that he gained this impression because
Hlophe JP mentioned that
Mr Zuma was being “persecuted”
just as he (Hlophe JP) has been persecuted. Jafta AJ told Langa CJ
and Moseneke DCJ
that, particularly after he had heard of the
approach to Nkabinde J, he considered the approach to be serious and
that it was part
of an attempt by Hlophe JP aimed at interfering with
the independent exercise of judicial discretion by judges at the
Court.
31.
Jafta AJ also told Langa CJ and Moseneke DCJ that he had told Hlophe
JP in no uncertain
terms that the Zuma/Thint cases would be properly
decided on its facts and on the application of the law to them.
32.
Jafta AJ then stated that when he heard that Hlophe JP planned to
visit Nkabinde J, he warned
Nkabinde J that Hlophe JP had discussed
the Zuma/Thint cases with him.
33.
Jafta AJ also told Langa CJ and Moseneke DCJ that he had not planned
to lodge a formal complaint
about the conduct of Hlophe JP even
though he considered it to have been an improper attempt to influence
him. His view was that
he had decisively dealt with the matter by
rejecting the approach of Hlophe JP.’
[17]
Paragraph 34 of the statement, although stating that Nkabinde J and
Jafta AJ made it clear that in their view the approach
by Hlophe JP
had been improper, explained that they insisted that as far as they
were concerned they had dealt with the matter
by rejecting the
approach and did not consider it necessary to lodge a complaint or
make a statement. However, at the meeting referred
to in paragraph
16, the appellants agreed that the matter should be discussed with
other colleagues at the Constitutional Court.
Thus, the next day, a
meeting was convened at which the following judges were present:
‘
Langa
CJ, Moseneke DCJ, O’Regan ADCJ, Jafta AJ, Kroon AJ, Madala J,
Mokgoro J, Nkabinde J, Skweyiya J, Van der Westhuizen
J and Yacoob J.
Ngcobo J did not attend, nor did Sachs J who was in New York.’
At
that meeting, the Chief Justice and his Deputy took the view that the
conduct of Hlophe JP, as reported to them, ‘constituted
a
serious attempt to influence the decision of the Court in the
Zuma/Thint cases’.
[18]
The following part of paragraph 37 of the statement is significant.
‘
It
was decided
unanimously
by all judges present that the appropriate course of action, given
the gravity of the matter, was to lay a complaint with the JSC

against Hlophe JP. In reaching this decision, it was specifically
stated that the judges who had been approached by Hlophe JP,
if
Hlophe JP resisted the complaint, would have to give oral evidence to
the JSC in due course.’ (My emphasis.)
[19]
As noted above, this statement was in response to a request for
further particulars by the JSC, following the lodgment of the
initial
complaint. Before the statement was finalised, Nkabinde J and Jafta
AJ had indicated that they required legal advice, which
they
subsequently received. Counsel representing the two judges acted in
concert with counsel representing the other Justices of
the
Constitutional Court to finalise what was then in contemplation,
namely, two statements: one for the appellants and one for
the other
Justices of the Constitutional Court.
[20]
Before the collective statement of the other Justices was finalised,
the appellants sent two paragraphs for inclusion therein.
The
suggested paragraphs found their way into the statement and form part
of paragraphs 25 and 29, set out in para 15 above.
[21]
On 12 June 2008 a document was delivered by hand to Moseneke DCJ and
O’Regan ADCJ, which indicated that Nkabinde J and
Jafta AJ did
not intend to make a separate statement. Simply put, the appellants
ultimately aligned themselves with the collective
statement of their
colleagues. The initial reluctance by the appellants to take the
matter further and their hesitation, contrasted
with a later
commitment to a collective statement, conduces to an inevitable
tension.
[22]
The statement by the 11 Constitutional Court judges ended as follows:
‘
In
conclusion, it should be noted that this complaint is based on
conduct which the judges of the Court view in the most serious

possible light. It constitutes a grave threat to the institution of
the judiciary, and accordingly to our Constitution.
The
speedy resolution of the complaint is imperative.
Should the JSC wish to have any further information or clarification
of the above particulars, I will assist to the best of my
ability.’
(My emphasis).
[23]
On 10 June 2008, Hlophe JP lodged the counter-complaint referred to
above, and on 30 June 2008 he filed a response to the Constitutional

Court Justices’ complaint against him. The response sets out in
some detail his perspective and version of what had occurred
when he
had interacted with the appellants on the two occasions referred to
above. He adopted the attitude that the appellants
had been
manipulated and pressured by the Chief Justice and his Deputy and
contended that there was a political motive to get rid
of him at all
costs. Hlophe JP stated that the media statement he had complained
about showed a total disrespect for his rights,
including his rights
to privacy and dignity. The Judge President considered it significant
that the appellants had made it very
clear that they did not intend
to lay a complaint against him or to make any statement about the
matter. Dealing with the series
of conversations involving the
appellants and the Chief Justice and his Deputy, the Judge President
stated the following:
‘
It
is clear that the process followed and actively encouraged by the
Chief Justice and Deputy Chief Justice was designed to subvert
the
will of their colleagues and the series of conversations were an
attempt to persuade them to join the two of them in their
view of the
matter, a view they recklessly pursued, and has brought this
country’s judiciary where it is today. On 12 June
2008 and
despite the intense interactions between the Deputy Chief Justice and
Judges Nkabinde and Jafta recorded in paragraph
47
[7]
,
a joint statement was issued by Judges Nkabinde and Jafta in which
they distanced themselves from the complaint.’
[24]
In relation to his interaction with the appellants, Hlophe JP
confirmed that he and Jafta AJ had known each other for many
years,
as colleagues and friends. The meeting referred to in the statement
by the Justices of the Constitutional Court was one
that had been
pre-arranged. He had been warmly received by Jafta AJ when he
attended at the latter’s chambers at the Constitutional
Court.
They exchanged pleasantries and discussed family and the judiciary.
Hlophe JP only referred to the Zuma/Thint matters because
the files
in those cases were numerous and visible to any person walking into
Jafta AJ’s chambers. According to the Judge
President, he
expressed the view that the issue of privilege in those cases was
important and had to be dealt with properly. They
agreed that the
issue of privilege was foundational in those matters. Hlophe JP
admitted that he uttered the words ‘sesithembele
kinina’.
This, according to Hlophe JP, was intended to convey that the issue
of privilege would receive satisfactory attention
and not that there
should be a ‘positive finding’ for Zuma/Thint. Hlophe JP
could not comprehend why expressing an
opinion to ‘an
independent minded and competent judge as Jafta AJ would be
interpreted as an attempt at influencing him to
rule favourably’.
The Judge President considered it significant that Jafta AJ did not
once express the view that he had acted
inappropriately.
[25]
In relation to his interaction with Nkabinde J, Hlophe JP explained
that approximately two or three weeks after he had met
Jafta AJ he
was scheduled to attend a meeting of the Local Organising Committee
of the Commonwealth Magistrates and Judges Association
(the LOC). He
went on to state that as the Chairperson of the LOC he was given a
mandate by Chief Justice Langa to convene a conference
of Judges and
Magistrates in Cape Town in October. A lunch for members of the LOC
had been organised at the Constitutional Court
and he intended to
utilise that opportunity to call on Nkabinde J at her chambers. An
appointment was arranged and, as far as he
was concerned, it was
‘simply a courtesy call and nothing more’. As with Jafta
AJ, pleasantries were exchanged and
family matters discussed. The
Zuma/Thint record was as prominent in Nkabinde J’s chambers as
they had been in Jafta AJ’s.
Hlophe JP remarked to Nkabinde J
that those cases were probably one of the most demanding cases that
the Constitutional Court was
called upon to deal with, given its
importance to the President of the ANC, Jacob Zuma, to the ANC, and
to the country in general,
since it was clear that Mr Zuma was likely
to become President. According to the Judge President, Nkabinde J
informed him that
she was busy preparing a note on the issue of
privileged communications between attorney and client. She told him
that privilege
was an important legal issue in the case. He agreed
and stated that he ‘was concerned that the majority in the
Supreme Court
of Appeal did not attach much weight to the issue of
privilege’. Hlophe JP stated that he expressed strong views
about the
issue of privilege but was given no indication that
Nkabinde J was uncomfortable about the discussion.
[26]
In respect of the allegation that Hlophe JP had referred to a mandate
in his interaction with Nkabinde J, he responded as follows:
‘
Justice
Nkabinde asked me what I was doing in the Constitutional Court. My
response was that I had been given a mandate by Chief
Justice Langa
to chair the LOC for the Commonwealth conference on Judges and
Magistrates to be held in Cape Town. I also told her
that I would be
seeing him for a short time before the meeting to report on some
issues. I never said that I had any connection
with the national
intelligence or that some people would lose their jobs after
elections in which Jacob Zuma would be President.
Judges enjoy secure
tenure and it would be foolishness to use such a blunt threat in such
circumstances. Justice Nkabinde, unlike
Justice Jafta who was on an
acting appointment, is a permanent Judge of the Constitutional Court.
But again it is unclear how my
views expressed with no intimate
knowledge of the case could influence a judge of the Constitutional
Court.’
[27]
In relation to the allegation that Nkabinde J had been warned by
Jafta AJ that Hlophe JP would pay him a visit, the Judge President

said the following:
‘
Despite
being allegedly warned by Justice Jafta, Justice Nkabinde never
cancelled our scheduled meeting, never asked me not to come,
but
instead welcomed me and spoke with me for approximately 30-45
minutes. I cannot understand how the information that Justice
Jafta
is alleged to have conveyed to Justice Nkabinde would not have been
sufficiently important for Justice Nkabinde to keep me
out of her
chambers or even meeting her for that matter.’
[28]
On 5 July 2008 the JSC decided that in view of the conflict of facts
on the papers placed before it, it was necessary to refer
both the
complaint by the Constitutional Court and the counter-complaint by
the Judge President to the hearing of oral evidence,
on a date to be
arranged.
[29]
On 1 April 2009 the JSC convened to hear oral evidence. Langa CJ,
Moseneke DCJ, Mokgoro, O’Regan and Nkabinde JJ and
Jafta AJ
attended the hearing. Hlophe JP could not attend on account of a
medical condition. The hearing was postponed and reconvened
on 4
April 2009. Hlophe JP sought a further postponement on the basis that
a new senior counsel was appointed and required time
to prepare for
the hearing. In addition, the Judge President’s medical
condition had not improved. Despite opposition by
the appellants and
the other Justices of the Constitutional Court, the matter was
postponed to 7 April 2009. When the JSC reconvened
on that date,
Hlophe JP was still indisposed. The JSC by majority decision refused
a further postponement. Hlophe JP’s counsel
asked to be excused
on the basis that they could serve no useful purpose in the absence
of their client and without instruction.
The JSC proceeded with the
hearing. The Constitutional Court Judges, excepting for O’Regan
J, presented oral evidence and
were questioned by members of the JSC.
According to the appellants’ founding affidavit, the
questioning was based on challenges
raised by Hlophe JP. On 8 April
2009 proceedings were adjourned to enable the record of proceedings
to be made available to the
parties for the purposes of preparing
written submissions.
[30]
Subsequent to the adjournment, Hlophe JP launched proceedings in the
South Gauteng High Court, resulting in an order declaring
the
proceedings of the JSC of 7 and 8 April 2009 unlawful and void
ab
initio
.
It was ordered that proceedings be started
de
novo
.
[8]
[31]
The JSC convened from 20 to 22 July 2009 to consider the complaint
and the counter-complaint. On 22 July 2009 it decided that:
‘
(a)
The complaints be considered
de
novo
,
(b)
in terms of rule 3(1) of the [then existing Rules], the allegations
made in the complaint
and counter-complaint, if established, would
amount to gross misconduct; and
(c)
in terms of rule 4(1) of the [then existing Rules], a sub-committee
consisting of
Ngoepe JP . . . , Moerane SC and Semenya SC be
appointed to investigate the complaints by conducting interviews
behind closed doors.’
[32]
On 30 July 2009 the sub-committee commenced conducting the
interviews. Langa CJ, Moseneke DJC, Hlophe JP, Nkabinde J and Jafta

AJ were called to appear before the sub-committee. The appellants
were questioned on some of the matters allegedly constituting

disputes of fact. After the interviews were conducted, the inquiry
was adjourned until 15 August 2009.
[33]
On 15 August 2009 the JSC reconvened
[9]
and decided as follows:
‘
a.
the evidence in respect of the complaint did not justify a finding
that the Judge President
was guilty of gross misconduct and that the
matter was accordingly finalised;
b.
the evidence in support of the counter-complaint did not support a
finding that
the Constitutional Court Justices were guilty of gross
misconduct and that the matter was accordingly finalised; and
c.
none of the judges against whom complaints had been lodged was guilty
of gross
misconduct.’
[34]
Subsequent to the decision, the Premier of the Western Cape Province
launched proceedings in the Western Cape High Court, Cape
Town,
challenging the validity of that decision on the basis that the JSC
had not been properly constituted. The application by
the Premier was
contested by the JSC and Hlophe JP. The Premier was successful and
the JSC proceedings and the decisions referred
to in the preceding
paragraph were set aside.
[10]
The JSC and Hlophe JP unsuccessfully appealed to the Supreme Court of
Appeal against that decision.
[11]
[35]
Aggrieved at the JSC’s decision referred to in paragraph 32
above, Freedom Under Law (FUL) launched review proceedings
in the
North Gauteng High Court, seeking,
inter alia
, an order:
‘
(a)
setting aside the decision of the JSC, reversing its earlier decision
to hold a formal inquiry
into the complaints and deciding to hold a
preliminary inquiry; and
(b)
reversing the decision of the JSC taken on 15 August 2009 in which it
was declared
that the evidence in respect of the complaints did not
justify a finding that Hlophe JP was guilty of gross misconduct and
that
the matter be treated as finalised.’
[36]
The North Gauteng High Court, Pretoria, dismissed the application.
FUL, however, in an appeal to the Supreme Court of Appeal,
was
partially successful.
[12]
The
Supreme Court of Appeal set aside the JSC’s decision of 15
August 2009 to dismiss both the complaint and the counter-complaint,

but refused to set aside the decision of the JSC of 22 July 2009 to
hold a preliminary inquiry rather than to embark immediately
on a
formal inquiry. In para 28 of
Freedom
Under Law
,
Streicher JA held:
‘
There
is obviously no unanimity among the members of the JSC concerning the
decision that was taken on 5 July 2008, and whether
the enquiry
proceeded with thereafter was intended to be an enquiry in terms of
rule 5. That being the case and in the light of
the fact that the
composition of the JSC had changed, the sensible course to follow
would have been to reconsider the matter de
novo, whatever the
previous decisions may have been.’
[37]
In relation to the JSC’s decision to dismiss the complaint,
this court, in
Freedom Under Law
, considered the two
possibilities facing the JSC. The one being that Hlophe JP attempted
to influence the two Justices as alleged
by them and the other that
he did not do so. Neither of the two conflicting versions had been
tested by cross-examination. In para
45 of
Freedom Under Law
the
following appears:
‘
The
finding that it could not reject Hlophe JP’s version is quite
correct. By disallowing cross-examination that result was
made
inevitable. It would have been highly irregular to reject his
evidence without having given him an opportunity to cross-examine
his
accusers. Utilising this procedure for the final resolution of a
complaint of misconduct by a judge will always lead to a dismissal
of
the dispute, where the conduct alleged by the accuser is disputed by
the judge, because the judge’s version can never
be rejected
without having given him an opportunity to cross-examine his
accusers. The procedure adopted was therefore not appropriate
for the
final determination of the complaint.’
[38]
In
Freedom
Under Law
,
t
his
court made it clear that proceedings in relation to complaints
against judges are in the nature of a disciplinary inquiry and
that
proof on a balance of probabilities is required (para 46). It
rejected the JSC’s justification for dismissing the complaint

on the basis that the entrenched versions would be adhered to and
that cross-examination would serve no purpose. It also considered

cross-examination essential to a decision by the JSC.
[13]
It said the following in paragraph 50:
‘
.
. . [T]he decision by the JSC to dismiss the complaint, on the basis
of a procedure inappropriate for the final determination
of the
complaint, and on the basis that cross-examination would not take the
matter any further, constituted an abdication of its
constitutional
duty to investigate the complaint properly.’
[39]
In respect of the counter-complaint this court, in
Freedom
Under Law
,
had regard to its earlier decision in
Langa
CJ & others v Hlophe
,
[14]
in which it held that the filing of the complaint by the
Constitutional Court judges and the making of a public statement that

they had done so, before he had been given a hearing, were not
unlawful. In     para 55 of
Freedom
Under Law
,
the following appears:
‘
Unlike
in the case of the complaint, there was no evidence contradicting the
evidence of the Constitutional Court judges on the
basis of which the
allegations against them could be established. The JSC was therefore
entitled to dismiss the counter-complaint
on the basis that the
allegations were incapable of establishment.’
That
put paid to the counter-complaint.
[40]
For completeness it is necessary to record that, during 2010, the
Mail and Guardian newspaper had brought an application in
the South
Gauteng High Court, Johannesburg, in which it was contended that the
JSC could not have reversed its earlier decision
to hold a formal
enquiry. Malan J held that the JSC was entitled to reverse its
earlier decision and conduct a new preliminary
hearing. The decision
is reported as
Mail
and Guardian Ltd & others v JSC & others; e.tv (Pty) Ltd &
another v Judicial Service Commission & others
2010 (6) BCLR 615 (GSJ).
[15]
[41]
Following on the litigation referred to above, the JSC, during April
2012, decided to refer the collective complaint by the
11 Justices of
the Constitutional Court to the Judicial Conduct Committee (the JCC),
purportedly in terms of s 14 of the JSCA.
The
regulatory regimes relating to judicial misconduct
[42]
I interpose to state that until 1 June 2010 complaints against judges
were dealt with in terms of Rules established by the
JSC, pursuant to
its powers as provided for in s 178(6) of the Constitution:
‘
The
Judicial Service Commission may determine its own procedure, but
decisions of the Commission must be supported by a majority
of its
members.’
Section
178(5) of the Constitution provides,
inter alia
, that when the
JSC considers any matter except the appointment of a judge, ‘it
must sit without the members designated in
terms of subsection (1)
(h)
and
(i)
’.
The
persons excluded are politicians, namely, members of the National
Assembly and the National Council of Provinces.
[43]
At the time that the complaint by the 11 Constitutional Court judges
was lodged, the Rules that governed complaints against
judges
provided that the JSC ‘shall consider any complaint received
from any source alleging incapacity, gross incompetence
or gross
misconduct of a judge’.
[16]
Rule 2.2 is of particular significance to the present dispute and
reads as follows:
‘
The
JSC may require any complaint to be on oath, but shall be entitled to
act on any complaint whether on oath or not or in writing
or reported
to it orally, which it deems of sufficient seriousness to justify
investigation or possible action in terms of Section
177 of the
Constitution.’
[44]
In terms of Rule 2.5, the JSC was entitled to appoint a sub-committee
to deal with complaints, when it was not in session.
In the event of
the JSC resolving that the conduct complained of, if established,
would justify a judge’s removal from office,
it was entitled to
appoint a sub-committee consisting of one or more of its members to
investigate and report to the Commission.
The sub-committee was
entitled to hear evidence if necessary and to report back to the
Commission as to the future conduct of the
matter.
[17]
Upon receipt of a report of the sub-committee, the JSC would resolve
whether or not to accept the recommendation of the sub-committee.
[18]
Rule 5 provided for the procedure in the event of a formal inquiry.
Rule 5.4, which is pertinent to the present dispute, reads
as
follows:
‘
The
JSC may appoint
an
attorney and/or counsel
to [act] as pro-forma prosecutor and to undertake any or all the
following tasks: to prepare a charge sheet, to lead evidence,
to
cross-examine witnesses, to present argument and to do all other
things necessary that may assist the JSC in fulfilling its
task under
Section 177(1)
(a)
of
the Constitution.’ (My emphasis).
[45]
At the time that the complaint by the 11 Justices of the
Constitutional Court was lodged in terms of the JSC Rules then in

force, it was not necessary for it to have been on oath. A complaint
on oath was optional. At that time it must have been in everyone’s

contemplation that the matter would be dealt with in terms of the
then existing Rules. The JSCA was amended in June 2010 and a
new
statutory regime to deal with complaints against judges came into
operation. This, as can be seen, occurred approximately two
years
after the complaint was lodged. Sections 8, 9, 10 and 14 through 33
of the JSCA, introduced by the amendments, are extensive
and set out
mechanisms for the lodging and disposal of complaints. The amendments
provided for the establishment of a Judicial
Conduct Committee and a
tribunal to deal with complaints against judges. The new provisions
of the JSCA set out in some detail
the procedures to be followed in
relation to the adjudication of complaints.
The
JCC and the Tribunal
[46]
The new statutory regime was in place when the JSC decided during
April 2012 to have the matter dealt with prospectively in
terms of
the new procedures by referring the complaint to the JCC established
in terms of s 8 of the JSCA, to be dealt with in
terms of s 14 read
with s 16 of the JSCA. I shall, in due course, deal with the relevant
statutory provisions in greater detail.
[47]
The JCC to which the complaint was referred was chaired by the then
Judge President of the Free State, Musi JP. Acting in terms
of s 16
of the JSCA, the JCC recommended to the JSC that a tribunal be
appointed in terms of s 21 of the JSCA to investigate the
complaint.
On 17 October 2012 the JSC decided, in terms of    s
19 of the JSCA, to request the Chief Justice to
appoint a tribunal to
investigate and report on the complaint lodged by the Justices of the
Constitutional Court. The Chief Justice,
acting in terms of s 21 of
the JSCA, appointed the Tribunal to investigate the collective
complaint. Labuschagne J was appointed
as the Tribunal President and
Sandi J and a Ms Pather served as its members. I shall for
convenience refer to this Tribunal as
the Labuschagne Tribunal.
[48]
Section 24(1) of the JSCA provides:
‘
(1)
The President of a Tribunal may, after consulting the Minister and
the National Director
of Public Prosecutions, appoint a member of the
National Prosecuting Authority to collect evidence on behalf of the
Tribunal, and
to adduce evidence at a hearing.’
The
fourth respondent, Ms Xolisile Khanyile, is a member of the NPA. She
was appointed by the president of the Labuschagne Tribunal
in
consultation with the third respondent, the Minister of Justice and
Constitutional Development and the National Director of
Public
Prosecutions to collect and adduce evidence before the Labuschagne
Tribunal.
[49]
On 1 October 2013, at the Labuschagne Tribunal hearing, it was
submitted on behalf of the appellants that since the complaint
by the
Constitutional Court Justices had been lodged during May 2008, it
ought rightly to be adjudicated in terms of the Rules
which
constituted the regulatory regime prior to the amendments to the
JSCA. As noted, under the old regime a complaint need not
have been
on oath, whereas the present statutory framework obliged a complaint
to be in the form of an affidavit. The prior regime
did not make
provision of the appointment of a tribunal nor did it have a
provision for a prosecutor drawn from the NPA to lead
and adduce
evidence. It was submitted that after the decision of this court in
Freedom Under Law
it was not open to the JSC to withdraw its
earlier decision not to conduct a formal inquiry. It was contended,
in the alternative,
that if the amended provisions were to be
applied, there was no proper complaint before the JSC as the
complaint was not on oath.
Seen in proper perspective, the appellants
were challenging the Labuschagne Tribunal’s jurisdiction to
adjudicate the complaint.
The Labuschagne Tribunal rejected these
contentions. The following is a summary of the reasons supplied for
the rejection:
(a)
The complaint had been submitted in terms of s 177(1)
(a)
of the Constitution
[19]
and in
accordance with the Rules governing disciplinary procedures which the
JSC was entitled to adopt in terms of s 178(6) of
the
Constitution.
[20]
There is
nothing in the amending provisions of the JSCA that invalidates
complaints made before it took effect and it was a well-known

principle that amending legislation does not strike at acts completed
before its enactment.
(b)
The validity of the lodging of the complaint, as opposed to its
merits, had never during
the many years of intervening litigation and
attempts at adjudication, been challenged.
(c)
Even if s 14(3) of the amended JSCA were to be applied, it did not
necessarily mean
that the complaint was invalidated. The question was
still whether the purpose of the legislation had been achieved and
whether
there had been substantial compliance with its provisions.
And, ‘[t]he common cause facts are that the Constitutional
Court
justices were very serious when the complaint was lodged. They
made confirmatory statements and confirmed the contents of the
statement
by the late Chief Justice as true and correct.  In the
first interdict proceedings and in the hearings before the JSC on 7-8

April 2009, the complaint was confirmed under oath.’ To the
extent that compliance with the JSCA was mandatory, the defect
had
been cured.
(d)
The JSC was not
functus
officio
and in terms of the decision in
Freedom
Under Law
and
the
Mail
and Guardian
,
the inquiry following upon the complaint had to commence de novo and
the Labuschagne Tribunal had jurisdiction to hear the matter
in terms
of the provisions of the JSCA.
[50]
Dissatisfied with that outcome, the appellants attempted to obtain an
undertaking from the fourth respondent that she would
not give effect
to subpoenas issued by the JSC, calling upon them to appear before
the Labuschagne Tribunal on 8 October 2013 pending
the finalisation
of contemplated review proceedings. This she refused to give. The
appellants then applied to the court a quo,
the Gauteng Local
Division of the High Court, Johannesburg, for an order, inter alia,
setting aside two decisions by the JSC, namely,
the decision during
April 2012, when the JSC decided to refer the matter to the JCC for a
preliminary inquiry and the decision
on 17 October 2012 when the JSC
decided to request the Chief Justice to appoint a tribunal. In
addition, the appellants also sought
an order declaring s 24(1) of
the JSCA to be unconstitutional.
The
decision of the court a quo
[51]
The court a quo (Mayat J, Claassen and Kgomo JJ concurring)
considered the assertions by the appellants that after this court’s

decision in
Freedom Under Law
they expected the JSC to refer
the matter back to the sub-committee of the JSC in terms of the old
Rules or that the JSC itself
would undertake the inquiry to attempt
to resolve the disputes of fact by way of cross-examination. The two
appellants were aggrieved
that the ‘rules of engagement’
had been changed. They were adamant that, whilst they wanted to
co-operate fully and
were not opposed to giving further evidence,
they were motivated by their commitment to the rule of law, of which
the principle
of legality was an essential component. They asserted
that they wanted things to be done in strict accordance with the law.
Insofar
as the undue delay in the finalisation of the complaint is
concerned, the appellants were aggrieved that the impression had been

created that they are contributing in no small measure to the matter
being deferred. The following statement in the founding affidavit
by
Nkabinde J bears repeating:
‘
These
damaging and unhelpful perceptions are far from correct. Any
suggestion that we refuse to testify misses the point. We reiterate

that we do not have the slightest problem testifying before a
properly constituted structure seeking to resolve the complaint that

may have been properly lodged with the JSC either under the old Rules
or in terms of the amended JSC Act. It needs to be emphasised
also
that we have never held back or delayed the proceedings of the JSC.
This is underscored by the transcript of the proceedings
of the JSC.
We mention further, at the risk of repetition, that we have testified
before committees of the JSC under the old Rules.
We do not take
kindly to the damaging and unhelpful insinuations that we are “
back
tracking”
on
the original complaint. Far from it.’ (Emphasis in original.)
[52]
The essence of the argument on behalf of the appellants was that it
is a fundamental principle that statutes generally apply

prospectively unless a retrospective application is contemplated by
the statute itself. It was contended on behalf of the appellants
that
the JSC incorrectly applied the amendments referred to above
retrospectively. The main preliminary objection before the
Labuschagne
Tribunal was that if it were to continue in terms of the
amended JSCA, it must follow that it did not in terms of the new
statutory
regime have a valid complaint before it. In terms of s
14(3)
(b)
of the JSCA, a complaint based on the grounds set out in s 14(4)
(a)
has
to be lodged by means of an affidavit or affirmed statement,
specifying the nature of the complaint and the facts on which the

complaint is based.
[53]
Mayat J, after considering the old Rules and the provisions
introduced by the amendments, addressed the issue raised by the

appellants, namely, the improper retrospective application of the new
statutory regime that applied to complaints against judges.
After
examining the applicable authorities, the learned judge concluded
that, in the absence of the impairment of any existing
substantive
rights, the inquiry ought rightly to be conducted in terms of the new
statutory regime. She rejected the contention
that, in the event of
the new statutory regime being applicable, it could correctly be said
that there was no valid complaint and
that there could therefore be
no valid inquiry, nor indeed could a tribunal be established. She
went on to hold that there would,
in any event, have been substantial
compliance with the provisions of s 14(3) of the JSCA, as the
appellants and the other Justices
of the Constitutional Court had, in
subsequent litigation, on affidavit confirmed their positions in
relation to the complaint.
[54]
In relation to the application to have s 24(1) of the amended JSCA
declared unconstitutional, Mayat J considered the contentions
on
behalf of the appellants, namely, that it violated constitutional
principles in relation to the separation of powers and in
particular
that it impinged on judicial independence. The appellants submitted
that in terms of the impugned subsection the Minister
and the NDPP
necessarily play a role in the appointment of a member of the
prosecutorial services to collect and lead evidence
before the
Tribunal. The appellants were opposed to a ‘non-judicial’
person playing a role in relation to an inquiry
involving a judge’s
conduct. The involvement of a prosecutor was viewed negatively by the
appellants, more particularly since
at least notionally, the
prosecutorial services might later be involved in criminal
proceedings involving a judge against whom
damning findings might be
made by a tribunal.
[55]
The court a quo considered it important that a tribunal, established
in terms of the JSCA, has the power to investigate and
report on an
inquisitorial basis, purely with a view to making a recommendation to
the Commission, which is then, in turn, empowered
to make a finding
in terms of s 177(1)
(a)
of
the Constitution about whether a judge is guilty of gross misconduct.
In the event of such a finding by the Commission, as opposed
to the
Tribunal, the President and two-thirds of the National Assembly are
empowered in terms of s 177(1)
(b)
read
with s 177(2) of the Constitution, to take further steps to remove a
judge from office. Mayat J took the view that it was significant
that
no powers were given to a prosecutor to either investigate or make a
determination on the complaint. She held that a prosecutor
appointed
in terms of s 24(1) of the JSCA, was subject to directions from the
Tribunal and differed from the role of a prosecutor
in a criminal
trial. The learned judge had regard to the answering affidavit on
behalf of the Minister and found that it plausibly
and tenably
justified the appointment of a prosecutor from the members of the
NPA, by obvious considerations of costs and convenience
for all
parties if the Tribunal elects to appoint a prosecutor.
[56]
The court a quo had difficulty with the contention that the
independence of the judiciary was compromised by the appointment
of a
prosecutor in terms of s 24(1). Mayat J doubted that a perception
could be created that judges would somehow lose their independence
by
the participation of a prosecutor in the role of assisting the
Tribunal. The learned judge also had difficulty comprehending
how, at
a practical level, a prosecutor could be viewed as part of the
executive.
[57]
Consequently, the court a quo dismissed the application. It is
against that conclusion and the findings referred to above that
the
present appeal is directed. The court a quo refused the appellants’
application for leave to appeal with costs. Pursuant
to an
application for leave to appeal to this court in terms of
s 17(2)
(b)
of
the
Superior Courts Act 10 of 2013
, on 17 March 2015 this court
referred the application for leave to appeal for oral argument in
terms of
s 17(2)
(d)
of the
Superior Courts Act. At
the commencement of proceedings before
us it was agreed between the parties that this was a matter where
leave ought to be granted
in terms of
s 17(1)
(a)
(ii),
there being a compelling reason, namely, finality and the importance
of the case in relation to the administration of justice
and its
importance to the judiciary.
[21]
The parties proceeded to argue the merits of the matter.
The
functus officio
principle
[58]
Although counsel on behalf of the appellants did not, in oral
argument, pursue with any vigour the contentions previously made

before the Labuschagne Tribunal in relation to the
functus
officio
principle, the issue was nevertheless raised pertinently in written
heads of argument and can be disposed of summarily. In
Freedom
Under Law
,
this court, having regard to the changed composition of the JSC,
considered it sensible for the complaint to be addressed de novo.
[22]
Malan J, in
Mail
and Guardian
,
had regard to the provisions of s 178(6) of the Constitution and held
that it was implicit that the JSC may vary earlier decisions
on the
procedure to be followed in relation to an inquiry but that in doing
so it must have regard to procedural fairness.
[23]
It is necessary to record that in that case the appellants and Hlophe
JP gave early notice that they would abide a decision of
the court.
It needs to be stated that
Mail
and Guardian
principally concerned the right of access by the media to the
inquiry. However, the issue of whether the JSC was
functus
officio
had been specifically raised and dealt with by that court. That would
have been a decision they should have abided by. Having regard
to the
slew of cross-cutting litigation and resultant outcomes, I agree with
what was stated by Streicher JA in the
Freedom
Under Law
decision, namely, that the common sense approach compelled the
conclusion that the inquiry be approached anew.
The
presumption against retrospectivity
[59]
The application of the provisions of the JSCA is objected to by the
appellants on the basis that it flies in the face of certain

fundamental principles in our law, which give effect to important
constitutional values. In particular it is contended that the

application of the provisions of the JSCA is in contravention of the
presumption against the retrospective application of statutory

enactments. That is the discussion to which I now turn.
[60]
The development of the law, in relation to the presumption against
retrospectivity, stretching back to Roman times, is usefully
set out
in the decision of this court in
Adampol (Pty) Ltd v
Administrator, Transvaal
[1989] ZASCA 59
;
1989 (3) SA 800
(A) at
805E-807F. As far back as 440 AD the Emperors Theodosius and
Valentian enacted a decree, recorded in
Cod
1.14.7, the
translation of which reads as follows:
‘
It
is certain that the laws and decrees give shape to future matters and
are not applied to acts of the past, unless express provision
is made
for past time and for matters which are still pending.’
[24]
[61]
The rule was introduced into England and developed by the courts
there with many exceptions. In
Williams v Williams
[1971] 2
All ER 764
(PDA) at 770j-771a, Lord Simon P said:
‘
This
rule is a presumption only; and it may be overcome either by express
words in the statute showing that the provision is intended
to be
retrospective, or “by necessary and distinct implication”
demonstrating such an intention.’
[62]
It developed along similar lines in America. See
Corpus Juris
Secundum
vol 82 (1953) s 412:
‘
Literally
defined, a retrospective law is a law which looks backwards or on
things that are past; a retroactive law is one which
acts on things
that are past. In common use, as applied to statutes, the two words
are synonymous, and in this connection may be
broadly defined as
having reference to a state of things existing before the act in
question. A retroactive or retrospective law
in the legal sense, is
one
that takes away or impairs vested rights acquired under existing
laws
,
or creates a new obligation, imposes a new duty, or attaches a new
disability in respect of transactions or considerations already
past.
However, a statute does not operate retroactively merely because it
relates to antecedent events, or because part of the
requisites of
its action is drawn from time antecedent to its passing, but is
retroactive only when it is applied to rights acquired
prior to its
enactment.’ (My emphasis.)
[63]
The rule was also adopted in Roman-Dutch law and our courts followed
suit. In
Curtis v Johannesburg Municipality
1906 TS 312
, Innes
CJ, although asserting the presumption against retrospectivity,
reflected above, stated the following in relation to legislation

effecting procedural changes:
‘
Every
law regulating legal procedure must, in the absence of express
provision to the contrary, necessarily govern, so far as it
is
applicable, the procedure in every suit which comes to trial after
the date of its promulgation . . . it must regulate all such

procedure even though the cause of action arose before the date of
promulgation, and even thought the suit may have been then pending.’
At
316 of
Curtis
the following qualification appears:
‘
.
. . [I]f the effect of construing a statute literally would be to
take away existing rights, then the literal construction should
not
be adopted, unless it is evident beyond doubt that the legislature
intended it, or unless any other construction would defeat
the
evident object of the statute, or would render it meaningless.’
[64]
In
Minister of Public Works v Haffejee NO
[1996] ZASCA 17
;
1996 (3) SA 745
(A), this court said at 753 B-D:
‘
.
. . [I]t does not follow that once an amending statute is
characterised as regulating procedure it will always be interpreted

as having retrospective effect. It will depend upon its impact upon
existing substantive rights and obligations. If those substantive

rights and obligations remain unimpaired and capable of enforcement
by the invocation of the newly prescribed procedure, there
is no
reason to conclude that the new procedure was not intended to apply.
Aliter
if they are not.’
[65]
After the advent of our constitutional democracy, the Constitutional
Court in
Veldman v Director of Public Prosecutions, Witwatersrand
Local Division
[2005] ZACC 22
;
2007 (3) SA 210
(CC), observed
that generally, legislation is not to be interpreted to extinguish
existing rights and obligations. In para 26 of
that judgment, Mokgoro
J stated the following:
‘
That
legislation will affect only future matters and not take away
existing rights is basic to notions of fairness and justice which
are
integral to the rule of law, a foundational principle of our
Constitution. Also central to the rule of law is the principle
of
legality which requires that law must be certain, clear and stable.
Legislative enactments are intended to “give fair
warning of
their effect and permit individuals to rely on their meaning until
explicitly changed”.’ (Footnotes omitted.)
[66]
In
Veldman
, O’Regan J with reference to
Haffejee
,
stated (para 49):
‘
The
distinction between substance and procedure, however, is not always
easy to draw, as courts have often observed. Some procedural

provisions can have a fatal effect on the ability to launch a cause
of action or to raise a defence and so have a material substantive

effect. In these circumstances Courts have been slow to take the view
that the statute should operate with immediate effect on
all pending
claims.’ (Footnote omitted.)
[67]
In
Veldman
, in para 34 the following appears in the judgment
of Mokgoro J:
‘
In
a constitutional democracy, if new legislation affects a person in a
manner that is detrimental to his or her substantive rights,
the
application of that law will not escape scrutiny simply on the
grounds that it is procedural in nature.’ (Footnote omitted.)
[68]
In
Veldman
, in a concurring judgment, Ngcobo J said the
following (para 69):
‘
However,
an exception to this general rule was made in the case of purely
procedural statutes. These statutes were considered to
operate
retrospectively. The rationale for this was that “no person has
a vested right in any particular course of procedure,
but only a
right to prosecute or defend a suit according to the rules for the
conduct of an action for the time being prescribed”.
In this
context the distinction between statutes that regulated procedure and
those that did not assumed particular importance
in determining
whether a particular statute operates prospectively or
retrospectively. However, as the Appellate Division case
law
demonstrates, and O’Regan J observes, the distinction between
procedural and non-procedural statutes is not always easy
to draw,
and the distinction was thus not always helpful.’ (Footnotes
omitted.)
[69]
In
Veldman
,
Ngcobo J stated that it was offensive to a right to a fair trial to
subject an accused person to a more severe punishment that
was not in
operation at the time when the accused committed the offence.
[70]
I did not understand counsel on behalf of any of the parties to
contend that the question of whether the new statutory regime
should
be applied to pending cases is to be addressed other than on the
basis of whether existing rights were infringed. If existing
rights
were to be found to be impinged upon, then it follows that the appeal
must succeed. Counsel on behalf of the appellants
was asked by this
court to encapsulate the appellant’s rights that might possibly
be infringed as a result of the new statutory
regime being applied.
Counsel encountered difficulty replying. Counsel’s best efforts
in this regard were restricted to an
oft repeated reliance on the
principle of legality. Counsel was emphatic that the appellants
insisted that the law be properly
applied and that the principle of
legality must be strictly obeyed. That proposition merely begs the
question and is conducive
to circular reasoning. Counsel experienced
similar difficulties when he was asked to enumerate the substantive,
rather than non-material,
differences between the inquiry to be
conducted in terms of the old Rules and an inquiry to be conducted in
terms of the provisions
of the JSCA.
[71]
In written heads of argument it was contended on behalf of the
appellants that the change in the rules of engagement was ‘in

total disregard of the procedural rights enjoyed by the applicants
under the Old Rules’. The further written submissions
in this
regard were as follows:
‘
As
part of “complainants” in terms of those Rules, we submit
that the applicants were entitled to have their complaints

investigated and determined either by the entire JSC or a
sub-committee appointed by it and consisting of members of the JSC
only.
Furthermore, we submit that the applicants were entitled to
have the resumption of proceedings in relation to the complaint,
following
the decision of the above Honourable Court in
Freedom
Under Law
,
done in terms of the Old Rules which did not subject them to a
subpoena issued by a Tribunal and a forced consultation with a

prosecutor.’ (Footnote omitted.)
[72]
Section 30 of the JSCA provides the Tribunal with powers of subpoena.
Such a power, understandably, could not be located in
the Rules.
Section 30 was not challenged in the court below nor is its
constitutionality in issue before us. It is particularly
difficult to
appreciate the appellants’ written contentions referred to in
the preceding paragraph when regard is had to
their repeated
expressed willingness to testify and be cross-examined, as stated for
example by Nkabinde J in her founding affidavit,
in paragraph 49.2
and 49.4:
‘
49.2
Our position is articulated in the affidavit by Jafta J, which
requires no detailed elaboration here. It
suffices to restate that we
will testify before any structure that is properly constituted as is
required by the Constitution.
. . .
49.4
After the decision of the SCA in
Freedom Under Law v Acting
Chairperson: JSC
2011 (3) SA 549
(SCA), we expected that the JSC
committee would convene and afford all concerned, including Justice
Jafta and I, an opportunity
to be cross-examined. We are at a loss
regarding why the matter has been referred to this Tribunal, which,
in our respectful submission,
lacks the lawful authority to pursue
the complaint.’
It
must be borne in mind that the collective complaint with which the
appellants aligned is being persisted in. In the light of
these
factors, the submission in the written heads of argument, referred to
in the preceding paragraph, loses all its power. The
appellants
submit that they are willing to testify and be cross-examined, and
this is precisely what a subpoena is designed to
achieve.
[73]
I have difficulty in appreciating the appellants’ general
objections to the inquiry being conducted in terms of the new

statutory regime. I can see no existing rights being affected, nor
any material prejudice. That conclusion is buttressed by a comparison

of the procedures under the old Rules with the processes established
in terms of the amendments to the JSCA, to which I will now
turn. In
what follows a reference to the Rules is a reference to the old
regime, in contrast to the provisions of the JSCA introduced
by the
amendments which came into operation in June 2010.
[74]
Rule 1.2 recognised that when the JSC considers any matter, except
the appointment of a judge, it must, in terms of 178(5)
of the
Constitution, sit without the six members of the National Assembly
and the four delegates from the National Council of Provinces,
who
otherwise form part of the JSC. The same constitutional principle
pertains to the application of the new statutory procedures.
[75]
Rule 1.1 acknowledged that in terms of s 177(1) of the Constitution,
a judge may be removed from office only if the JSC finds
that he or
she suffers from incapacity, is grossly incompetent or is guilty of
gross misconduct. Following on such a finding a
judge could only be
removed by a resolution adopted by the National Assembly with a
supporting vote of at least two-thirds of its
members. The amendments
to the JSCA could not and do not alter that position.
[76]
Rule 2.1 of the Rules obliged the JSC to consider ‘any
complaint received from any source’ alleging incapacity,
gross
incompetency or gross misconduct on the part of a judge. Section
14(1) of the JSCA, in similar terms, provides that ‘any
person’
may lodge a complaint about a judge with the Chairperson of the
JCC
[25]
established in terms
of s 8.
[77]
Rule 2.5 entitled the JSC to appoint a sub-committee to deal with
complaints when the JSC was not in session. Similarly, s
10(1) of the
JSCA, which forms part of the new statutory regime, provides that one
of the objects of the JCC (comprised of judges
exclusively) is to
receive, consider and deal with complaints in terms of Part 3 of
Chapter 2 of the JSCA that includes ss 14 and
16. Those sections
provide, inter alia, for a preliminary consideration by the
Chairperson of the JSC and recommendations concerning
the
establishment of a tribunal.
[78]
Rule 2.3 made provision for the JSC to refer a complaint to the
affected judge for a response in writing. Section 16 of the
JSCA
obliges the Chairperson of the JSC, if he or she is satisfied that in
the event of a valid complaint being established, it
is likely to
lead to a finding that the judge complained of suffers from
incapacity, is grossly incompetent or is guilty of gross
misconduct,
to refer the complaint to the JCC and to allow for written
representations to be made by the complainant and/or the
affected
judge.
[79]
It is common cause that the process, both in terms of the Rules and
the provisions of the JSCA, is inquisitorial
[26]
with rights pertaining both to the complainant and the judge in
question. Rule 4.1 provided for a preliminary inquiry to be conducted

by a sub-committee of the JSC consisting of one or more of its
members. The sub-committee was empowered to hear evidence, if
necessary.
That Rule provided that, after investigation the
sub-committee had to report to the JSC, with recommendations as to
the further
conduct of the matter. The JSC then made a decision on
whether to proceed to a formal inquiry. Section 16 which forms part
of the
new statutory scheme, provides for a complaint to be referred
to the JCC to consider whether to make a recommendation to the JSC

that a complaint should be reported on and investigated by a
tribunal. In circumstances that justify it, the JCC will make a
recommendation
for the matter to be investigated by a tribunal. The
Tribunal in turn, after its inquiry, reports to the JSC which then
makes the
final decision on whether the judge concerned was guilty of
impeachable conduct.
[27]
The
ultimate decision, pursuant to a finding to that effect by the JSC,
either in terms of the Rules, or the provisions of the
JSCA, as to
whether a judge should be removed from office, rests with the
National Assembly in terms of s 177(1) of the Constitution.
[80]
With reference to the appellants’ complaint that the JSCA’s
provisions relating to the appointment of a prosecutor
to assist a
tribunal is constitutionally impermissible, which I discuss in
greater depth later, the provisions of Rule 5.4 are
significant:
‘
The
JSC may appoint an attorney and/or counsel to act as pro-forma
prosecutor and to undertake any or all the following tasks: to

prepare a charge sheet, to lead evidence, to cross-examine witnesses,
to present argument and to do all other things necessary
that may
assist the JSC in fulfilling its task under s 177(1)
(a)
of
the Constitution.’
Section
24(1), provides for a member of the NPA to collect and adduce
evidence at a hearing of the Tribunal. I shall in due course
deal
with the appellants’ constitutional challenge to the validity
of that section. However, clearly either in terms of the
Rules or of
the provisions of the JSCA above, the leader of evidence is not
necessarily a member of the JSC. Significantly, Rule
5.4 also does
not exclude the involvement of any member of the NPA who is either an
attorney or advocate.
[81]
As can be seen from the comparisons set out above, both in terms of
the Rules and the provision of the JSCA, a tiered inquiry
process is
envisaged. In both instances, the final decision to refer a request
for removal to the National Assembly, is the JSC
in its full
complement, excluding the members of the National Assembly and the
National Council of Provinces. In terms of rule
5.4 as well as in
terms of s 24(1) of the JSCA, it is not envisaged that a member of
the JSC must lead evidence or cross-examine
witnesses.
[82]
It has always been our law, even during the pre-constitutional era,
that anyone subject to administrative hearings and proceedings
which
might affect his or her rights, privileges and liberties is entitled
to present his or her case and must be given the opportunity
to do
so.
[28]
The extent to which a
person is allowed to advance his or her case depends on the
circumstances. In English law, where an oral
hearing is given, ‘it
has been laid down that a tribunal must (a) consider all relevant
evidence which a party wishes to
submit; (b) inform every party of
all the evidence to be taken into account, whether derived from
another party or independently;
(c) allow witnesses to be questioned;
(d) allow comment on the evidence and argument on the whole
case.’
[29]
In England
failure to allow cross-examination by an objector at a statutory
inquiry has led to the quashing of the Secretary of
State’s
decision. The order of a Scottish magistrate who ordered the
destruction of a large quantity of cheese on grounds
of food safety
without allowing cross-examination of the food safety experts was
also quashed.
[30]
Having
regard to our Constitutional values, the position in our country can
hardly be different.
Section 6(2)
(c)
of the
Promotion of Administrative Justice Act 3 of 2000
provides as
a basis for judicial review of administrative action a failure to
observe procedural fairness.
[83]
Rules 5.4
and
5.7
made provision for cross-examination in relation to
a formal inquiry. Having regard to the nature of the proceedings
before a tribunal
in terms of the JSCA the right to cross-examination
is implicit. In
Freedom
Under Law
this court rightly expected that exercise to be undertaken in an
attempt to arrive at the truth in relation to the complaint. In
the
present case, Hlophe JP is clearly entitled to lead evidence in
rebuttal of the complaint and to cross-examine his accusers.
That
issue is not in contention.
[84]
The appellants’ reliance on the decision of this court in
Unitrans Passenger (Pty) Ltd t/a Greyhound Coach Lines v Chairman,
National Transport Commission & others; Transnet Ltd (Autonet

Division) v Chairman, National Transport Commission & others
[1999] ZASCA 40
;
1999 (4) SA 1
(SCA), in support of its contention
that the JSC was wrong to change the terms of engagement and resort
to the provisions of the
JSCA, is also misplaced. In that case
existing rights were affected. The introduction of legislation in
that case had the effect
that a statutory body empowered to grant
road-carrier permits was divested of that power, despite there being
pending decisions
in respect of applications for such permits. The
result was that the applications in the pending decisions were
rendered abortive.
This is precisely the sort of situation identified
by O’Regan J in
Veldman
, quoted in para 66 above, where
a procedural provision has a ‘fatal effect on the ability to
launch a cause of action . .
. and so [has] a material substantive
effect’. In essence, the process under the old procedure was
well advanced, and retrospective
application of the new procedure
would have prematurely terminated that process, leaving the litigant
with no means of enforcing
a right which previously was enforceable.
This must be contrasted with a very different scenario, where a
process is, by operation
of a court order, begun de novo, in terms of
a new statutory procedure which is substantially the same as that
which preceded it.
In such an instance, there is no ‘fatal
effect’ on existing rights. In
Unitrans
this court
referred with approval to its other decision in
Haffejee
. In
para 23 of
Unitrans
the following appears:
‘
Of
course, there may be cases where an amending statute introduces new
procedural provisions which may, on a proper interpretation,
leave
intact the steps that have already been taken and operate
prospectively only. But that will not be the position where
prospective
operation would render abortive the steps taken in the
past – unless such was the clear intention of the legislator.
To apply
the statute to the pending application in the present case
would extinguish there and then the ability to proceed with the
application.
It would nullify the steps already taken by Interkaap.’
In
reaffirming this court’s prior decision in
Haffejee
,
Olivier JA in
Unitrans
reiterated
that questions of fairness and equity should be taken into account in
deciding whether amending legislation is applicable
to pending
matters. That exercise was undertaken by the court a quo and is what
we are presently engaged in.
[85]
When the amendments to the JSCA were before Parliament, the
legislature must have been aware that there were pending complaints

before the JSC. There is no transitional provision and there is no
indication in the legislation that it does not apply to pending

complaints. It must have been intended to apply to pending complaints
since the JSC is a creature of the Constitution, which envisages
in s
180
(b)
that national legislation may provide for procedures for dealing with
complaints about judicial officers. The JSCA is the contemplated

legislation and the JSC can only act within the powers conferred upon
it in terms of the Constitution and constitutionally mandated

legislation. If it could be shown that applying the provisions of the
JSCA would result in the infringement of the substantive
rights of a
complainant or respondent judge, a court might, in appropriate
circumstances, be persuaded to refrain from applying
the provisions
of the JSCA retrospectively. In the present case, as held in
Freedom
Under Law
and also recognised in
Mail
& Guardian
,
because of the history of the matter and the cross-cutting litigation
and the change in composition of the JSC and considering
what is set
out in the preceding paragraphs, the most sensible, fair and just
method of proceeding would be to start the inquiry
in terms of the
provisions of the JSCA. All that the JSC was doing was following what
had been decided in those two cases. For
all these reasons I agree
with the conclusion reached by the court a quo, namely, that the JSC
was correct in its decision to hold
the preliminary inquiry and to
constitute the Labuschagne Tribunal in terms of the provisions of the
JSCA.
The
submission in relation to the invalidity of the complaint
[86]
I now turn to deal with the alternative submission on behalf of the
appellants, namely, that, in the event of the amending
provisions
being applicable, the inquiry should not have been proceeded with as
in terms of those very provisions there was no
valid complaint before
the JCC or the Labuschagne Tribunal. The lack of a complaint under
oath as required by s 14(3)
(b)
of the JSCA was the underlying premise.
[87]
The appellants’ stance on this issue is also difficult to
comprehend. They were part of the collective complaint which,
as
stated above, is being persisted in. None of the litigating parties
in any of the preceding litigation took the view that the
complaint
was not seriously made after due consideration, nor, for that matter,
did any of the other Justices of the Constitutional
Court. Moreover,
it was never contended that, in receiving the complaint in terms of
its Rules then in force, the JSC acted in
a fashion other than in
accordance with its constitutional obligations and duties as
envisaged in  ss 177 and 178 of the Constitution.
Invalidating
the complaint would infringe upon the rights of the complainants,
including the appellants’, and it could only
redound to their
prejudice and impact negatively on the image of the judiciary. This
could never have been in the contemplation
of the legislature when
the JSCA amendments were enacted. In any event, it is not contested
that in the litigation referred to
and in the present case, the
complaint has been confirmed on affidavit. It will be recalled that s
14(3)
(b)
of the JSCA, states that a complaint must be lodged by means of an
affidavit or affirmed statement. Section 15(2)
(b)
provides for the summary dismissal of a complaint if it ‘does
not comply
substantially
with the provisions of s 14(3)’. (My emphasis.) This is a clear
indication that a complaint is not automatically invalidated
because
it was not on affidavit. It is clear that an affidavit is required by
s 14(3) of the JSCA in order to provide the required
degree of
solemnity to a complaint. It is to discourage frivolous complaints
being lodged. That purpose was clearly achieved in
relation to the
complaint under discussion. It has subsequently been confirmed by
oral testimony under oath before the JSC in terms
of the Rules and
has been reconfirmed in the litigation referred to above. Even if one
were to take the view that a complaint under
oath was required in
order for the JSC to conduct a preliminary inquiry and to establish
the Tribunal, then the conclusion is compelled
that there has been
substantial compliance with this requirement. Thus, I agree with the
reasoning and conclusions reached by the
Labuschagne Tribunal and the
court below.
The
constitutionality of s 24(1) of the JSCA
[88]
It is now necessary to consider the constitutionality of s 24(1) of
the JSCA. In this regard, it is important to begin with
a rejection
of the notion that a prosecutor is to be regarded as part of the
executive. This is evidenced first and foremost by
the NPA’s
location within the Constitutional framework. The NPA is established
in terms of s 179 of the Constitution,
which falls under Chapter
8, entitled ‘Courts and the Administration of Justice’.
This Chapter also includes
provisions relating to the judiciary and
the courts. The executive, on the other hand, is dealt with under
other Chapters of the
Constitution.  For example, the President
and the National Executive are dealt with in Chapter 5, the Provinces
are dealt
with in Chapter 6, and Local Government is dealt with in
Chapter 7.  The NPA is not even classified as a State
Institution
Supporting Constitutional Democracy (Chapter 9), but is
treated as an integral part of the justice system.
[31]
[89]
In
Democratic
Alliance v President of the Republic of South Africa & others
[2011]
ZASCA 241
;
2012 (1) SA 417
(SCA), this court, in dealing with the
National Prosecution Authority established in terms of s 179 of the
Constitution and regulated
by the National Prosecuting Authority Act
32 of 1998 (NPAA), observed, with reference to constitutional values,
that institutions
of state, including the National Prosecuting
Authority, are integral to the well-being of a functioning democracy,
have to be above
reproach, have to be independent and must all serve
the people without fear, favour or prejudice.
[32]
In that case this court considered views on prosecutorial
independence in comparable jurisdictions and agreed that democracies

have found the means to insulate prosecutors from political
pressures. Prosecutors are seen as bulwarks against human rights
abuses.
In
Sharma
V Brown-Antoine & others
[2006] UKPC 57
;
[2007] 1 WLR 780
(PC) the Privy Council said, with reference to
prosecutorial independence, that the maintenance of public confidence
in the administration
of justice required that the prosecution should
be, and be seen to be, even-handed.
[90]
In the first
Certification
[33]
judgment, the Constitutional Court, in considering the power of the
President to appoint the National Director of Public Prosecutions,

said the following (para 146):
‘
[Section]
179(4) provides that the national legislation
must
ensure
that the prosecuting authority exercises its functions without fear,
favour or prejudice. There is accordingly a constitutional
guarantee
of independence, and any legislation or executive action inconsistent
therewith would be subject to constitutional control
by the courts.
In the circumstances, the objection to [s] 179 must be rejected.’
As
can be seen, legislative or executive action threatening that
independence would be contrary to constitutional values.
[91]
Section 32 of the NPAA obliges prosecutors to take an oath of office
or make an affirmation in terms of which they swear or
affirm to
‘uphold and protect the Constitution and the fundamental rights
entrenched therein and to enforce the Law of the
Republic without
fear, favour or prejudice and, as the circumstances of any particular
case may require, in accordance with the
Constitution and the Law’.
Importantly, s 25(1)
(a)
of the NPAA provides:
‘
(1)
A
prosecutor
shall
exercise the powers, carry out the duties and perform the functions
conferred or imposed on or assigned to him or her –
(a)
under
this
Act
and
any other law of the
Republic
;
. . .
.’
The
JSCA is ‘other law’ of the Republic. There is no
challenge to the validity of s 25(1)
(a)
of
the NPAA.
[92]
The independence of members of the NPA is protected, both in terms of
the Constitution and the provisions of the NPAA. That
independence
and the obligation to uphold the Constitution does not simply
dissipate because they are called upon to perform a
task in terms of
the provisions of the JSCA.
[93]
Furthermore, it is correct, as concluded by the court a quo, that the
JSCA does not give a prosecutor any adjudicative powers
but limits
his or her involvement to the collection and leading of evidence. The
prosecutor is subject to the powers of the Tribunal
and does not
participate in the final decision-making, either by the Tribunal or
the JSC. It must also be reiterated that the Tribunal
operates in an
inquisitorial manner, further reducing any dependence it may
otherwise have had on an appointed prosecutor.
[94]
It is not insignificant, as appears from the documentation before us,
that the fourth respondent is an advocate. In terms of
the Rules she
would not only have been entitled to lead evidence but would also
have been entitled to cross-examine witnesses and
to present
argument. In other words, her involvement in the proceedings may in
fact have been more extensive under the old Rules
than under the new
proceedings in terms of the amended JSCA.
[95]
As observed by the court a quo, the affidavit on behalf of the
Minister explains that the rationale for the appointment of
a
prosecutor is to ease the workload of a tribunal and to increase
efficiency in a cost effective manner as the involvement of
outside
attorneys or advocates will have cost implications. This seems to me
to be entirely plausible and justifiable.
[96]
Section 32 of the JSCA does provide that if the Tribunal is of the
opinion that evidence before it discloses the commission
of an
offence by a respondent judge, the Tribunal President must notify the
National Director of Public Prosecutions and cause
a copy of the
record in question to be submitted to his or her office. A
prosecution can only be undertaken within the strict terms
of the
NPAA with its attendant safeguards. A prosecution will only ensue
within the parameters of prosecution policy and directives
and in
terms of the hierarchical structures established by the NPAA. It is
also true that s 38 of the JSCA precludes any person
associated
with inter alia the JSC, JCC, Tribunal or support staff from
disclosing any confidential information or document obtained
in the
performance of his or her function. This can only redound to the
benefit of witnesses and/or the judge involved.
[97]
It is also correct that s 24 of the JSCA does not make the
involvement of a prosecutor mandatory. It is a discretionary power

afforded to the President of the Tribunal who has to consult the
Minister of Justice and Constitutional Development and the National

Director of Public Prosecutions before a prosecutor is appointed.
[98]
Having regard to what is set out above I fail to see how judicial
independence is threatened by the participation of the prosecutor
in
the limited role provided for by s 24(1) of the JSCA. I cannot see
how it offends against the doctrine of the separation of
powers. For
all the reasons aforesaid, I agree with the conclusion in this regard
reached by the court a quo.
[99]
The constitutionality of ss 21 to 23 of the JSCA were not impugned
before the court a quo and the Minister was not called upon
to
justify their enactment. It is necessary to restate, briefly, that ss
21 to 23 of the JSCA provide for the establishment of
a tribunal, its
composition and the inclusion of non-judicial members. A belated
constitutional challenge in relation to these
sections of the JSCA
appears, for the first time, in written heads of argument before this
court on behalf of the appellants. The
following is the relevant part
of the written submissions:
‘
Although
sections 21 to 23 of the Amendment Act were not pertinently
challenged as unconstitutional in the Court
a
quo
they
have been covered in the papers. We submit that Parliament was not
constitutionally authorised to enact these provisions as
they altered
the composition of the JSC. There is no provision either in section
177 or 178 permitting the appointment of structures
such as the
Tribunal to perform the work of the JSC.’ (Footnote omitted.)
Reliance
was placed on paragraph 49.7 of the founding affidavit of Nkabinde J.
That sub-paragraph does not substantiate the submission.
It reads as
follows:
‘
We
submit that the decision appointing the Tribunal is liable to be set
aside, and so is the decision appointing the fourth respondent
as
officer leading evidence at the Tribunal. In any event, for the
reasons set out more fully in the affidavit of Jafta J, section
24(1)
of the JSC Act is liable to be declared invalid.’
The
appellants’ case was premised on the Rules being applicable and
not the provisions of the JSCA and that they were therefore
not
liable to testify or be cross-examined before the Labuschagne
Tribunal. It was not that the appointment of a prosecutor to
assist
the Labuschagne Tribunal offended the principle of the separation of
powers.
[100]
In
Prince v President, Cape Law Society & others
[2000]
ZACC 28
;
2001 (2) SA 388
(CC), the Constitutional Court made it clear
that (para 22):
‘
Parties
who challenge the constitutionality of a provision in a statue must
raise the constitutionality of the provisions sought
to be challenged
at the time they institute legal proceedings. In addition, a party
must place before the Court information relevant
to the determination
of the constitutionality of the impugned provisions. Similarly, a
party seeking to justify a limitation of
a constitutional right must
place before the Court information relevant to the issue of
justification. I would emphasise that all
this information must be
placed before the Court of first instance. The placing of the
relevant information is necessary to warn
the other party of the case
it will have to meet, so as to allow it the opportunity to present
factual material and legal argument
to meet that case. It is not
sufficient for a party to raise the constitutionality of a statute
only in the heads of argument,
without laying a proper foundation for
such a challenge in the papers or the pleadings. The other party must
be left in no doubt
as to the nature of the case it has to meet and
the relief that is sought. Nor can parties hope to supplement and
make their case
on appeal.’ (Footnotes omitted.)
[101]
In the present case the Minister’s mind was not directed to any
other provision than s 21(4) of the JSCA and the deponent
on his
behalf directed his attention to the justification for the enactment
of the statutory provision. He was thus not provided
with an
opportunity to deal with the more substantial structural challenges,
raised for the first time in written heads of arguments
before this
court. In addition, setting aside the latterly impugned provisions
will certainly affect the interests of existing
complainants and
respondent judges and, also, of potential complainants. Civil society
might rightly also be said to have an interest
in the statutory
mechanisms dealing with complaints against judges. They have all not
been afforded an opportunity to be heard.
Uniform Rule 16A(1) reads
as follows:
‘
(1)
(a)
Any person raising a constitutional issue in an application or action
shall give notice thereof to the registrar at the time
of filing the
relevant affidavit or pleading.
(b)
Such
notice shall contain a clear and succinct description of the
constitutional issue concerned.
(c)
The registrar
shall, upon receipt of such notice, forthwith place it on a notice
board designated for that purpose.
(d)
The
notice shall be stamped by the registrar to indicate the date upon
which it was placed on the notice board and shall remain
on the
notice board for a period of 20 days.’
The
purpose of this Rule is:
‘
[T]o
enable parties interested in a constitutional issue to seek to be
admitted as
amici
curiae
in
the case in which the issue is raised so that they can advance
submissions in regard thereto.’
[34]
(Footnote omitted.)
[102]
The late raising of the constitutional validity of ss 21 to 23 of the
JSCA, in the manner described above, is impermissible.
In any event,
for all the reasons set out above there appears to be no substance to
the contentions on behalf of the appellants
in this regard.
[103]
In dismissing the application in the court below, Mayat J rightly
made no order as to costs. However, in refusing leave to
appeal, she
ordered the appellants to pay costs. Before us the parties were
agreed that having regard to the constitutional issues
to be
addressed, there ought not to be costs on appeal and that the costs
order attendant upon the refusal by the court a quo of
the
application for leave to appeal ought to be set aside.
[104]
One final aspect requires consideration. The considerable delay in
the finalisation of the complaint in a matter which is
of crucial and
national importance does the judiciary great harm. Section 27 of the
JSCA reads as follows:
‘
(1)
In the interests of protecting and enhancing the dignity and
effectiveness of the judiciary and the courts, a Tribunal must
–
(a)
as soon as
reasonably practicable after its appointment, determine a date, time
and place for conducting a hearing in respect of
the allegations
referred to it; and
(b)
conclude the
hearing without unreasonable delay.
(2)
Subject to subsection (1)
(b)
, a Tribunal may adjourn its
proceedings at any time, to any date, time and place.
The
appellants were rightly concerned about the negative perceptions that
abound because of the delay in finalising this complaint
which, it
bears repeating, was laid almost eight years ago in 2008. In
Mail
and Guardian
, Hlophe JP filed an affidavit in which he stated
that he would abide the decision of the court and continued to say
the following
(quoted in para 5 of that judgment):
‘
Let
me state at the outset that I have nothing to hide from the public of
South Africa relating to the allegations made against
me by the
Justices of the Constitutional Court. My conscience is clear about
these allegations, and I will appear before a properly
constituted
Judicial Service Commission . . . when I am called to do so . . .
In
my view, the duty that I owe the public is to appear before the JSC
and to answer any questions relating to the allegations made
against
me by the Justices of the Constitutional Court. It is a duty that the
public is entitled to demand from me if public confidence
in me as a
Judge is to continue. I will accordingly meet with the JSC to answer
questions about the allegations against me, whether
the meetings are
open or whether they are closed. However, my duty does not extend to
appearing before the media to answer allegations
of wrongdoing, in my
experience and view, the media coverage of these allegations against
me has been unfair and most disparaging.’
The
appellants also assert that they are willing to testify and be
cross-examined. Against all of these assertions it was unsettling

when counsel on behalf of the appellants, with emphatic certainty,
stated during submissions before us that this matter would never
end,
speculating without specificity that there would be on-going
challenges to proceedings related to the complaint. The judicial

image in South Africa cannot afford to be further tarnished in this
manner. As can be seen from the extensive litigation referred
to
above, each of the protagonists, including the JSC, has contributed
to the delay. There should be a concerted effort and determination
on
the part of everyone concerned for the matter finally to be put to
rest. It should be dealt with and finalised with all deliberate

speed, with due regard to the rights of all concerned. After all, as
observed by Horace as long ago as approximately 13 BC, ‘[a]

good and faithful judge ever prefers the honourable to the
expedient’
[35]
. The
country expects nothing less.
[105]
The following order is made:
1.
The application for leave to appeal is granted.
2.
The appeal is dismissed.
3.
The costs order in relation to the application for leave to appeal in
the court
below is set aside.
_____________________
M
S Navsa
Acting
Deputy President
APPEARANCES:
For
the Appellant:

B R Tokota SC (with T V Norman SC)
Instructed
by:
The
State Attorney, Kimberley
The
State Attorney, Bloemfontein
For
the First and Third Respondents:
N H Maenetje SC (with P G Seleka)
Instructed
by:
Mashaba
Attorneys, Johannesburg
Phatshoane
Henny Inc., Bloemfontein
For the Second
Respondent:

T Motau SC (with R Tshetlo) (Heads of argument prepared by T Motau SC
and C Gibson)
Instructed
by
The
President: Judicial Conduct Tribunal, Johannesburg
Phatshoane
Henny Inc., Bloemfontein
[1]
Sir Fred Phillips
The
Modern Judiciary: Challenges, Stresses and Strains
(2010) at 19.
[2]
In biblical terms,
it is the juxtaposition of the venial as against the mortal.
[3]
Judge Therrien
v Minister of Justice and Attorney General of Quebec; Attorney
General for Ontario, Attorney General for New Brunswick,
Office des
droits de détenus and Association des services de
réhabilitation sociale du Québec, interveners
2001 SCC 35
; 84 CRR (2d) 1.
[4]
The appellants’
unwillingness to make individual statements and be individual
complainants is a constant refrain in the
appellants’ founding
affidavit in the present matter.
[5]
For details of the
counter-complaint see the decision of this court in
Langa
CJ & others v Hlophe
[2009]
ZASCA 36; 2009 (4) SA 382 (SCA).
[6]
The outcomes –
the judgments – in these matters are now reported as:
Thint
(Pty) Ltd v National Director of Public Prosecutions & others,
Zuma v National Director of Public Prosecutions &
others
[2008] ZACC
13
;
2009 (1) SA 1
(CC); and
Thint
Holdings (Southern Africa) (Pty) Ltd & another v National
Director of Public Prosecutions; Zuma v National Director
of Public
Prosecutions
[2008]
ZACC 14 ; 2009 (1) SA 141 (CC).
[7]
This is a
reference to para 47 of the collective statement.
[8]
See
Hlophe
v The Judicial Service Commission & others
[2009]
All SA 67 (GSJ).
[9]
In
Freedom
Under Law v Acting Chairperson: Judicial Service Commission &
others
[2011] ZASCA 59
;
2011 (3) SA 549
(SCA), the following appears in
relation to the change in the composition of the JSC and the status
of Mr Zuma (para 13):
‘
[13]
On 20 July 2009 the JSC reconvened to discuss the complaint and
counter-complaint. In the meantime its composition had changed.
A
new President, Mr Jacob Zuma, had been elected, and a new Minister
of Justice had been appointed. The Minister of Justice,
ex officio,
became a member of the JSC, and the newly elected President Zuma, as
he was entitled to do, replaced four of its
members, who had been
appointed by his predecessor, with four new appointees. One of the
new members had previously acted as
counsel for one of the
complainants, and recused himself from the discussion, leaving four
new members who had not previously
been involved in the matter.’
[10]
See
Premier,
Western Cape v Acting Chairperson, Judicial Services Commission
2010 (5) SA 634 (WCC).
[11]
See
Acting
Chairperson: Judicial Service Commission & others v Premier of
the Western Cape Province
[2011] ZASCA 53; 2011 (3) SA 538 (SCA).
[12]
See
Freedom
Under Law v Acting Chairperson: Judicial Service Commission &
others
[2011] ZASCA 59; 2011 (3) SA 549 (SCA).
[13]
Paragraph 48.
[14]
Langa CJ &
others v Hlophe
[2009] ZASCA 36; 2009 (4) SA 382 (SCA).
[15]
See paras 12-14.
[16]
Rule 2.1.
[17]
Rules 3.3 and 4.1.
[18]
Rule 4.3.
[19]
Section 177(1)
(a)
of
the Constitution provides:
‘
(1)
A judge may be removed from office only if –
(a)
the
Judicial Service Commission finds that the judge suffers from an
incapacity, is grossly incompetent or is guilty of gross

misconduct.’
[20]
Section 178(6)
reads as follows:
‘
The
Judicial Service Commission may determine its own procedure, but
decisions of the Commission must be supported by a majority
of its
members.’
[21]
Section 17(1)
(a)
reads
as follow:
(1)
Leave to appeal may only be given where the judge or judges
concerned are of the
opinion that -
(a)
(i)
the appeal would have a reasonable prospect of success; or
(ii)
there is some other compelling reason why the appeal should be
heard, including
conflicting judgments on the matter under
consideration.’
[22]
Para 28 of
Freedom
Under Law
.
[23]
Para 14 of
Mail
and Guardian
.
[24]
Leges et
constitutiones futuris certum est dare formam negotiis, non ad facta
praeterita revocari, nisi nominatim etiam de praeterito
tempore
adhuc pendentibus negotiis cautum sit.
[25]
In terms of s 8 of
the JSCA, the JCC is comprised of:
(a)
the Chief Justice, who is the Chairperson,
(b)
the Deputy Chief Justice, and
(c)
four judges, at least two of whom must be women,
designated
by the Chief Justice in consultation with the Minister.
Section
9(4) of the JSCA allows for the Deputy Chief Justice to stand in for
the Chief Justice and in the absence of both, for
a Chairperson to
be chosen from the remaining members.
[26]
See for example ss
17(2) and 26(2) of the JSCA, where this is expressly recognised in
the enabling legislation.
[27]
See s 20(3) of the
JSCA.
[28]
This was expressed
as the
audi
alteram partem
rule.
See 1
LAWSA
1 ed para 82 and 1
LAWSA
2
ed para 107.
[29]
Sir William Wade &
Christopher Forsyth
Administrative
Law
,
9 ed (2004) at 518-519, and the authorities there cited.
[30]
The authors do not
suggest that parties always have the right to cross-examine
witnesses.  They go on to say (at 519-520)
that ‘there
must be many administrative proceedings in which formal testimony
and cross-examination are inappropriate,
the inquiry being
informal’.  In other words, whether a right to
cross-examine exists will always depend on the nature
of the
particular process involved.
[31]
It must be
mentioned that s 179(6) of the Constitution does state that the
‘Cabinet member responsible for the administration
of justice
must exercise final responsibility over the prosecuting authority.’
However, given the context of this provision,
as well as what
follows relating to the express recognition of the independence of
the NPA, this clearly does not mean that they
are beholden to the
executive.
[32]
Paragraph 70.
[33]
Ex parte
Chairperson of the Constitutional Assembly: In re Certification of
the Constitution of the Republic of South Africa,
1996
[1996] ZACC 26; 1996 (4) SA 744 (CC).
[34]
DE van
Loggerenberg, E Bertelsmann and PBJ Farlam
Erasmus:
Superior Court Practice
(Revision Service 1, 2016) para D1-166.
[35]
Taken from Ode 9
of Book IV of Horace’s Odes. See James Michie (ed)
The
Odes of Horace
(1964).