Judicial Service Commission and Another v Cape Bar Council and Another

• Jurisdiction: South Africa
• Judge: Brand JA, Cloete JA, Snyders JA, Mhlantla JA and Petse JA
• Judgment Date: 14 September 2012
• Citation: 2013 (1) SA 170 (SCA)
• Docket Number: 818/2011 [2012] ZASCA 115
• Hearing Date: 16 August 2012
• Counsel: MTK Moerane SC (with TL Sibeko SC) for the appellants. L Rose-Innes SC (with S Rosenberg SC, R Paschke and N Mayosi) for the respondent. D Irish SC for the amicus curiae.
• Court: Supreme Court of Appeal

Brand JA (Cloete JA, Snyders JA, Mhlantla JA and Petse JA concurring):

[1] The first appellant is the Judicial Service Commission, established by I s 178 of the Constitution, 1996. The second appellant is the chairperson of the first appellant. Since there is no difference in the case for and against the two appellants, I propose to refer to the first appellant only and to do so by the acronym 'JSC'. The respondent is the Cape Bar Council (CBC). It is the controlling body of the Society of Advocates in J

Brand JA (Cloete JA, Snyders JA, Mhlantla JA and Petse JA concurring)

A the Western Cape Province, generally known as the Cape Bar. In the main, the members of the Cape Bar practise their profession in the Western Cape High Court, Cape Town (WCHC).

[2] On 12 April 2011 the JSC interviewed candidates for judicial B appointments in the WCHC. Before the meeting, three vacancies were advertised. Numerous persons applied. A subcommittee of the JSC examined the applications and prepared a short list of seven candidates, to wit, Adv RA Brusser SC, Ms JI Cloete, Adv M Fitzgerald SC, Mr RCA Henney, Mr SJ Koen, Adv S Olivier SC and Adv OL Rogers SC. Of the seven candidates, C one, Mr Henney, was black, six were white and one, Ms Cloete, was a woman. At the meeting all these candidates were interviewed. Thereafter the JSC decided to recommend only one of them, Mr Henney, for judicial appointment, with the result that the other two available positions remained vacant, at least until the next meeting of the JSC.

D [3] Aggrieved by this decision not to fill the two vacancies, the CBC brought an application in the WCHC for the following order:

(1)

Declaring the proceedings of the JSC on 12 April 2011 to be inconsistent with the Constitution, unlawful and consequently invalid.

(2)

Declaring the failure by the JSC on 12 April 2011 to fill two judicial E vacancies on the bench of the WCHC to be unconstitutional and unlawful.

(3)

Directing the JSC, properly constituted, to reconsider afresh the applications of the shortlisted candidates who were not selected on 12 April 2011 for two vacancies on the WCHC (and who persist in F their applications) in the light of the judgment of that court.

[4] The application was supported by two amici curiae. One of them, the Centre for Constitutional Rights, a non-party political and non-profit unit of the FW de Klerk Foundation, was also allowed to appear as an amicus curiae on appeal. In the event, the application met with complete G success in that the court a quo (Koen J and Mokgohloa J) granted the order in the exact terms sought. The appeal against that judgment, which has since been reported as Cape Bar Council v Judicial Service Commission and Another (Centre for Constitutional Rights and Another as Amici Curiae) 2012 (4) BCLR 406 (WCC), is with the leave of the court a quo.

H [5] In broad outline, the CBC rested its application on two legs, which both found favour with the court a quo: Firstly, because neither the President nor the Deputy President of this court attended the meeting of the JSC on 12 April 2011, the JSC was not properly constituted, with the consequence that the decisions taken at the meeting were unconstitutional, I unlawful and invalid; Secondly, that, in all the circumstances, the JSC had no reason not to recommend candidates for the two remaining vacancies, which rendered its failure to do so irrational and therefore unconstitutional.

[6] Apart from contesting the validity of both these grounds in the court J a quo, the JSC raised two points in limine. Firstly, the decisions of the

Brand JA (Cloete JA, Snyders JA, Mhlantla JA and Petse JA concurring)

JSC were expressly excluded from the ambit of review under the A provisions of the Promotion of Administrative Justice Act 3 of 2000 (PAJA), and that, in consequence, so the JSC contended, these decisions were not subject to judicial review at all. Secondly, the application was fatally defective because neither Judge Henney nor the six unsuccessful shortlisted candidates had been joined as parties. Both these points in B limine were dismissed by the court a quo. Of these two points, only the second, founded on the basis of non-joinder, was pursued by the JSC on appeal.

[7] After leave to appeal had been granted by the court a quo and in an obvious attempt to avoid the non-joinder debate, the CBC formally C sought and obtained directions in terms of rule 11(1)(b) from the Deputy President of this court. Pursuant to these directions Judge Henney and the six unsuccessful candidates were called upon to indicate whether they consented to be bound by the judgment of this court on appeal, notwithstanding the fact that they had not been joined as parties D to the proceedings. Any of those who refused to consent were granted leave, in terms of the directions, to file affidavits with this court. Once such affidavit had been filed, so the directions further provided, that party would be considered to have been formally joined. If none of those called upon expressly conveyed their refusal to consent, so the directions E concluded, this court would proceed to give judgment without entertaining the non-joinder issue.

[8] In response to the directions, the six unsuccessful candidates formally consented to be bound by the judgment of this court. Judge F Henney, on the other hand, refused to grant his consent. In addition, it turned out that the JSC sought to oppose the request for directions, but that its opposing affidavit was only filed after the directions had already been issued. When all this came to the notice of the Deputy President, he arranged a meeting with the representatives of Judge Henney and all the parties. At the meeting it was agreed that the issue of the directions G would be dealt with as part of the appeal.

[9] In the meantime, the non-joinder issue also led to an application by the JSC for this court to receive further evidence on appeal. In essence, the proposed evidence concerns the matter of Brown v The National Director of Public Prosecutions and Others H [2012] 1 All SA 61 (WCC) ([2011] ZAWCHC 386) in which Judge Henney gave judgment against Mr Brown. In his application for leave to appeal Mr Brown claimed that 'the Constitutional Court and the Supreme Court of Appeal have declared the proceedings of the JSC of 12 April 2011 to be unlawful and I unconstitutional', which means, so Mr Brown maintained, that Judge Henney was not properly appointed to the bench when he gave judgment against him. The JSC's declared purpose of introducing this evidence was to show that, although Mr Brown is clearly wrong about which court had pronounced upon the validity of the 12 April 2011 meeting, the judgment of the court a quo has a real impact on Judge Henney's J

Brand JA (Cloete JA, Snyders JA, Mhlantla JA and Petse JA concurring)

A position as a judge. Ergo, so the JSC argued, he should have been joined as a party to the proceedings from the start.

The issues

[10] Hence, the issues presented for decision are:

(a)

B Whether the JSC's application to adduce further evidence on appeal should be granted;

(b)

The validity and status of the directions issued by the Deputy President of this court;

(c)

Whether Judge Henney should have been joined as a party to the proceeding in the court a quo;

(d)

C Whether the JSC was properly constituted when it interviewed the candidates for the vacancies in the WCHC on 12 April 2011 and, if not, whether that resulted in the invalidity of the decisions taken at the meeting; and

(e)

Whether, in the circumstances, the decision of the JSC not to recommend any of the candidates to fill the two remaining vacancies, D was irrational and therefore unconstitutional.

I propose to deal with the third issue, concerning non-joinder, first. My reasons for doing so will hopefully become apparent in due course.

The non-joinder issue E

[11] As the six unsuccessful candidates had consented to be bound by the judgment of this court before the appeal was argued, the JSC no longer contends that they should have been joined. It persists in its argument in regard to Judge Henney. After the JSC meeting of 12 April 2011, F it recommended Judge Henney for judicial appointment. In the event, the President of the Republic appointed him as a judge, in terms of s 174(6) of the Constitution, on 10 May 2011. After that happened the CBC made it clear at all times that it did not challenge the validity of Judge Henney's appointment and that, in consequence, no order setting-aside his appointment was sought. Nonetheless, the JSC contended G that the joinder of Judge Henney as a party to the proceedings, was required. In support of this contention the JSC argued that the first declaratory order sought — ie that the proceedings of the JSC on 12 April 2011 were inconsistent with the Constitution and thus invalid — had a direct bearing on the interests and rights of Judge Henney because, if H granted, it would inevitably lead to the setting-aside of his appointment.

[12] It has by now become settled law that the joinder of a party is only required as a matter of necessity — as opposed to a matter of convenience — if that party has a direct and substantial interest which may be affected prejudicially by the judgment of the court in the proceedings I concerned (see eg Bowring NO v Vrededorp Properties CC and Another 2007 (5) SA 391 (SCA) para 21). The mere fact that a party may have an interest in the outcome of the litigation does not warrant a non-joinder plea. The right of a party to validly raise the objection that other parties should have been joined to the proceedings, has thus been held to be a limited one (see eg Burger v Rand Water Board and Another J 2007 (1) SA 30 (SCA) para 7; and Andries Charl Cilliers, Cheryl Loots and

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