Nkabinde and Another v Judicial Service Commission and Others

• Jurisdiction: South Africa
• Judge: Navsa ADP, Lewis JA, Leach JA, Pillay JA and Swain JA
• Judgment Date: 10 March 2016
• Citation: 2016 (4) SA 1 (SCA)
• Docket Number: 20857/2014 [2016] ZASCA 12
• Hearing Date: 15 February 2016
• Counsel: BR Tokota SC (with TV Norman SC) for the appellants. NH Maenetje SC (with PG Seleka) for the first and third respondents. T Motau SC (with R Tshetlo) (heads of argument prepared by T Motau SC and C Gibson) for the second respondent.
• Court: Supreme Court of Appeal

Navsa ADP (Lewis JA, Leach JA, Pillay JA and Swain JA concurring):

Introduction D

[1] In his well-known book Judges (1987) 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 E [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 F 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] G

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 H 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 I

Navsa ADP (Lewis JA, Leach JA, Pillay JA and Swain JA concurring)

A 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 B 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 C 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 D 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.

E [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 F 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] although relating to the position of a judge in Canada, is equally G 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 H 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 I 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

Navsa ADP (Lewis JA, Leach JA, Pillay JA and Swain JA concurring)

is the pillar of our entire justice system, and of the rights and freedoms A 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 B 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 C 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 D 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 E confidence in their integrity, impartiality, and good judgment.' [References omitted.]

The background

[6] The litigation culminating in this appeal was launched in the F 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, G 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 H 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 I 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 J

Navsa ADP (Lewis JA, Leach JA, Pillay JA and Swain JA concurring)

A 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 B 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 C 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:

D '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, E 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...