Premier, Western Cape v Acting Chairperson, Judicial Services Commission

• Jurisdiction: South Africa
• Judge: Jones J and Ebrahim J
• Judgment Date: 19 April 2010
• Court: Western Cape High Court, Cape Town
• Docket Number: 25467/2009
• Counsel: SP Rosenberg SC (with AI Katz SC and N Mayosi) for the applicant. IV Maleka SC (with B Valli) for the first and second respondents No appearance for the third to fourteenth and sixteenth respondents. JA Newdigate SC (with T Masuku) for the fifteenth respondent.
• Citation: 2010 (5) SA 634 (WCC)

Jones J: E

[1] The fifteenth respondent is the Judge President of the Western Cape High Court, Cape Town. On 30 May 2008 judges of the Constitutional Court laid a complaint of misconduct against him with the Judicial F Service Commission (the JSC), which is represented herein by its acting chairperson, the first respondent, and which is cited as the second respondent. [1] Subsequently the fifteenth respondent laid a counter-complaint against the Constitutional Court judges which arose out of the lodging of the complaint that they had made against him. Over the period 20 to 22 July 2009, and again on 15 August 2009, the JSC met to G consider the complaint and the counter-complaint. It dismissed them both. The applicant in this application challenges the outcome of these proceedings. She does so in her capacity as Premier of the Western Cape Province. Her challenge is to the legal validity of the complaint proceedings on procedural grounds. The substantive relief in the notice of H motion is for orders:

1.

Condoning the non-compliance with the time periods laid down in the rules of court and declaring this matter to be one of urgency.

2.

Declaring that Premiers of the provinces of the Republic of South Africa contemplated in s 103(1) of the Constitution of the Republic I of South Africa, 1996 (the Constitution), or an alternate designated by them, must be given a reasonable opportunity to participate as members in all meetings of the Judicial Service

2010 (5) SA p637

Jones J

Commission (the JSC) when it considers matters relating to a A specific High Court in the Premiers' respective province, failing which such meetings are inconsistent with the Constitution and invalid for want of compliance with s 178(1)(k) of the Constitution.

3.

Declaring that the proceedings and decisions taken pursuant B thereto of the JSC conducted on 20 to 22 July 2009 and 15 August 2009 (the proceedings) in relation to the complaint lodged by the third to fourteenth respondents and the sixteenth respondent against the fifteenth respondent and the counter-complaint lodged by the fifteenth respondent were unconstitutional and invalid'.

[2] Initially, only the JSC, through the persons cited as the first and C second respondents, filed notices of opposition and opposing affidavits. At the commencement of the hearing, a late opposing affidavit by the fifteenth respondent was handed in without opposition, and, also without opposition, an affidavit in answer thereto by the applicant. In addition, an affidavit by Johan Christiaan Kriegler, a retired judge of the D Constitutional Court, was placed before us in answer to certain allegations in the affidavit by the fifteenth respondent relating to Judge Kriegler. The contents of Judge Kriegler's affidavit and the matter to which it gave answer in the fifteenth respondent's affidavit were not referred to in argument, and although Judge Kriegler appeared by counsel to hand in the affidavit, he took no further part. No more need E be said about his affidavit. The fifteenth respondent based his opposition partly on allegations of bias on the part of the applicant which are made in his opposing affidavit, which are dealt with in the applicant's reply thereto, and which are now properly before us. The other respondents, the judges of the Constitutional Court, have not filed papers or taken part in the proceedings. F

[3] The complaint before the JSC in this matter, and also the counter-complaint, were complaints of judicial misconduct. They were dealt with together by the JSC because the counter-complaint by the fifteenth respondent arose directly out of the laying of the complaint against him G by the judges of the Constitutional Court. The alleged acts of judicial misconduct, however, have nothing in common. The focus in this application is on the complaint against the fifteenth respondent which, if established, might make him guilty of gross misconduct in terms of s 177(1) of the Constitution. That section provides that: H

'(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; and

(b)

the National Assembly calls for that judge to be removed, by a resolution adopted with a supporting vote of at least two thirds of I its members.'

If the JSC finds that a judge is guilty of gross misconduct, and if a resolution of the National Assembly for the judge's impeachment is adopted with the requisite majority, the President is obliged by s 177(2) to remove him or her from office. J

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Jones J

A [4] The issue of whether the misconduct has been established is not before us in this application. The applicant seeks to impugn the decision of the JSC by reason of its constitutional invalidity on a procedural basis and not on the merits. She has three grounds for doing so. She alleges:

1.

That when the JSC took its decision it was not properly constituted, B for want of compliance with the provisions of s 178(1)(k), which provides for the applicant to be a member of the JSC when considering matters relating to the High Court of her province. It is common cause that she was not part of the JSC when it took its decision. The bulk of the argument before us was devoted to the C interpretation of s 178(1)(k).

2.

In the alternative, and in any event, that the JSC was not properly constituted when it took the decision because only ten of its members participated in the decision-making process, when there should have been at least thirteen members (on the JSC's interpretation D of s 178(1)) to consider complaints against judges.

3.

As a further alternative, that the decision of the JSC was not supported by a majority of the JSC's members, as required by s 178(6) of the Constitution.

[5] Before dealing with each of these grounds one by one I should E mention that counsel for the applicant enjoined us, in the interests of justice and to avoid a piecemeal hearing possibly involving different tiers of courts, to deal with all the issues raised in the arguments. That is a salutary approach in a matter such as this. It is not necessary, however, for us to deal with issues which are raised in the papers, but abandoned F or not pursued in argument. Thus, the applicant's heads give answer to potential arguments raised in the papers that the Promotion of Administrative Justice Act 3 of 2000 was not of application in this matter and that the applicant has no standing to bring proceedings under that Act. But nobody contends in this court that the Act does not apply or that the applicant does not have standing. Furthermore, an antecedent objection G was raised in the first and second respondents' papers and heads of argument, that s 167(4) of the Constitution deprives this court of jurisdiction to hear this application because only the Constitutional Court can decide disputes between organs of State within the national or provincial sphere. It also raised a second related objection, that the H applicant should be non-suited by reason of the provisions of ss 40 and 41 of the Constitution, which provide for co-operative government and which, so the heads submitted, preclude litigation between the parties, except as a last resort. These points were not specifically abandoned, and they remain in the heads. Mr Rosenberg dealt with the first point as part I of his main argument, and stated that he would, if necessary, deal with the second in reply. However, Mr Maleka, for the first and second respondents, presented no argument at all in respect of either antecedent objection, and it was not necessary for Mr Rosenberg to say more in reply than that they had not been argued. I do not believe that it is necessary for me to say anything about any of these matters, other than perhaps to J comment that they seem to me to be without merit.

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Jones J

[6] There is no longer opposition to allowing the matter to proceed as a A matter of urgency. For the rest, I shall try to deal with all issues arising in the papers.

[7] It is convenient, by way of introduction, to give a brief description of the JSC. It is created by s 178 of the Constitution of the Republic of B South Africa, 1996. Section 178(5) empowers it to advise the national government on any matter relating to the judiciary and the administration of justice. Sections 174 and 177, read with s 178, lay down its duties and functions in the appointment and removal of judges. Its independence from the legislative and executive organs of State is conceded by the parties and is of fundamental constitutional importance. This does not, C however, mean that members of the legislative and executive organs of government are excluded from membership of the JSC. Its composition is laid down by s 178. It comprises the Chief Justice, the President of the Supreme Court of Appeal, a judge president designated by the judges president, the Cabinet Minister responsible for the administration of D justice, two practising advocates, two practising attorneys, one teacher of law, and four persons designated by the head of the national executive (the President) after consultation with the leaders of all parties in the National Assembly. These members, thirteen in all, may be described as the core members. There are two additional categories of member. First, there are six members designated by the National Assembly (of which E three must be members of opposition parties), and four members designated by the National Council of Provinces (who must have the support of at least six provinces). In terms of s 178(5), the JSC must sit without them when it considers all matters, except the appointment of a judge. Second, when the JSC considers matters relating to a specific High F Court, the...