Premier, Western Cape v Acting Chairperson, Judicial Services Commission
| Jurisdiction | South Africa |
Premier, Western Cape v Acting Chairperson, Judicial Services Commission
2010 (5) SA 634 (WCC)
|
Citation |
|
|
Case No |
25467/2009 |
|
Court |
Western Cape High Court, Cape Town |
|
Judge |
Jones J and Ebrahim J |
|
Heard |
March 11, 2010; March 12, 2010 |
|
Judgment |
April 19, 2010 |
|
Counsel |
SP Rosenberg SC (with AI Katz SC and N Mayosi) for the applicant. |
Flynote : Sleutelwoorde G
Constitutional law — Administration of justice — Judicial Service Commission — Composition — Whether properly constituted when provincial Premier not H present when JSC considers matter relating to composition of court of his or her province — Nothing to suggest that Premier must be excluded where matter involving misconduct of one of the judges of that court — Constitution, s 178(1)(k).
Constitutional law — Administration of justice — Judicial Service Commission I — Composition — Whether properly constituted when full complement of members not present — In order for proceedings not to result in nullity, there must be sound reasons for non-attendance of member.
Constitutional law — Administration of justice — Judicial Service Commission — Validity of decisions — Decision to be supported by majority of members of properly constituted JSC — Bare majority not sufficient — J Constitution, s 178(6).
2010 (5) SA p635
Headnote : Kopnota
When considering matters relating to a specific High Court, the Judicial Services A Commission (the JSC) shall consist of all the members referred to in ss 178(1)(a) - (g) of the Constitution, as well as the four members designated by the President in terms of ss 178(1)(j). There shall in addition be the two special members referred to in s 178(1)(k) (the Judge President of the High Court and the Premier of the province), who are involved in all (and not just particular) matters relating to their High Court. (Paragraph B [9] at 640F - 641B.) There is nothing to suggest that the Premier should be excluded if the matter relates to the misconduct of one of the judges of that court. (Paragraph [11] at 641F - 642B.)
In order for the JSC to be properly constituted, its full complement of members must be present. This rule is, however, not absolute. Proceedings need not be regarded as a nullity if there are sound reasons for the non-attendance of C a member, for example, where he or she is one of the parties or where he or she represented one of the parties in related proceedings. Absences must, however, be satisfactorily explained. (Paragraphs [17] - [18] at 645B - 646D.) Section 178(6) of the Constitution provides that decisions of the JSC have to be 'supported by a majority of its members'. A bare majority will not be sufficient. Thus, for example, if the JSC should for a D particular matter have been composed of fifteen members and six out of the ten members present voted for a particular decision, it would not constitute a majority for the purposes of s 178(6). It would only constitute a majority if the JSC was properly constituted when it sat with only ten members. (Paragraph [19] at 646E - 647A.) E
Cases Considered
Annotations
Reported cases
Da Mata v Otto NO 1972 (3) SA 858 (A): referred to
Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa, 1996 1996 (4) SA 744 (CC) (1996 (10) BCLR 1253): referred to F
Johannesburg City Council v Victteren Towers (Pty) Ltd 1975 (4) SA 334 (W): referred to
Langa CJ and Others v Hlophe 2009 (4) SA 382 (SCA): referred to
Minister of Health and Another NO v New Clicks South Africa (Pty) Ltd and Others (Treatment Action Campaign and Another as Amici Curiae) 2006 (2) SA 311 (CC) (2006 (1) BCLR 1): referred to G
Minister of Home Affairs and Others v Watchenuka and Another 2004 (4) SA 326 (SCA) (2004 (2) BCLR 120): referred to
Pretoria Portland Cement Co Ltd and Another v Competition Commission and Others 2003 (2) SA 385 (SCA): referred to
R v Price 1955 (1) SA 219 (A): referred to
Ruyobeza and Another v Minister of Home Affairs and Others H 2003 (5) SA 51 (C) (2003 (8) BCLR 920): referred to
S v Naudé 1975 (1) SA 681 (A): referred to
S v Zuma and Others 1995 (2) SA 642 (CC) (1995 (1) SACR 568; 1995 (4) BCLR 401): referred to
Schierhout v Union Government (Minister of Justice) 1919 AD 30: dictum at 44 applied I
Schoultz v Voorsitter, Personeel-Advieskomitee van die Munisipale Raad van George, en 'n Ander 1983 (4) SA 689 (C): referred to
Sigaba v Minister of Defence and Police and Another 1980 (3) SA 535 (Tk): referred to
South African Association of Personal Injury Lawyers v Heath and Others 2001 (1) SA 883 (CC) (2001 (1) BCLR 77): referred to J
2010 (5) SA p636
Tantoush v Refugee Appeal Board and Others 2008 (1) SA 232 (T): referred to A
Thint (Pty) Ltd v National Director of Public Prosecutions and Others; Zuma and Another v National Director of Public Prosecutions and Others 2009 (1) SA 1 (CC) (2008 (2) SACR 421): referred to
United Dominions Corporation (SA) Ltd v Tyrer 1960 (3) SA 321 (T): B referred to
Watchenuka and Another v Minister of Home Affairs 2003 (1) SA 619 (C) (2003 (1) BCLR 62): referred to
Yates v University of Bophuthatswana and Others 1994 (3) SA 815 (B): referred to.
Case Information
C Application for an order setting aside a decision of the Judicial Service Commission. The facts appear from the reasons for judgment.
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. D
Cur adv vult.
Postea (April 19).
Judgment
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:
Condoning the non-compliance with the time periods laid down in the rules of court and declaring this matter to be one of urgency.
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.
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...
To continue reading
Request your trial