THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

REPORTABLE
Case No:  818/2011

In the matter between:

THE JUDICIAL SERVICE COMMISSION

FIRST APPELLANT
THE CHAIRPERSON,   JUDICIAL SERVICE
COMMISSION

SECOND APPELLANT
v
THE CAPE BAR COUNCIL

FIRST RESPONDENT
THE CENTRE FOR CONSTITUTIONAL
RIGHTS

SECOND RESPONDENT

Neutral citation:
Judicial Service Commission v Cape Bar Council (Centre for
Constitutional Rights as amicus curiae) (818/11) [2012]
ZASCA 115 (14 September 2012).

Coram:

Brand, Cloete, Snyders, Mhlantla et Petse JJA
Heard:

16 August 2012
Delivered:

14 September 2012

Summary:
Absence of President of the SCA from meeting of the JSC
– his deputy not invited – JSC not properly constituted –
decisions at meeting consequently invalid – failure by the
JSC to observe obligation to give reasons for decision not
to recommend any candidate for appointment to existing
vacancies – prima facie inference that decision was
irrational not rebutted.

________________________________________________________________

ORDER
________________________________________________________________

On appeal from:   Western Cape High Court, Cape Town (Koen and Mokgohloa
JJ sitting as a court of first instance):
1.
The appeal is dismissed with costs including the costs of two counsel.
2.
Paragraph 1 of the order of the High Court is amended to read:
(a)
‘That the proceedings of the first respondent (the JSC) on 12 April
2011 that resulted in the JSC not recommending candidates to fill two
vacancies on the bench of this court (the WCHC) were inconsistent
with the Constitution in that both the President and the Deputy
President of the Supreme Court of Appeal were absent and those
proceedings are accordingly declared unlawful and consequently
invalid.’
3.
Save for the amendment in 2 above, the orders of the High Court are
confirmed.
________________________________________________________________

JUDGMENT
________________________________________________________________

BRAND JA (CLOETE, SNYDERS, MHLANTLA et PETSE JJA CONCURRING):

[1] The first appellant is the Judicial Service Commission, established by 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 the Western Cape province, generally known as the
Cape Bar. In the main, the members of the Cape Bar practice their profession in
the Western Cape High Court Cape Town (WCC).

[2] On 12 April 2011 the JSC interviewed candidates for judicial 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 R A Brusser SC, Ms J I
Cloete, Adv M Fitzgerald SC, Mr R C A Henney, Mr S J Koen, Adv S Olivier SC
and Adv O L Rogers SC. Of the seven candidates 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.

[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
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 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 F W de
Klerk Foundation, was also allowed to appear as an amicus curiae on appeal. In
the event, the application met with complete success in that the court a quo (Koen
and Mokgohloa JJ) 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 (Centre for Constitutional Rights and another as
amici curiae) 2012 (4) BCLR 406 (WCC), is with the leave of the court a quo.

[5] In broad outline the CBC rested its application on two legs, which both
found favour with the court a quo. First, that 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, 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 a quo,
the JSC raised two points in limine. First, that the decisions of the JSC were
expressly excluded from the ambit of review under the 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, that the application was fatally defective because neither Judge Henney
nor the six unsuccessful shortlisted candidates had been joined as parties. Both
these points in 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 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 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 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 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 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 J Arthur Brown v The Director of Public
Prosecutions, Western Cape 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 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 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)
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)
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.
(e)
Whether, in the circumstances, the decision of the JSC not to recommend
any of the candidates to fill the two remaining vacancies, 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
[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, 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 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 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 concerned (see eg Bowring NO v
Vrededorp Properties CC 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 2007 (1) SA 30 (SCA) para 7; Andries
Charl Cilliers, Cheryl Loots and Hendrik Christoffel Nel Herbstein & Van Winsen
The Civil Practice of the High Courts of South Africa 5 ed vol 1 at 239 and the
cases there cited.)

[13] Despite the limitations imposed by these authorities, the point in limine
would clearly be good if the JSC was right in its contention that the first declaratory
order inevitably gave rise to the setting aside of Judge Henney’s appointment. As I
see it, the short answer to this contention is, however, that this is not so. The mere
fact that an administrative decision was unlawful does not visit all its consequences
with automatic invalidity. Unless and until an administrative decision is challenged
and set aside by a competent court, the substantive validity of its consequences
must be accepted as a fact (see eg Camp’s Bay Ratepayers and Residents’
Association v Harrison 2011 (4) SA 42 (CC) para 62). Moreover, even if an
administrative decision is challenged and found wanting, courts still have a residual
discretion to refuse to set that decision aside (see eg Seale v Van Rooyen NO
2008 (4) SA 42 (SCA) para 13). In a sense, the ‘invalid’ administrative decision is
then, in the exercise of the court’s discretion, clothed with validity (see eg
Chairperson, Standing Tender Committee v J F E Sapela Electronics (Pty) Ltd
2008 (2) SA 638 (SCA) paras 28-29; Eskom Holdings Ltd v New Reclamation
Group (Pty) Ltd 2009 (4) SA 628 (SCA) para 9). The underlying reason for this
common law principle, which is confirmed in effect by s 172(1) of our Constitution,
was succinctly formulated thus in Oudekraal Estates (Pty) Ltd v City of Cape Town
2004 (6) SA 222 (SCA) para 36:
‘. . . [A] court that is asked to set aside an invalid administrative act in proceedings for
judicial review has a discretion whether to grant or to withhold the remedy. It is that
discretion that accords to judicial review its essential and pivotal role in administrative law,
for it constitutes the indispensable moderating tool for avoiding or minimising injustice
when legality and certainty collide.’

[14] The result is therefore that the first declaration sought, would not in itself
affect the validity of Judge Henney’s appointment. Furthermore, as I see it, anyone
who seeks the setting aside of Judge Henney’s appointment would have to
persuade the court not only that the recommendation of the JSC was invalid, but
also that the dire consequences of the setting aside of his appointment more than
a year after the event, would be justified. Finally I believe that, if the appeal were to
be unsuccessful, the relevant paragraph of the order in the court a quo could be
trimmed down so as to avoid any impact on the validity of Judge Henney’s
appointment.

[15] Having said all that, it must be accepted, in my view, that Judge Henney’s
appointment would, to some extent, be tainted by the first declarator. Any doubt
that this would be so is removed by what happened in the Brown case. But the
court a quo found that the casting of this potential shadow over Judge Henney’s
appointment, in itself, is not enough to render him a necessary party. It found
support for this finding in the judgment of this court in Gordon v Department of
Health, KwaZulu-Natal 2008 (6) SA 522 (SCA). What happened in Gordon was
that the appellant, Mr Gordon, applied for a promotion post in the department
which was the respondent in that case. Though the selection committee found him
the most suitable candidate, the department appointed a Mr M to the post.
Aggrieved by his non-appointment, Mr Gordon instituted a claim against the
department in the Labour Court for so-called protective promotion. As explained in
the judgment of this court (para 4) this essentially amounted to a claim for all the
benefits of the promotion post without an actual appointment to that post. In
consequence, the appointment of Mr M to the post would remain intact. The
Labour Court found against Mr Gordon on the merits. On appeal to the Labour
Appeal Court, that court mero motu raised the non-joinder of Mr M as a reason
why the matter should not be entertained. Eventually the point of non-joinder thus
raised, was upheld by the LAC on the basis that, if Mr Gordon’s claim were to
succeed, Mr M would be confronted with the finding that, as an objective fact, he
was not suitable for the post to which he was appointed.

[16] But in upholding Gordon’s appeal against that decision of the LAC, this
court said inter alia (para 10):
‘The . . . appointee [who was found to be unsuitable] has no legal interest in the matter if
the order will be directed at the employer (the author of the unsuitable appointment) to
compensate the 'suitable' but unsuccessful applicant. Of course the successful but
'unsuitable' appointee will always have an interest in the order to confirm his/her suitability
for the job but this is not a direct and substantial interest necessary to found a basis for
him or her to be joined in the proceedings. . . . The successful appointee can only have a
legal interest in the proceedings where the decision to appoint him is sought to be set
aside which can lead to his removal from the post. He becomes a necessary party to the
proceedings because the order cannot be carried into effect without profoundly and
substantially affecting his/her interests.’

[17] For the sake of argument I accept that the first declarator may serve to
motivate disgruntled litigants like Mr Brown to query the validity of Judge Henney’s
appointment. I do not believe, however, that that prospect in itself would leave
Judge Henney in a worse position than the appointee in Gordon who was found to
be unsuitable. On the contrary, unlike the position of the apppointee in Gordon,
there is nothing in the first declarator that reflects on Judge Henney’s suitability for
appointment as a judge. If Judge Henney wanted a say in the decision which could
leave him with a tainted appointment, he had ample opportunity, both in this court
and in the court a quo, to become involved in the proceedings. And he will still
have the opportunity, if this appeal is dismissed and an application is made to set
aside his appointment, to advance whatever argument he deems fit because the
judgment of this court, although persuasive, will not be binding on the court that
hears that applicaiton. But be that as it may. That is not the issue. The issue is
whether Judge Henney was a necessary party. And for the reasons given I agree
with the court a quo’s finding that he was not. It follows that, in my view, the non-
joinder point taken by the JSC was rightly dismissed.

[18] For purposes of the non-joinder issue, I have assumed that both the JSC’s
application to introduce new evidence on appeal as well as its attempt to avoid the

directions issued by the Deputy President, should succeed. However, it is apparent
in my view that neither of these took the consideration of that issue any further. Nor
would they have any impact on the remaining issues in this case. In addition,
neither the JSC nor the CBC sought any special costs order with regard to these
matters. In the circumstances they may, in my view, be safely passed over without
any further consideration.

Are the impugned decisions of the JSC reviewable?
[19] In the court a quo the JSC raised the further preliminary issue that the
impugned decisions were not reviewable under PAJA. In support of that contention
it relied on the provisions of s 1(gg) of PAJA which is one of the nine pertinent
exclusions from the ambit of what would otherwise be ‘administrative action’ and
which are thus rendered immune from judicial review under the Act. That section
refers to:
‘A decision relating to any aspect regarding the nomination, selection or appointment of a
judicial officer or any other person, by the Judicial Service Commission in terms of any
law’.

[20] The court a quo agreed with the contention that the impugned decisions of
the JSC are excluded from review under PAJA by s 1(gg). Nonetheless it found
these decisions reviewable, in principle, under the doctrine of legality. The
correctness of this finding is not challenged by the JSC on appeal. As a result, the
doctrine of legality can, for present purposes, be stated without elaboration and
purely as the underlying substructure for this court’s consideration of the remaining
issues.

[21] As Ngcobo CJ said in Albutt v Centre for the Study of Violence and
Reconciliation 2010 (3) SA 293 (CC) para 49, it has by now become axiomatic that
the doctrine or principle of legality is an aspect of the rule of law itself which
governs the exercise of all public power, as opposed to the narrow realm of
administrative action only. The fundamental idea expressed by the doctrine is that
the exercise of public power is only legitimate when lawful (see Fedsure Life

Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council 1999 (1)
SA 374 (CC) para 56). By way of example it was held in Fedsure, on the basis of
the legality principle, that a body exercising public power has to act within the
powers lawfully conferred upon it. And in Pharmaceutical Manufacturers
Association of SA: In re Ex Parte President of South Africa 2000 (2) SA 674 (CC)
(para 20) it was held that the principle of legality also requires that the exercise of
public power should not be arbitrary or irrational (see also Albutt supra para 49 and
the cases cited in footnote 43).

[22] The JSC’s power to advise the President on the appointment of judges of
the High Court is derived from s 174(6) of the Constitution. Hence it is undoubtedly
a public power. In the event, this court has recently held that the proper
composition of the JSC is a matter for review under the doctrine of legality (see
Acting Chairperson: Judicial Services Commission v Premier of the Western Cape
Province 2011 (3) SA 538 (SCA)). Moreover, in accordance with legal principle that
became well settled in many cases since Pharmaceutical Manufacturers, the
decisions of the JSC that are challenged by the CBC are, in principle, subject to
review on the basis of irrationality. This brings me to the first challenge based on
the alleged improper composition of the JSC when the decisions not to
recommend any of the unsuccessful candidates were taken.

Composition of the JSC
[23] The composition of the JSC is regulated by s 178(1) of the Constitution. The
relevant part of this section provides:
‘178 Judicial Service Commission
(1) There is a Judicial Service Commission consisting of–
(a)
the Chief Justice, who presides at meetings of the Commission;
(b)
the President of the Supreme Court of Appeal;
(c)
one Judge President designated by the Judges President;
(d)
the Cabinet member responsible for the administration of justice, or an alternate
designated by that Cabinet member;

(e)
two practising advocates nominated from within the advocates' profession to
represent the profession as a whole, and appointed by the President;
(f)
two practising attorneys nominated from within the attorneys' profession to
represent the profession as a whole, and appointed by the President;
(g)
one teacher of law designated by teachers of law at South African universities;
(h)
six persons designated by the National Assembly from among its members, at
least three of whom must be members of opposition parties represented in the
Assembly;
(i)
four permanent delegates to the National Council of Provinces designated together
by the Council with a supporting vote of at least six provinces;
(j)
four persons designated by the President as head of the national executive, after
consulting the leaders of all the parties in the National Assembly; and
(k)
when considering matters relating to a specific High Court, the Judge President of
that Court and the Premier of the province concerned, or an alternate designated
by each of them.
. . .
(4) The Judicial Service Commission has the powers and functions assigned to it in the
Constitution and national legislation.
(5) The Judicial Service Commission may advise the national government on any matter
relating to the judiciary or the administration of justice, but when it considers any matter
except the appointment of a judge, it must sit without the members designated in terms of
subsection (1) (h) and (i).
(6) The Judicial Service Commission may determine its own procedure, but decisions of
the Commission must be supported by a majority of its members.
(7) If the Chief Justice or the President of the Supreme Court of Appeal is temporarily
unable to serve on the Commission, the Deputy Chief Justice or the Deputy President of
the Supreme Court of Appeal, as the case may be, acts as his or her alternate on the
Commission.
(8) The President and the persons who appoint, nominate or designate the members of
the Commission in terms of subsection (1) (c), (e), (f) and (g), may, in the same manner
appoint, nominate or designate an alternate for each of those members, to serve on the
Commission whenever the member concerned is temporarily unable to do so by reason of
his or her incapacity or absence from the Republic or for any other sufficient reason.’

[24] With particular reliance on subsecs 178(1)(b) and 178(7), the CBC
contended that because both the President of this court and his deputy were
absent from the meeting on 12 April 2011, when the shortlisted candidates were
interviewed and their selection decided upon, the meeting and the decisions taken
were unconstitutional. For its factual basis the contention rested on what was
common cause, namely that neither the President, Mpati P, nor his deputy, Harms
DP, were present at that meeting. As to how this happened, the JSC explained in
its answering affidavit, that it met for just over a week, from 4 April to 12 April 2011.
Mpati P was present from 4 April to 11 April 2011. He left the meeting at the end of
the proceedings on 11 April 2011 for an important engagement after being
excused by the Chief Justice as the chairperson. Harms DP was not invited to
attend on the 12th because it was thought unnecessary to do so.

[25] The CBC’s contention that the meeting of 12 April 2011 and, in
consequence, the decisions taken at that meeting was unconstitutional, was
upheld by the court a quo. The JSC’s appeal against that finding is based on two
arguments: (a) that the JSC held a single meeting from 4 to 12 April 2011 and that,
because Mpati P was present for most of the time during that period, it cannot be
said that he was ‘temporarily unable to serve on the Commission’, as contemplated
in s 178(7) of the Constitution; and (b) that, in any event, the full compliment of the
JSC is not necessary for its proceedings and decisions to be valid.

[26] The court a quo found the first argument to be without merit. I agree. As I
see it, there is simply no basis for the argument that there was a single meeting
which lasted from 4 April to 12 April 2011. Over that period the JSC obviously had
different meetings. At some of those meetings it was differently constituted. That
follows from the provisions of subsecs 178(1)(k) and 178(5). When it considered
any matter relating to a specific High Court, the Judge President of that court and
the Premier of that province became constituent members in terms of s 178(1)(k).
On the other hand, s 178(5) dictates that when the JSC considered matters not
concerning appointment of judges, it had to sit without the members designated in
terms of subsecs (1)(h) and (1)(i). It follows that the determination of whether or

not a meeting of the JSC was properly constituted must be made with regard to
who was present at that meeting and the purpose for which it was held. Moreover,
the argument that a member must be regarded as present for the whole week if he
or she was there at the start of the first day, could clearly lead to absurd
consequences.

[27] With regard to the JSC’s contention that it is impractical to insist that every
meeting must be attended by every member or his/her alternate, I believe that
s 178(7) requires a distinction to be drawn between the Chief Justice and the
President of the SCA, on the one hand, and the rest of the members on the other.
Barring situations which would warrant invocation of the principle expressed by the
maxim lex non cogit ad impossibilia, s 178(1)(b) read with s 178(7) requires the
presence of the Chief Justice and the President of this court, or their designated
alternates, for the valid composition of the JSC. The position may be different with
regard to the persons appointed in terms of subsecs (1) (c), (e), (f) and (g) for
whom alternates ‘may’ be appointed. But it is no different from the position of the
Premier and the Judge President of a specific High Court provided for in subsec
(1)(k). In Acting Chairperson: Judicial Service Commission v Premier of the
Western Cape Province 2011 (3) SA 538 (SCA) this court held that, in
circumstances contemplated in s 178(1)(k), a meeting of the JSC was not properly
constituted in the absence of the Premier or her designated alternate. As I see it,
the conclusion can be no different in this case. Lastly, I can see no answer to the
further consideration that swayed the court a quo. It is this. On the JSC’s
interpretation of s 178(7), the Deputy President of this court would not have been
permitted to attend the meeting of 12 April 2011, even if he happened to be
present at the venue, because the President was not ‘unable to serve’ for purposes
of s 178(7), though he could not be present. This inevitable conclusion of the
interpretation contended for by the JSC is, in my view, self-evidently unsustainable.

[28] This brings me to the JSC’s alternative contention, that a full compliment of
the JSC is not necessary for the validity of its decisions. As support for this
contention the JSC sought to rely on Minister of Health v New Clicks SA (Pty) Ltd

2006 (2) SA 311 (CC). This judgment is to be understood against the background
of the general principle thus formulated by Innes CJ in Schierhout v Union
Government 1919 AD 30 at 44:
‘[W]henever a number of individuals, were empowered by Statute to deal with any matter
as one body; the action taken would have to be the joint action of all of them . . . for
otherwise they would not be acting in accordance with the provisions of the Statute.’

[29] What Chaskalson CJ pointed out in New Clicks (para 171) was that this is
not an immutable rule and that the question whether the legislature intended to
visit the decisions of a body established by a particular statute with invalidity,
unless it was taken by all the members of the body jointly, is always dependent on
an interpretation of the particular empowering statute. In New Clicks Chaskalson
CJ concluded that a proper interpretation of the empowering legislation in that case
did not warrant the inference of invalidity.

[30] With regard to the interpretation of s 178(1) of the Constitution, on the other
hand, this court decided in Acting Chairperson: Judicial Service Commission v
Premier of the Western Cape Province 2011 (3) SA 538 (SCA) paras 9-18, that in
the circumstances contemplated by subsec 178(1)(k), the JSC can take no valid
decision in the absence of both the Premier and her designated alternate. Counsel
for the JSC did not contend that, in the present context, there is a difference
between the provisions of s 178(1)(k), on the one hand, and subsecs 178(1)(b) and
178(7) on the other. I can see no difference either. It follows that, if the JSC cannot
take a valid decision in the absence of either the Premier or her alternate, the
position can be no different with regard to the absence of both the President of this
court and his deputy. This means that we are bound by the decision in Premier of
the Western Cape.

[31] Counsel for the JSC was thus compelled to submit, albeit reluctantly, that
Premier of the Western Cape was wrongly decided. Their first argument in support
of this submission was that no reference was made in that case to the provisions of
subsecs 2(1) and (2) of the Judicial Service Commission Act 9 of 1994. These

sections, which were introduced by the Judicial Service Commission Amendment
Act 20 of 2008, read as follows:
‘2 Acting Chairperson and vacancies
(1) When the Chairperson is for any reason unavailable to serve on the Commission or
perform any function or exercise any power, the Deputy Chief Justice, as his or her
alternate, shall act as chairperson.
(2) If neither the Chief Justice nor the Deputy Chief Justice is available to preside at a
meeting of the Commission, the members present at the meeting must designate one of
the members holding office in terms of section 178 (1) (b) or (c) of the Constitution as
acting chairperson for the duration of the absence.’

[32] Section 2(2), so counsel’s argument went, is an acknowledgement by the
legislature that meetings of the JSC can be validly held and decisions validly taken
in the absence of both the Chief Justice and his deputy. The correctness of that
conclusion cannot be gainsaid. It obviously presupposes that where both the Chief
Justice and his deputy are unavailable, the meeting of the JSC must go on.
Furthermore, I have no difficulty with the next logical step in counsel’s argument,
that the same must hold true for the President of this court and his deputy. If both
of them are unavailable, the JSC can still validly meet. But the question whether
the argument assists the case of the JSC depends on the meaning ascribed to
‘unavailable’ in the section. It will be remembered that Harms DP was not invited to
attend the meeting of 12 April. There is no indication that if he were so invited he
would have been unable to attend. Counsel for the JSC was therefore constrained
to argue that in the context of s 2(2) of the JSC Act, the concept ‘unavailable’
includes absence for any reason, or, for that matter, without any legitimate reason
at all. It would also mean, so counsel for the JSC fairly conceded, that even if the
Chief Justice and his deputy were absent simply because they were not invited,
they must be looked upon as ‘unavailable’ for purposes of s 2(2). I find this
interpretation of the section unsustainable. I do not accept that the proper
composition of a body as important as the JSC can depend on the whim of
whomever is responsible for the administrative task of sending invitations.

[33] As I see it, unavailability must broadly bear the same meaning as
‘temporarily unable to serve’ in s 178(7) of the Constitution. If both the Chief
Justice and his deputy are unavailable – in the sense that they are unable to attend
– the meeting must go on. Thus understood, I believe s 2(2) amounts to little more
than an invocation of the principles expressed by the maxim lex non cogit ad
impossibilia. As I see it, this interpretation is supported by the fact that the primary
aim of s 2(2) is clearly not to determine the composition of the JSC. That is
governed by s 178 of the Constitution. What s 2(2) of the JSC Act is aimed at is
merely to determine who should be the chairperson of the JSC when the Chief
Justice is ‘unavailable’ or ‘temporarily unable to serve’ – as contemplated in
s 178(7) of the Constitution – and his deputy is similarly unavailable. So
interpreted, I do not believe that the reference to s 2(1) and s 2(2) of the Judicial
Service Commission Act has any impact on the correctness of the decision of this
court in Premier of the Western Cape.

[34] The further argument by counsel for the JSC as to why Premier of the
Western Cape was wrongly decided, relied on s 178(6) of the Constitution. That
section, so it was pointed out by counsel, requires only that decisions of the JSC
be supported by a majority of its members which in this case would be 13 out of
25. This means, so the argument went, that a valid decision can be taken as long
as there is a quorum of thirteen members who all vote the same way. I am not
persuaded on this argument that Premier of the Western Cape was wrongly
decided. On the contrary, as I see it, s 178(6) has nothing to do with the proper
composition of the JSC. It determines no more and no less than what would
happen in the event of a disagreement between members.

[35] Acceptance of counsel’s argument would mean, for instance, that matters
relating to a specific High Court could be determined in the absence of the Judge
President of that court and the Premier of the province concerned or an alternate
designated by both of them, which would be in direct conflict with the provisions of
s 178(1)(k). What is more, I believe it is clear from s 178 of the Constitution that the
JSC has been created in a structured and careful manner. Its composition

obviously sought to ensure that persons from diverse political, social and cultural
backgrounds, representing varying interest groups, would participate in its
deliberations. Any interpretation of s 178 which would allow decisions of the JSC to
be validly taken with the unjustified exclusion of one or more of these interest
groups, would therefore negate the very essence of the constitutional design.

[36] I therefore agree with the court a quo’s finding that, in the absence of the
President of this court, and his deputy without justification, the JSC was not
properly constituted at its meeting of 12 April 2011 and that its decisions at that
meeting with regard to the unsuccessful six candidates were therefore not validly
taken. Save for one reservation, the declarator in terms of paragraph 1 of the
court’s order can therefore not be faulted. The reservation relates to the position of
Judge Henney. Since he was not a party to the proceedings and no relief was
sought against him, I think it would be prudent to limit the declarator of invalidity so
as to make it clear that the decision has no effect on him. As I see it, it also follows
that in so far as paragraph 3 of the court a quo’s order is consequent upon the
declarator in paragraph 1, the former must likewise be confirmed.

The JSC’s failure to fill the two vacancies
[37] This brings me to the CBC’s further contention that, in all the circumstances,
the JSC’s failure to recommend any of the unsuccessful candidates for
appointment to the two remaining vacancies, was irrational and therefore invalid.
Underlying this contention are the provisions of s 174(1) and (2) of the
Constitution. Section 174(1) provides that ‘[a]ny appropriately qualified woman or
man who is a fit and proper person may be appointed as a judicial officer.’ In terms
of s 174(2) the ‘need for the judiciary to reflect broadly the racial and gender
composition of South Africa must be considered when judicial officers are
appointed.’

[38] Three of the shortlisted candidates, namely Rogers SC, Fitzgerald SC and
Olivier SC, were supported by the CBC on the basis that they met the
requirements in s 174(1). Rogers, in particular, was strongly recommended as

eminently suitable for judicial appointment. In this light the CBC asked the JSC for
reasons why it decided to leave two vacancies instead of recommending any one
of these candidates. The JSC’s only response was that none of these candidates
received a majority vote. In its founding papers the CBC contended that this
amounted to no reason at all which, in the circumstances, warranted the inference
that the decision not to recommend any candidate to fill the two vacancies, was
irrational and thus unlawful. Moreover, so the CBC maintained, not recommending
any of the unsuccessful candidates would not be warranted by the considerations
contemplated in s 174(2).

[39] In its answering affidavit the JSC did not deny that the three candidates
proposed by the CBC were appropriately qualified persons who were fit and proper
for judicial appointment as contemplated by s 174(1), or even that Rogers SC was
eminently suitable for judicial appointment. Nor did it profess to have been
influenced by considerations of racial and gender representivity contemplated in
s 174(2) when it decided not to recommend any of the unsuccessful candidates.
The only reason it gave why these candidates were nonetheless not recommended
to fill the two vacancies, was that they did not secure sufficient votes for
recommendation. In this regard the JSC referred to s 178(6) of the Constitution
which requires its decisions to be supported by a majority of all its members, as
opposed to a majority of those present at the meeting. This means, so the
deponent on behalf of the JSC explained, that because it comprised 25 persons for
purposes of recommendation proceedings, a candidate was required to secure at
least thirteen votes in order to be recommended. Since Rogers SC gained twelve
votes only and the other candidates even less, none of them received a majority
vote and that is the reason why they were not selected.

[40] In any event, so the JSC contended in its answering affidavit, it was neither
obliged to give any reason why a candidate was not recommended, nor able to do
so save for stating that the candidate did not secure enough votes. Its explanation
why it was unable to do so went along the following lines. After the interviews
regarding vacancies in a particular court are completed, the members of the JSC

deliberate on the candidates in private. During these deliberations the members
are encouraged to, and do, freely voice their views and their concerns with regard
to the individual candidates. Thereafter members are called upon to exercise their
vote. No one is asked to vote against a particular candidate, but a candidate who
fails to secure a majority vote in his or her favour is not recommended.

[41] In order to protect members from undue pressure, so the deponent for the
JSC said, votes are exercised by secret ballot. In the result, nobody knows how
another member has voted, or why he or she has voted one way or the other.
Moreover, as the vote is secret, a member is not required to explain to anyone how
or why he or she voted in a particular way. In the result it is not possible for the
JSC to furnish reasons to any candidate, or to anybody else, why he or she failed
to secure a recommendation for appointment. In order to furnish the reasons, each
member would have to explain why they voted in a particular way. That would, by
its very nature, so the deponent for the JSC contended, render nugatory the
process of keeping their votes secret.

[42] In sum, the JSC thus answered the charge that it had failed in its duty to
provide reasons for not recommending any of the unsuccessful candidates at three
levels: (a) that there is no duty imposed upon it, either by the Constitution or by any
other legislative enactment, to give reasons for that decision; (b) that it has in any
event given a reason for not selecting any of the unsuccessful candidates, namely
that none of them received enough votes; and (c) that because of its secret voting
procedure it was not possible to provide better reasons than the one it gave. I
propose to deal with each of these three levels in turn.

[43] I think it is true to say that there is no express constitutional or other legal
enactment that obliges the JSC to give reasons for not recommending a candidate
for judicial appointment. That of course does not exclude an implied obligation to
do so. In contending for the existence of such an implied obligation, the CBC relied
on two premises. First, that the JSC is under a constitutional duty to exercise its
powers in a way that is not irrational or arbitrary. Secondly, that because the JSC

is an organ of State (as contemplated by s 239(b) of the Constitution) it is bound
(by s 195 of the Constitution) to the values of transparency and accountability. I do
not think that the validity of these premises can be denied and I did not understand
the JSC to do so.

[44] But once these premises are accepted as valid, I cannot see how the
inference of an obligation to give reasons can be avoided. It is difficult to think of a
way to account for one’s decisions other than to give reasons (see eg Mphahlele v
First National Bank of SA Ltd 1999 (2) SA 667 (CC) para 12). As to rationality, I
think it is rather cynical to say to an affected individual: you have a constitutional
right to a rational decision but you are not entitled to know the reasons for that
decision. How will the individual ever be able to rebut the defence by the decision-
maker: ‘Trust me, I have good reasons, but I am not prepared to provide them’?
Exemption from giving reasons will therefore almost invariably result in immunity
from an irrationality challenge. I believe the same sentiment to have been
expressed by Mokgoro and Sachs JJ when they said in Bell Porto School
Governing Body v Premier, Western Cape 2002 (3) SA 265 (CC) para 159:
‘The duty to give reasons when rights or interests are affected has been stated to
constitute an indispensable part of a sound system of judicial review. Unless the person
affected can discover the reason behind the decision, he or she may be unable to tell
whether it is reviewable or not and so may be deprived of the protection of the law.’

[45] As I see it, the JSC is therefore, as a general rule, obliged to give reasons
for its decision not to recommend a particular candidate if properly called upon to
do so. I do not express any view as to how extensive these reasons should be or
who would be entitled to request them, or under what circumstances such a
request could legitimately be made. That, I think, will depend on the facts and
circumstances of every case. This really leads me to the further enquiry as to
whether the only ‘reason’ given by the JSC, namely that the unsuccessful
candidates failed to secure enough votes, must be regarded as sufficient. The
short answer to this question, I think, is that it was not. The CBC submitted that it
amounted to no reason at all. I agree. It just changed the question from ‘why were

they not recommended’ to ‘why did they not secure enough votes’, without
providing an answer.

[46] The reply by the JSC does not serve any of the purposes for which reasons
should be given. These purposes were articulated with admirable clarity by
Lawrence Baxter Administrative Law (1984) at 228 in the following statement,
which was endorsed by Schutz JA in Transnet Limited v Goodman Brothers (Pty)
Ltd 2001 (1) SA 853 (SCA) para 5:
‘In the first place, a duty to give reasons entails a duty to rationalise the decision. Reasons
therefore help to structure the exercise of discretion, and the necessity of explaining why a
decision is reached requires one to address one’s mind to the decisional referents which
ought to be taken into account. Secondly, furnishing reasons satisfies an important desire
on the part of the affected individual to know why a decision was reached. This is not only
fair: it is also conductive to public confidence in the administrative decision-making
process. Thirdly – and probably a major reason for the reluctance to give reasons –
rational criticism of a decision may only be made when the reasons for it are known. This
subjects the administration to public scrutiny and it also provides an important basis for
appeal or review. Finally, reasons may serve a genuine educative purpose, for example
where an applicant has been refused on grounds which he is able to correct for the
purpose of future applications.’

[47] This brings me to the third level of the JSC’s response, namely, that it was
not able to give reasons why the majority did not recommend the unsuccessful
candidates because of its procedure of voting by secret ballot. I think there are two
answers to this contention. The first, which derives from principle, is this. Although
s 178(6) of the Constitution allows the JSC a wide discretion to determine its own
procedure, that procedure must, as a matter of principle, enable the JSC to comply
with its constitutional and legal obligations. If it does not, the procedure must be
changed. The JSC’s answer seems to turn this principle on its head. What it
amounts to is that once the JSC has adopted a procedure which does not allow it
to give reasons, it is not legally required to do so. This, I believe, simply renders its
approach untenable.

[48] The second answer to the JSC’s reliance on its inability to give reasons is
the one given by the court a quo (in para 125 of its judgment). It is founded on
s 2(f)(iii)(l) of the JSC’s rules of procedure that were adopted by it and published in
the Government Gazette of 27 March 2003. The section deals with
recommendations by the JSC of candidates for appointment to the Constitutional
Court. It provides:
‘The Chairperson and Deputy Chairperson of the Commission shall distil and record the
Commission’s reasons for recommending the candidates selected.’

[49] Proceeding from this section, the court a quo posed the rhetorical question
as to why, if the JSC’s reasons for recommending a Constitutional Court judge can
be distilled, the JSC would not also be able to distil its reasons for recommending
or not recommending any other judge for appointment. Before us the JSC sought
to answer this question by reference to s 174(4)(a) of the Constitution which
requires the JSC to prepare a list of nominees with three names more than the
number of appointments to be made for submission to the President. This, so the
JSC pointed out, is not the position with regard to appointment to the High Court
where s 174(6) only requires the JSC to recommend one nominee for each
vacancy. Hence, so the JSC’s argument went, the analogy relied upon by the court
a quo is not a valid one.

[50] Though I appreciate the obvious difference relied upon in the JSC’s
argument, I fail to understand how that answers the question posed by the court a
quo. The question originates from the JSC’s obligation to distil reasons. It has
nothing to do with the purpose for which it may be required to do so. Thus
understood, the question remains: if the JSC is able, despite its procedure of
voting by secret ballot, to distil reasons for one decision, why can it not do so for
another? The further distinction between recommending and not recommending a
candidate, which the JSC also sought to rely on in argument, again appears, in the
present context, to be a distinction without a difference. If there are five candidates,
logic appears to dictate that the reasons for recommending four must include some
motivation for not recommending the unfortunate number five. What is more, if the

reasons of the majority cannot be distilled from the open deliberations which
precede the voting procedure, there appears to be no reason, on the face of it, why
the members cannot be asked to provide their reasons anonymously. I appreciate
that several disparate reasons may emerge, but again, on the face of it, I can see
no problem in regarding all of them as the reasons for the decision of the JSC.

[51] To recapitulate and lest I am misunderstood: I am not suggesting that the
JSC is under an obligation to give reasons under all circumstances for each and
every one of the myriad of potential decisions it has to take. Suffice it for present
purposes to say that: (a) since the JSC is under a constitutional obligation to act
rationally and transparently in deciding whether or not to recommend candidates
for judicial appointment, it follows that, as a matter of general principle, it is obliged
to give reasons for its decision not to do so; (b) the response that the particular
candidate did not garner enough votes, does not meet that general obligation,
because it amounts to no reason at all; (c) in a case such as this, where the
undisputed facts gave rise to a prima facie inference that the decision not to
recommend any of the suitable candidates was irrational, the failure by the JSC to
adhere to its general duty to give reasons inevitably leads to confirmation of that
prima facie inference. In the event, I agree with the finding by the court a quo that
the failure by the JSC on 12 April 2011 not to fill any of the two vacancies on the
bench of the WCHC was irrational and unlawful.

Constitutionality of the JSC’s voting procedure
[52] Having arrived at that conclusion, the court a quo further held that, in any
event, the voting procedure adopted by the JSC was in itself unconstitutional. The
reasons for this finding are thus summarised in paragraphs 139 and 141 of the
judgment:
‘A voting procedure of one vote per vacancy, as opposed to one vote per candidate, is
irrational in that it does not ensure that decisions are taken by the majority of members.’
And:
‘. . . [W]here the voting procedure adopted resulted in the failure to obtain [the required]
majority because votes per vacancy were spread over more candidates than the number

of vacancies for which they compete, was irrational and failed to provide the opportunity to
the majority of the members of the JSC to make a decision.’

[53] Counsel for the respondent did not invite us to confirm these findings, but
counsel for the amicus curiae did. Yet I think we must decline that invitation. Apart
from the fact that the finding would be redundant, the actual voting procedure of
the JSC is shrouded in obscurity. This is so because the deponent to the
answering affidavit on behalf of the JSC gave two directly conflicting versions in
this regard. At one stage he stated that each member has one vote per vacancy.
Later on he said that each member has one vote per candidate. The latter version
he underscored by the statement that ‘it is perhaps necessary to clarify that if, for
example, there are three vacancies, each member of the JSC is entitled to vote for
up to three candidates. If he or she so wishes, they may vote for less.’ The court a
quo accepted the latter version as correct, precisely because it was underscored.
But, in argument before us, counsel for the JSC submitted with surprising certainty
that ‘each member is accorded one vote per candidate’ and that the version
underscored by their client and accepted by the court a quo was a ‘patent error’.
The amicus curiae’s answer to this argument was that it is not open to the JSC to
rely on its self-created uncertainty to challenge the findings of the court a quo. That
may very well be so. Nonetheless, I remain unconvinced that there is any point in
considering a finding of constitutional validity which would  be both redundant and
based on uncertain facts.

Costs
[54] Although the CBC was represented by four counsel it only asked for the
costs of two. In addition we were informed that counsel were not charging any
fees. In consequence the costs order sought in favour of the CBC would only
pertain to the costs of its attorneys and the expenses incurred by two counsel. On
that basis the costs order sought shall be made.

Order
[55] The following order is made:

1.
The appeal is dismissed with costs including the costs of two counsel.
2.
Paragraph 1 of the order of the High Court is amended to read:
(a)
‘That the proceedings of the first respondent (the JSC) on 12 April
2011 that resulted in the JSC not recommending candidates to fill two
vacancies on the bench of this court (the WCHC) were inconsistent
with the Constitution in that both the President and the Deputy
President of the Supreme Court of Appeal were absent and those
proceedings are accordingly declared unlawful and consequently
invalid.’
3.
Save for the amendment in 2 above, the orders of the High Court are
confirmed.

_____________________
F D J BRAND
JUDGE OF APPEAL

APPEARANCES:

For Appellant:

M T K MOERANE SC

T L SIBEKO SC

Instructed by:

THE STATE ATTORNEY

CAPE TOWN

Correspondents:

THE STATE ATTORNEY
BLOEMFONTEIN

For Respondent:

L ROSE-INNES SC

S ROSENBERG SC

R PASCHKE

N MAYOSI

Instructed by:

HEROLD GIE

CAPE TOWN

Correspondents:

McINTYRE & VAN DER POST

BLOEMFONTEIN

AMICUS CURIAE:
D IRISH SC

J DE WAAL

Instructed by:

CLIFFE DEKKER HOFMEYR INC

CAPE TOWN

Correspondents:

CLAUDE REID INC

BLOEMFONTEIN
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

MEDIA SUMMARY
MEDIA SUMMARY – JUDGMENT DELIVERED IN COURT OF
14 September 2012

STATUS: Immediate

The Judicial Service Commission and Another v The Cape Bar Council and
Another (818/11) [2012] ZASCA 115 (14 September 2012)

Please note that the media summary is intended for the benefit of the media and
does not form part of the judgment of the Supreme Court of Appeal

The Supreme Court of Appeal (SCA) today dismissed an appeal against a judgment
and order of the Western Cape High Court, Cape Town (High Court). The High
Court upheld an application by the Cape Bar Council (Bar Council) arising from a
judicial appointment recommendation made by the Judicial Service Commission
(JSC).

After interviewing seven shortlisted candidates to fill three positions on the High
Court Bench, the JSC filled only one. The Bar Council brought an application to the
High Court for a declaration that those proceedings and the decision not to fill the
two vacant positions were unconstitutional, and that the JSC be ordered to
reconsider the applications of the shortlisted candidates. The relief sought rested on
two legs: the JSC was not properly constituted when it met to consider the
applications and, as it had no reason not to fill the two positions, its decision to that
effect was irrational and therefore unlawful. The JSC contested the grounds of the
relief sought. It also raised the points that its decisions were expressly excluded from
statutory review and that the Bar Council’s application was defective as, in the light
of his refusal to grant consent to being bound by the judgment, the successful

candidate should have been joined. The High Court however granted the relief
sought by the Bar Council.

In dealing with the threshold points raised by the JSC, the SCA found that the
successful candidate was not a necessary party to the court proceedings and thus
should not have been joined. Furthermore it held the JSC’s power to advise the
President on the appointment of judges to be the exercise of public power and
subject to review on the basis of irrationality.

Turning to the judicial recommendation decision, the court upheld the High Court’s
finding that the JSC had been unlawfully constituted. Neither the President of the
SCA nor his deputy was present and it could not be shown that both were
unavailable at the time. The decisions taken were therefore, excepting the
appointment of the successful candidate not before the court, not validly taken.

The SCA also upheld the High Court’s findings that the JSC’s decision leading to the
failure to fill the two judicial vacancies was irrational and that the reasons provided
were wholly inadequate in the circumstances. The JSC contended that it had no duty
to provide reasons for its decisions; that it had in any event given reasons for not
selecting any of the unsuccessful candidates, namely that none had received
enough votes; and that because of its secret voting procedure, it was not able to
provide better reasons than those given. These contentions were not accepted by
the court.

The SCA did decline an invitation to declare the voting process followed by the JSC
unconstitutional. However, it held that since the JSC is under a constitutional
obligation to act rationally and transparently in deciding whether or not to
recommend candidates for judicial appointment it is in principle obliged to give
reasons for its decision not to do so. The response that a particular candidate did not
garner enough votes does not meet that general obligation, because it amounts to
no reason at all. Where the undisputed facts give rise to an inference that the
decision not to recommend candidates was irrational, the failure by the JSC to
adhere to its duty to give reasons leads, so found the court, to the confirmation of
the inference.