THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Case No: 537/10

In the matter between:

THE ACTING CHAIRPERSON: JUDICIAL
SERVICE COMMISSION

First Appellant
THE JUDICIAL SERVICE COMMISSION

Second Appellant
JUDGE PRESIDENT MANDLAKAYISE JOHN HLOPHE
Third Appellant

and

THE PREMIER OF THE WESTERN CAPE PROVINCE
Respondent

Neutral citation: Judicial Service Commission v Premier, Western Cape

(537/10) [2011] ZASCA 53 (31 March 2011).

Coram:
HARMS DP, CLOETE, LEWIS, PONNAN and MAJIEDT JJA

Heard:
18 MARCH 2011

Delivered:
31 MARCH 2011

Summary:
Constitution s 178: Composition and functioning of the
Judicial Service Commission: Premier of province forms part of JSC in terms
of subsection (1)(k) when complaints against high court judges of the province
are considered; majority of members in terms of subsection (6) means
majority of members entitled to be present, not majority of members present
and voting; proper order when decision taken by improperly constituted JSC,
or by invalid vote, is to set the decision aside.

______________________________________________________________

ORDER
______________________________________________________________

On appeal from:   Western Cape High Court (Cape Town) (Jones and
Ebrahim JJ sitting as court of first instance):

The appeal is dismissed with costs, including the costs of two counsel, which
are to be paid by the Judicial Service Commission and the Judge President
jointly and severally.
______________________________________________________________

JUDGMENT
______________________________________________________________

CLOETE JA (HARMS DP, LEWIS, PONNAN and MAJIEDT JJA  concurring):

Introduction
[1] The Premier as the executive authority1 of the Western Cape Province
instituted urgent motion proceedings in the Western Cape High Court, Cape
Town, against the Acting Chairperson of the Judicial Service Commission
(JSC), the JSC itself, past and present Justices of the Constitutional Court
and the Judge President of the Western Cape. No relief was sought against
the Justices, who were cited because of the interest they might have in the
application.

[2] The Premier claimed an order declaring certain proceedings of the JSC
and decisions taken by it to be invalid and further claimed that the decisions of
the JSC were not taken by the requisite majority. The Justices did not
participate in the proceedings. The court a quo (Jones and Ebrahim JJ)
granted the declaratory orders sought, and set the proceedings and the
decisions of the JSC aside.2 Leave to appeal to this court was subsequently

1 Section 125(1) of the Constitution provides:
'The executive authority of a province is vested in the Premier of that province.'
2 The judgment of the court a quo is reported as Premier, Western Cape v Acting
Chairperson, Judicial Service Commission 2010 (5) SA 634; 2010 (8) BCLR 823 (WCC).

granted by the court a quo to the Acting Chairperson and the JSC (to which I
shall refer jointly as 'the JSC'), and the Judge President.

The facts
[3] The history of the matter can be stated briefly. The Justices lodged a
complaint of judicial misconduct against the Judge President with the JSC,
alleging that he had approached two Justices in an attempt to influence them
in a case pending before the Constitutional Court which related to the current
President of the Republic of South Africa. The Judge President's counter-
complaint of judicial misconduct on the part of the Justices was that his
constitutional rights had been violated when the Justices published a media
release about their decision to lodge the complaint.3 The JSC convened to
consider the complaints on 20 to 22 July 2009 in Cape Town and on 15
August 2009 in Johannesburg. At those meetings, various decisions were
taken, culminating in the decision:
'1.
That the evidence in respect of the complaint did not justify a finding that the
Judge President was guilty of gross misconduct and that the matter was accordingly
finalised; and
2.
that the evidence in support of the counter-complaint did not support a finding
that the Constitutional Court justices were guilty of gross misconduct and that the
matter was accordingly finalised; and
3.
that none of the judges against whom complaints had been lodged was guilty
of gross misconduct.'

The issues
[4] The Premier challenged the validity of the JSC proceedings on three
discrete grounds, namely that when the JSC met and took the relevant
decisions:
(a)
She was not present because the JSC had not notified her when and
where the meetings were to take place, and she was accordingly unable to
comply with her obligation to attend as required by s 178(1)(k) of the
Constitution;

3 More detail about the complaint and counter-complaint appears in Langa CJ & others v
Hlophe 2009 (4) SA 382 (SCA).

(b)
Only ten members of the JSC participated when on the JSC's own
interpretation of s 178(1)(k), the JSC should have been composed of 13
members; and
(c)
The decisions of the JSC were not supported by a majority of the
members of the JSC, as required by s 178(6) of the Constitution.
The court a quo considered all three issues, and found in favour of the
Premier on each. The JSC challenges the correctness of all of these findings
and submits that in any event the decisions taken at the meetings should not
have been set aside. The Judge President challenges the correctness of the
first finding by the court a quo and in addition submits that this appeal is
academic and should not be entertained for that reason.

The composition and functions of the JSC
[5] Before dealing with the arguments advanced on appeal, it would be
convenient to consider the composition and functions of the JSC. Section 178
of the Constitution provides:
'(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 the 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.'

[6] It is therefore apparent that the Judicial Service Commission always
comprises 13 persons, being those mentioned in paragraphs (a) to (g) and (j)
of subsec (1). When the JSC considers the appointment of a judge, the ten
politicians referred to in paragraphs (h) and (i) are included. The contentious
paragraph that requires interpretation is paragraph (k) ─ although it is
common cause that the Premier is included in the composition of the JSC
when it considers the appointment of a judge to a high court in that Premier's
province.

[7] The powers and functions assigned to the JSC by the Constitution are
the following:
(a)
To determine whether a judge suffers from an incapacity, is grossly
incompetent or is guilty of gross misconduct, for the purpose of the judicial
impeachment provisions contained in s 177 of the Constitution (s 177(1)(a));
(b)
To furnish advice to the President on the suspension of a judge who is
the subject of a procedure in terms of s 177(1) of the Constitution (s 177(3));
(c)
To advise the national government on any matter relating to the
judiciary or the administration of justice (s 178(5));
(d)
To consult with the President as a prelude to the President appointing
the Chief Justice, the Deputy Chief Justice and the President and Deputy
President of the Supreme Court of Appeal (s 174(3));

(e)
To prepare a list of nominees for appointment as judges of the
Constitutional Court and submit the list to the President (s 174(4)(a)); and
(f)
To advise the President, who must appoint judges of all other courts
(s 174(6)).

[8] The Judicial Service Commission Act4 (the JSC Act) was the national
legislation promulgated to regulate matters incidental to the establishment of
the JSC by the interim Constitution5 and it remains in force. It does not
supplement the JSC's powers and functions. The proceedings that are the
subject of this case predate the amendments to the JSC Act effected by the
Judicial Service Commission Amendment Act6 and those amendments are
therefore irrelevant for purposes of the appeal.7

Section 178(5)
[9] The Premier contends that the complaint against the Judge President
was a matter relating to a specific high court, viz the Western Cape High
Court. The JSC and the Judge President contend that there is no suggestion
in the allegations of misconduct against the Judge President that he was
acting in his official capacity or that the complaint has anything to do with the
Western Cape High Court and accordingly, that there was no connection
between the allegations and the bench on which the Judge President serves.

[10] The question that was before the JSC on the complaint lodged by the
Justices was whether the Judge President was a fit and proper person to
continue in office as a judge and therefore, as the Judge President of the
Western Cape High Court. That is so plainly a matter relating to the specific
high court concerned that no further discussion is necessary to make the
point.

4 9 of 1994.
5 Act 200 of 1993.
6 20 of 2008.
7 In summary, the JSC Amendment Act provides for the establishment of a judicial conduct
committee, a code of conduct, a register of judges' registrable interests, procedures for
dealing with complaints about judges, and the establishment of judicial conduct tribunals to
enquire into and report on allegations of incapacity, gross incompetence or gross misconduct
against judges.

[11] The JSC submitted that it is difficult to see how the test would be
appropriate in respect of allegations of misconduct relating to judges of other
courts referred to in s 166(a), (b) and (e) of the Constitution. Those courts are,
respectively, the Constitutional Court; the Supreme Court of Appeal; and any
other court established or recognised in terms of an Act of Parliament,
including any court of a status similar to the high courts. The short answer to
this argument, so far as the Constitutional Court and the Supreme Court of
Appeal are concerned, is that they are not high courts. Furthermore the heads
of those courts are ex officio members of the JSC and so is a member of the
national executive, the cabinet member responsible for the administration of
justice. So far as courts having the status of high courts are concerned ─ the
Competition Appeal Court, the Labour Appeal Court, the Labour Court, the
Election Court and the Land Claims Court ─ they are national courts. In terms
of  s 178(1)(k) the Judge President of the court concerned would be a
member of the JSC when that body is considering matters relating to his or
her court, but not a Premier because there is no 'Premier of the province
concerned' in the case of a national court.

[12] I share the view of the court a quo8 that it would be inconsistent and
illogical for the Constitution to provide for a Premier to participate in the
appointment of a high court judge ─ and, as I have said, the JSC agrees that
a Premier is included for this purpose ─ but not in a decision to remove such
a judge. Both affect the composition of the bench of a particular high court.
But, submitted counsel for the JSC, a determination by the JSC that a judge is
guilty of gross misconduct does not affect the composition of a particular high
court, because such a finding does not result in the removal of a judge from
office. More is required for this to happen: in terms of s 177(1) of the
Constitution9 two-thirds of the members of the National Assembly have to
resolve that the judge be removed. In my view the submission on behalf of the

8 Para 11.
9 '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 its members.'

JSC does not accord sufficient weight to the fact that the decision by the JSC
is the first stage in the removal process and for that very reason involves the
consideration of a matter relating to a specific high court.

[13] The JSC submitted that linguistically, the noun 'matters' in s 178(1)(k)
is not qualified, as it is in subsec (5) which provides that the JSC may advise
the National Government on 'any matter' relating to the judiciary or the
administration of justice, thus making it clear that a wide meaning is intended
in the latter section; whereas the unqualified noun 'matters' in the former
section may mean that all or only some of the matters relating to a specific
high court are to be included. In my view, absent any indication to the contrary
─ and I find none ─ the lack of qualification means that all matters, without
qualification, are included ie 'matters' in s 178(1)(k) means the same as 'any
matter' in subsec (5).

[14] In similar vein, it was submitted on behalf of the Judge President that
the phrase 'relating to' in s 178(1)(k) is capable of a wide or a narrow
meaning, and reference was made to United Dominions Corporation (SA) Ltd
v Tyrer10 where Roper J said:
'But the phrase "relating to" may connote either a remote or a close relationship. It
may be used in a wide sense as embracing almost anything which has any reference
to another matter or in a more restrictive sense . . . .'
The submission continued that the meaning of the phrase must be determined
with reference to its context; and fundamental in the present context, said
counsel, are the principles relating to the separation of powers and the
independence of the judiciary. The essence of the submission was that the
interpretation for which the Premier contends would violate these principles in
that it would result in the Premiers of the various provinces, each of whom is
the executive authority of his or her province and all of whom are elected by
means of a political process, sitting on the JSC in proceedings for the
impeachment of a judge. This, said counsel in his heads of argument, is
surely not what was contemplated or intended by the words 'when considering

10 United Dominions Corporation (SA) Ltd v Tyrer 1960 (3) SA 321 (T) at 323A.

matters relating to a specific high court' in s 178(1)(k). In oral argument the
submission was watered down to a suggestion that where possible the
Constitution should be interpreted as excluding the executive from
participation in the affairs of the judiciary, because of the doctrine of the
separation of powers. But it seems to me that there is no room for a partial
invocation of a principle of interpretation and accordingly, either the argument
in its original form is good, or it is not.

[15] The fallacy in the argument is this. The doctrine of the separation of
powers cannot be prayed in aid to interpret s 178(1)(k) where that section
itself does not recognise such a separation but, on the contrary, provides in
the same breath for both the Premier and the Judge President to be present
in the circumstances it contemplates. A consideration of s 178(1) as a whole
leads to the same conclusion. It provides (in subsec (1)(d)) that the cabinet
member responsible for the administration of justice shall sit on the JSC at all
times when that body functions. Section 178 reflects an intention that it is
primarily lawyers that should decide whether a judge is guilty of gross
misconduct ─ hence the exclusion of the politicians designated in subsections
(h) and (i); but the inclusion of a member of the cabinet shows that it was not
the intention that the executive be excluded. If, then, a member of the national
executive is expressly included, there can be no objection in principle that a
Premier, the executive authority of a province, should also be included when
the JSC is considering matters relating to a specific high court ie that in the
Premier's province. To hold the contrary would entail the conclusion that a
Judge President is also excluded where allegations of misconduct against a
member or his or her bench is considered, when his or her presence is plainly
not only warranted, but desirable.

[16] For the same reason, the reliance by counsel representing the Judge
President on Van Rooyen & others v S & others11 is misplaced. In that matter
the court was interpreting a regulation which provides that if a charge is
brought against a magistrate and there is a need for a formal hearing, the

11 Van Rooyen & others v S & others 2002 (5) SA 246 (CC) para 195.

Magistrates Commission shall appoint 'a magistrate or a person' to preside at
the inquiry and a 'magistrate or person' to lead the evidence. Chaskalson CJ,
writing for a unanimous court, held:
'Whilst a person leading the evidence need not necessarily be a magistrate, the
person charged with the responsibility of making a finding as to whether or not the
magistrate concerned has been guilty of misconduct, should be a judicial officer. It is
not consistent with judicial independence that a person other than a judicial officer
should be charged with this responsibility.'
It cannot legitimately be argued that only lawyers, and much less only judges,
should judge the judges for otherwise judicial independence would be eroded,
where not only the minister is included, but also the four persons nominated
by the President as head of the executive ─ none of whom has to be a lawyer,
much less a judge.

[17] It would have been possible for the drafters of the Constitution to have
adopted a model where only judges could remove judges. In Israel, for
example, the Basic Law on the Judiciary provides that judges may be
removed upon the decision of the Court of Discipline12 which comprises only
judges and judges retired on pension appointed by the President of the
Supreme Court.13 Or a model could have been adopted where only the
elected representatives of the people could do so. In the United States of
America, a country very much aware of the proper separation of powers, the
House of Representatives has the 'sole power'14 to impeach federal judges
and the Senate has the 'sole power'15 to try all impeachments.16 The model
ultimately chosen for our country was one somewhere between the two. The
first stage is a decision taken predominantly by judges and lawyers. The
second is a decision by the National Assembly by a two-thirds majority.

12 Sections 7(5) and 13.
13 Although a judge may also be removed by a decision of the Judges' Election Committee,
which comprises 9 members, some of whom are politicians, by a majority of 7 votes (ss 4(b)
and 7(4)).
14 Constitution of the United States I.2.
15 Ibid. I.3.
16 There is a view that removal of federal judges can be achieved by other means although
the view to the contrary seems to be more  generally held and is supported by authority:
Melissa H Maxman 'In Defense of the Constitution's Judicial Impeachment Standard' 86 Mitch
L Rev 42  - especially at pp 435-6 and footnotes 81 to 86.

[18] In conclusion on this point, I would endorse the views expressed by
Jones J in the court a quo:17
'But I can also see merit in a dispensation which, for reasons of both constitutional
policy and social accountability (as to which, see s 1(d) of the Constitution),
particularly in the light of the history of the administration of justice in this country,
widens the adjudicative process to include in the investigation tribunal persons who
are not judges or lawyers . . . It is not in my view possible to conclude that the
Constitution did not have the doctrine of separation of powers and the independence
of the judiciary very much in mind when it constructed the JSC. I can find no
justification for concluding that the Constitution does not mean what it says when it
includes members of the executive branch of National Government (the Minister and
the President through his nominees) and Provincial Government (the Premiers) as
members of the JSC in matters involving the High Court of the province in question.'

The composition and majority vote of the JSC
[19] As indicated, another issue before the court below was whether the
impugned 'decision' of the JSC was taken by 'a majority of its members' as
required by s 178(6) of the Constitution. For purposes of deciding the point, it
can be assumed, as alleged by the JSC and notwithstanding the conclusion to
the contrary for the reasons already given, that the JSC comprised 13
members for purposes of considering the complaints against the Judge
President. The Premier in her founding affidavit alleged that, based on press
reports, ten members took part in the proceedings of whom six voted in favour
and four against the decision to terminate the investigation. The JSC, in its
answering affidavit sworn to by a member who is a senior advocate, refused
to divulge the relevant facts by stating that it was the policy of the JSC 'not to
publish how members voted with regard to any particular decision' and that
'the JSC has never published the particulars of the vote with regard to the size
of the majority and the way each member decided'. An evasive answer like
this by senior counsel on behalf of a body like the JSC cannot be
countenanced. It is the number of members who voted either way, not their
identities, that is relevant. The JSC knew that this information was crucial for
the determination of an issue legitimately raised and upon which the court

17 Para 16.

would be required to adjudicate. Nor is this attitude of the JSC reconcilable
with our constitutional democracy which values openness and transparency,
and this is particularly so when regard is had to the constitutional functions
and obligations of the JSC. In the First Certification judgment18 the
Constitutional Court emphasised that the JSC is a constitutionally
independent body19 and that it 'has a pivotal role in the appointment and
removal of Judges'.20

[20] The unavoidable conclusion on the failure to disclose the facts is that
the deponent to the JSC's answering affidavit considered that the point made
by the Premier was unanswerable. And indeed it is. The Constitution is clear
on the issue: decisions must be supported by a majority of the members of
the JSC. I accordingly agree with the reasons of the court a quo21 for rejecting
the argument that s 178(6) of the Constitution requires no more than a
majority of members present and voting.

[21] The court a quo also found that the JSC, again on its own version, was
not properly constituted, in that one of the practising advocates to be
appointed in terms of s 178(1)(e) had not been appointed by the President.
The point adds little to the previous one and I prefer to leave it open especially
in view of the fact that it is not known why the advocate had not been
appointed. The reason for the omission is not something that necessarily falls
within the knowledge of the JSC.

The relief granted
[22] The JSC and the Judge President submitted that the relief granted by
the court a quo ─ an order declaring the proceedings before the JSC on the
dates in question and the decision to dismiss the complaint and counter-
complaint, which were the subject matter of those proceedings, to be

18 Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution
of the Republic of South Africa 1996 (4) SA 744 (CC).
19 Para 128.
20 Para 120.
21 Para 19.

unconstitutional and invalid together with a further order setting them aside ─
was inappropriate.

[23] The submission on behalf of the JSC was that the order setting aside
the decision of the JSC was not just and equitable either in terms of s 8 of the
Promotion of Administration of Justice Act22 (PAJA) or s 172(1)(b)23 of the
Constitution having regard to a number of factors. I should point out
immediately that PAJA has nothing to do with this case, which concerns the
composition of the JSC, something governed by the Constitution. It does not
relate to its procedure, which may amount to administrative action regulated
by PAJA. The factors relied upon by the JSC were the following:
(a)
The Premier emphasised that she did not impugn the merits of the
decisions by the JSC;
(b)
the matter has had a long history and the Premier never asserted her
right to attend the proceedings of the JSC or her duty to participate in them
until after the decisions had been made;
(c)
the effect of the order is that the JSC would have to reconsider the
complaints, and it is not a foregone conclusion that she would be entitled to
participate in view of the allegations of bias made by the Judge President; and
(d)
the Justices and the Judge President who testified during the
proceedings of the JSC have expressed the desire to move on and
accordingly considerations of pragmatism and practicality do not justify the
setting aside of the proceedings and decisions.

[24] The submission on behalf of the Judge President was that the Premier
has disqualified herself from acting as a member of the JSC in respect of the
complaints made by the Justices against him, inasmuch as (on the evidence
of the Judge President, which was not dealt with by the Premier) she has
'publicly adopted an attitude extremely critical of, and negative towards, the
Judge President on the matters in question' and that 'she has been at the
forefront of a political campaign attacking the Judge President'.

22 3 of 2000: '8(1) The court or tribunal, in any proceedings for judicial review in terms of
s 6(1), may grant any order that is just and equitable . . . .'
23 'When deciding a constitutional matter within its power, a court . . . may make any order
that is just and equitable . . . .'

[25] I pause to remark that it would indeed be a sorry day for our
constitutional democracy were serious allegations of judicial misconduct to be
swept under the carpet for reasons of pragmatism and practicality, as
suggested by the JSC. The public interest demands that the allegations be
properly investigated, irrespective of the wishes of those involved. The
question raised on behalf of the Judge President whether the Premier would
be entitled to participate in the deliberations of a properly constituted JSC, or
for that matter to appoint an alternate, is irrelevant. The arguments advanced
on behalf of the appellants lose sight of the fundamental significance of the
findings made by the court a quo that will be confirmed by this court. The
declaratory order had to be made. There was no discretion. Section 172(1)(a)
of the Constitution is in imperative terms:
'(1)
when deciding a constitutional matter within its power a court ─
(a)
must declare that any . . . conduct that is inconsistent  with the Constitution is
invalid to the extent of its inconsistency . . . .'
So far as the further order setting the proceedings and decisions aside is
concerned, against which the arguments were directed, it is the constitutional
mandate of the JSC in terms of s 177 of the Constitution24 to investigate
allegations of judicial misconduct and to make a finding on whether or not a
judge is guilty of gross misconduct.25 The JSC (properly constituted and by
majority vote) has done neither. The order made by the court a quo setting the
decision of the JSC aside was accordingly imperative to enable the JSC to
perform the function it is still obliged to perform.

Order
[26] The appeal is dismissed with costs, including the costs of two counsel,
which are to be paid by the Judicial Service Commission and the Judge
President jointly and severally.

_______________
T D CLOETE
JUDGE OF APPEAL

24 Quoted in n 9 above.
25 Langa CJ and others v Hlophe above n 3, para 22.

APPEARANCES:
FIRST AND SECOND APPELLANTS:

V Maleka SC (with him B Valley SC)

Instructed by The State Attorney, Cape Town
The State Attorney, Bloemfontein

THIRD APPELLANT:
J A Newdigate SC (with him T Masuku)

Instructed by Xulu Liversage Inc, Cape Town
Lovius Block, Bloemfontein

RESPONDENTS:
S Rosenberg SC (with him A Katz SC and N
Mayosi)

Instructed by Fairbridges Attorneys, Cape Town
McIntyre & Van der Post, Bloemfontein