A judge, who has been on special leave on full pay since 15 January 2007, applied to the high court for an order to have ss 8-10, 14-23 and 25-33 of the JSC Act declared inconsistent with ss 177 and 178 of the Constitution.  Dhaya Pillay J refused the application and ordered the judge to pay the costs.

“Instead, constitutional interpretation is deliberative and dialogical, with each arm conversing with the other(s) and the polity to ensure not only ‘accountability, responsiveness and openness’, but also, quite simply, that society functions optimally.  The interaction is dialectical, at times tense and agonistic, and at other times cooperative and consensual.  In this context judicial independence and supremacy are crucial in maintaining the separation of powers.  The separation of powers assigns to the courts their ‘absolutely unique’ function ‘as the independent arbiter of issues involving the division of powers between the various spheres of government, and the legality of legislative and executive action measured against the Bill of Rights and other provisions of the Constitution.  .  .  .’ [para 28 without footnotes]

Motata v Minister of Justice and Correctional Services (52010/2016) [2016] ZAGPPHC 1063 (30 December 2016) per D Pillay J.

Excerpts without footnotes

Introduction

[1]   The applicant is a Judge of the High Court of South Africa, appointed to the Gauteng Division, Pretoria on 1 December 2000. The first respondent is the Minister of Justice and Correctional Services.  The second respondent is the Judicial Service Commission (JSC).  The applicant challenges the constitutionality of various provisions of the Judicial Service Commission Act 9 of 1994 as amended by the Judicial Service Commission Amendment Act 20 of 2008 (JSC Act).

The Facts

[2]   The applicant was involved in an accident on 6 January 2007 that resulted in his conviction for driving a motor vehicle whilst under the influence of alcohol and sentence of 12 months imprisonment or a fine of R20 000. He appealed unsuccessfully.  From 15 January 2007 to 28 February 2007 the applicant was placed on special leave.  Such leave continued from 1 March 2007 to 15 April 2007 pending his criminal prosecution.  Almost ten years later the special leave is still in place.

. . . . .

The Constitutional Challenge

[5]   The applicant seeks to have ss 8-10, 14-23 and 25-33 of the JSC Act declared inconsistent with ss 177 and 178 of the Constitution and consequently, unconstitutional and invalid. On the applicant’s interpretation of the Constitution, the separation of powers and the independence of the judiciary, the power to remove a judge is derived exclusively from ss 177 and 178(6) of the Constitution and not from the JSC Act.  Section 177 of the Constitution authorises only three role-players to be involved in the removal of a judge namely the JSC, the National Assembly and the President.  Section 178(6) of the Constitution empowers the JSC exclusively to determine its own procedure in relation to its functions,[1] in this instance, the procedure to remove a judge.  The Constitution does not provide for delegation of this power to Parliament.  Only the JSC is authorised to enquire into a judge’s conduct, capacity or competence.[2] In short, the applicant’s overarching attack on the JSC Act is that Parliament arrogated unto itself the power to promulgate the JSC Act, to determine the procedures to be followed by the JSC when deciding whether a judge is guilty of gross misconduct, is grossly incompetent or incapacitated.  Hence Parliament violated the doctrine of the separation of powers and the independence of the judiciary.

[6]   The applicant’s secondary but related objection is that the Constitution does not authorise the structures created in the JSC Act namely the JCC and the Tribunal and the functions they perform. For instance s 9(2)(a) of the JSC Act authorises the JCC to determine the procedure to be followed at its meetings and s 10 confers on the JCC the power to receive, consider and deal with complaints.  However, in his view ss 177 and 178 of the Constitution confer these powers exclusively upon the JSC.  Furthermore, the decision to remove a judge is the decision of the JSC not the JCC or the Tribunal.  The tiered process prescribed in the JSC Act relegates the JSC to some form of appeal tribunal.

[7]   Equally repugnant to the applicant is the appointment of non-JSC members to the JCC and the Tribunal, and the participation of ‘politicians’ in the enquiry. For instance, ss 8 and 22 of the JSC Act permit the JCC and the Tribunal to be composed of persons other than members of the JSC.  Furthermore, the Minister, who is a member of the executive, is consulted in the appointment of both the majority of the members of the JCC[3] and the non-judicial member who is selected to serve on the Tribunal from the list approved by the Chief Justice.[4]

. . . . .

The Opposition

[11]   The respondents raise two points in limine. The first is the non-joinder of Parliament in the application.[1] The second is the applicant’s failure to establish a ‘factual predicate’ or ‘substantive, concrete and demonstrable evidence’; as a result the respondents were unable to plead comprehensively.  The applicant’s attacks are ‘mere conclusions of law with no probative value’.[2] Hence the applicant has failed to establish that the impugned provisions of the JSC Act are unconstitutional.

The points in limine

. . . . .

[16]   In finding that the joinder of Parliament was not necessary for the reasons that I do I must also find against the applicant on its main challenge. If Parliament did not initiate the JSC Act then it cannot have unilaterally usurped the powers and functions of the JSC.  Consequently I find that Parliament did not breach ss 177 and 178 of the Constitution by initiating the JSC Act.  Whether promulgation of the impugned sections are invalid for some other reason remains to be determined.

[17]   The first point in limine is dismissed.

. . . . .

[21]   Neither of these cases bars absolutely the determination of questions of law and interpretation in the absence of a factual predicate. 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), the ‘certification judgment’ was litigation ‘to pronounce whether or not the Court certifies that all the provisions of South Africa’s proposed new constitution comply with certain principles.’ Nkabinde & another v Judicial Service Commission & others 2016 (4) SA 1 (SCA) was a similar chaIlenge as this case but it concerned the constitutionality of s 24 of the JSC Act.  The Supreme Court of Appeal determined the constitutional question raised.

. . . . .

[23]   In my view when the law concerned is the Constitution, refusing to adjudicate questions of interpretation could chill litigation in a nascent democracy to the point of prematurely denying access to justice and frustrating the development of jurisprudence. Furthermore, the applicant claims standing in terms of s 38 of the Constitution in his Replying Affidavit.  As the respondents correctly submit, this claim should have been pleaded in his Founding Affidavit, especially in so far as he seeks to act not only in his own interest.  However, I accept that proceedings by or against a judge implicating the constitutional values of the separation of powers, independence of the judiciary, accountability and transparency are in the public interest.

[24]   The fact sufficient to justify a determination of the questions of law is that the applicant has been summoned to an enquiry about his conduct that could lead to his impeachment. This is sufficient for the court to adjudicate the constitutional validity of the provisions relevant only to his impeachment.  His attack on sections of the JSC Act that do not relate to impeachment, including ss 15, 17 and 18 are academic.  He is allowed to raise the constitutionality of the the JSC Act only in so far as it relates to him in fact.

[25]   In the circumstances the second point in limine succeeds partially. I find that:

  1. the order sought to declare invalid ss 15, 17 and 18 of the JSC Act, i.e.  provisions unrelated to his impeachment proceedings, have no factual predicate and the applicant has no standing to contest their validity.
  2. Accordingly, the declarator in respect of ss 15, 17 and 18 is refused.
  3. The second point in limine is dismissed in respect of ss 8-10, 14, 16,19-23 and 25-33 of the JSC Act, i.e. provisions relating to his impeachment proceedings.

General principles

[26]   The applicant’s challenge is not to the validity of provisions of the Constitution but to their interpretation and application.  The Constitutional Court has pronounced extensively on this topic and no more need be said here.[1] Our appellate courts have also pronounced extensively on the core values underlying an open and democratic society.  Hence another encomium of these values is dispensable.  However, a few observations about the principles and values of separation of powers, judicial independence, accountability, responsiveness and openness are worth recalling from the perspective of the relationship of the three arms of government, the status of the judiciary and consequently, the office of a judge.

[27]   The separation of powers, which has its genesis in Constitutional Principle VI, empowers each arm of the State – the legislature, executive and judiciary – to exercise appropriate checks and balances generally and particularly on each other.  But the separation of powers is not synonymous with unmitigated departmentalism in which the three arms of government have independent and decisive authority to interpret the Constitution where its own power is concerned.  Nor does judicial independence mean unbridled judicial supremacy.  [2]

[28]   Instead, constitutional interpretation is deliberative and dialogical, with each arm conversing with the other(s) and the polity to ensure not only ‘accountability, responsiveness and openness’, but also, quite simply, that society functions optimally.[3] The interaction is dialectical, at times tense and agonistic,[4] and at other times cooperative and consensual.[5] In this context judicial independence and supremacy are crucial in maintaining the separation of powers.  The separation of powers assigns to the courts their ‘absolutely unique’[6] function ‘as the independent arbiter of issues involving the division of powers between the various spheres of government, and the legality of legislative and executive action measured against the Bill of Rights and other provisions of the Constitution.  .  .  .’[7] But the courts do not have a monopoly on the ‘correct’ constitutional interpretation.[8] For genuine dialogue, the legislature and executive must also be effective and assertive interpreters of the Constitution.[9] Judicial supremacy, for the sake of judicial finality, is vital for enforcement of the rule of law.[10] Configured thus, the separation of powers elevates judges to being ‘the pillar of our entire justice system’.[11]

[29]   Judicial independence is a safeguard for judges to do their work without fear, favour or prejudice; equally it is assurance for the public that their cases will in form and substance be determined thus.[12]Institutional independence in the administration of the judiciary, security of tenure, which are the issues in this case, and financial security, cumulatively contribute to the perception and reality of judicial independence.  Whilst these issues guarantee ‘benefits of the judged’, for judges they are merely safeguards against undue influence.[13] Holding the office of a judge is a public duty of exceptional importance to democracy itself.

The Constitutional Scheme

[30]   The dialogical nature of our Constitution is self-evident from the way it governs the removal of a judge from office.  At the outset, s 177 compels collaboration between the three principal actors: the JSC, the National Assembly and the President.  Their participation in the decision to remove is sequential.  First, the JSC must find that the judge suffers from incapacity, is grossly incompetent or is guilty of gross misconduct.  This foundational step of establishing good cause for the removal is assigned to the JSC as the governing and oversight body of judges.  Only then can the National Assembly justifiably call for that judge to be removed by resolution that must be adopted with a supporting vote of at least two thirds of the members.  Upon the adoption of that resolution, the President must remove that judge from office.  The President has little if any discretion but to remove the judge; a failure to do so after the judiciary and the legislature have decided that the judge should be removed could be perceived by the public as irrational, unjustified or as a special favour or benefit to that judge.  The Constitutional Court struck down s 8(a) of the Judges’ Remuneration and Conditions of Employment Act 47 of 2001 (Remuneration Act) as an unconstitutional delegation of the powers in s 176(1) of the Constitution.  It refused to allow the President to usurp the powers vested in Parliament to extend the tenure of a Chief Justice lest it ‘operate as a favour that may influence those judges.  .  .  .’[14]

. . . . .

[42]   The Constitution must be read as a whole and its provisions must be interpreted in harmony with one another.[1] Not only must one strive to interpret the provisions of ss 177, 178 and 180 consistently with one another,  but also with other provisions in the Constitution.  Other provisions that come to mind include the values of a sovereign democracy in s 1 and the supremacy of the Constitution in s 2.  Additionally, the supremacy of the Constitution is fortified over Parliament’s legislative power in s 43[2] and over the judiciary in s 165 of the Constitution.

. . . . .

[45]   In the circumstances s 178(6) must be interpreted consistently with ss 177(1), 178(4), 180(b), s 165 and other provisions that guide interpretation, such as s 233 of the Constitution, which requires courts to draw guidance from international law.[1] How the application of these provisions will evolve in a nascent democracy requires the flexibility and responsiveness that legislation and not constitutions offer.

Application of the Constitution to the complaints procedures against judges

. . . . .

[48]   What this application is not is a challenge to the procedural propriety of promulgating the JSC Act.  Furthermore, my task is not about assessing the JSC Rules model.  That is no longer the law that the JSC seeks to apply.  For a comparison of both instruments one may look to the first case to challenge the jurisdiction of the Tribunal.[1] Let it suffice to say that the Supreme Court of Appeal had ‘difficulty in appreciating’ the general objections to the inquiry being conducted in terms of ‘the new statutory regime.’ [2]

[49] This application singularly calls for a declarator on whether the impugned provisions of th  e JSC Act comply with ss 177(1), 178(6) and 180(b) of the Constitution. The primary attack on the JSC Act is that these constitutional provisions do not authorise Parliament to legislate for the JSC, but that the JSC must govern itself by adopting its own procedures.

. . . . .

[52]   Textually and contextually the Constitution authorises the JSC Act. When Parliament passes the JSC Act it exercises original jurisdiction derived from the Constitution[1] in collaboration with the JSC.  The question of the JSC delegating its authority to Parliament does not arise.

International Best Practice

[53]   A cursory digression into foreign jurisdictions finds support for the dialogical approach in governing the judiciary.  For instance in Australia, s 72(ii) of the Commonwealth of Australia Constitution Act permits the Governor-General in Council, on an address from both Houses of Parliament in the same session, to remove a judge on the ground of ‘proved misbehaviour’ or incapacity.[2] Underpinning the Constitution Act with the procedural specifics is the Judicial Misbehavior and Incapacity (Parliamentary Commissions) Act 188 of 2012 that authorises the establishment of a commission to process the removal of a judge.[3]

. . . . .

[57]   In all jurisdictions the arrangements strive to give effect in varied ways to the universal values of separation of powers, the independence of the judiciary, accountability and transparency in a collaborative dialogue between the judiciary and the executive. These universal values enjoy greater respect and observance precisely because of the collaboration amongst all three arms of government.  Exclusion of the legislature and the executive from determining and participating the complaints process, as contended for by the applicant, is the antithesis of dialogue and counterproductive to constitutional values in South Africa and other democracies.

The JSC Act

. . . . .

[60]   If the Chief Justice, as the Chairperson of the JCC, concludes that the complaint could lead to a finding by the JSC that the judge suffers from an incapacity, is grossly incompetent or is guilty of gross misconduct, he must refer the complaint to the JCC to consider whether it should recommend to the JSC that the complaint be investigated and reported on by a Tribunal.[1]

. . . . .

[65]   The objects of the Tribunal are to inquire into the allegations of incapacity, gross incompetence and gross misconduct against a judge.  To this end the Tribunal must collect evidence, conduct a formal hearing, make findings of fact, determine the allegations on their merits, and report its findings to the JSC.  [1] The Tribunal adopts an inquisitorial approach; no onus is placed on any person to prove or disprove any fact before the Tribunal, [2] which makes its determination on a balance of probabilities.[3]

. . . . .

[67]   The only persons entitled to attend the hearing are the judge, the complainant, other witnesses, legal representatives, the administrative assistant and any other person that the Tribunal considers should be present.[1] However, the Tribunal President may in the public interest and for purposes of transparency determine that all or any part of the hearing must be held in public.[2]

[68]   Evidence must be given under oath or affirmation at the hearings of the Tribunal.[3] Any person who under oath or affirmation refuses to answer a question, knowingly provides false information to the Tribunal or willfully hinders or obstructs a Tribunal in the performance of its functions commits an offence and is liable to a fine or term of imprisonment. [4] The Tribunal may notify the National Director of Public Prosecution if it finds evidence that discloses the commission of an offence.[5]

[69]   At the end of the hearing, the Tribunal must record its findings on the merits and on the facts, including the cogency and sufficiency of the evidence and the demeanour and credibility of any witness, report to the JSC and to the Chief Justice about the reasons for its findings, and submit a copy of the record of the hearing and all other relevant documents with its report. [6]

[70]   The JSC must consider the report of the Tribunal, inform the judge and complainant of the time and place of its meeting and invite them to submit written representations.[7] If after considering the report and any representations, the JSC finds that the judge suffers from incapacity, gross incompetence or is guilty of gross misconduct[8] it must submit its findings, together with its reasons, the report of the Tribunal and any other relevant information to the Speaker of the National Assembly.[9] If it finds that the judge’s competence, capacity or conduct justifies a penalty short of impeachment, it may impose other corrective measures or a combination of remedies.[10]

[71]   Manifestly the JSC is anything but an appeals body. It exercises original jurisdiction; it is not bound by the findings of the Tribunal.  It is free to consider new material and to exercise its own discretion, unfettered by any prior processes.

Synthesis

[72]   Having found that the Constitution anticipates the JSC Act, my focus turned to the specific provisions of the JSC Act governing the removal of a judge.  From the outset the declared intention of the JSC Act is to give full effect to ss 177 and 178 of the Constitution.  Although the JCC and the Tribunal are not structures established in the Constitution, their establishment in the JSC Act is the JSC’s choice of process exercised in terms of s 178(6) of the Constitution, read with ss 178(4), (5) and 180(b) and  s 5 of the JSC Act.  The establishment of the JCC and the Tribunal are consistent with the Constitution.

[73]   When assessing the validity of the JSC Act, its constitutionality must be distinguished from the functionaries who exercise power under it.  The possibility of abuse of power has no bearing on the constitutionality of the JSC Act.  The remedy for abuse of power does not lie in invalidating the JSC Act.[11]

. . . . .

[77]   Lawyers who participate in the process as members of the JSC, the JCC and the Tribunal are bound by their oaths of office to uphold the Constitution. The integrity of the persons involved in the processes is as highly prized as the process itself given the stature of the judiciary as a pillar of democracy.  The applicant’s criticism that non-JSC members are appointed to the JCC and the Tribunal is unjustified.

[78]   Notwithstanding his virulent attack on the establishment of the JCC and the Tribunal the applicant did not contest the proceedings before the JCC and its decision to request the JSC to establish the Tribunal to inquire into allegations of his gross misconduct.  Given his strident constitutional attack, one also anticipated a claim for some relief against the JCC process such as an order reviewing and setting aside its ensuing decision to request a Tribunal.  None has been forthcoming.

. . . . .

[80   Ironically, the applicant prefers the JSC Rules procedure. As the Supreme Court of Appeal pointed out in its comparative analysis the JSC Rules and the JSC Act are ‘substantively the same’ and that there is no is no ‘fatal effect’ on existing rights.’ [1] Furthermore, the constitutional principle in Rule 1.2, which excludes all ten members of the legislatures serving on the JSC from presiding in impeachment proceedings, is carried forth into the JSC Act.  [2] Rule 2.5 entitled the JSC to appoint a subcommittee to deal with complaints when the JSC was not in session.  Likewise, the JSC Act creates the JCC for a similar purpose but with added safeguards for judicial independence.  Whereas a subcommittee of the JSC might include members of the executive, the JCC is composed of six judges exclusively.[3]

[81]    As stated above constitutional interpretation is not only about parsing the words.  Both textual and contextual interpretations matter.[4] Contextually, the JSC Act reinforces dialogical constitutionalism.  It sets objective ground rules for engagement by the three actors representing the three arms of government.  A certain, predictable, consistent, transparent and accountable process fortifies the separation of powers and preserves the independence of the judiciary.  Without it, the JSC would have to first persuade the other two arms that it adopted a fair procedure in deciding to remove a judge and therefore they should accept its decision to remove the judge.

[82]   The dialogue is not only amongst the three arms of government.  When it performs its functions and especially when it appoints and removes judges, the JSC exercises public power in the public interest.  The public has an interest in how the JSC executes its constitutional mandate.  The JSC is not a self-serving closed-shop in which the profession protects its own members.  Left to determine its own procedures the JSC will have to do much more to satisfy the public interest than merely adopt its own procedures outside of a parliamentary process.

[83]   Promulgation of the JSC Act would have allowed public participation in determining the procedures to be adopted, more so than the JSC Rules did.   Publication of rules and procedures for governing judges promotes transparency and access to information and justice for those who wish to lodge complaints against a judge.  The complainants can expect to have their disputes resolved by a Tribunal comprised of persons of impeccable integrity and competence.  Legislation embodying generally objective and universally accepted rules and practices rather than internal JSC own rules is better suited for inculcating ‘public confidence in the institution of the judiciary as a whole.’ [5]

[84]   In the circumstances I conclude that the JSC Act is not inconsistent with the Constitution.

Costs

. . . . .

[97]   My analysis raises two questions that neither party has articulated:

(a)   Has the applicant raised a genuine constitutional challenge? Merely labeling the litigation as constitutional and dragging in specious references to sections of the Constitution would not absolve the applicant from an adverse cost order. Biowatch directs that the ‘issues must be genuine and substantive, and truly raise constitutional considerations relevant to the adjudication.’[1]

(b)   Has the conduct of the applicant been ‘vexatious, frivolous, professionally unbecoming or in any other similar way abusive of the processes of the Court’[2] or ‘manifestly inappropriate’. [3]  

[98]   Biowatch also directs that

‘when departing from the general rule [of not awarding costs in constitutional matters[4]] a court should set out reasons that are carefully articulated and convincing.  This would not only be of assistance to an appellate court, but would also enable the party concerned and other potential litigants to know exactly what had been done wrongly, and what should be avoided in the future.’ [5]

In addition to my analysis and conclusions about the applicant’s case, four factors inform my response to these two questions:

[99]   First: The applicant has delayed launching this application. This application is surprisingly sparse on facts.  The incident giving rise to the complaint occurred on 6 January 2007.  The applicant was convicted about April 2007.  The complaint to the JSC was made only on 22 May 2011.  The applicant has failed to disclose to the court why he did not launch these proceedings then, or when he appeared before the JCC, or in February 2013 when the JSC informed him of establishing the Tribunal, or eventually when he was summoned to appear before the Tribunal in June 2013.  Neither side has taken the court into its confidence to explain the reasons for the Tribunal adjourning its enquiry indefinitely.

[100]   Second: The delay is unconscionable; as such it violates s 27(1) of the JSC Act, impairs the dignity and effectiveness of the judiciary and the courts, and is against the public interest. The applicant has been on special leave since 15 April 2007.  There is no indication on the papers what conditions, if any, apply to his special leave.  The probabilities are that his leave is with full pay for almost ten years hence his disincentive to act expeditiously.  After his fifteenth year of service he would have qualified for his tax-free gratuity amounting to double his prevailing annual salary.  After age sixty-five years he could retire on pension with the leave of the Minister.  Considering that the applicant has spent only five of his sixteen years as a judge in active service, these burdens on the public purse cease to be safeguards against undue interference but become a favour akin to one that the Constitutional Court eschewed in Justice Alliance.

[101]   Third: The applicant fails to account not only for his criminally proven conduct but also his reasons for delaying this application. Furthermore, the material omissions in his submissions call for an explanation.  He is no ordinary litigant.  As a member of the judiciary he remains accountable for his acts and omissions.

[102]   Fourth: The applicant’s conduct and his failure to account have impaired the dignity of the judiciary. The perception if not the inference should be avoided that the judiciary protects its members at the expense of the public interest and the public purse, especially with the current cost-cutting constraints weighing on the judiciary.

[103]   I find that the applicant has not raised a genuine constitutional dispute. This application, the grounds on which it is based, and crucially his failure to account for his acts and omissions are manifestly inappropriate.   Not to award costs against the applicant in these circumstances would be to devalue the essence of constitutional justice and to ignore the Preamble and s 27(1) of the JSC Act.  It would result in unfairly and unjustifiably preferring the applicant at the expense of the public interest.  In all the circumstances not to award costs against the applicant would be unconscionable.

[104]   To paraphrase the Constitutional Court in Nkabinde: In conclusion, I would be failing in my duty if I did not take this opportunity to emphasise that it is in the interests of justice that the matter of the complaint against the applicant should be dealt with and concluded without any further delay. The events that gave rise to the complaint occurred in 2007.  Nine years later, the matter has not been finalised.  It is in the interests of justice that this matter be brought to finality.  [6]