A full bench of the High Court in Gauteng refused late last week to grant the application brought by two justices of the Constitutional Court. In summary these are the main findings:
- The implementation or enforcement of new procedural provisions of the Amended JSC Act do not affect any substantive rights of the applicants or any other party.
- The decisions of the Commission taken in April 2012 and October 2012 in terms of the Amended JSC Act do not impair the substantive rights of any party, which may have accrued prior to 1 June 2010.
- The application to set aside any averred impermissible retrospective application of the Amended JSC Act on the basis of these decisions, must fail.
The further findings were:
- The provisions of section 14(3)(b) of the Amended JSC Act relating to complaints being lodged by means of an affidavit or an affirmed statement are directory and not peremptory in respect of impeachable complaints as envisaged in section 16.
- To the extent that such provisions are peremptory, there has been substantial compliance with these provisions.
- The decisions of the JSC in April and October 2012 are not invalidated because the complaint was not initially lodged on an affidavit in terms of section 14.
- Section 24(1) of the Amended JSC Act is not inconsistent with the Constitution and the declaratory relief sought in this context must also fail.
Thanks to Saflii it is possible to provide access to the full judgment – Nkabinde and Another v Judicial Service Commission President of the Judicial Conduct Tribunal and Others (13/39093) [2014] ZAGPJHC 217 (26 September 2014)
Extracts from the unanimous judgment of justice H Mayat with footnotes omitted
INTRODUCTION
[1] The unprecedented events giving rise to the present application before the full bench of this court have their roots in four related cases, which were heard by the Constitutional Court during March 2008, more than six years ago. These four cases, which involved companies named Thint (Pty) Limited and Thint Holdings (South Africa) (Pty) Ltd as well as Mr J.G. Zuma, are conveniently referred to in this judgment as “the Zuma/Thint cases”. Both the first applicant, Justice Nkabinde, as well as the second applicant, Justice Jafta, (who was an Acting Judge of the Constitutional Court at the time) heard argument in the Zuma/Thint cases as part of the Constitutional Court hearing these cases at the time.
[2] After judgment in the Zuma/Thint cases was reserved, Judge President Hlophe of the Western Cape High Court separately communicated with each of the applicants in their respective chambers at the Constitutional Court. As set out more fully in this judgment, the separate communications between Hlophe JP and the applicants were the subject matter of a joint complaint by Judges of the Constitutional Court (including the Chief Justice and the Deputy Chief Justice) to the first respondent, the Judicial Service Commission (“the Commission”) in May and June 2008.
[3] The joint complaint submitted to the Commission in 2008 resulted in various proceedings initiated by the Commission as well as a number of court skirmishes in the High Court and the Supreme Court of Appeal (“the SCA”). These proceedings and court skirmishes culminated in a Judicial Conduct Tribunal, established by the Commission, with retired Judge Labuschagne as Tribunal President. The said Tribunal, which commenced proceedings in October 2013, is referred to in this judgment as “the Labuschagne Tribunal”.
[4] The present application for review was instituted in October 2013. In terms of the amended notice of motion (dated the 17th of March 2014), the applicants seek to review and set aside two decisions taken by the Commission on the 18th of April 2012 and on the 17th of October 2012.
[5] The applicants further seek a declaratory order to the effect that section 24(1) of the Judicial Service Commission Act 9 of 1994 as amended, is unconstitutional and accordingly invalid. It may be mentioned in this respect that the said Act was amended by the Judicial Service Commission Amendment Act 20 of 2008. The latter Act introduced certain amendments, including section 24(1), referred to above. These amendments were assented to on the 22nd of October 2008, but only subsequently came into force on the 1st of June 2010. The previous Act, prior to the amendments effected from the 1st of June 2010, is conveniently referred to in this judgment as the “JSC Act” and the amended JSC Act, which came into force on the 1st of June 2010, is conveniently referred to in this judgment as the “Amended JSC Act”.
[6] The declaratory relief sought by the applicants in relation to section 24(1) of the Amended JSC Act is premised primarily upon an averment that it is unconstitutional for a Tribunal (such as the Labuschange Tribunal) established in terms of the Amended JSC Act to appoint a member of the National Prosecuting Authority (“NPA”), after consulting the third respondent, the Minister of Justice and Constitutional Development (“The Minister”) as well as the National Director of Public Prosecutions (“NDPP”), for the purpose of collecting evidence on behalf of the said Tribunal, as envisaged in section 24(1).
[7] The application to review the two decisions of the Commission taken in April 2012 and October 2012 is opposed by the Commission. The further application relating to the constitutional validity of section 24(1) of the Amended JSC Act is opposed by the Commission as well as the Minister.
[8] It may be mentioned that the time limits specified in section 7(1) of the Promotion of Administrative Justice Act 3 of 2000 relating to review proceedings were not in issue before us. The court accordingly condoned the late institution of review proceedings by the applicants to the extent that it was necessary to do so.
RELEVANT FACTUAL MATRIX
[9] The chain of events giving rise to the present application appear largely common cause on the papers, which incorporate all relevant statements and documents referred to in the affidavits as well as a record of previous proceedings in this matter before the Commission. The said record, which was compiled by the Commission for the purposes of the present review application, included proceedings before the Labuschagne Tribunal.
[10] It appears from the papers on record that after judgment in the Zuma/Thint cases was reserved in March 2008, Hlophe JP visited the chambers of Jafta AJ (as he then was) at the Constitutional Court towards the end of March 2008, without invitation. [1]During the course of such visit, Hlophe JP raised for discussion (again without invitation) with Jafta AJ, the Zuma/Thint cases. Hlophe JP then conveyed to Jafta AJ inter alia that the SCA had made a wrong finding in this context and that he (Jafta AJ) was “sesithembele kinina” (roughly translated to mean “you are our last hope”). [2]
[11] Jafta AJ subsequently reported to the Chief Justice and the Deputy Chief Justice that he had known Hlophe JP for many years as a colleague and a friend and that in this capacity, he was not inclined to breach the confidence of all the communications to him by Hlophe JP at the time. Be that as it may, whilst Jafta AJ indicated that he did not wish to divulge the confidential part of the communications between him and Hlophe JP at the time, he nevertheless confirmed in general terms the reports, which were subsequently made by Nkabinde J to the former Chief Justice Langa (now deceased) after May 2008. Therefore, as already indicated, Jafta AJ subsequently confirmed that Hlophe JP had conveyed to him at the end of March 2008 words to the effect that he (Jafta AJ) was the last hope.
[12] It is also not in dispute on the papers that a few weeks later, on the 23rd of April 2008, Hlophe JP telephoned Nkabinde J requesting to see her in her chambers in the Constitutional Court on Friday, the 25th of April 2008 by indicating to her that he had a “mandate” to act. She acceded to his request to meet and Hlophe JP subsequently visited her on the 25th of April 2008, as agreed. Nkabinde J, who is a friend of Jafta J, subsequently informed him that she had agreed to meet Hlophe JP, whereupon Jafta AJ warned her by way of response, to be careful as Hlophe JP might wish to discuss the Zuma/Thint cases.
[13] It is not in dispute on the papers that Hlophe JP raised certain matters pertaining to privilege with Nkabinde J during the course of his discussion with her on the 25th of April 2008, in relation to the Zuma/Thint cases. Nkabinde J rebuffed the matters raised by Hlophe JP as “hogwash” and she stated that she reprimanded him for raising these matters with her. She also stated that she made it clear to Hlophe JP at the time that he was not entitled to discuss the Zuma/Thint cases with her. She accordingly conveyed to him that he should not interfere with the workings of the Constitutional Court. Nkabinde J subsequently stated that her discussion with Hlophe JP at the time did not influence her.
[14] Even though Nkabinde J was initially unwilling to furnish a written statement regarding her discussion with Hlophe JP, she subsequently reported her communications with Hlophe JP to the Chief Justice and the Deputy Chief Justice. She stated in this respect that she had wrestled in her mind the communications made to her and Jafta AJ, and she eventually decided to approach Mokgoro J for advice in early May 2008. Both the applicants then provided an account of their respective discussions with Hlophe JP to Langa CJ and Moseneke DCJ.
[15] Against this background, the Judges of the Constitutional Court (including Jafta AJ and Kroon AJ) lodged a joint complaint from the “JUDGES OF THE CONSTITUTIONAL COURT” dated the 30th of May 2008 stating inter alia in this respect that:
“8 Any attempt to influence this or any other Court outside proper court proceedings therefore not only violates the specific provisions of the Constitution regarding the role and function of courts, but also threatens the administration of justice in our country and indeed the democratic nature of the state. Public confidence in the integrity of courts is of crucial importance for our constitutional democracy and may not be jeopardised.”
9 This Court – and indeed all courts in our country – will not yield to or tolerate unconstitutional, illegal and inappropriate attempts to undermine their independence or impartiality. Judges and other judicial officers will continue – to the very best of their ability – to adjudicate all matters before them in accordance with the oath or solemn affirmation they took, guided only by the Constitution and the law.”
[16] On the 2nd of June 2008, the Commission requested further details of the above complaint and on the 6th of June 2008, the Commission issued a media statement in which it was stated inter alia that it would meet on the 5th of July 2008 to consider whether there was a prima facie case of gross misconduct against Hlophe JP, as envisaged in section 177(1)(a) of the Constitution. Thereafter, Howie JA, in his capacity as Acting Chairperson of the Commission, requested a statement from each of the complainant judges in a letter to Langa CJ dated the 6th of June 2008. In a further letter dated the 12th of June 2008, Howie JA also requested Langa CJ to set out the complaint against Hlophe JP with more particularity.
[17] The applicants state that when the letter dated the 6th of June 2008 was brought to their attention, they both sent a joint statement to the Commission dated the 8th of June 2008 stating at the time as follows:
“For the record we wish to state that we have not lodged a complaint and do not intend to lodge one and consequently, we are not Complainant Judges.”
[18] Some five days later, by way of a response to the above letter from the Commission dated the 12th of June 2008, pursuant to at least two meetings of Constitutional Court Judges, the Chief Justice informed the Commission in a letter dated the 17th of June 2008 as follows:
“In response to your letter of 12 June 2008, I can now inform you as follows: on 16 June the Judges of the Constitutional Court, including Nkabinde J and Jafta AJ met. Their response is:
1. The judges do pursue their complaints against Hlophe JP that was lodged on 30 May 2008;
2. We attach a set of statements in support of the complaint. The main consolidated statement on behalf of the judges is made by me. Statements confirming the correctness of my statement insofar as it relates to them are furnished by Moseneke DCJ, Jafta AJ, Mokgoro J, Nkabinde J and O’Regan J. If the Commission requires confirming statements by other judges, they will be furnished.”
[19] Langa CJ states in paragraph 1 of his main statement, which is described in the heading as “The Statement in Support of Complaint to the Judicial Service Commission by Judges of the Constitutional Court made on 30 May 2008”, and which forms part of the founding papers that:
“I am the Chief Justice of South Africa. This statement is made in my capacity as Chief Justice and Head of the Constitutional Court. This is a consolidated statement made on behalf of all the Judges of the court containing key information relevant to the complaint. My colleagues Moseneke DCJ, Jafta AJ, Mokgoro J, Nkabinde J and O’Regan J have made confirming statements insofar as the contents of this statement relates to them. The other Judges of the court are willing to make confirmatory statements as well should the Commission so require.”
[20] As indicated in his covering letter, dated the 17th of June 2008, Langa CJ reiterated in paragraph 3 of his statement:
“At the outset, I confirm that the complaint having been collectively lodged by the judges of the Court is being pursued by them. Those judges are myself, Moseneke DCJ, Jafta AJ, Kroon AJ; (Jafta AJ and Kroon AJ were appointed to act as judges of the Constitutional Court for the period 15 February 2008 till 31 May 2008); Madala J, Mokgoro J, Ngcobo J, Nkabinde J, O’Regan J; (O’Regan J acted as ADCJ for the period 15 February to 31 May 2008 and is sometimes referred to as O’Regan ADCJ in this statement); Skweyiya J, van der Westhuizen J and Yacoob J. The basis of that complaint is set out in this statement, and confirmed in the attached statements by Moseneke DCJ, Jafta AJ, Mokgoro J, Nkabinde J and O’Regan J. The judges do not presume to advise the JSC as to the manner in which the complaint should be investigated, including the manner in which it should receive evidence. Should the JSC so require, judges who have not made confirmatory statements are willing to furnish them.”
[21] The statement by Langa CJ was followed by “confirming statements” by the relevant Judges. It appeared from each “confirming statement” that the Judge concerned had read the statement of Langa CJ and had confirmed its contents as being true and correct insofar as the said main statement related to the Judge concerned. The applicants also gave confirming statements at the time to support the joint complaint.
[22] The reasons for the complaint by the Judges of the Constitutional Court are reflected in paragraphs 53 and 54 of the statement submitted to the Commission are inter alia as follows:
“The attempt to influence Nkabinde J and Jafta AJ in the manner described above –
(a) was calculated to have an impact not only on the individual decisions of the judges concerned but on the capacity of the Constitutional Court as a whole to adjudicate in a manner that ensures its independence, impartiality, accessibility and effectiveness as required by Section 165(5) of the Constitution;
(b) constituted a breach of Section 165(3) of the Constitution which prohibits any person or organ of state from interfering with the functioning of the courts.”
[23] Langa CJ further indicated in paragraph 49 of his statement that after the initial communication to the Commission from the Constitutional Court Judges, counsel for the applicants proposed that the following further detail be included in the joint statement of the Constitutional Court in the context of the discussion between Hlophe JP and Nkabinde J:
“In the course of that conversation, Hlophe JP said he wanted to talk about the question of “privilege”, which in his words formed the gravamen of the National Prosecution Authority’s case against Mr J.G. Zuma. He further said the manner in which the case was to be decided was very important as there was no case against Mr Zuma without the “privileged” information and that Mr Zuma was being persecuted just like he (Hlophe JP) had also been”.
[24] Langa CJ also stated in paragraph 9(c) of the joint complaint submitted that during the course of the conversation between Hlophe JP and Jafta AJ towards the end of March 2008:
“Hlophe JP sought improperly to persuade Jafta AJ to decide the Zuma/Thint cases in a manner favourable to MR J.G. Zuma.”
He further stated in paragraph 10(c) that during the course of the conversation between Hlophe JP and Nkabinde J in April 2008:
“Hlophe JP sought improperly to persuade Nkabinde J to decide the Zuma/Thint cases in a manner favourable to Mr J.G. Zuma.”
[25] On the 30th of June 2008, Hlophe JP responded to the complaint against him and lodged a counter-complaint against Judges of the Constitutional Court on the basis of the publication of a media statement by the Constitutional Court Judges. To the extent that it is relevant in this context, the said counter-complaint has since been withdrawn and is not pertinent to the present application.
[26] Against this background, it is not in dispute on the papers that the complaint in this matter was validly lodged by the Justices of the Constitutional Court in terms of the rules of the Commission, which prevailed in 2008. The said rules are referred to in this judgment as “the Old Rules.” It is also not in dispute on the papers that the said complaint was not submitted in the form of an affidavit or affirmation, as contemplated in section 14(3) of the Amended JSC Act. It is further not in dispute on the papers that no provision is made in the Old Rules for the appointment of a Tribunal, such as the Labuschagne Tribunal. Instead, the Old Rules provide for the appointment of a sub-committee consisting of members of the Commission to fulfil the same investigatory function as that of a Tribunal under the Amended JSC Act.
[27] As already indicated, to the extent that it is relevant in this context, it appears from the papers that Hlophe JP admitted that he had discussed the Zuma/Thint cases with the applicants on separate occasions. He also stated in relation to his discussion with Jafta AJ that he had conveyed to Jafta AJ with respect to the Zuma/Thint cases that it was a “very important” matter and that the issue of privilege was “a very concerning one”, which had to be dealt with “properly”. [3]
[28] The Commission, chaired by Howie JA, then met on the 5th of July 2008 and the central issue at that meeting, apart from the recusal of certain members, was whether a prima facie case of misconduct had been made out against Hlophe JP. After the said meeting, the Commission released a media statement in which it stated that:
“The Commission unanimously decided that in view of the conflict of facts on the papers placed before it, it was necessary to refer both the complaint by the Constitutional Court and the counter-complaint by the Judge President to the hearing of oral evidence on a date to be arranged by the Commission.”
[29] In due course, the hearing of oral evidence took place between the 1st to the 8th of April 2009. Six Constitutional Court Judges testified under oath before the Commission namely, Langa CJ, Moseneke DCJ, Mokgoro J, O’Regan J as well as the two applicants. Each of the said six Judges, confirmed in their testimony that they were complainants in the joint complaint submitted on the 17th of June 2008. Thus, for example, the transcript relating to the testimony of Moseneke DCJ, which forms part of the record of the Commission in the present application, reflects as follows:
[Chairperson]: Deputy Chief Justice is it correct on the 17th of June you deposed a confirmatory affidavit…oh, a statement, not an affidavit, but a statement…a confirmatory statement that the contents of the statement that was signed by the Chief Justice on that day is correct?
[Moseneke DCJ]: That is correct, President.
[Chairperson]: And also in a further statement that the Chief Justice signed in response to the complaint by the Judge President of the Cape against the Judges of the Constitutional Court. Do you remember if you signed a confirmatory statement in response to that statement?
[Moseneke DCJ]: Yes, I did. It was part of the main statement of the 17th of June.”
Similarly, the other Justices testified under oath confirming that the statement submitted by Langa CJ on the 17th of June 2008 was correct. The evidence of none of the Judges of the Constitutional Court at the time was tested by cross-examination.
[30] The Commission initially decided to hold a formal enquiry into the complaint in this matter in terms of the Old Rules, but reversed its decision to do so on the 20th to the 22nd of July 2009 and held a preliminary enquiry instead. A sub-committee appointed by the Commission then conducted interviews on the 30th of July 2009 and the former Chief Justice, the Deputy Chief Justice as well the two applicants were all interviewed by the sub-committee. In essence, all the Constitutional Court Judges interviewed confirmed the evidence, which they had already given to the Commission. The enquiry was adjourned to the 15th of August 2009 and the appointed sub-committee reconvened on the 15th of August 2009, when it was decided on the basis of the interviews conducted 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;
– The evidence in support of the counter-application did not support a finding of the Constitutional Court Justices were guilty of gross misconduct and that the matter was accordingly finalised; and
– None of the judges against whom complaints were lodged was guilty of gross misconduct.”
[31] As already indicated, the complaint in this matter has been the subject matter of much litigation, including an application instituted by Hlophe JP in the South Gauteng High Court to set aside the entire proceedings of the Commission as well as two review applications instituted against the Commission on different grounds in the High Court by Freedom Under Law and the Premier of the Western Cape (as part of the Democratic Alliance). Both applications for review were successful before the SCA for different reasons. The two judgments in this respect are reported as Freedom Under Law v Acting Chairperson: Judicial Service Commission and Others 2011 (3) SA 549 (SCA) (“the Freedom Under Law case”) and Acting Chairperson: Judicial Service Commission v Premier of the Western Cape Province 2011(3) SA 538 (SCA).
[32] In an application for an interdict relating to a media statement instituted by Hlophe JP, Langa CJ deposed to an answering affidavit on behalf of all the Judges, who had lodged the joint complaint against Hlophe JP. Langa CJ stated in this respect in his answering affidavit that the complaint in this matter was made in accordance with the rules governing complaints in terms of section 177(1)(a) of the Constitution as well as the rules accepted by the Commission.
[33] The Chief Justice and the other Constitutional Court Judges did not participate in the proceedings in the Cape High Court as the relief sought in that case was directed towards the Commission itself inter alia on the basis of the non-participation of the Premier of the Western Cape in the proceedings of the Commission in terms of the Constitution.
[34] In the judgment relating to the case of Freedom Under Law, which was handed down by the SCA in March 2011, the SCA reviewed and set aside the Commission’s decision to finalise the complaint on the 15th of August 2009 on the basis that Hlophe JP was not guilty of misconduct, as irrational. The SCA concluded in this respect as follows:
“Any attempt by an outsider to improperly influence a pending judgment of a court constitutes a threat to the independence, impartiality, dignity and effectiveness of that court. In the present case the allegation is that Hlophe JP attempted to improperly influence the Constitutional Court’s pending judgment in one or more cases. The JSC had already, when it decided to conduct the interview with the judges, decided that, if Hlophe JP had indeed attempted to do so, he would have made himself guilty of gross misconduct which, prima facie, may justify his removal from office. Moreover, it based its decision dismissing the complaint on an acceptance that Hlophe JP probably said what he is alleged to have said. In these circumstances, the decision by the JSC to dismiss the complaint, on the basis of a procedure inappropriate for the final determination of the complaint, and on the basis that cross-examination would not take the matter further, constituted an abdication of its constitutional duty to investigate the complaint properly. This dismissal of the complaint was therefore unlawful.” [4]
[35] It may be mentioned by way of background that in the notice of motion, in the court a quo, the appellants in the SCA had also requested an order to set aside the decision of the Commission at its meeting on the 20th to the 22nd of July 2009 (to reverse its earlier decision to hold a formal enquiry). However, even though the appeal was successful, as indicated above, the SCA did not set aside the Commission’s decision in July 2009 and merely set aside the subsequent decision of the Commission taken at its meeting on the 15th of August 2009, referred to above
[36] To the extent that it is relevant in this context, in accordance with the assertion in the joint statement of the Constitutional Court Judges on the 30th of May 2012 relating to public confidence in the integrity of courts being of crucial importance for our constitutional democracy and not being jeopardised, the SCA also recognised that:
“The Constitutional Court judges did not act in their own interest and their complaint is not that they have been wronged in their individual capacities. They acted in what they considered to be the public interest.”[5]
[37] Pursuant to the decision of the SCA and on the 18th of April 2012, the Commission decided to investigate the complaint against Hlophe JP in terms of new procedures contemplated by the Amended JSC Act. On the basis of this decision, during or about July 2012, the Commission then established a Judicial Conduct Committee (“the Musi JCC”) comprising three judges (including Musi JP) to investigate the complaint of the Constitutional Court Judges as well as a further complaint by Freedom Under Law arising from the former complaint. The Musi JCC also considered whether the complaint against Hlophe JP should be referred to a Judicial Conduct Tribunal in terms of the Amended JSC Act.
[38] The parties then made written representations to the Musi JCC and were also afforded an opportunity to make oral submissions on the 6th of August 2012. At that stage, the Constitutional Court Judges indicated that they did not wish to make any oral submissions. Musi JP concluded in his decision on behalf of the JCC relating to the two complaints as follows:
“I conclude therefore that the application of the procedure of the new Act to the complaints based on gross misconduct will not violate the rule relating to retrospectivity. Subject to one qualification to be dealt with below, all such complaints fall to be handled in terms of the procedures of the new Act irrespective of when they arose. This will be the case even if the complaint may have been lodged before the coming into operation of the new Act as long as it has not been dealt with.”[6]
On the 4th of September 2012, the Musi JCC accordingly recommended to the Commission that the complaint lodged by the Judges of the Constitutional Court be investigated by a Tribunal. To the extent that it is relevant in this context, the further complaint by Freedom Under Law at the time, was dismissed by the Musi JCC.
[39] Thereafter, on the 17th of October 2012, the Commission, constituted as prescribed in section 178(5) of the Constitution, resolved in terms of section 19(1) of the Amended JSC Act to request the Chief Justice to appoint a Tribunal in terms of section 21 of the Amended JSC Act.
[40] In due course, on the 28th of January 2013, the present Chief Justice established the Labuschagne Tribunal in terms of section 19(1) of the Amended JSC Act to investigate and report on the complaint lodged in June 2008 by the Justices of the Constitutional Court against Hlophe JP. As already stated, Labuschagne J was appointed as the Tribunal President. The remaining Tribunal Members were Sandi J and Ms Pather as envisaged in section 22(1) of the Amended JSC Act. The stated purpose of the Labuschagne Tribunal in the Terms of Reference published by the Chief Justice on the 4th of March 2013 was “to investigate and report on” the complaint lodged with the Commission on the 30th of May 2008 by the Justices of the Constitutional Court against Hlophe JP. In accordance with the provisions of the Amended JSC Act, it was stated that the Tribunal was to conduct its investigations “amongst others” by “collecting evidence; conducting a formal hearing; making findings of fact; and making a determination on the merits of the allegations.”
[41] On the 6th of March 2013, the office of the NDPP proposed the name of the fourth respondent [Xolisile Khanyile], as a senior member of the NPA and the Director of Prosecutions, Free State, to the Labuschagne Tribunal as “evidence leader”, in terms of section 24(1) of the Amended JSC Act.
[42] The applicants indicate in affidavits on record in relation to the establishment of the Labuschagne Tribunal that following the judgment of the SCA in the case of Freedom Under Law on the 31st of March 2011, they expected the Commission to refer the complaint in this matter either back to the Commission itself or to the sub-committee in terms of the Old Rules in order to resolve disputes of fact by way of cross-examination. Instead, Jafta J asserts in his founding affidavit that the Commission adopted a different approach and so changed the “rules of engagement” by utilising a new regime involving a Tribunal, as contemplated in the Amended JSC Act, which came into effect in June 2010, two years after the complaint in this matter had been lodged in 2008.
[43] Jafta J also makes reference in an affidavit deposed by him for the purposes of the present application to the principle of legality, which he asserts is a component of the rule of law and one of the founding values of our Constitution. As such, he emphasises in his founding affidavit that it is a fundamental principle of the rule of law that statutes, which are passed by Parliament generally apply prospectively only, unless a retrospective application is contemplated by the clear terms of the statute itself. Jafta J accordingly contends in the affidavits deposed by him that the Commission incorrectly applied the Amended JSC Act retrospectively, when nothing in the clear terms of the Act itself permitted the Commission to do so.
[44] The Labuschagne Tribunal commenced proceedings in October 2013. Counsel representing the applicants as well as counsel for Hlophe JP jointly raised a number of preliminary objections. The main preliminary objection was that the complaint in this matter does not comply with section 14(3) of the Amended JSC Act by virtue of the fact that the said complaint was not incorporated in an affidavit or affirmation. An ancillary preliminary objection related to the legality of proceedings before the Labuschagne Tribunal.
[45] The Labuschagne Tribunal noted in relation to the preliminary objections raised that even though this matter had a history approximating five years, and the SCA had considered the complaint in this matter on two occasions, the applicants’ counsel only saw fit to make submissions premised upon section 14 of the Amended JSC Act for the very first time in a “pre-trial meeting” on the 30th of September 2013, shortly before the commencement of the hearing of the Tribunal. Be that as it may, the Labuschange Tribunal also recognised that the relevant rules at the time the complaint was lodged (in terms of the JSC Act) included rule 2.1 relating to the Commission considering complaints received by it against a Judge and rule 2.2, in terms of which the Commission could require any complaint to be on oath or not. As such, it appeared that even though the procedures adopted by the Commission after 2012, were defined in terms of the Amended JSC Act, the initial complaint in this matter was lodged in 2008 in terms of the JSC Act.
[46] The Labuschagne Tribunal ultimately dismissed all the preliminary objections by both the applicants and Hlophe JP on the 3rd of October 2013, inter alia on the basis that there was nothing in the Amended JSC Act, which either expressly or impliedly invalidated complaints made before the said Act took effect. Reasons for the dismissal of the preliminary objections were subsequently handed down on the basis of the unanimous findings of the Tribunal President and the two Tribunal Members on the 1st of November 2013. It appears that the present application was instituted shortly after the preliminary objections were dismissed on the 3rd of October 2013, and before the reasons for such dismissal were subsequently handed down. Be that as it may, after referring to certain case authority, [7] the Tribunal found that:
“[E]ven if a statute is amended with retrospective effect, the rights of the parties to a pending action must be decided in accordance with the law as it was when the action was instituted, unless a contrary intention appears from the statute.”[8]
[47] For the reasons stated, the Labuschagne Tribunal also concluded:
“On a proper consideration of the facts as a whole, considered in the light of all the legal principles set out above and on any one of the tests referred to, we find that the reliance on section 14 of the JSC Act is misplaced and if applicable, there has been compliance with the provisions of that section. To the extent, therefore, that compliance of the Act was a mandatory requirement, the defect in our view has been cured.”[9]
[48] Finally, it may also be mentioned by way of factual background that in response to the legal averments relied upon by the applicants pertaining to the unconstitutionality of section 24(1) of the Amended JSC Act, the Minister states inter alia in his answering affidavit that he supported the appointment of prosecutor for the purposes of Tribunals of this nature as a mechanism to ease the workload of Tribunals efficiently in a cost-effective and convenient manner. This is particularly so as the involvement of independent attorneys and advocates will have unnecessary cost implications for Tribunals of this nature.