S and Others v Van Rooyen and Others (CCT21/01) [2002] ZACC 8; 2002 (5) SA 246; 2002 (8) BCLR 810 (11 June 2002)

[1] The first applicant (Van Rooyen) was convicted in the Pretoria Regional Court on various counts of theft and the unlawful possession of a firearm and ammunition. He was sentenced to imprisonment for periods amounting in all to six years. The presiding magistrate in his case was the third respondent (Travers). Van Rooyen noted an appeal to the High Court in Pretoria (the High Court) against his conviction and sentence in which he disputed the findings that Travers made on the merits, and also challenged the legality of the proceedings in the Regional Court, contending that the court lacks the institutional independence and required by the Constitution. He subsequently sought to supplement his appeal by review proceedings in which similar issues pertaining to the lack of institutional independence of the Regional Court were raised.

[2] The second respondent (Tshabalala) was charged in the Pretoria Regional Court with murder and malicious injury to property. He also appeared before Travers and applied for bail which was refused. He noted an appeal to the High Court against that order which failed. He subsequently instituted review proceedings in which he sought to set aside the proceedings on various grounds, including that the Regional Court lacked the institutional independence that the Constitution requires. In the meantime the sixth respondent (Themalaros) was called upon to face charges of fraud in the Regional Court at Pretoria. He entered a plea to the effect that the court had no jurisdiction to try him because it was not an independent court as contemplated in section 165(2) of the Constitution. His case was heard by the seventh respondent (Booysen) who upheld the plea and referred the matter to the High Court. The fifth respondent, now known as the Director of Public Prosecutions,¹ then applied to the High Court to review and set Booysen’s decision aside.

[3] These three matters were subsequently consolidated for the purpose of the hearing of the appeals and reviews in the High Court. They raised important issues concerning the constitutionality of provisions of the Magistrates’ Courts Act,² the Magistrates Act,³ and regulations made in terms of the Magistrates Act.⁴ The third applicant – the Association of Regional Magistrates of South Africa (ARMSA) – and the second applicant (Bekker) who is a regional magistrate, were given leave to intervene in the proceedings and did so.

[4] The matter, involving these various parties with different interests, came before a court of two judges of the High Court. The papers were voluminous and complex. After argument had been heard on the various issues that had been raised but before judgment could be given, one of the judges who had sat in the matter died. A judgment was subsequently delivered by the remaining judge.⁵ All the parties had previously reached agreement in writing to accept the decision of the remaining judge as the decision of the Court.⁶ It was not disputed that he had the power to do so in terms of section 17(2) of the Supreme Court Act.⁷

[5] The judge upheld the application of the Director of Public Prosecutions to review the judgment in the Themalaros case, and dismissed the applications by Van Rooyen and Tshabalala to review the decisions given in their cases. He also dismissed Van Rooyen’s appeal against the convictions and sentences imposed on him. He concluded, however, that various provisions of the legislation and regulations which had been challenged were indeed inconsistent with the Constitution and accordingly invalid. To avoid any disruption in the functioning of the courts consequent upon such a finding, he directed that the operation of the order made by him be suspended for 9 months to enable the executive and legislature to remedy the deficiencies in the legislation. I deal later with the details of the provisions that were declared to be inconsistent with the Constitution.

[6] In terms of section 172(2) of the Constitution the order of invalidity, insofar as it pertains to the provisions of the two Acts, is of no force or effect unless confirmed by this Court. The judge accordingly directed the registrar of the High Court to refer the order made by him to this Court to consider whether or not the declarations of invalidity made in respect of the two Acts should be confirmed. This is a requirement of the Constitutional Court Complementary Act,⁸ and rule 15 of the rules of this Court.⁹

[7] Van Rooyen, Bekker and ARMSA then applied to this Court for the order to be confirmed. The state, the Minister of Justice and the Director of Public Prosecutions opposed the confirmation of the order and also noted an appeal to this Court against the order made by the High Court. Their appeal was noted in terms of section 172(2)(d) of the Constitution which provides:

“Any person or organ of state with a sufficient interest may appeal, or apply, directly to the Constitutional Court to confirm or vary any order of constitutional invalidity by a court in terms of this subsection.”

[8] Section 172(2)(d) governs appeals against orders of invalidity made concerning an Act of Parliament, a Provincial Act or any conduct of the President. It has no application to declarations of invalidity made in respect of other legislation or conduct.¹⁰ As far as such matters are concerned, an appeal may be brought only with the leave of this Court and in accordance with the requirements of its rules.¹¹ The relevant rule is rule 18 which requires an aggrieved litigant to apply to the High Court concerned for a certificate that the constitutional matter is one of substance on which a ruling by this Court is desirable, that there is sufficient evidence on record to enable this Court to dispose of the matter and that there is a reasonable prospect that this Court will reverse or materially alter the judgment if leave to appeal is given. The litigant must then apply to this Court which, after considering the certificate, (which may be in negative or positive terms) decides whether or not to grant leave to appeal.

[9] It follows that the first and fourth respondents were entitled to appeal as of right to this Court in respect of the declarations of invalidity made concerning certain provisions of the Magistrates Act and the Magistrates’ Courts Act.

[10] The first and fourth respondents noted an appeal against the whole of the judgment including the orders pertaining to the regulations, without first applying for a certificate in terms of rule 18, or seeking leave from this Court to appeal against such orders. At the hearing of the matter, Mr Fabricius who appeared for the first and fourth respondents, applied formally for leave to appeal against that part of the order made by the High Court relating to the regulations.

[11] Rule 15 makes provision for an appeal as of right to this Court against an order for constitutional invalidity contemplated in section 172(2)(d) of the Constitution. The appeal by the State and the Minister in the present case was noted in terms of this rule. Their notice of appeal sought to appeal against all the declarations of invalidity made by the High Court, including those made concerning the regulations. The declarations of invalidity made concerning the regulations are not subject to confirmation by this Court and, standing on their own, are not within the purview of section 172(2)(d) of the Constitution. They are, however, incidental to the findings of constitutional invalidity made by the High Court that are the subject of the appeal noted in terms of section 172(2)(d). No good purpose would be served in the present case by requiring appeals concerning these regulations to be separated from appeals concerning provisions of the Act. We heard no argument on the question whether a right to appeal in terms of rule 15 includes a right to appeal against orders of constitutional invalidity that are incidental to issues that are the subject matter of an appeal properly noted in terms of rule 15. I therefore refrain from expressing any opinion on that issue.

[12] The regulations deal with important issues on which it is desirable that there should be certainty. These issues have been dealt with fully in the judgment of the High Court, and were canvassed in the arguments addressed to this Court on appeal. They are incidental to the orders of constitutional invalidity in respect of which there is an appeal as of right. In these circumstances and because of the compelling need to have certainty concerning the validity of conditions of service under which magistrates function, I consider it to be desirable to deal with all of the orders made by the High Court in that regard. In so far as it may be necessary,¹² the failure to comply with rule 18(2) is condoned, and the first and fourth respondents are given leave to appeal against the orders of invalidity made by the High Court concerning regulations made under the Magistrates Act.

[13] Themalaros died before the judgment was given. Van Rooyen and Tshabalala disputed the correctness of the orders made by the judge dismissing their application to have the judgments against them reviewed and set aside, and Van Rooyen also disputed the order dismissing his appeal. They applied to this Court for leave to appeal directly to it against the dismissal of these orders.

[14] The application for confirmation of the orders of invalidity, the appeal by the state, the Minister of Justice and the Director of Public Prosecutions and the application by Van Rooyen and Tshabalala for leave to appeal directly to this Court, were set down for hearing together.

[15] The registrar was requested by the President of this Court to bring the orders to the attention of the General Council of the Bar of South Africa and the Law Society of South Africa to enable them to make representations to the Court should they wish to do so. Both these associations initially intimated that they would wish to make representations to the Court but, in the end, only the General Council of the Bar did so. The General Council of the Bar was represented by Advocates M. Wallace SC, A. Gabriel and M. Du Plessis. The Court is indebted to them for their helpful argument.

The Constitution

[16] When dealing with the appointment of judicial officers, the Constitution distinguishes between judges and other judicial officers. Judges are appointed through procedures involving the Judicial Service Commission.¹³ Other judicial officers (and these include magistrates)

“must be appointed in terms of an Act of Parliament which must ensure that the appointment, promotion, transfer or dismissal of, or disciplinary steps against, these judicial officers take place without favour or prejudice.”¹⁴

[17] Other provisions of the Constitution that are relevant to these proceedings are sections 165(2), (3) and (4). Section 165(2) provides that

“[t]he courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice.”

Judicial independence and impartiality are also implicit in the rule of law which is foundational to the Constitution,¹⁵ and in the separation of powers demanded by the Constitution.¹⁶ This requirement is buttressed by the provisions of sections 165(3) and (4) of the Constitution. Section 165(3) states that

“[n]o person or organ of state may interfere with the functioning of the courts”

and section 165(4) requires that

“[o]rgans of state, through legislative and other measures, must assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts.”

[18] The Constitution thus not only recognises that courts are independent and impartial, but also provides important institutional protection for courts. The provisions of section 165, forming part of the Constitution that is the supreme law, apply to all courts and judicial officers, including magistrates’ courts and magistrates. These provisions bind the judiciary and the government and are enforceable by the superior courts, including this Court. It is within this context that the issues raised in the present matter must be decided.

An independent and impartial court

[19] In De Lange v Smuts NO and Others,¹⁷ Ackermann J referred to the views of the Canadian Supreme Court in The Queen in Right of Canada v Beauregard,¹⁸ Valente v The Queen¹⁹ and R v Généreux²⁰ on the question of what constitutes an independent and impartial court, describing them as being “instructive.” In this context, he mentioned the following summary of the essence of judicial independence given by Dickson CJC in Beauregard’s case:

“Historically, the generally accepted core of the principle of judicial independence has been the complete liberty of individual judges to hear and decide the cases that come before them; no outsider ! be it government, pressure group, individual or even another judge: should interfere in fact, or attempt to interfere, with the way in which a judge conducts his or her case and makes his or her decision. This core continues to be central to the principle of judicial independence.”²¹

This requires judicial officers to act independently and impartially in dealing with cases that come before them, and at an institutional level it requires structures to protect courts and judicial officers against external interference.²²

[20] Ackermann J also referred to the fact that in Valente it had been said that,

“[i]t would not be feasible, however, to apply the most rigorous and elaborate conditions of judicial independence to the constitutional requirement of independence in s. 11(d) of the Charter, which may have to be applied to a variety of tribunals. The legislative and constitutional provisions in Canada governing matters which bear on the judicial independence of tribunals trying persons charged with an offence exhibit a great range and variety. The essential conditions of judicial independence for purposes of S. (11d) [sic] must bear some relationship to that variety.”²³

He went on to say that what Valente required was that

“‘the essence of the security afforded by the essential conditions of judicial independence’ must be provided or guaranteed, although this need not be done by ‘any particular legislative or constitutional formula’.”²⁴

[21] Counsel for ARMSA and Bekker submitted that the South African Constitution, unlike the Canadian Constitution, guarantees independence to all courts. He contended that in the circumstances all courts should be treated in the same way. This, however, is contrary to Ackermann J’s approval of the relevant passages in Valente in De Lange v Smuts. As I discuss below,²⁵ it also takes no account of the fact that the Constitution itself differentiates between the different courts and between the procedures for the appointment of different judicial officers.

[22] The constitutional protection of the core values of judicial independence accorded to all courts by the South African Constitution means that all courts are entitled to and have the basic protection that is required. Section 165(2) of the Constitution pointedly states that “[t]he courts are independent”.²⁶ Implicit in this is recognition of the fact that the courts and their structure, with the hierarchical differences between higher courts and lower courts which then existed, are considered by the Constitution to be independent. This does not mean that particular provisions of legislation governing the structure and functioning of the courts are immune from constitutional scrutiny. Nor does it mean that lower courts have, or are entitled to have their independence protected in the same way as the higher courts. The Constitution and the existing legislation kept in force by the Constitution treat higher courts differently to lower courts. Whilst particular provisions of existing legislation dealing with magistrates’ courts can be examined for consistency with the Constitution, the mere fact that they are different to the provisions of the Constitution that protect the independence of judges is not in itself a reason for holding them to be unconstitutional.

[23] In deciding whether a particular court lacks the institutional protection that it requires to function independently and impartially, it is relevant to have regard to the core protection given to all courts by our Constitution, to the particular functions that such court performs and to its place in the court hierarchy. Lower courts are, for instance, entitled to protection by the higher courts should any threat be made to their independence. The greater the protection given to the higher courts, the greater is the protection that all courts have.

[24] Counsel for Bekker and ARMSA pointed out that regional magistrates have extensive penal jurisdiction, both in relation to the subject matter of cases which can be tried, and the penalties that can be imposed. That is correct. But magistrates’ courts are courts of first instance and their judgments are subject to appeal and review. Thus the higher courts have the ability not only to protect the lower courts against interference with their independence, but also to supervise the manner in which they discharge their functions. These are objective controls that are relevant to the institutional independence of the lower courts.

[25] Another relevant factor is that district and regional magistrates’ courts do not have jurisdiction to deal with administrative reviews or constitutional matters where the legislation or conduct of the government is disputed. These are the most sensitive areas of tension between the legislature, the executive and the judiciary. Measures considered appropriate and necessary to protect the institutional independence of courts dealing with such matters, are not necessarily essential to protect the independence of courts that do not perform such functions.

[26] It was also contended that the dictum pertaining to possible differences in standards of protection should be understood in the context of Valente’s case, which was concerned with the right to a fair trial. It is, however, clear from Valente’s case that the principle of judicial independence was considered to be an “unwritten” principle of the Canadian Constitution applicable to all courts. Section 11(d) of the Charter of Rights which makes provision for criminal trials to be heard by “an independent and impartial tribunal” is merely an illustration of this overriding requirement.

[27] I am therefore not persuaded that any reason exists to qualify the approval given to the passages from Valente by Ackermann J in De Lange v Smuts. Judicial independence can be achieved in a variety of ways; the “most rigorous and elaborate conditions of judicial independence” need not be applied to all courts, and it is permissible for the essential conditions for independence to bear some relationship to the variety of courts that exist within the judicial system.

[28] This seems to me to be implicit in the Constitution itself. The jurisdiction of the magistrates’ courts is less extensive than that of the higher courts. Unlike higher courts they have no inherent power, their jurisdiction is determined by legislation and they have less extensive constitutional jurisdiction.²⁷ The Constitution also distinguishes between the way judges are to be appointed and the way magistrates are to be appointed. Judges are appointed on the advice of the Judicial Service Commission;²⁸ their salaries, allowances and benefits may not be reduced;²⁹ and the circumstances in which they may be removed from office are prescribed.³⁰ In the case of magistrates, there are no comparable provisions in the Constitution itself, nor is there any requirement that an independent commission be appointed to mediate actions taken in regard to such matters. That said, magistrates are entitled to the protection necessary for judicial independence, even if not in the same form as higher courts.

[29] Ackermann J also drew attention to other key aspects of judicial independence mentioned in Valente’s case.³¹ They are, in particular, the requirement that judicial officers have security of tenure, a basic degree of financial security, and institutional independence concerning matters that relate directly to the exercise of the judicial function, as well as judicial control over administrative decisions “that bear directly and immediately on the exercise of the judicial function.”

[30] The judgment of the High Court holds that magistrates’ courts lack the institutional independence that the Constitution requires; that impediments to independence exist in the method of appointment, promotion, and disciplining of magistrates, and in the control that the executive has over the day-to-day functioning of these courts. I will deal with that later, but first it is necessary to consider the appropriate test for assessing whether a court has the institutional independence required by the Constitution.

Assessment of independence

[31] Judicial officers must act independently and impartially in the discharge of their duties. In addition, as O’ Regan J points out in De Lange v Smuts,³² the courts in which they hold office must exhibit institutional independence. That involves an independence in the relationship between the courts and other arms of government. It is that relationship, as laid down in the Magistrates Act³³ and the Magistrates’ Courts Act³⁴ that the High Court held to be inconsistent with the Constitution.

[32] In dealing with this, the High Court adopted the test used in R v Généreux, which is whether the court or tribunal “from the objective standpoint of a reasonable and informed person, will be perceived as enjoying the essential conditions of independence.”³⁵ That the appearance or perception of independence plays an important role in evaluating whether courts are sufficiently independent cannot be doubted. The reasons for this are made clear by the Canadian jurisprudence on the subject, particularly in Valente v The Queen where Le Dain J held that:

“Both independence and impartiality are fundamental not only to the capacity to do justice in a particular case but also to individual and public confidence in the administration of justice. Without that confidence the system cannot command the respect and acceptance that are essential to its effective operation. It is, therefore, important that a tribunal should be perceived as independent, as well as impartial, and that the test for independence should include that perception.”³⁶

The jurisprudence of the European Court of Human Rights also supports the principle that appearances must be considered when dealing with the independence of courts.³⁷

[33] When considering the issue of appearances or perceptions, attention must be paid to the fact that the test is an objective one. Canadian courts have held in testing for a lack of impartiality

“the apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal . . . that test is ‘what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude.’”³⁸

This test was approved by the Court in Valente as being appropriate for independence as well as impartiality.³⁹ It is also similar to the test adopted by this Court in President of the Republic of South Africa and Others v South African Rugby Football Union and Others⁴⁰ for determining whether there are grounds for recusal:

“The question is whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the Judge has not or will not bring an impartial mind to bear on the adjudication of the case, that is a mind open to persuasion by the evidence and the submissions of counsel.”

[34] The High Court adopted this test.⁴¹ I agree that an objective test properly contextualised is an appropriate test for the determination of the issues raised in the present case. The perception that is relevant for such purposes is, however, a perception based on a balanced view of all the material information. As a United States court has said,

“we ask how things appear to the well-informed, thoughtful and objective observer, rather than the hypersensitive, cynical, and suspicious person.”⁴²

Bearing in mind the diversity of our society this cautionary injunction is of particular importance in assessing institutional independence. The well-informed, thoughtful and objective observer must be sensitive to the country’s complex social realities, in touch with its evolving patterns of constitutional development, and guided by the Constitution, its values and the differentiation it makes between different levels of courts. Professor Tribe’s comment on the separation of powers, already cited with approval by this Court,⁴³ seems especially relevant in this regard:

“What counts is not any abstract theory of separation of powers, but the actual separation of powers ‘operationally defined by the Constitution.’ Therefore, where constitutional text is informative with respect to a separation of powers issue, it is important not to leap over that text in favor of abstract principles that one might wish to see embodied in our regime of separated powers, but that might not in fact have found their way into our Constitution’s structure.”⁴⁴

This comment seems to be particularly appropriate when considering what the objective observer might conclude about the independence of the magistracy.

[35] Accepting, as I do, that a properly contextualised objective test is the test to be applied in the present case, I turn now to a consideration of the issues raised in the appeal. In dealing with these issues it must be kept in mind that judicial impartiality and the application without fear, favour or prejudice by the courts of the Constitution and all law, as postulated by section 165(2) of the Constitution,⁴⁵ are inherent in an accused’s right to a fair trial under section 35(3) of the Constitution. One of the main goals of institutional judicial independence is to safeguard such rights. However, institutional judicial independence itself is a constitutional principle and norm that goes beyond and lies outside the Bill of Rights. The provisions of section 36 of the Constitution dealing with the limitation to rights entrenched in the Bill of Rights are accordingly not applicable to it. Judicial independence is not subject to limitation.

The Magistrates Commission

[36] The High Court held that the Magistrates Commission is an executive structure that is not independent. This provided the basis for the conclusion reached by the High Court that magistrates’ courts lack the institutional independence required by the Constitution. The crucial findings of the High Court are as follows:

“The perception of the objective, reasonable and informed person will be that the executive authority is in effective control of the Magistrates Commission and can use it for its own purposes. To all intents and purposes the Magistrates Commission is an organ of State . . . . It is obviously no longer the autonomous body it was intended to be.

. . . .

Insofar as the Magistrates Commission has any role to play in taking decisions, making its views known to the Minister or making recommendations to the Minister, either in terms of the Act or the regulations, it is unlikely to take any decisions, express any views or make recommendations which do not find favour with the Minister. As a member of the Magistrates Commission the Minister will probably play a decisive role when the Magistrates Commission takes a decision on any contentious issue.

. . . .

The Magistrates Commission as presently constituted will be perceived by the objective, reasonable and informed person to be in conflict with or undermining of the independence of the magistracy. The section is therefore inconsistent with the requirement that the magistrates’ courts be independent. It is also inconsistent with s174(7) of the Constitution. As presently constituted the Magistrates Commission cannot ensure that the appointment, promotion, transfer or dismissal of, or disciplinary steps against magistrates take place without favour or prejudice.”⁴⁶

[37] Any power vested in a functionary by the law (or indeed by the Constitution itself) is capable of being abused. That possibility has no bearing on the constitutionality of the law concerned. The exercise of the power is subject to constitutional control and should the power be abused the remedy lies there and not in invalidating the empowering statute.⁴⁷

[38] The findings made by the High Court concerning the Magistrates Commission are premised on the assumption that a body consisting of judicial officers, legal practitioners, members of Parliament and nominees of the executive, charged with the important duty of protecting the independence of magistrates, will either be, or objectively be perceived to be, a sham, concerned more with pleasing the Minister of Justice than with discharging its responsibilities. I should say immediately that there is in my view no basis for such an assumption, nor for the conclusion reached by the High Court to that effect. However, the findings lie at the heart of the judgment of the High Court and it is therefore necessary to deal with them in some detail.

The composition of the Magistrates Commission

[39] The Magistrates Commission is established in terms of the Magistrates Act. Section 3 of this Act deals with the composition of the Commission which is as follows:

“(i) a judge of the [High Court] of South Africa, as chairperson, designated by the President in consultation with the Chief Justice;

(ii) the Minister or his or her nominee, who must be an officer of the Department of Justice;

(iii) two regional magistrates, one to be designated by the respective regional magistrates and the other by the President after consultation with the respective regional magistrates;

(iv) two magistrates with the rank of chief magistrate, one to be designated by the respective chief magistrates and the other by the President after consultation with the respective chief magistrates;

(v) two magistrates who do not hold the rank of regional magistrate or chief magistrate, one to be designated by the magistrates’ profession and the other by the President after consultation with the magistrates’ profession;

(vi) two practising advocates designated by the Minister after consultation with the advocates’ profession;

(vii) two practising attorneys designated by the Minister after consultation with the attorneys’ profession;

(viii) one teacher of law designated by the Minister after consultation with the teachers of law at South African universities;

(ix) the Head: Justice College;

(x) four persons designated by the National Assembly from among its members, at least two of whom must be members of opposition parties represented in the Assembly;

(xi) four permanent delegates to the National Council of Provinces and their alternates designated together by the Council with a supporting vote of at least six provinces; and

(xii) five fit and proper persons appointed by the President in consultation with the Cabinet, at least of two whom shall not be involved in the administration of justice or the practice of law in the ordinary course of their business.”

[40] The Commission thus consists of a judge, six magistrates, four legal practitioners, a teacher of law, eight members of Parliament and five nominees of the executive. In addition, the Minister and the head of Justice College are members of the Commission. On its face this is a diverse body of persons, nearly half of whom consist of members of the judiciary and the legal profession. The rest are nominees of Parliament and the executive. To some extent this is similar to the composition of the Judicial Service Commission which has a central role in the appointment of judges and the composition of which is dealt with in the Constitution itself.⁴⁸

[41] The Judicial Service Commission includes eight members from the legal profession and judiciary and fifteen members nominated by Parliament and the executive. Where appointments to the High Court are concerned, these numbers become nine and sixteen respectively.

[42] If a comparison is made between the composition of the two commissions it will be seen that the legal profession and judiciary have a stronger representation in the Magistrates Commission than in the Judicial Service Commission. Apart from that, the process to be followed in appointing members to the two Commissions is similar. Where Parliament is involved, provision is made for opposition parties to have equal say with the governing party for nomination from the National Assembly, and for a special two thirds majority in the case of nominations from the National Council of Provinces. Where the judiciary and the professions are concerned the nominations come from within the structure to be represented.

The history of the legislation dealing with the Magistrates Commission

[43] In reaching the conclusion that it did, the High Court attached considerable weight to the changes in the composition of the Magistrates Commission introduced by the 1996 amendment to the Magistrates Act.

[44] The Magistrates Commission as originally constituted by the 1993 Act, was made up as follows:⁴⁹

“(i) a judge of the Supreme Court of South Africa, as chairman, designated by the Chief Justice;

(ii) an officer of the Department of Justice designated by the Minister;

(iii) two regional court presidents designated by the regional court presidents of the respective regional divisions established under section 2 of the Magistrates’ Courts Act;

(iv) two magistrates with the rank of chief magistrate designated by the respective magistrates with that rank;

(v) the Chief Director: Justice College;

(vi) one magistrate designated by the Magistrates’ Association of South Africa;

(vii) one advocate and one attorney designated by the General Council of the Bar of South Africa and the Association of Law Societies of the Republic of South Africa, respectively; and

(viii) one legal academic designated by the Society of University Teachers of Law.”

[45] There were thus ten and not 27 members of the Commission, as is now the case. Of those ten, all but two were designated by judicial officers or the legal profession. The only members who were not in this category, were the officer of the Department of Justice designated by the Minister, and the Chief Director of Justice College. The changes introduced in 1996 made provision for 13 members to be designated by the National Assembly, the National Council of Provinces and the Cabinet; for six magistrates, not five; for two advocates, not one; and for two attorneys, not one. The 1996 amendment also changed the basis of designation, vesting the power of appointment in respect of three of the magistrates, and all of the representatives of the legal profession and teachers of law, in the executive after consultation with the professions concerned.

[46] Referring to these changes, the High Court held that

“[t]he objective, reasonable and informed person would conclude that the composition of the Magistrates Commission was altered . . . for the purpose of giving the Executive and the Legislature control of the Magistrates Commission and through it the magistracy.”⁵⁰

I cannot agree with this, nor with the view expressed in the High Court judgment that it is “inescapable” that the magistracy has become the “personal fiefdom” of the Minister of Justice.⁵¹

[47] The language in which these conclusions of the High Court are expressed is unfortunate. The findings imply that Parliament changed the composition of the Magistrates Commission to give the legislature and executive control over the Magistrates Commission so as to enable the Minister to manipulate the Commission and the magistracy. Implicit in these findings is also the unjustifiable innuendo that the persons appointed to the Commission pursuant to this scheme would be seen to be willing to do the bidding of the Minister. This is a recurring theme of the judgment which is ill-considered and not sustainable on a proper analysis of all the relevant circumstances. In expressing these intemperate views, which in effect attribute improper motives to the legislature and the executive, the High Court also failed to have regard to the changes in the constitutional and legal order that occurred between 1993 and 1996, to relevant provisions of the interim Constitution and the 1996 Constitution, and to our history of racial and gender discrimination which had to be addressed after the adoption of the interim Constitution. These were all matters relevant to the decisions taken by Parliament concerning the composition of the Magistrates Commission.

[48] In a constitutional democracy such as ours, in which the Constitution is the supreme law of the Republic, substantial power has been given to the judiciary to uphold the Constitution. In exercising such powers, obedience to the doctrine of the separation of powers requires that the judiciary, in its comments about the other arms of the state, show respect and courtesy, in the same way that these other arms are obliged to show respect for and courtesy to the judiciary and one another. They should avoid gratuitous reflections on the integrity of one another. Regrettably the High Court in its judgment did not consistently fulfil this obligation.

The changes to the constitutional and legal order between 1993 and 1996

[49] The 1993 Act was passed prior to the adoption of the interim Constitution and at a time when the great majority of the population of this country had no representation in Parliament. The power to appoint judges and magistrates was then vested in the executive. There was no constitutional or statutory protection of the independence of the judiciary. The 1993 Act gave the Magistrates Commission an advisory function in the appointment of magistrates, but there was no obligation on the executive to consult any person or institution in respect of the appointment of judges. The Magistrates Commission was not a representative body and all but two of its members were designated by bodies controlled by white judicial officers and lawyers.⁵²

[50] The interim Constitution which came into force in 1994 changed the constitutional and legal order within the country. The preamble to that Constitution referred to the

“need to create a new order in which all South Africans will be entitled to a common South African citizenship in a sovereign and democratic constitutional state in which there is equality between men and women and people of all races”.

The Constitution itself was to be the

“historic bridge between the past of a deeply divided society characterised by strife, conflict, untold suffering and injustice, and a future founded on the recognition of human rights, democracy and peaceful co-existence and development opportunities for all South Africans irrespective of colour, race, class, belief or sex”.⁵³

This Court has on more than one occasion stressed the transformative purpose of the interim Constitution and the 1996 Constitution.⁵⁴ This transformation involves not only changes in the legal order, but also changes in the composition of the institutions of society, which prior to 1994 where largely under the control of whites and, in particular, white men. The Magistrates Commission, constituted as it was in 1993, could not be expected to escape this process.

[51] Section 96 of the interim Constitution provided that:

“(1) . . . .

(2) The judiciary shall be independent, impartial and subject only to this Constitution and the law.

(3) No person and no organ of state shall interfere with judicial officers in the performance of their functions.”

[52] A Judicial Service Commission was also established. The interim Constitution prescribed how it was to be composed, and vested in it the effective control over the appointment and impeachment of judges. This Commission had a diverse membership that did not consist predominately of representatives of the white legal profession and judiciary.

[53] As far as magistrates were concerned, the interim Constitution provided that:

“There shall be a Magistrates Commission established by law to ensure that the appointment, promotion, transfer or dismissal of, or disciplinary steps against magistrates, take place without favour or prejudice, and that the applicable laws and administrative directives in this regard are applied uniformly and properly, and to ensure that no victimization or improper influencing of magistrates occurs.”⁵⁵

It did not, however, prescribe how that Commission should be composed. That was left to be determined by the legislation establishing the Magistrates Commission.

[54] Through these provisions the interim Constitution strengthened the position of the courts, including the magistrates’ courts, providing them with institutional protection which they previously lacked, by entrenching as part of the Constitution the core values of judicial independence.

[55] In 1996, a new constitutional text was adopted by a Constitutional Assembly to replace the interim Constitution. The new constitutional text increased the size of the Judicial Service Commission, making provision for six members of the National Assembly as well as four members of the National Council of Provinces to be members of the Commission. Three of the six National Assembly members had to be chosen from opposition parties. The new text also provided that:

“If the number of persons nominated from within the advocates’ or attorneys’ profession . . . equals the number of vacancies to be filled, the President must appoint them. If the number of persons nominated exceeds the numbers of vacancies to be filled, the President, after consulting the relevant profession, must appoint sufficient of the nominees to fill the vacancies, taking into account the need to ensure that those appointed represent the profession as a whole.”⁵⁶

The new Constitution, with these provisions concerning the composition of the Judicial Service Commission, came into force on 4 February 1997.

The 1996 changes to the composition of the Magistrates Commission

[56] The amendment to the Magistrates Act changing the composition of the Magistrates Commission was assented to on 27 June 1996. This was approximately seven weeks after the new constitutional text changing the composition of the Judicial Service Commission had been adopted by the Constitutional Assembly. Section 10 of the amending Act provided that the amendments would come into operation on a date fixed by the President by proclamation in the Gazette, which in the result was 1 October 1998. This was more than a year after the 1996 Constitution came into force.

[57] The change in the composition of the Magistrates Commission effected by the 1996 amendment brought the composition of that Commission closer to that of the Judicial Service Commission, which the Constitution itself recognises as a body appropriately constituted for the purpose of matters concerned with the appointment and impeachment of judges.

[58] The High Court attached no weight to these similarities, holding that “the composition of the Judicial Service Commission was a political choice made by the Constitutional Assembly within the framework of the constitutional principles”,⁵⁷ and that the Magistrates Commission had to be evaluated independently in the context of the other requirements of the Constitution. This fails to have regard to the fact that the Constitutional Principles required the Constitution to make provision for an independent and impartial judiciary,⁵⁸ and the Constitution containing these provisions concerning the appointment of judges was certified by this Court as complying with the Constitutional Principles. The High Court thus erred by refusing to consider the constitutional template provided by the constitution, in the form of the Judicial Service Commission.

[59] In the First Certification Judgment⁵⁹ this Court held that the appointment of judges by the executive or a combination of the executive and Parliament was not inconsistent with the requirement that the judiciary be impartial and independent.⁶⁰ There was accordingly no need to establish an independent body to make such appointments. It was in this context that it was said that the establishment of such a body and its composition was a “political choice”.

[60] I am unable to agree with the High Court that the provisions of the Constitution dealing with the Judicial Service Commission are of no relevance to the issues in the present case. The Constitution makes provision for the manner in which judges are to be appointed and impeached. What it sets as a standard for such matters in the case of the higher judiciary is clearly relevant to the standards required for the lower judiciary. Whilst the conditions of judicial independence for all courts may not have to be “the most rigorous”, it could hardly be suggested that the Constitution contemplates that the legislation that regulates the appointment and impeachment of magistrates will be more rigorous than comparable provisions of the Constitution dealing with the higher judiciary. On the contrary, as I have indicated above,⁶¹ there are powerful considerations that point in the opposite direction.

[61] The changes made in 1996 are consistent with and reflect the change that has taken place in our country since 1993 – a transformation required by the Constitution itself. The Magistrates Commission is now more broadly representative of South African society as a whole. This was important particularly at this stage of our history. The overwhelming majority of the population is black and at least half the population is female. Yet the great majority of the legal profession and senior judicial officers are still white and male. In the light of our history and the commitment made in the Constitution to transform our society, these racial and gender disparities cannot be ignored. The recomposition of the Magistrates Commission viewed thus by an objective observer, could not fairly be seen as an attempt to exert executive control over the magistracy. There was a pressing need for the racial and gender disparities within the Commission to be changed, and for the Commission to be re-composed so as to become more representative of South African society. The changes made facilitated this, and that would have been understood by an objective observer taking a balanced view of all the relevant circumstances.

[62] Whether the changes that have been made affect the independence of the Commission is a matter to which I now turn. In doing so it is necessary to have regard to the constitutional requirements pertaining to the composition of the Judicial Service Commission, bearing in mind the distinction made in the Constitution between the appointment of judges and the appointment of other judicial officers.

The Magistrates Commission in comparison with the Judicial Service Commission

[63] Although there are similarities between the Judicial Service Commission and the Magistrates Commission, there are also differences. Magistrates are represented on the Magistrates Commission whereas they have no representation on the Judicial Service Commission. There can be no objection to this. Magistrates are judicial officers and are required to be independent and impartial in the discharge of their duties. This is a quality that they share with the judges that are members of the Judicial Service Commission, and a quality that they must bring to their functions as members of the Magistrates Commission. They are closer to the day to day functioning of magistrates’ courts than judges are, and are probably better placed than judges to know the stresses and demands that candidates will face if appointed as magistrates. The head of Justice College sits on the Magistrates Commission but not on the Judicial Service Commission. This, too, is not open to objection. Justice College has an important role in the judicial education and training of magistrates and the head of Justice College is well placed to assess issues that might arise in relation to the enquiry demanded by the Constitution that judicial officers be “appropriately qualified”.

[64] There are four members of the National Assembly on the Magistrates Commission and not six, and five executive appointments and not four, as is the case with the Judicial Service Commission. These differences are of no significance. As mentioned previously, judicial officers and the legal profession have greater representation on the Magistrates Commission than they do on the Judicial Service Commission. They are, however, selected by a different procedure.

[65] What is emphasised in the judgment of the High Court is that eight of the persons coming from the legal profession and the magistracy are appointed by the executive after consultation with interested bodies from whose ranks the appointments are to be made. In addition, the Minister is a member of the Commission, the executive appoints five persons, the governing party in Parliament appoints two persons and the head of Justice College (an executive appointment) is also a member of the Commission. Thus the governing party controls the appointment of seventeen of the twenty seven members of the Commission. It also has an important say in the appointment of the judge who is to chair the Commission, and the four members to be appointed by the National Council of Provinces. It is only in the case of the three representatives of the various magistrates and the two members from opposition parties, that it has no say at all.

[66] The judgment of the High Court referring to this describes the Magistrates Commission as no longer being “the autonomous body it was intended to be”. The Constitutional Principles did not, however, require a Magistrates Commission,⁶² let alone an autonomous one. An objection that the Constitution was inconsistent with the Constitutional Principles because it failed to make provision for a Magistrates Commission, as the interim Constitution had done, was rejected by this Court in the First Certification Judgment. The Court held that as far as magistrates’ courts were concerned, the guarantee of independence accorded to all courts by section 165 of the Constitution and the provisions of section 174(7) dealing specifically with magistrates, was sufficient guarantee of independence. The Court also held that the legislation governing the appointment of magistrates and functioning of magistrates’ courts would be subject to constitutional control.⁶³ I will deal later with the question whether the relevant legislation meets the requirements of section 174(7) of the Constitution.

[67] The High Court judgment refers to the fact that it is no longer necessary for the President or the Minister to consult with the organised professions, or any other clearly defined professional organisations or peer groups.

“How or with whom the President and the Minister now consult is a mystery. It is now possible for the President and the Minister to decide who they will consult. The persons consulted may or may not be representatives of the designating authority”.⁶⁴

[68] The “organised professions” or “clearly identified professional organisations” are not however given a privileged position in appointments to the Judicial Service Commission. Sections 178(1)(e) and (g) of the Constitution refer to nominations from within the “advocates’ profession” and the “attorneys’ profession” and to the designation by “teachers of law”. Section 178(2) provides that when there are more than two nominations from within each of the “professions”, the President “after consulting the relevant profession” has the power to determine which of the nominees should be appointed.

[69] The language of the Magistrates Act is similar to this. It requires that the Minister consult the advocates’ profession and the attorneys’ profession on such matters. How that consultation is to be undertaken is not prescribed; but it is also not prescribed by the Constitution in the case of appointments to the Judicial Service Commission. Although the Minister determines how the consultation is to take place, the question whether there has been adequate consultation is subject to constitutional control. If he chooses a method which is not appropriate for ascertaining the views of the two professions, his decision would be invalid. The same applies to the appointments to be made by the President from the ranks of regional magistrates and chief magistrates.

Conclusion on the Magistrates Commission

[70] Section 4 of the Magistrates Act deals with the objects of the Commission. The first two objects specified are:

“(a) to ensure that the appointment, promotion, transfer or discharge of, or disciplinary steps against, judicial officers in the lower courts take place without favour or prejudice, and that the applicable laws and administrative directions in connection with such action are applied uniformly and correctly;

(b) to ensure that no influencing or victimization of judicial officers in the lower courts takes place”.

[71] The fact that the executive has a strong influence in the appointment of the members of the Magistrates Commission does not mean that magistrates’ courts lack institutional independence. Nor does it follow from this that the Commission “is unlikely to take any decisions, express any views or make recommendations which do not find favour with the Minister”.⁶⁵

[72] The chairman of the Commission is a judge. The two regional magistrates and the two chief magistrates are senior judicial officers. All the magistrates are required to exercise impartiality and independence in the discharge of their duties, and take an oath of office requiring them to do so. The practising advocates and practising attorneys are officers of the court. The other members of the Commission are also responsible members of the community, including members of opposition political parties. There is no reason to believe that the members of the Commission will not discharge these and their other duties with integrity, or that viewed objectively there is any reason to fear that they will not do so.

[73] The changes to the composition of the Commission did have the effect of giving the legislature and executive a greater say in the composition of the Commission. This in itself is not constitutionally objectionable, as discussed above. To hold that the influence of the legislature and the executive in the Magistrates Commission and magistracy undermines the institutional independence and impartiality of courts ignores the constitutional norm set by the Judicial Service Commission. It also overlooks the powerful constitutional and judicial safeguards that are in place and which prevent the executive and legislature from taking “control” of the magistracy.

[74] It follows that I am unable to agree with the findings made in the judgment of the High Court concerning the Magistrates Commission. That, however, does not dispose of the matter. Various provisions of the Magistrates Act, the Magistrates’ Courts Act and the regulations made by the Minister under those Acts were found by the High Court to be inconsistent with the Constitution. It is necessary now to consider each of the provisions found to be invalid and to decide whether or not it is inconsistent with the Constitution.

Judicial independe

	Links to media summary

South Africa: Constitutional Court

S and Others v Van Rooyen and Others (CCT21/01) [2002] ZACC 8; 2002 (5) SA 246; 2002 (8) BCLR 810 (11 June 2002)