CONSTITUTIONAL COURT OF SOUTH AFRICA

	[2011] ZACC 29 
Case CCT 41/11
In the matter between:

JUDGE PRESIDENT MANDLAKAYISE JOHN HLOPHE	Applicant

and

PREMIER OF THE WESTERN CAPE PROVINCE	Respondent

and

	Case CCT 46/11
In the matter between:

JUDGE PRESIDENT MANDLAKAYISE JOHN HLOPHE	Applicant

and

FREEDOM UNDER LAW	First Respondent

ACTING CHAIRPERSON:
JUDICIAL SERVICE COMMISSION	Second Respondent

JUDICIAL SERVICE COMMISSION	Third Respondent

CHIEF JUSTICE PIUS NKONZO LANGA	Fourth Respondent

DEPUTY CHIEF JUSTICE DIKGANG MOSENEKE	Fifth Respondent

JUSTICE JENNIFER YVONNE MOKGORO	Sixth Respondent

JUSTICE CATHERINE MARY ELIZABETH O’REGAN	Seventh Respondent

JUSTICE ALBERT LOUIS SACHS	Eighth Respondent

JUSTICE SIRRAL SANDILE NGCOBO	Ninth Respondent

JUSTICE THEMBILE LEWIS SKWEYIYA	Tenth Respondent

JUSTICE JOHANN VAN DER WESTHUIZEN	Eleventh Respondent

JUSTICE ZAKARIA MOHAMMED YACOOB	Twelfth Respondent

JUSTICE BAAITSE ELIZABETH NKABINDE	Thirteenth Respondent

JUSTICE CHRISTOPHER NYAOLE JAFTA	Fourteenth Respondent

JUSTICE FRANKLIN KROON	Fifteenth Respondent

and

CENTRE FOR APPLIED LEGAL STUDIES	First Amicus Curiae

GENERAL COUNCIL OF THE BAR	Second Amicus Curiae

LAW SOCIETY OF SOUTH AFRICA	Third Amicus Curiae

ADVOCATES FOR TRANSFORMATION	Fourth Amicus Curiae

BLACK LAWYERS’ ASSOCIATION	Fifth Amicus Curiae

NATIONAL ASSOCIATION OF DEMOCRATIC	
LAWYERS	Sixth Amicus Curiae

Date: 29 September 2011

REASONS FOR POSTPONEMENT

THE COURT:

[1]	These two cases were set down for oral argument on 22 September 2011 on particular issues in terms of directions issued on 8 August 2011.  The set down followed earlier directions issued on 30 May 2011 for case CCT 41/11 and 6 June 2011 for case CCT 46/11, calling for written argument only on these issues.  On 12 September 2011 further directions were issued, removing the cases from the roll of 22 September 2011 and setting them down for hearing on 29 November 2011.  These directions read: 

“In the light of the fact that three present judges of this Court find themselves unable to participate in the determination of the issues set down for hearing on Thursday 22 September 2011, the Chief Justice has issued the following further directions:
1.	These matters are removed from the roll for hearing on Thursday 22 September 2011.
2.	These matters are set down for hearing at 10h00 on 29 November 2011.”

[2]	Reasons for the postponement would in the normal course have been given in the judgment after hearing oral argument, but it has become necessary to do so now, for the reasons that follow.

[3]	On 20 September 2011 the attorneys acting for the Premier of the Western Cape Province, the respondent in case CCT 41/11, wrote a letter to this Court asking: (a) who the three judges were who found themselves unable to participate in the determination of the issues set down for oral argument on 22 September 2011; (b) the reasons why they found themselves unable to participate; and (c) the basis on which 29 November 2011 was allocated for the hearing.  Concern was expressed that this Court would not be quorate on 29 November 2011. 

[4]	In view of the exceptional circumstances we accede to this request at this stage and give reasons now. 

[5]	Two Justices, Jafta J and Nkabinde J, recused themselves from consideration of the cases right from the outset.  They were not party to the decision to issue the directions dated 30 May 2011 in case CCT 41/11 and 6 June 2011 in case CCT 46/11, calling for written argument, nor to the directions issued on 8 August 2011, setting the cases down for oral argument on 22 September 2011.

[6]	The initial directions dated 30 May 2011 for case CCT 41/11 and 6 June 2011 for case CCT 46/11, calling for written argument, were issued by the Chief Justice.  The term of office of Ngcobo CJ came to an end on 14 August 2011.  He nevertheless did not participate in the decision to issue directions on 8 August 2011, setting the cases down for oral argument on 22 September 2011.  The Deputy Chief Justice, Moseneke DCJ, was a party to that decision.

[7]	After reconsideration the Deputy Chief Justice came to the conclusion, on 12 September 2011, that he too needed to recuse himself from further participation.  It was this decision that necessitated the postponement of the cases from that date.  Until then, there was always a quorum of judges to hear the cases.  His recusal reduced the number of judges available to hear oral argument in these cases during this term to seven, one less than the quorum of eight required by the Constitution.  The cases could thus not be heard on 22 September 2011 by a quorate Court.

[8]	The three judges who recused themselves from the cases were complainants in the matter against the applicant.  Unlike any of the other complainants, they were called as witnesses and testified before the Judicial Service Commission.  Retired judges, Chief Justice Langa and Justice Mokgoro also testified.  The three judges consider that, depending on the outcome of the applications for leave to appeal, they may be required to testify again.  It is for that reason that they considered it necessary to recuse themselves from further participation.

[9]	The retirement of the former Chief Justice necessitates the appointment of an acting judge of the Court until a permanent appointment is made to fill the current vacancy in the Court.  An acting appointment for the normal business of the Court for the fourth term is expected soon.  This appointment will have the incidental result that the Court will have a quorum also to hear these cases in the fourth term.

[10]	The reason for the decision to postpone the cases to 29 November 2011 was thus that the Court would have lacked a quorum on 22 September 2011.

[11]	The Court regrets the inconvenience to the parties.

[12]	The two Justices, Jafta J and Nkabinde J, although not party to the decision to postpone, have consented to the reasons for their earlier recusal being recorded here.

Mogoeng CJ, Moseneke DCJ, Cameron J, Froneman J, Khampepe J, Skweyiya J, Van der Westhuizen J and Yacoob J.