IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA

Case Number: 49476/15
1/8/2017
REPORTABLE
NOT OF INTEREST TO OTHER JUDGES

In the matter between:

J F VAN SCHALKWYK	1St APPLICANT
A L LARSEN	2Nd APPLICANT
A SESIAH	3Rd APPLICANT
N JOEMATH	4Th APPLICANT

and

THE MINISTER OF JUSTICE AND CONSTITUTIONAL	1st RESPONDENT
DEVELOPMENT

THE INFORMATION OFFICER, DEPARTMENT OF	2Nd RESPONDENT
JUSTICE

THE SECRETARY OF THE MAGISTRATES	3Rd RESPONDENT
COMMISSION

Coram: HUGHES J

JUDGMENT

HUGHES J

[1] J F Van Schalkwyk, A L Larsen,A Sesiah and N Joemath, the applicants in this matter are magistrates appointed in terms of section 10 of the Magistrate's Act 90 of 1993 (the Magistrate's Act) read with section 9 of the Magistrate's Court Act 32 of 1944 and Judicial Matters Amendment Act 58 of 1995.

[2] The Minister of Justice and Constitutional Development (the Minister), the Department of Justice and the Magistrates Commission are the respondents. In this judgment they are collectively referred to as the respondents.

[3] The order sought by the applicants succinctly is as follows:
(a)	a declaratory that the first respondent, the Minister did not comply with the mandatory and material procedure out in section 16(1) of the Magistrate's Act when promulgating the Regulations for judicial officers in Lower Courts and the Code of Conduct for magistrates in terms of the Magistrate's Act; and
(b)	an order seeking to review and set aside the Regulations and Code of Conduct as invalid for lack of compliance with the peremptory provisions of section 16(1) of the Magistrate's Act.

[4] A brief background is relevant. In May 2013 the applicants were advised that disciplinary proceedings were to be held against them for misconduct in relation to their conduct in terms of the Magistrate's Act and the charges were served on all four of them. However, proceedings have not commenced in respect of all the applicants but for the fourth applicant. Disciplinary proceedings were held in respect of the fourth applicant and he was acquitted of all the charges on 9 April2015.

[5] It is common cause that the charges that the applicants face are dependent on the validity of the Code of Conduct of magistrate's and the Regulations of judicial officers in terms of the Magistrate's Act.

[6] In a response to an application for information brought by the applicants, during the course of the proceedings of the current application, the state attorney representing the respondents on 2 September 2015 provided the applicants with documentation and information as requested. These documents and information dealt with the recommendations made by the Magistrates Commission to the Minister in terms of the Regulations for judicial officers and that of the Code of Conduct for magistrates.

[7] According to the applicants the aforesaid documentation and information provided by the respondents does not contain the recommendations from the Magistrate's Commission to the Minister as is required by section 16(1) of the Magistrate's Act.

[8] At the commencement of this application the applicants submitted that they would be abandoning their point raised in terms of Promotion of Administrative Justice Act 3 of 2000 (PAJA) and would be seeking the relief sought based on the common law instead. In these circumstances, I will not venture to deal with the issue raised in terms of PAJA.

[9] The parties agree that this ease turns on two issues as is set out in the heads of argument of the respondents:

"6.1 The lawfulness or otherwise of the impugned decision. Stated differently, whether the Commission made the recommendation contemplated in section 16(1) of the Act;
6.2 In the event that this Honourable Court finds that the impugned decision was unlawful, the just and equitable remedy."

[10] A starting point would be the relevant provision in question section 16(1) which I set out below for easy reference:

"16 Regulations
(1) The Minister may, after the Commission has made a recommendation, make regulations regarding the following matters In relation to judicial officers in the lower courts:
(a) (i)	The requirements for appointment and the appointment, promotion, transfer, discharge and disciplinary steps;
(ii) the recognition of appropriate qualifications and experience for the purposes of the determination of salary;
(iii) the procedure and manner of and criteria for evaluation and the conditions or requirements for the purposes of promotion;
(iv) transfer and resettlement costs;
(b) the duties, powers, conduct, dlscipline, hours of attendance, leave of absence, Including leave gratuity, and pension, Including contributions to a pension fund, and any other condition of service, including the occupation of official quarters;
(c) the creation of posts on the fixed establishment, and the number, grading, regrading, designation, or conversion of posts on the fixed establishment of any magistrate's office;
(d) the training of judicial officers In the various lower courts, including financial assistance for  such training;
(e) a code of conduct to be complied with by judicial officers;
(f) the provision of official transport;
(g) the conditions on which and the circumstances under which remuneration for overtime duty, and travel, subsistence, climatic, local and other allowances, may be paid;
(h) the circumstances under which a medical examination shall be required for the purposes of any provision of this Act or any other law, and the form of medical reports and certificates;
(i) the legal liability of any judicial officer in respect of any act done in terms of this Act or any other law and the legal liability emanating from the use of official transport;
(j) the circumstances under which and the conditions and manner in which a judicial officer may be found guilty of misconduct, or to be suffering from continued ill-health, or of incapacity to carry out his or her duties of office efficiently;
[Para. (J) amended by s. 8 (g) of Act 35 of 1996 (wef 1 October 1998).]
(k) the procedure for dealing with complaints and grievances of judicial officers, and the manner in which and time when or period wherein and person to whom documents in connection with requests and communications of such judicial officers shall be submitted;
(kA) the procedure to be followed by a committee referred to in section 66 and, in general, any matter, which is not in conflict with this Act, which Is reasonably necessary for the functioning of the committee;
[Para. (kA) Inserted by W of Act 35 of 1996 (wef 1October 1998).)
(l) the recognition of any professional society;
(m) the membership or conditions of membership of a particular medical aid scheme or medical aid society and the manner In arid the conditions on which membership fees and other moneys which are payable or owing by or In respect of judicial officers or their dependants, to a medical aid scheme or medical aid society, may be recovered from the salaries of such judicial officers and paid to such medical aid scheme or medical aid society;
(n) the contributions to and the rights, privileges and obligations of judicial officers or their dependants with regard to such a medical aid scheme or medical aid society;
(nA)  the requirements for, and the registration of, not more than one person and the deregistration of that person as a partner of a magistrate, as envisaged in section 15A, with the Director-General: Justice and Constitutional Development;
[Para.(nA) inserted by s......§ of Act 21,l Qf 2003 (wef 1November 2003).]
(o) In general, any matter, which is not in conflict with this Act, which is reasonably necessary for the regulation or the conditions of service of judicial officers or any matter In connection with the rights, powers, functions and duties of a judicial officer."

[11] The applicants argue that the point of departure in addressing compliance with section 16(1) is that the Regulations and Code of Conduct can only come into existence after the Magistrate's Commission made recommendations, of course on the Regulations and Code of Conduct. to the Minister. As stated above the applicants further argue that from the documents and information provided by the respondents no recommendations were provided and no correspondence between the Magistrate's Commission and the Minister signifies that recommendations were either requested or made. Yet a further argument advanced by the applicants is that though the respondents provided minutes of the meetings held by the Magistrate's Commission on an examination of these minutes, there is no suggestion therein that recommendations were  made in writing or orally to the Minister nor is there an indication that the Minister requested such recommendations.

[12] The respondents on the other hand contend that the Magistrate's Commission did make recommendations to the Minister to promulgate the regulations which is evident in the minutes of 3 December 1993 and other documentation provided. The respondents argue that the case made out by the applicants is merely initiated to derail their forthcoming disciplinary proceedings and is not to declare the impugned decision as invalid, unlawful or unconstitutional as they allege.

Do the minutes of 3 December 1993 delineate that a recommendation was made to the Minister?

[13] In order to illustrate the respondent's compliance with section 16(1) the respondents make reference to the minutes of 3 December 1993. They contend that there was in fact a recommendation to the Minister from the Magistrates Commission. To this end they refer to the agenda of such minutes, specifically items 5 and 6 which state:
"5. Oorweging en goedkeun'ng van die voorge/egde konsepregulasies.
6. Algemene voorlopige bespreking van voorstelle ten opsigte van h Gedragskode."

[14] At the meeting itself on 3 December 1993 points 6 and 7 of the minutes of such meeting reflect the following:

"6. Oorweging en goedkeuring van die voorgelegde konsepregulasies."

‘n Breedvoerige bespreking word gevoer oor die voorgelegde konsepregulasies. Ta/le wysigings word aangebring. Die regulasies saal na die vertalers teruggaan vir die vertaling met al die aanpassings en dan na die Minister vir goedkeuring en afkondjging. [My emphasis]

7. Algemene, yoortoeige bespreking van voorstelle ten opsigte van 'n Gedragskode.
n Kort bespreking word gevoer waar besin word of die voorgestelde gedragskode slegs algemene riglyne moet daarstel en of dit riglyne in detail moet wees.
Die volgende besluite word geneem:
BESLUIT: Die saak van die voorgestelde gedragskode word na die Landdrostevereniging verwys, om kommentaar of daar ‘n gedragskode moet wees, en indien wel, moet n konsep voorgelll word.”

[15] The respondents argue that the Minister having acted on the recommendations from the Magistrates Commission duly promulgated the Regulations on 11 March 1994. This is evident, they say, as at the second meeting of the Magistrates Commission on 18 March 1994 the commission resolved to amend certain of the Regulations and considered the issues of the Code of Conduct.

[16] The respondents pointed out that Judge Van Dijkhorst (as he then was) transmitted a memorandum of 11 February 1994 as the Chairperson of the Commission to the Chief Legal Advisor in response to the legal opinion of the state legal advisors. The memorandum states as follows as regards the issue of the Regulations:

"Regulasles lngevolge die wet op L.anddroste, 1993
1. Konsepregulasie ingevolge article 16 van die wet op Landdroste, 1993 (Wet 90 van 1993) (die Wet), is reeds gedurende Augustus/ September 1993 aan u vir versorging voorgelf:. U het ons reeds van kommentaar voorsein,
(Wet; 1.10.93)
5. Die Landdrostekommissie het versoek die regulasies met ingang van 1Maart 1994 uitgevaerdig word. Gevolglik moet die regulasies op n uiters dringende basis gefinaliseer word.”

[My emphasis]

[17] Further to the aforesaid, the respondents state that the Director General of the Department of Justice transmitted a letter dated on 16 March 1994 to the Chairperson of the Commission Judge Van Dijkhorst. From the aforesaid it can be gleaned that it was common cause between the parties that the Regulations had been promulgated by the Minister in terms of section 16.

[18] As regards the Code of Conduct4 on 23 May 1994 a meeting was held where the Chairperson of the Magistrates Commission presented a draft code of conduct for consideration. At the said meeting the respondents state that the following was resolved as regards the Code of Conduct:
"16. Gedragskode
Die Landdrostekommissie BESLUIT dat n gedragskode nodig is. Die konsep opgestel deur die Voorsitter, soos gewysig, sal gesirkuleer word aan die Landdrosvereniging, alle Hooflanddroste en a/le Streekhof president on kommentaar."

[19] The respondents were at pains to point out that the applicants do not take issue with the correctness of how the recommendations were formulated but rather whether the recommendations were in fact made. In any event they state that the provision only requires that recommendation be made and does not prescribe the form of the recommendation.

[20] The respondents contend that It is conceivable from the above and other documentation that the Minister promulgated the Regulation after the recommendations by the Magistrates Commission. They further contend that the Constitutionality thereof has been considered by the Constitutional Court and the said Regulations in general had passed muster, and those that did not, amendments were ordered to bring them in line with the Constitution.

[21] The applicants argue that the prerequisite provided for in section 16 is not a procedural issue but rather a jurisdictional issue. Thus, for the Minister to exercise his discretion contained in section 16, he would have to first comply with the jurisdictional prescripts of section 16, that being that the recommendation would first have to be made by the Magistrates Commission before he exercised his discretion provided in the aforesaid provision.

[22] The crux of the applicant's argument is that there is no evidence of any written and/or oral recommendations, there is no suggestion from the correspondence and/or documents that recommendations were in fact made by the Magistrates Commission. Further, that said recommendations were received by the Minister. There is no minutes illustrating that the Magistrates Commission prepared and presented recommendations to the Minister.

[23] Of critical importance, according to the applicants, there is the crucial memorandum from the Chairperson of the Commission dated 11 February 1994. This memorandum sent to the Minister a few weeks before the promulgation in March 1994 is indicative that the view held was that the Regulations were not necessary, that there was no obligation on the Minister to promulgate the regulations, there were also submissions to the effect that the Department of Justice and the Magistrates Commission were far apart as to what the content of the Regulations ought to have been. To this end the respondents have not even put up an affidavit confirming which official was involved in suggesting, discussing and handing over such recommendations to the Minister.

[24] The applicants further argue that the prerequisite set out in the said provision was not complied with at all, at the least even on a substantive level. The applicants state that there is no evidence whatsoever to indicate that the Minister had even received or considered recommendations from the Magistrates Commission.

[25] In addressing the question posed after the consideration of the argument advanced by both applicants and respondents, Itake cognisance of the fact that the Magistrates Commission proposed as is evident in the minutes of 3 December 1993 that;

"Die regulasies sal na die vertalers teruggaan vir die vertaling met al die aanpassings en dan na die Minister vir goedkeuring en afkondiging" [My emphasis]

[26] In the circumstances, the Magistrates Commission acknowledged that the Regulations would have to go via the Minister for approval, adoption and promulgation ("goedkeuring en afkondiging''). I agree with the respondents that no set procedure exists as to how the Magistrates Commission ought to have the recommendations made and provided to the Minister. In my view, as at 3 December 1993, the recommendations existed and were to be transmitted to the Minister consideration. The process followed at that time was that which was opted by the parties concerned and as such I cannot dictate the process that ought to have been followed. See Premier, Province Mpumalanga and Another v Executive Committee of the Association of Government Bodies of State Aided Schools, Eastern Transvaal 1999 (2) SA 91 (CC) para [41] where O'Regan J held:
"[41] In determining what constitutes procedural fairness in a given case, a court should be slow to impose obligations upon government which will inhibit its ability to make and Implement policy effectively (a principle well recognised In our common law and that of other countries). As a young democracy facing immense challenges of transformation, we cannot deny the importance of the need to ensure the ability of the executive to act efficiently and promptly. On the other hand, to permit the implementation of retroactive decisions without, for example, affording parties an effective opportunity to make representations would flout another Important principle, that of procedural fairness. This Is a principle, which the second applicant himself recognised as important in his speech on 5 August 1995 (See para 19 above). Indeed, it may be that in many cases a retroactive termination of benefits will not be fair no matter what process Is followed unless there is an overriding public Interest, as the European Court of Justice has held on several occasions.l.!11In the light of the conclusions I reach, It is not necessary to explore that issue further in this case. Citizens re entitled to expect that government policy will ordinarily not be altered in ways which would threaten or harm their rights or legitimate expectations without their being given reasonable notice of the proposed change or an opportunity to make representations to the decision-maker. In this regard, there are similarities between the facts of this case and those in the recent decision of the English Court of Appeal, R v Devon County Council ex parte Baker and another; and R v Durham County Councill ex parte Curtis and another [1995] 1 All ER 73 (CA) in which the court was faced with the closure of state-run residential homes for old people. t was held that there was a duty on the county councils concerned to consult the permanent residents In the homes before the decision to close the homes was taken. In one of the cases heard on appeal, the court held that the failure to consult prior to the taking of the decision rendered the decision susceptible to judicial review."

[27] Another document pointed out is that of the Chairperson of the Commission who stated in his memorandum to the Chief Legal Advisor that the Magistrates Commission was given an opportunity to commentate and the Regulations were given to the Department of Justice during August/September 1993 for approval, adoption and promulgation. These facts coupled with the fact that proposed amendments of the Regulations were also considered by the Magistrates Commission during their second meeting held on 18 March 1994 are to me also pointers that the conclusion can be reached that the recommendation was made.

[28] On my examination of the facts above cumulatively I cannot but conclude otherwise that indeed the Magistrates Commission provided the Minister with the necessary recommendation prior to the promulgation of the Regulations with the Code of Conduct proposed on 23 May 1994 and duly promulgated on 27 October 1994 which is contained in Schedule E of the Regulations.

[29] I am mindful of the guidance enunciated by O'Regan J supra, if the parties opted to act in the manner that they did in order to deal with the required recommendation, I must be weary not to be stringent and dictate to the parties how the provision of the recommendation should have been done at that time.

[30] In the circumstances set out above I can but only conclude that the Regulations and the Code of Conduct were promulgated in terms of section 16 (1) and as such passed muster, as was also confirmed by the Constitutional Court, having been promulgated in terms of the jurisdictional prescripts of section 16 and the prerequisite therein. I find that the applicants have failed to show that the promulgation of the Regulations and the Code of Conduct as far back as 1994 was unlawful.

[31] From the determination made supra it is evident, in my view, that the decision taken by the Minister was lawfully made and thus I need not address the just and equitable remedy debate. Neither is there reason to deal with the issue of whether or not section 172 (1) of the Constitution is applicable in these circumstances.

[32] Consequently I make the following order:

[32.1] The application of the applicants, J F Van Schalkwyk,A L Larsen, A Sesiah and N Joemath, are dismissed with costs.

_____________________
W. Hughes
Judge of the High Court Gauteng Pretoria

Appearances :

For the Applicant: J G Cilliers SC
Instructed by: Rudman Attorneys

For the Defendant: N Manama
lnstructed by: State Attorney

Date heard: 15 March 2017
Date delivered: 01 August 2017