Reportable
IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)
			
Case No: 25467/2009
Date: 31 March 2010
In the matter between:

and
THE ACTING CHAIRPERSON: JUDICIAL SERVICE

Summary The of the Republic of South Africa, 1996 - Judicial Services Commission -composition of the JSC - interpretation of section 178(1)(k) of the Constitution - the premier of a province is entitled to sit as a member of the JSC when it considers a matter relating to the composition of a court of the province - this includes a sitting of the JSC to consider an allegation of gross misconduct which might lead to proceedings for the impeachment of a judge of the court in question - also considered was the required numerical composition of the JSC where members were absent, and the majority necessary for a valid decision.

Coram: JONES and EBRAHIM JJ
Dates of hearing: 11 and 12 March 2010
JUDGMENT

1'Condoning the non-compliance with the time periods laid down in the rules of Court and declaring this matter to be one of urgency;
2. Declaring that Premiers of the provinces of the Republic of South Africa contemplated in section 103(1) of the Constitution of the Republic of South Africa, 1996 ('the Constitution'), or an alternate designated by them, must be given a reasonable opportunity to participate as members in all meetings of the Judicial Service Commission ('the JSC') when it considers matters relating to a specific High Court in the Premiers' respective province, failing which such meetings are inconsistent with the Constitution and invalid for want of compliance with section 178(1)(k) of the Constitution;
3. Declaring that the proceedings and decisions taken pursuant thereto of the JSC conducted on 20 to 22 July 2009 and 15 August 2009 ('the proceedings') in relation to the complaint lodged by the Third to Fourteenth Respondents and the Sixteenth Respondent against the Fifteenth Respondent and the counter-complaint lodged by the Fifteenth Respondent were unconstitutional and invalid'.

(a) the Judicial Service Commission finds that the judge suffers from an incapacity, is grossly incompetent or is guilty of gross misconduct; and
(b) the National Assembly calls for that judge to be removed, by a resolution adopted with a supporting vote of at least two thirds of its members'. If the JSC finds that a judge is guilty of gross misconduct, and if a resolution of the National Assembly for the judge's impeachment is adopted with the requisite majority, the President is obliged by section 177(2) to remove him or her from office.

[4] The issue of whether the misconduct has been established is not before us in this application. The applicant seeks to impugn the decision of the JSC by reason of its constitutional invalidity on a procedural basis and not on the merits. She has three grounds for doing so. She alleges
1. that when the JSC took its decision it was not properly constituted for want of compliance with the provisions of section 178(1)(k) which provides for the applicant to be a member of the JSC when considering matters relating to the High Court of her province. It is common cause that she was not part of the JSC when it took its decision. The bulk of the argument before us was devoted to the interpretation of section 178(1)(k);
2. in the alternative and in any event, that the JSC was not properly constituted when it took the decision because only ten of its members participated in the decision-making process when there should have been at least thirteen members (on the JSC's interpretation of section 178(1)) to consider complaints against judges; and
3. as a further alternative, that the decision of the JSC was not supported by a majority of the JSC's members as required by section 178(6) of the Constitution.
[5] Before dealing with each of these grounds one by one, I should mention that counsel for the applicant enjoined us, in the interests of justice and to avoid a piecemeal hearing possibly involving different tiers of courts, to deal with all the issues raised in the arguments. That is a salutary approach in a matter such as this. It is not necessary, however, for us to deal with issues which are raised in the papers but abandoned or not pursued in argument.

[6] There is no longer opposition to allowing the matter to proceed as a matter of urgency. For the rest, I shall try to deal with all issues arising in the papers.
[7] It is convenient, by way of introduction, to give a brief description of the JSC. It is created by section 178 of the Constitution of the Republic of South Africa, 1996. Section 178(5) empowers it to advise the national government on any matter relating to the judiciary and the administration of justice. Section 174 and section 177, read with section 178, lay down its duties and functions in the appointment and removal of judges. Its independence from the legislative and executive organs of state is conceded by the parties and is of fundamental constitutional importance. This does not, however, mean that members of the legislative and executive organs of government are excluded from membership of the JSC. Its composition is laid down by section 178. It comprises the Chief Justice, the President of the Supreme Court of Appeal, a judge president designated by the judges president, the cabinet minister responsible for the administration of justice, two practising advocates, two practising attorneys, one teacher of law, and four persons designated by the head of the national executive (the President) after consultation with the leaders of all parties in the National Assembly. These members, thirteen in all, may be described as the core members. There are two additional categories of member. First, there are six members designated by the National Assembly (of which three must be members of opposition parties) and four members designated by the National Council of Provinces (who must have the support of at least six provinces). In terms of section 178(5), the JSC must sit without them when it considers all matters except the appointment of a judge. Second, when the JSC considers matters relating to a specific High Court, the Judge President of that court and the Premier of the province concerned are also members of the JSC (section 178(1)(k)). Provision is made for the appointment of alternate members and for the replacement of members.

The interpretation of section 178(1)(k)

[8] The applicant's contention is that because she, as Premier of the Western Cape Province, was not part of the JSC when it met to consider the complaint of judicial misconduct against the Judge President of the Western Cape High Court, the proceedings were a nullity. The correctness of this contention will depend on the meaning of section 178(1) of the Constitution, which says:
178     Judicial Service Commission
(1) There is a Judicial Service Commission consisting of-

            (c) 	one Judge President designated by the Judges President;
(d) 	the Cabinet member responsible for the administration of justice, or an alternate designated by that Cabinet member;
(e) 	two practising advocates nominated from within the advocates' profession to represent the profession as a whole, and appointed by 	the President;
(f)	two practising attorneys nominated from within the attorneys' profession to represent the profession as a whole, and appointed by 	the President;
(g)	one teacher of law designated by teachers of law at South African 	universities;

(j) four persons designated by the President as head of the national executive, after consulting the leaders of all the parties in the National Assembly; and
(k) when considering matters relating to a specific High Court, the Judge President of that Court and the Premier of the province concerned, or an alternate designated by each of them.

required her participation in the JSC proceedings of 20 to 22 July 2009 and 15 August 2009

respondent contend that, properly interpreted, the subsection has no application to a matter
involving the alleged misconduct of a judge, and that her exclusion was accordingly not an
irregularity.
[9] The intention of the legislature in determining the composition of the JSC when considering matters relating to a specific High Court must be seen in the light of section 178(1) as a whole. When considering matters relating to a specific High Court, the section enacts that the JSC shall consist of all the members referred to subsection 178(1)(a) to (g)

(2) SA 642 (CC) para 17.

Whether, in any event, the JSC was improperly constituted

The absence of a majority

The applicant's entitlement to relief

Order

[23]    There will be the following order.
1. The proceedings before of the Judicial Services Commission on 20 to 22 July 2009 and 15 August 2009, and the decision to dismiss the complaint and counter-complaint which were the subject of those proceedings, are declared to be unconstitutional and invalid and are set aside.

RJW JONES
Judge of the High Court
 31 March 2010

EBRAHIM J	agree

S EBRAHIM
Judge of the High Court