Freedom Under Law v Motata (33227/2020) [2021] ZAGPPHC 14 (28 January 2021)

Freedom Under Law v Motata (33227/2020) [2021] ZAGPPHC 14 (28 January 2021)

Section 47(1) of the Superior Courts Act applies to both active and retired judges, as the statute does not distinguish between them and retired judges may continue to perform judicial functions. The purpose of the section is to protect judicial independence and insulate judges from meritless litigation. Review proceedings, even when instituted against the Judicial Service Commission and not directly against a judge, are civil proceedings for which consent is required to cite a judge as a party. The applicant has shown good cause for consent, as the review proceedings raise justiciable issues regarding the lawfulness and appropriateness of the JSC's decision concerning the respondent. The...

Citation
[2021] ZAGPPHC 14
Parties
Applicant: Freedom Under Law (RF) NPC; Respondent: Judge Nkola John Motata
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
28 January 2021
Case Number
33227/2020
Procedural Posture
Declaratory Application / Judgment
Outcome
Application granted. Leave is given to the applicant to cite the respondent in the review proceedings. No order as to costs.
Judges
D Mlambo
Legal Topics
Superior Courts Act Section 47, Leave to Sue Judge, Judicial Independence, Review of Jsc Decision
Civil Procedure Constitutional Law Superior Courts Act Section 47 Leave to Sue Judge Judicial Independence Review of Jsc Decision

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Parties

Freedom Under Law (RF) NPC

Applicant

Judge Nkola John Motata

Respondent

Procedural Posture

Declaratory Application / Judgment

Legal Issues

  1. 1 Does section 47(1) of the Superior Courts Act 10 of 2013 require consent to institute civil proceedings against retired judges?
  2. 2 Does section 47(1) apply to review proceedings instituted against the Judicial Service Commission where a judge is cited as an interested party?
  3. 3 Has the applicant shown good cause for consent to cite the respondent in the review proceedings?

Ratio Decidendi

Section 47(1) of the Superior Courts Act applies to both active and retired judges, as the statute does not distinguish between them and retired judges may continue to perform judicial functions. The purpose of the section is to protect judicial independence and insulate judges from meritless litigation. Review proceedings, even when instituted against the Judicial Service Commission and not directly against a judge, are civil proceedings for which consent is required to cite a judge as a party. The applicant has shown good cause for consent, as the review proceedings raise justiciable issues regarding the lawfulness and appropriateness of the JSC's decision concerning the respondent. The...

Court Disposition

Application granted. Leave is given to the applicant to cite the respondent in the review proceedings. No order as to costs.

Orders

  • The applicant is granted leave in terms of section 47(1) of the Superior Courts Act 10 of 2013 to issue legal process against the respondent relating to the main application under case no. 17374/2020.
  • The institution of the review proceedings before the grant of consent in terms of section 47(1) does not vitiate those proceedings.