Nkabinde and Another v Judicial Service Commission President of the Judicial Conduct Tribunal and Others (13/39093) [2014] ZAGPJHC 217; 2015 (1) SA 279 (GJ); [2014] 4 All SA 637 (GJ); 2014 (12) BCLR 1477 (GJ) (26 September 2014)

Nkabinde and Another v Judicial Service Commission President of the Judicial Conduct Tribunal and Others (13/39093) [2014] ZAGPJHC 217; 2015 (1) SA 279 (GJ); [2014] 4 All SA 637 (GJ); 2014 (12) BCLR 1477 (GJ) (26 September 2014)

The court held that the Judicial Service Commission's decisions in April and October 2012 to apply the procedures of the Amended JSC Act to a complaint lodged in 2008 were lawful and did not constitute impermissible retrospective application. The procedures introduced by the Amended JSC Act are procedural in nature and do not impair any vested substantive rights of the applicants or other parties. The SCA's order remitting the matter for further investigation required the Commission to use prevailing procedures. The requirement in section 14(3) for complaints to be lodged by affidavit or affirmation is directory, not peremptory, for impeachable complaints, and substantial compliance was...

Citation
[2014] ZAGPJHC 217
Parties
Applicant: Baaitse Elizabeth Nkabinde; Applicant: Christopher Nyaole Jafta; Respondent: Judicial Service Commission; Respondent: President of the Judicial Conduct Tribunal; Respondent: Minister of Justice and Constitutional Development; Respondent: Xolisile Khanyile N.O.
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
26 September 2014
Case Number
13/39093
Procedural Posture
Review Application / Judgment on Review and Constitutional Challenge
Judges
H Mayat, CJ Claassen, F Kgomo
Legal Topics
Judicial Independence, Separation of Powers, Retrospective Application of Statutes, Judicial Service Commission Act, Constitutional Review, Procedural Vs Substantive Rights
Constitutional Law Administrative Law Civil Procedure Judicial Independence Separation of Powers Retrospective Application of Statutes Judicial Service Commission Act Constitutional Review +1 more

Case Brief

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Parties

Baaitse Elizabeth Nkabinde

Applicant

Christopher Nyaole Jafta

Applicant

Judicial Service Commission

Respondent

President of the Judicial Conduct Tribunal

Respondent

Minister of Justice and Constitutional Development

Respondent

Xolisile Khanyile N.O.

Respondent

Procedural Posture

Review Application / Judgment on Review and Constitutional Challenge

Legal Issues

  1. 1 Whether the Judicial Service Commission's decisions in April and October 2012 constituted impermissible retrospective application of the Judicial Service Commission Amendment Act 20 of 2008.
  2. 2 Whether the complaint against Hlophe JP, lodged prior to the Amendment Act, could lawfully be investigated under the new procedures.
  3. 3 Whether section 24(1) of the Amended JSC Act, permitting appointment of a National Prosecuting Authority member as evidence leader, is unconstitutional for violating separation of powers and judicial independence.

Ratio Decidendi

The court held that the Judicial Service Commission's decisions in April and October 2012 to apply the procedures of the Amended JSC Act to a complaint lodged in 2008 were lawful and did not constitute impermissible retrospective application. The procedures introduced by the Amended JSC Act are procedural in nature and do not impair any vested substantive rights of the applicants or other parties. The SCA's order remitting the matter for further investigation required the Commission to use prevailing procedures. The requirement in section 14(3) for complaints to be lodged by affidavit or affirmation is directory, not peremptory, for impeachable complaints, and substantial compliance was...