Premier of the Western Cape Province v Acting Chairperson: Judicial Service Commission and Others (25467/2009) [2010] ZAWCHC 136 (24 June 2010)

Premier of the Western Cape Province v Acting Chairperson: Judicial Service Commission and Others (25467/2009) [2010] ZAWCHC 136 (24 June 2010)

The court found that there are reasonable prospects of success on appeal regarding the three procedural grounds: the proper constitution of the JSC under section 178(1)(k), the required number of members participating in decision-making, and the majority requirement under section 178(6). The argument that the Premier should be excluded from the JSC was not accepted, as the Constitution's language is clear and does not permit a restricted interpretation. The mootness argument advanced by the 15th respondent was rejected because the Premier's recusal was not an issue before the court and no relief was sought in that regard. The court concluded that, given the absence of authority on these...

Citation
[2010] ZAWCHC 136
Parties
Applicant: Premier of the Western Cape Province; Respondent: Acting Chairperson: Judicial Service Commission; Respondent: Judicial Service Commission; Respondent: Chief Justice Sirral Sandile Ngcobo; Respondent: Deputy Chief Justice Dikgang Moseneke; Respondent: Justice Christopher Nyaole Jafta; Respondent: Justice Baaitse Elizabeth Nkabinde; Respondent: Justice Thembile Lewis Skweyiya; Respondent: Justice Johann Vincent van der Westhuizen; Respondent: Justice Zakeria Mohammed Yacoob; Respondent: Justice Pius Nkonzo Langa; Respondent: Justice Tholakele Hope Madala; Respondent: Justice Jennifer Yvonne Mokgoro; Respondent: Justice Catherine Mary Elizabeth O'Regan; Respondent: Justice Albert Louis Sachs; Respondent: Justice President Mandlakayise John Hlophe; Respondent: Justice Franklyn Kroon
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
24 June 2010
Case Number
25467/2009
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Against a Declaratory Order
Outcome
Leave to appeal granted to the Supreme Court of Appeal for the 1st, 2nd, and 15th respondents.
Judges
Jones, Ebrahim
Legal Topics
Judicial Service Commission Composition, Interpretation of Constitution, Majority Requirement, Procedural Validity
Constitutional Law Civil Procedure Judicial Service Commission Composition Interpretation of Constitution Majority Requirement Procedural Validity

Case Brief

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Parties

Premier of the Western Cape Province

Applicant

Acting Chairperson: Judicial Service Commission

Respondent

Judicial Service Commission

Respondent

Chief Justice Sirral Sandile Ngcobo

Respondent

Deputy Chief Justice Dikgang Moseneke

Respondent

Justice Christopher Nyaole Jafta

Respondent

Justice Baaitse Elizabeth Nkabinde

Respondent

Justice Thembile Lewis Skweyiya

Respondent

Justice Johann Vincent van der Westhuizen

Respondent

Justice Zakeria Mohammed Yacoob

Respondent

Justice Pius Nkonzo Langa

Respondent

Justice Tholakele Hope Madala

Respondent

Justice Jennifer Yvonne Mokgoro

Respondent

Justice Catherine Mary Elizabeth O'Regan

Respondent

Justice Albert Louis Sachs

Respondent

Justice President Mandlakayise John Hlophe

Respondent

Justice Franklyn Kroon

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Against a Declaratory Order

Legal Issues

  1. 1 Whether the Judicial Service Commission was properly constituted in terms of section 178(1)(k) of the Constitution when considering complaints against a judge of the province.
  2. 2 Whether the JSC's decisions were invalid due to insufficient participation and lack of majority as required by section 178(6) of the Constitution.
  3. 3 Whether the issue was moot due to the Premier's public statements precluding her participation in the JSC.

Ratio Decidendi

The court found that there are reasonable prospects of success on appeal regarding the three procedural grounds: the proper constitution of the JSC under section 178(1)(k), the required number of members participating in decision-making, and the majority requirement under section 178(6). The argument that the Premier should be excluded from the JSC was not accepted, as the Constitution's language is clear and does not permit a restricted interpretation. The mootness argument advanced by the 15th respondent was rejected because the Premier's recusal was not an issue before the court and no relief was sought in that regard. The court concluded that, given the absence of authority on these...

Court Disposition

Leave to appeal granted to the Supreme Court of Appeal for the 1st, 2nd, and 15th respondents.

Orders

  • Leave to appeal is granted to the Supreme Court of Appeal for the 1st, 2nd, and 15th respondents.
  • The costs of this application will stand over for later determination, but in the absence of a future determination, they will be costs in the appeal.