South Africa Case Law

Freedom Under Law v Judicial Service Commission and Another (550/2022)

Freedom Under Law v Judicial Service Commission and Another (550/2022) [2023] ZASCA 103; [2023] 3 All SA 631 (SCA) (22 June 2023)

Court

Supreme Court of Appeal

Case number

550/2022

Judges

Ponnan, Mocumie, Schippers, Kathree-Setiloane, Masipa

The Supreme Court of Appeal found that the JSC's rejection of the Tribunal's recommendation was unjustified and unsupported by the evidence. The JSC failed to properly consider the Tribunal's findings, relied on unsubstantiated claims of provocation and intoxication as mitigating factors, and did not address the impact of Judge Motata's conduct on public confidence in the judiciary. The JSC's compartmentalized approach and refusal to consider the merits of the Pretorius SC complaint were arbitrary and capricious. The Tribunal's findings, together with those of the criminal and appeal courts,…

Source excerpt

• Judicial Conduct
• Gross Misconduct
• Disciplinary Proceedings
• Judicial Service Commission Act
• Removal Of Judge
• Review Of Administrative Action

Seriti and Another v Judicial Service Commission and Others (32193/2023)

Seriti and Another v Judicial Service Commission and Others (32193/2023) [2023] ZAGPJHC 332; 2023 (5) SA 304 (GJ) (14 April 2023)

Court

South Gauteng High Court, Johannesburg

Case number

32193/2023

Judges

Sutherland DJP, Wepener J, Molahlehi J

The High Court held that retired judges remain subject to JSC discipline under the JSC Act, and that section 7(1)(g) is not inconsistent with the Constitution.

• Definition Of Judge
• Judicial Service Commission Act
• Constitution Section 176
• Judicial Independence
• Oversight Of Judicial Conduct
• Retired-judges

Helen Suzman Foundation v Judicial Service Commission and Others (145/2015)

Helen Suzman Foundation v Judicial Service Commission and Others (145/2015) [2016] ZASCA 161; [2017] 1 All SA 58 (SCA); 2017 (1) SA 367 (SCA) (2 November 2016)

Court

Supreme Court of Appeal

Case number

145/2015

Judges

Maya, Majiedt, Mbha, Dambuza, Fourie

The Supreme Court of Appeal held that the Judicial Service Commission's private deliberations do not form part of the record of proceedings for purposes of Uniform rule 53(1)(b). The confidentiality of the JSC's deliberations is protected by statute, regulation, and constitutional principles, and serves legitimate public interests, including the protection of candidates' dignity and privacy and the efficacy of the judicial selection process. The court found that the reasons compiled by the Chief Justice and provided to the applicant were sufficient for the purposes of review, and that disclos…

Source excerpt

• Judicial Service Commission Act
• Uniform Rule 53
• Confidentiality Of Deliberations
• Access To Information
• Openness And Accountability
• Review Proceedings

Nkabinde and Another v Judicial Service Commission and Others (CCT122/16)

Nkabinde and Another v Judicial Service Commission and Others (CCT122/16) [2016] ZACC 25; 2016 (11) BCLR 1429 (CC); 2017 (3) SA 119 (CC) (24 August 2016)

Court

Constitutional Court

Case number

CCT 122/16

Judges

Mogoeng, Cameron, Froneman, Khampepe, Madlanga, Mbha, Mhlantla, Musi, Zondo

The application for rescission is dismissed because Rule 42(1)(a) does not apply to orders made at Conference where litigants have no right to be present. The applicants were aware of the procedure and the principle established in Hlophe, which dictates that where the Court lacks a quorum due to disqualification of its members, the application must be dismissed and cannot be left pending. The applicants' right of access to court was not infringed, as the procedure followed is consistent with the Constitution and the Rules of the Court. The suggestion that disqualified Justices participated ir…

Source excerpt

• Judicial Recusal
• Access To Court
• Rule 42 Rescission
• Quorum Requirements
• Judicial Service Commission Act

Nkabinde and Another v Judicial Service Commission and Others (20857/2014)

Nkabinde and Another v Judicial Service Commission and Others (20857/2014) [2016] ZASCA 12; [2016] 2 All SA 415 (SCA); 2016 (4) SA 1 (SCA)  (10 March 2016)

Court

Supreme Court of Appeal

Case number

20857/2014

Judges

Navsa, Lewis, Leach, Pillay, Swain

The Supreme Court of Appeal held that the amendments to the Judicial Service Commission Act (JSCA) were procedural in nature and did not affect any substantive rights of the appellants. Therefore, the JSC was entitled to apply the new statutory regime to the pending complaint, and the retrospective application was sensible, fair, and just. The requirement that complaints be lodged on affidavit was substantially complied with through subsequent confirmations under oath, and the absence of an initial affidavit did not invalidate the complaint. Section 24(1) of the JSCA, permitting a member of t…

Source excerpt

• Judicial Misconduct
• Separation Of Powers
• Judicial Independence
• Retrospective Application Of Statutes
• Judicial Service Commission Act
• Procedural Fairness

Nkabinde and Another v Judicial Service Commission President of the Judicial Conduct Tribunal and Others (13/39093)

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)

Court

South Gauteng High Court, Johannesburg

Case number

13/39093

Judges

H Mayat, CJ Claassen, F Kgomo

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 affi…

Source excerpt

• Judicial Independence
• Separation Of Powers
• Retrospective Application Of Statutes
• Judicial Service Commission Act
• Constitutional Review
• Procedural Vs Substantive Rights

Poswa v President of the Republic of South Africa and Others (2013/30021)

Poswa v President of the Republic of South Africa and Others (2013/30021) [2014] ZAGPJHC 218; 2015 (2) SA 127 (GJ); [2014] 4 All SA 722 (GP) (15 September 2014)

Court

South Gauteng High Court, Johannesburg

Case number

2013/30021

Judges

C.J. Claassen, N.F. Kgomo, H. Mayat

The court held that the JSC was entitled to apply the amended Judicial Service Commission Act's investigation procedures retrospectively to complaints validly lodged before 1 June 2010, even if those complaints were not made under oath or affirmation. The presumption against retrospectivity does not apply to procedural amendments that do not impair vested rights, and the investigation of complaints is a procedural matter. The applicant was afforded procedural fairness, including opportunities to make written and oral submissions, and the JSC was properly constituted when it decided to appoint…

Source excerpt

• Judicial Service Commission Act
• Judicial Misconduct
• Review Of Administrative Action
• Constitutional Right Of Access To Courts
• Procedural Fairness
• Retrospective Application Of Statutes