IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
CASE NO: CCT 46/11 In the matter between:
HLOPHE, MANDLAKAYISE JOHN Applicant and
FREEDOM UNDER LAW First Respondent ACTING CHAIRPERSON: JUDICIAL Second Respondent SERVICE COMMISSION
JUDICIAL SERVICE COMMISSION Third Respondent CHIEF JUSTICE PIUS NKONZO LANGA Fourth Respondent DEPUTY CHIEF JUSTICE Fifth Respondent DIKGANG MOSENEKE
JUSTICE THOLAKELE HOPE MADALA Sixth Respondent JUSTICE JENNIFER YVONNE MOKGORO Seventh Respondent JUSTICE CATHERINE MARY ELIZABETH Eighth Respondent O’REGAN
JUSTICE ALBERT LOUIS SACHS Ninth Respondent JUSTICE SIRRAL SANDILE NGCOBO Tenth Respondent JUSTICE THEMBILE LEWIS SKWEYIYA Eleventh Respondent JUSTICE JOHANN VAN DER Twelfth Respondent WESTHUIZEN
JUSTICE ZAKARIA MOHAMMED Thirteenth Respondent YACOOB
JUSTICE BAAITSE ELIZABETH Fourteenth Respondent NKABINDE
JUSTICE CHRISTOPHER Fifteenth Respondent NYAOLE JAFTA
JUSTICE FRANKLIN KROON Sixteenth Respondent
FILING SHEET: FREEDOM UNDER LAW’S
SUBMISSIONS IN RESPONSE TO THE CHIEF JUSTICE’S DIRECTIONS DATED 6 JUNE 2011
I INTRODUCTION
1. On 6 June 2011, the Chief Justice issued directions requesting the parties to make submissions on six questions relating to the conduct of this matter.
2. Freedom Under Law (“FUL”) makes the following submissions in answering these questions:
2.1 Eight of the justices of the Court would have to recuse themselves from hearing the appeal to avoid the perception of a lack of impartiality and independence.
2.2 Following their recusal, there would be no quorum to
determine the appeal as prescribed in section 167(2) of the Constitution of the Republic of South Africa, 1996 (“the Constitution”).
2.3 There is no provision in the Constitution for the appointment of acting judges to replace the conflicted justices.
2.4 The appointment of acting judges in the circumstances would be constitutionally impermissible in principle, and inappropriate in this case.
2.5 Given that there would not be a quorum to hear the appeal, it would not be competent to grant leave to appeal. It would in any event not be in the interests of justice to do so.
2.6 The doctrine of necessity would apply in this case to empower the Court to consider the application for leave to appeal and refuse it on the grounds that it would not be in the interests of justice to grant the application. The doctrine would not entitle the court to hear and determine the appeal itself because there is no necessity to do so.
3. FUL respectfully submits that the appropriate order in this case would be to dismiss the application for leave to appeal with costs.
II RECUSAL OF THE RESPONDENT JUSTICES AND JUSTICE MOGOENG
The interest of the respondent justices
4. In May 2008, the justices of the Constitutional Court lodged a complaint with the Judicial Service Commission (“the JSC”) against Judge President John Hlophe (“Hlophe JP”). They accused him of trying improperly to influence the outcome of a high-profile case of this Court by approaching two of the justices, Justices Jafta and Nkabinde, in an attempt to influence their decisions in the matter. In response to this complaint, Hlophe JP filed a counter-complaint against the respondent justices, accusing them of acting dishonestly, vindictively and with an improper political motive in making the complaint.
5. The complaint lodged by the justices, and the counter-complaint lodged against them, were considered by the JSC and a decision was made in August 2009 to dismiss the complaint and counter-
complaint. FUL applied to the High Court to review this decision, and then to the Supreme Court of Appeal (“SCA”) to set aside the High Court’s refusal of the application. The SCA upheld the appeal and set aside the JSC’s decision dismissing the complaint.
It is this decision of the SCA which Hlophe JP seeks to appeal to this Court.
6. The outcome of the application before this Court will determine the future of the complaint of gross misconduct by the Constitutional Court justices against him, and his counter-complaint of gross misconduct against them. Seven of the Constitutional Court justices are still active members of this Court. We will refer to them as the “respondent justices”. They are cited as respondents in this application because of their material interest in it. Hlophe JP admits that they have such an interest.1
7. The respondent justices include the two justices who were approached by Hlophe JP. It is his conversations with them that are said to have amounted to gross misconduct. The difference between their version of the conversations and his is central to the determination of the complaint. The differing versions and how the
1 Affidavit of Barnabas Xulu in the application for leave to appeal, paras 6-7
JSC should have dealt with it are also central to the SCA’s judgment which Hlophe JP seeks to appeal to this Court.
8. All of the respondent justices are the subject of Hlophe JP’s counter-complaint. In the counter-complaint, he accuses them of violating his constitutional rights in the manner in which they laid the complaint against him. He has also in the course of the proceedings accused the justices, including the respondent justices, of crass and pervasive dishonesty and of acting with an improper political motive.
9. It is inconceivable in light of these facts that the respondent justices can hear the merits of the appeal. They are interested in its outcome and are accordingly automatically disqualified on the basis that no-one can be a judge in his (or her) own cause.2
2 Ndimeni v Meeg Bank Ltd (Bank of Transkei) 2011 (1) SA 560 (SCA) para 17 ff quoting with approval Dimes v Properties of Grand Junction Canal (1852) 3 HL Cas 759; Re Ebner; Ebner v Official Trustee in Bankruptcy [1999] FCA 110 paras 41 – 43; Locabail (UK) Ltd v Bayfield Properties Ltd [2000] 1 All ER 65 (CA); Clenae Pty Ltd and Others v Australia & New Zealand Banking Group Ltd [1999] VSCA 35; R v Bow Street Metropolitan Stipendiary Magistrate, Ex parte Pinochet Ugarte (No 2) [1999] 1 All ER 577 (HL)
10. In BTR Industries3 Hoexter JA said:
'It is a hallowed maxim that if a judicial officer has any interest in the outcome of the matter before him (save an interest so clearly trivial in nature as to be disregarded under the de minimis principle) he is disqualified, no matter how small the interest may be.”
11. There can be no suggestion that the respondent justices’ interest is trivial.
The interest of Justice Mogoeng
12. In his directions dated 6 June 2011 the Chief Justice indicated that Justice Mogoeng was involved in efforts to mediate the dispute between the respondent justices and Hlophe JP.
13. Section 165(2) requires that courts must be independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice. This Court held in
3 BTR Industries South Africa (Pty) Ltd and others v Metal and Allied Workers Union and another 1992 (3) SA 673 (A) 694H – 695A
Basson4 that the impartiality of judicial officers is an essential requirement of a constitutional democracy and is closely linked to the independence of courts.
14. The test articulated in SARFU to determine whether a judge ought to recuse himself is the following:
“The question is whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the judge has not or will not bring an impartial mind to bear on the adjudication of the case, that is a mind open to persuasion by the evidence and the submissions of counsel. The reasonableness of the apprehension must be assessed in the light of the oath of office taken by the judges to administer justice without fear or favour; and their ability to carry out that oath by reason of their training and experience. It must be assumed that they can disabuse their minds of any irrelevant personal beliefs or predispositions. They must take into account the fact that they have a duty to sit in any case in which they are not obliged to recuse themselves. At the same time, it must never be forgotten that an impartial judge is a fundamental prerequisite for a fair trial and a judicial officer should not hesitate to recuse herself or himself if there are reasonable grounds on the part of a litigant for apprehending that the
4 S v Basson 2007 (3) SA 582 (CC) para 24
judicial officer, for whatever reasons, was not or will not be impartial. 5
15. What is key to this inquiry is accordingly whether there is a reasonable apprehension that, because of Justice Mogoeng’s previous involvement in the matter, he might not be impartial.
16. Although this court has found that the presumption of judicial impartiality must generally apply with added force in an appellate court,6 Justice Mogoeng would, on the basis of the SARFU test, be precluded from hearing the appeal.
17. Justice Mogoeng, during the mediation, was closely and intimately involved with the parties and issues in the appeal in an extra-curial capacity. He must have gained knowledge of the facts beyond the appeal record and has, or will be thought to have, formed views of the parties and their respective cases on grounds beyond the appeal record.
5 President of the Republic of South Africa v South African Rugby Football Union [1999] ZACC 9; 1999 (4) SA 147; 1999 (7) BCLR 725 para 48
6 SACCAWU v Irvin and Johnson (Seafoods Division Fish Processing) 2000 (3) SA 705 (CC) para 41
18. Even if these impediments to his participation do not in fact exist, the reasonable litigant may form the impression that they do. In these circumstances, it would be appropriate for Justice Mogoeng to recuse himself from hearing the appeal.
19. In a high-profile and politically-charged case such as this, a more conservative approach to a public perception of bias is warranted in order to maintain public confidence in the judiciary. In BTR Industries7 the SCA endorsed an approach of “conspicuous impartiality” as the only guarantee of impartiality of courts, and to ensure that justice is seen to be done.
20. Whether or not Justice Mogoeng recuses himself does not impact materially on the questions posed by the Chief Justice in his directive. The impediments to the Court hearing this application would exist even if only the respondent justices’ interest were at stake. Justice Mogoeng’s prior involvement in this matter and his possible recusal in this regard is important for present purposes only to the extent that his recusal, in addition to the automatic disqualification of the respondent justices, would mean that only
7 BTR Industries South Africa (Pty) Ltd and others v Metal and Allied Workers Union and another 1992 (3) SA 673 (A) at 694
three justices – a minority of a quorate court – would be available to hear the merits of the appeal.
The appropriate response by the Court
21. The SARFU judgment emphasised that it was a court’s duty to act constitutionally. This means that:
“[i]f one or more of its members is disqualified from sitting in a particular case, this Court is under a duty to say so, and to take such steps as may be necessary to ensure that the disqualified member does not participate in the adjudication of the case”. 8
22. FUL accordingly submits that it is the duty of this Court, in acting constitutionally, to take steps to ensure that the seven respondent justices (who are automatically disqualified) and Justice Mogoeng (in respect of whose participation a reasonable apprehension of bias may exist) do not participate in the adjudication of the merits of this matter.
8 President of the Republic of South Africa v South African Rugby Football Union [1999] ZACC 9; 1999 (4) SA 147; 1999 (7) BCLR 725 para 31
III THERE WOULD BE NO QUORUM TO HEAR THE APPEAL
23. If the respondent justices and Justice Mogoeng were to recuse themselves, only three justices would remain to hear the appeal.
24. Section 167(2) of the Constitution requires that a matter before the Constitutional Court must be heard by at least eight judges. This is an absolute requirement, with no provision made in the Constitution for exceptions. It follows that there would accordingly be no quorate court to hear the appeal. 9
IV THERE IS NO PROVISION FOR THE APPOINTMENT OF ACTING JUDGES IN THESE CIRCUMSTANCES
25. The Constitution nowhere makes provision for the appointment of acting judges to hear a case where another judge or judges have had to recuse themselves. The Constitution also makes no provision for the appointment of acting judges to this Court to hear
9 President of the Republic of South Africa v South African Rugby Football Union [1999] ZACC 9; 1999 (4) SA 147; 1999 (7) BCLR 725 para 47
a specific case where the Court would not otherwise have a quorum to hear the case.
26. Section 175(1) provides for the appointment of acting judges to the Constitutional Court in certain circumstances. It provides as follows:
“The President may appoint a woman or a man to be an acting judge of the Constitutional Court if there is a vacancy or if a judge is absent. The appointment must be made on the recommendation of the Cabinet member responsible for the administration of justice acting with the concurrence of the Chief Justice.”
27. It would, however, be constitutionally impermissible to employ section 175(1) to replace the respondent justices and/ or Justice Mogoeng for three reasons:
27.1 The wording of the section does not allow for acting appointments where a judge has recused herself from a particular case.
27.2 In principle, allowing for appointments of judges to a particular case would violate the Constitution.
27.3 In the circumstances of this particular case, the section could in any event not be employed to address a vacancy that arises from a recusal, as the functionaries contemplated in section 175 are themselves interested in this matter. Their participation would accordingly only compound the problem.
The wording of section 175
28. There is no “vacancy” at the Court created by the recusal of a judge, and such a judge would not be “absent” in the sense contemplated in section 175(1).
29. The word “vacancy” (“vakature”) in this context means a vacancy in the office of justice of the Constitutional Court. Such a vacancy would only arise if a seat on the Court becomes available when a justice’s term comes to an end in terms of section 176, and the vacancy could be filled by the procedure in section 174. This is consistent with the interpretation of the word “vacancy” elsewhere
in the Constitution.10 The import of section 175(1) accordingly seems to be to provide for an acting appointment to fill a vacancy temporarily, until such time as the position may be filled permanently in terms of section 174(3), (4) and (5) of the Constitution.
30. The literal meaning of the word “absent” (“afwesig”) suggests that a judge is not present at court at a given time. The word does not necessarily suggest anything about the length of, or the reason for the absence. It seems to be limited textually only by the use of the word “vacancy” – in other words “absence” would not include any absence that is permanent.
31. A justice may only be “absent” from court if he or she is on a leave of absence provided for in the Judges' Remuneration and Conditions of Employment Act 47 of 2001, read with regulations 3 to 10 of the Regulations issued under that Act.11 This includes vacation leave, additional leave, special leave and sick leave.
Indeed it appears that one of the considerations that the Chief
10 Sections 50(2), 52(1), 86(1) and (3), 88(1) and (2), 90(1), 109(2), 111(1), 128(1) and (3), 130(1) and (2), 131, 175 and 178(1) and (3)
11 GN R894 in GG 23564 of 5 July 2002
Justice must apply in granting leave is “to obviate as far as possible the need for acting appointments”.12 The word “absent” in section 175(1) must be read in this context to mean “on leave of absence”.
32. At the very least the use of the word “absent” must mean that the justice is not in fact present at court. A justice who is not on leave, but has recused herself from a particular case remains “at court”, and would continue to fulfil the ongoing judicial functions required by matters other than the one from which she has recused herself.
Such a justice is accordingly not absent from, but present at, court, and could not be replaced by another justice. If she could be replaced by an acting justice just because she had recused herself from a particular case, it could lead to the anomalous result that there may, at a given time, be more than eleven judges of the Constitutional Court in violation of section 167(1).
Appointments to a particular case would be unconstitutional
33. Linguistic reasons aside, there is also a more important principled reason why it would be constitutionally impermissible to appoint an
12 Regulation 7
acting judge to a particular case, rather than for a particular period to hear all cases that were before the Court during that time. It is that it would be inimical to the Constitution and to the principle of judicial independence to appoint a particular acting judge or judges for the purpose of hearing one particular case. Such an appointment would inevitably create at least a perception that those appointed to hear the appeal would be handpicked for that purpose. It would create the potential for “political appointments”
referred to in SARFU.13
34. It would be even more objectionable to appoint five (or more) acting justices in a particular case to a quorate bench of eight (or more), where such specially appointed justices could carry a potential majority of the bench. Such an en masse appointment of a majority of the bench would have the potential of undermining directly and blatantly the separation of powers and allow for executive interference in the decisions of the Court.
13 President of the Republic of South Africa v South African Rugby Football Union [1999] ZACC 9; 1999 (4) SA 147; 1999 (7) BCLR 725 para 47
A section 175 appointment could not be done on these facts
35. Even if it were indeed permissible in principle to appoint an acting judge for a particular case, it could not be done on the facts of this case. In terms of section 175, it is the President who makes acting appointments on the recommendation of the Minister of Justice with the concurrence of the Chief Justice. All three of these actors, however, have a personal interest in the present matter.
36. The justices accused Hlophe JP of attempting to influence the outcome of the case involving the President before the Constitutional Court. If the accusation is true, then the President was the apparent beneficiary of Hlophe JP's conduct. The President could accordingly not be seen to appoint the justices to determine whether the investigation into these attempts should be shut down, as Hlophe JP would have it, or re-opened, as the SCA has ordered.
37. Requiring the Minister of Justice and the Chief Justice to make a joint recommendation regarding the appointment would compound the problem. They both have a personal interest in this case. The Chief Justice is one of the respondent justices. The Minister of
Justice is a member of the JSC, and participated in the decisions under review.
38. For any of these three actors to participate in the appointment of five (or more) acting judges would severely undermine the public perception of the independence of the judiciary, and accordingly breach the constitutional guarantee of judicial independence. It would undermine the very purpose of their recusal.
39. The Constitution holds the courts to a high standard of independence. This includes that all judges and judicial officers be perceived by the public to be independent. This is so particularly in the case of the justices of the Constitutional Court, who often hear far-reaching and politically-charged cases as a Court of final instance. The present application for leave to appeal is no exception.
40. It would accordingly be constitutionally impermissible in the circumstances for the President and the Minister of Justice, in consultation with the Chief Justice, to appoint five acting judges (or more) to make up a quorum to adjudicate a specific case.
V IT WOULD NOT BE COMPETENT TO GRANT LEAVE TO APPEAL
41. Should the seven respondent justices and Justice Mogoeng be disqualified from hearing the merits of the appeal, there would be no quorum of judges to hear the appeal. The Constitution neither envisages, nor allows the appointment of acting judges in these circumstances. No quorum of judges can therefore be established to hear the matter as required by section 167(2) of the Constitution.
42. As there would be no quorate court available to hear the merits of the appeal, it would not be competent to grant the application for leave to appeal.
43. The application for leave to appeal should in any event not be granted. FUL sets out in its answering affidavit the reasons why it would not be in the interests of justice to do so. These include the following:
43.1 Even if it were competent for the Court to hear the matter despite the various personal interests mentioned above, it
would not be in the interests of justice to hear a matter plagued by such conflicts.
43.2 Hlophe JP has not made out a case why the application would be in the interests of justice.
43.3 The nature of the SCA’s decision is such that it does not finally determine any rights. It merely re-opens the inquiry by the JSC. In light of the peculiar difficulties posed by an appeal to this Court, it would accordingly be in the interests of justice to proceed with that process.
43.4 The prospects of the appeal succeeding are in any event poor. The reasoning of the SCA was unassailable.
43.5 The appeal would be academic unless the Court also overturns the SCA’s decision in the matter of the Acting Chairperson: Judicial Service Commission and others v Premier of the Western Cape Province (537/10) [2011]
ZASCA 53 (31 March 2011). That case set aside the same decision of the JSC, along with another earlier decision taken regarding the complaint, on different grounds. The JSC has
not appealed against that judgment; only Hlophe JP has.
43.6 The application is late, and no case has been made out for its condonation.
VI APPLICATION OF THE DOCTRINE OF NECESSITY
44. The law recognises that in certain situations, the necessity for a matter to be heard weighs heavier than the requirements of the nemo iudex in sua causa maxim. This principle, known as the doctrine of necessity, allows a judge in certain circumstances to hear a matter where he would otherwise have been required to recuse himself because it is necessary to do so.14 These circumstances include cases where there is no one else
14 In Dimes v Grand Junction Canal (1852) 3 HLC 759 at 787, the court held that the Lord Chancellor, whose shareholding in a company disqualified him from hearing an appeal, was still required to sign the enrolment allowing the appeal to be heard by the House of Lords generally, since “this is a case of necessity, and where that occurs, the objection of interest cannot prevail.” In this case, the Lord Chancellor was the only person with the power to sign the enrolment. In Judges v A-G for Saskatchewan (1937) 53 TLR 464, the Privy Council confirmed that the court was right to decide whether or not judges’ salaries were liable to income tax, notwithstanding judges’ interest in the matter, as it was a matter of necessity. See also Evans v Gore 253 U.S 245, 247 (1920) in which the United States Supreme Court was required by necessity to determine the constitutionality of the imposition of taxes on federal judges’ compensation, thereby diminishing that compensation. The Court held that “Because of the individual relation of the members of this Court to the question, thus broadly stated, we cannot but regret that its solution falls to us, and this although each member has been paying tax in respect of his salary voluntarily and in regular course. But jurisdiction of the present case cannot be denied or renounced. The plaintiff was entitled by law to invoke our decision on the question as respects his own compensation, in which no other judge can have any direct personal interest, and there was no other appellate tribunal to which under the law he could go.”
empowered to make the decision that that judge is called upon to make. In such circumstances –
“[n]atural justice then has to give way to necessity, for otherwise there is no means of deciding and the machinery of justice or administration will break down.” 15
45. The doctrine of necessity is described as follows by De Smith: 16
“An adjudicator who is subject to disqualification at common law may be required to sit if there is no other competent tribunal or if a quorum cannot be formed without him. Here the doctrine of necessity is applied to prevent a failure of justice.”
46. The US Supreme Court has applied the doctrine of necessity in the interest of “not denying the litigants their right to a forum.” 17
15 Wade, Administrative Law 6th ed at 478 – 479
16 Judicial Review of Administrative Action 4th ed at 276
17 United States v Will 449 US 200 (1980) 219: The court cited, with approval, an academic authority which stated that “although a judge had better not, if it can be avoided, take part in the decision of a case in which he has any personal interest (...) he not only may but must do so if the case cannot be heard otherwise.” It applied the rule of necessity in the interests of not denying the litigants “their right to a forum”.
47. As the name suggests, however, the doctrine should only be applied where it is strictly necessary in order to prevent a failure of justice. The situations in which the doctrine would find application, and the extent to which it should apply, must be limited by fair trial considerations, as well as by the right to a fair public hearing before a court that is independent and impartial.18
48. Following this principle, the doctrine of necessity should allow this Court to seize this matter only for the limited purpose of refusing leave to appeal. This will require that all, or at least five, of the seven respondent justices and/or Justice Mogoeng participate in the decision on the application for leave only, in order for the decision to comply with section 167(2).19
49. The necessity for a departure in this case from the ordinary rule regarding recusal for this limited purpose lies in the fact that the failure to consider the application for leave to appeal could cause a
18 See in this regard Kingsley v The United Kingdom (2002) 35 EHRR 177; Wade & Forsyth (2009) 294, “where Article 6(1) [of the European Convention on Human Rights] is applicable, little reliance can be placed upon necessity in the future.”
19 See in this regard American Isuzu Motors Inc et al v Lungisile Ntsebeza et al 128 S.Ct. 2424 (2008), in which the United States Supreme Court held that “Because the Court lacks a quorum . . . and since a majority of the qualified Justices are of the opinion that the case cannot be heard and determined at the next Term of the Court, the judgment is affirmed under 28 U.S.C. §2109, which provides that under these circumstances the Court shall enter its order affirming the judgment of the court from which the case was brought for review with the same effect as upon affirmance by an equally divided Court.”
further, possibly indefinite, delay in the resolution of the matter. It is necessary to deal with the application for leave to appeal. Once lodged with the Constitutional Court, there is no other forum that can deal with it. Not dealing with it would clearly not be in the interests of justice.
50. The doctrine of necessity would not, however, entitle the court to hear the appeal and to decide it on the merits, because there is no necessity to do so. The matter has already been heard and determined by the High Court and the SCA. Five judges of appeal were unanimous in their views on the matter. No litigant has a right to a further appeal to the Constitutional Court. There is accordingly no necessity for the Constitutional Court to hear and determine the appeal.
VII THE APPROPRIATE ORDER TO BE MADE
51. FUL submits, for the reasons set out above, that there would be no quorum of justices to hear the appeal in this matter. Accordingly, it would not be in the interests of justice for leave to appeal to be granted and no purpose would be served by granting this application.
52. FUL submits that the appropriate order in the circumstances would be to refuse the application for leave to appeal on the basis that the interests of justice would be best served in doing so.
VIII THE ANSWERS TO THE SIX QUESTIONS
53. In summary, FUL answers the questions posed by the Chief Justice’s directions as follows:
(a) No
(b) The Court would not be able to hear the merits of the appeal, as it would have no quorum to do so.
(c) (i) No.
(ii) No.
(d) No. It would also not be in the interests of justice to do so.
(e) Yes. The doctrine of necessity applies to the extent only that it allows some or all of the conflicted justices to consider the
application for leave to appeal in order to dispose of that application.
(f) The Court should dismiss the application for leave to appeal, with costs.
Wim Trengove SC Timothy Bruinders SC Nadine Fourie Benny Makola Lwandile Sisilana
Chambers Sandton 22 June 2011
