Judge President Mandlakayise John Hlophe v Premier of the Western Cape Province and Freedom Under Law and Others

Two consolidated applications (CCT 41/11 and CCT 46/11) involving Judge President Hlophe were set down for oral argument on 22 September 2011 on specific issues relating to an application for leave to appeal against a Supreme Court of Appeal judgment. The matter arose from a complaint against the applicant before the Judicial Service Commission. Seven of the eleven Constitutional Court judges (Chief Justice Ngcobo, Deputy Chief Justice Moseneke, Justices Jafta, Nkabinde, Skweyiya, van der Westhuizen and Yacoob) were complainants in the underlying matter. Justice Mogoeng had been involved in mediation efforts. Three judges (Jafta J, Nkabinde J, and later Moseneke DCJ) recused themselves from participation as they had testified as witnesses before the JSC and might be required to testify again. Chief Justice Ngcobo's term ended on 14 August 2011. This left only seven judges available to hear the matter, one less than the constitutional quorum of eight judges required.

• Whether the Court could determine the merits of the dispute when the majority of members considered themselves disqualified from participation
• Whether section 175(1) of the Constitution read with sections 174(3), (4) and (5) contemplate the appointment of acting judges when the majority of the Court's members are disqualified
• Whether acting appointments can be made where a judge or judges recuse themselves from a matter
• Whether the doctrine of necessity in recusal is applicable and to what extent
• Whether any purpose would be served by granting leave to appeal if the Court cannot be properly constituted
• What order the Court should make in the circumstances

The matters were removed from the roll for hearing on 22 September 2011 and postponed to 29 November 2011 at 10h00. The Court regretted the inconvenience to the parties.

The Constitutional Court cannot hear a matter without the quorum of eight judges required by section 167(2) of the Constitution. Judges who were complainants and testified as witnesses in the underlying JSC proceedings, and who may be required to testify again depending on the outcome of the appeal, must recuse themselves from adjudicating the matter to maintain judicial propriety and avoid conflicts of interest.

The Court noted that the appointment of an acting judge for the normal business of the fourth term would have the incidental result of providing a quorum to hear these cases. The Court acknowledged the exceptional nature of the circumstances which warranted providing reasons for postponement at that early stage, rather than in the final judgment after oral argument as would normally occur. The Court also observed that until the Deputy Chief Justice's recusal on 12 September 2011, there had always been a quorum of judges available to hear the cases. The issues identified in the earlier directions - concerning the extent to which the Court can deal with an application when the majority of members are disqualified, whether acting judges can be appointed in such circumstances, and whether the doctrine of necessity applies - remained to be determined at the substantive hearing.

This case highlights important issues concerning the functioning of the Constitutional Court when a majority of its members are conflicted or disqualified from hearing a matter. It raises fundamental questions about judicial recusal, the appointment of acting judges to maintain quorum requirements, and the doctrine of necessity in circumstances where the highest court may be unable to exercise its constitutional jurisdiction. The case demonstrates the practical challenges that arise when judges who are potential witnesses in proceedings are required to adjudicate matters arising from those same proceedings. It also illustrates the Constitutional Court's commitment to judicial propriety and transparency in explaining procedural decisions, even when merely postponing matters.