Judicial Service Commission v Premier, Western Cape

The Premier of the Western Cape brought urgent proceedings challenging the validity of meetings and decisions of the Judicial Service Commission (JSC) concerning complaints of judicial misconduct lodged by Constitutional Court justices against the Judge President of the Western Cape High Court, and a counter-complaint by the Judge President. The JSC considered the complaints in meetings held in July and August 2009 and resolved that neither the Judge President nor the justices were guilty of gross misconduct. The Premier alleged that the proceedings and decisions were invalid because she was not notified of, and did not attend, the meetings despite being constitutionally entitled to do so; the JSC was improperly constituted; and the decisions were not supported by a constitutionally required majority. The Western Cape High Court upheld the challenge and set aside the JSC’s proceedings and decisions. The Acting Chairperson of the JSC, the JSC, and the Judge President appealed to the Supreme Court of Appeal.

The appeal was dismissed with costs, including the costs of two counsel, payable jointly and severally by the Judicial Service Commission and the Judge President. The orders of the Western Cape High Court declaring the JSC proceedings and decisions unconstitutional, invalid, and set aside were confirmed.

This case is a leading authority on the constitutional composition and functioning of the Judicial Service Commission. It clarifies the meaning of 'matters relating to a specific High Court' in s 178(1)(k) of the Constitution, confirms the mandatory participation of Premiers in appropriate JSC proceedings, and authoritatively interprets the majority requirement in s 178(6) as a majority of all members entitled to sit. The judgment reinforces constitutional supremacy, transparency, and accountability in judicial governance, particularly in the sensitive context of judicial discipline and impeachment.