The Acting Chairperson: Judicial Service Commission v The Premier of the Western Cape Province

The Judicial Service Commission (JSC) convened meetings in July and August 2009 to consider complaints of judicial misconduct. Justices of the Constitutional Court had lodged a complaint against Judge President Hlophe, alleging he had attempted to influence two Justices in a case relating to the President of the Republic. The Judge President lodged a counter-complaint against the Justices. When the JSC met to consider these complaints, the Premier of the Western Cape Province was not notified and therefore could not attend. The JSC comprised only 10 members (instead of 13 on its own interpretation), and reached a decision that neither the Judge President nor the Justices were guilty of gross misconduct. Six members voted in favour and four against. The Premier brought an urgent application challenging the validity of the JSC proceedings and decisions on three grounds: (a) she was not present because she was not notified; (b) the JSC was improperly constituted; and (c) the decisions were not supported by the required majority.

• Whether the Premier of the Western Cape Province forms part of the JSC when the JSC considers complaints against High Court judges of that province in terms of s 178(1)(k) of the Constitution
• Whether the phrase 'matters relating to a specific High Court' in s 178(1)(k) includes complaints of judicial misconduct against judges of that High Court
• Whether the doctrine of separation of powers excludes the Premier (a member of the provincial executive) from participating in JSC proceedings concerning judicial misconduct
• What constitutes 'a majority of its members' for purposes of JSC decisions under s 178(6) of the Constitution - a majority of members entitled to be present or a majority of members present and voting
• Whether the decisions and proceedings of an improperly constituted JSC should be set aside

The appeal was dismissed with costs, including costs of two counsel, to be paid by the Judicial Service Commission and the Judge President jointly and severally. The order of the court a quo declaring the JSC proceedings and decisions to be unconstitutional and invalid, and setting them aside, was confirmed.

The binding legal principles established are: (1) In terms of s 178(1)(k) of the Constitution, the Premier of a province forms part of the JSC when the JSC considers matters relating to a specific High Court in that province, including complaints of judicial misconduct against judges of that court. The phrase 'matters relating to a specific High Court' is unqualified and includes all matters concerning that court, including whether a judge is a fit and proper person to continue in office. (2) The doctrine of separation of powers does not exclude members of the executive from participating in JSC proceedings concerning judicial misconduct. The Constitution itself provides for the inclusion of executive members (the Minister of Justice and presidential nominees) in the JSC's composition. (3) The requirement in s 178(6) that 'decisions of the Commission must be supported by a majority of its members' means a majority of all members entitled to be present at the meeting, not merely a majority of those members who are present and voting. (4) Where the JSC is improperly constituted or a decision is not taken by the required majority, the court must declare the conduct invalid under s 172(1)(a) of the Constitution, and must set aside the proceedings and decisions to enable the JSC to properly perform its constitutional function of investigating allegations of judicial misconduct.

The Court made several non-binding observations: (1) The JSC's policy of not publishing voting particulars and its refusal to disclose the number of members who voted for or against a decision is unacceptable and irreconcilable with constitutional values of openness and transparency, particularly for a constitutionally independent body with pivotal functions regarding judicial appointments and removal. (2) It would be a sorry day for constitutional democracy if serious allegations of judicial misconduct were to be swept under the carpet for reasons of pragmatism and practicality. The public interest demands that such allegations be properly investigated, irrespective of the wishes of those involved. (3) The Court noted different international models for judicial removal: in Israel, only judges can remove judges through a Court of Discipline; in the United States, the elected representatives (House and Senate) have the power of impeachment; South Africa adopted a middle ground with a two-stage process involving first the JSC (predominantly judges and lawyers) and then the National Assembly by two-thirds majority. (4) The Court expressed approval for the constitutional policy of widening the adjudicative process to include persons who are not judges or lawyers, for reasons of both constitutional policy and social accountability, particularly in light of South Africa's history regarding the administration of justice. (5) The Court left open the question of why one of the practising advocates who should have been appointed in terms of s 178(1)(e) had not been appointed by the President, noting that the reason might not fall within the knowledge of the JSC.

This case is of fundamental importance in South African constitutional law as it authoritatively interprets the composition and functioning of the Judicial Service Commission under s 178 of the Constitution. It establishes that provincial Premiers are entitled and obliged to participate in JSC proceedings concerning judicial misconduct by judges of the High Courts in their provinces, not merely in judicial appointments. The judgment clarifies that the separation of powers doctrine does not require the exclusion of members of the executive from JSC processes - the Constitution itself provides for a mixed model of judicial accountability involving judges, lawyers, and representatives of the executive and legislature. The decision also establishes important principles regarding transparency and accountability in JSC proceedings, and confirms that decisions taken by an improperly constituted JSC or without the required majority vote are invalid and must be set aside. The case reinforces that serious allegations of judicial misconduct must be properly investigated in accordance with constitutional requirements, regardless of pragmatic considerations or the wishes of the parties involved. It demonstrates the courts' willingness to enforce constitutional compliance even in sensitive matters involving the judiciary itself.