CCT41/11

CCT46/11

[2012] ZACC 4

2012 (6) BCLR 567 (CC)

2012 (6) SA 13 (CC)

The Court

30 March 2012

http://hdl.handle.net/20.500.12144/3652

Application for leave to appeal against two judgments of the SCA 31 March 2011: Acting Chairperson: Judicial Service Commission & Others v Premier of the Western Cape Province 2011 (3) SA 538 (SCA) (CCT41/11); Freedom Under Law v Acting Chairperson, Judicial Service Commission & Others 2011 (3) SA 549 (SCA) (CCT46/11). See earlier High Court judgments: Premier, Western Cape v Acting Chairperson, Judicial Service Commission 2010 (5) SA 634 (WCC); 2010 (8) BCLR 823 (WCC) and Freedom Under Law v The Acting Chairperson: Judicial Service Commission and Others Case No 63513/09 North Gauteng High Court, 10 December 2010, unreported; see also earlier CC judgment on reasons for postponement: Judge President Hlophe v Premier of the Western Cape Province; Judge President Hlophe v Freedom under Law and Others (Centre for Applied Legal Studies and Others as Amici Curiae) [2011] ZACC 29; 2012 (1) BCLR 1 (CC).

Application for leave to appeal against two judgments of the Supreme Court of Appeal holding that complaints against the applicant, the Judge-President of the Western Cape High Court, lodged in May 2008 by then-members of the Constitutional Court, had to proceed. Since most sitting members of the Court were conflicted, as complainants in the original complaint, or for other reasons, the Court first had to decide whether acting judges could be appointed in terms of section 175 of Constitution to make up the constitutionally required quorum of eight to hear the matter. It held that section 175 could not be employed to make up a quorum in the face of recusals. Second, the Court refused leave to appeal. Here, balance had to be struck between the Court’s obligation to provide finality in the matter (as it would be intolerable to have a case pending indefinitely) and possible injustice to the applicant. All the parties agreed that the matter could not remain pending. In determining how far the Court should go in weighing the merits of the application, regard had to be had to whether substantial injustice would be done to the applicant should leave be refused. The underlying right the applicant sought to protect was procedural (whether a disciplinary process against him should proceed): its rejection would mean only that the process would continue. It would not result, without more, in a finding against him on the substance of the complaint. What is more, the applicant had had the benefit of an appeal (to the Supreme Court of Appeal). This mitigated the threat of injustice. In addition, although the parties consented to the conflicted Judges’ sitting, regard had still to be had to the fact that the Judges would ordinarily have to recuse themselves. Hence, to preserve the fairness of its own processes, leave to appeal was refused. Judgment of the Court (Mogoeng CJ, Cameron J, Froneman J, Khampepe J, Skweyiya J, van der Westhuizen J, Yacoob J and Zondo AJ).