Court name
Supreme Court of Appeal of South Africa
Case number
818 of 2011

Judicial Service Commission and Another v Cape Bar Council and Another (818 of 2011) [2012] ZASCA 115 (14 September 2012);

Law report citations
2012 (11) BCLR 1239 (SCA)
2013 (1) SA 170 (SCA)
[2013] 1 All SA 40 (SCA)
Media neutral citation
[2012] ZASCA 115
Coram
Brand JA
Cloete JA
Snyders JA
Mhlantla JA
Petse JA

THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA

JUDGMENT

REPORTABLE

Case No: 818/2011

In
the matter between:

THE
JUDICIAL SERVICE COMMISSION
.........................................FIRST
APPELLANT
THE
CHAIRPERSON, JUDICIAL SERVICE

COMMISSION
...............................................................................SECOND
APPELLANT

v
THE
CAPE BAR COUNCIL
............................................................FIRST
RESPONDENT
THE
CENTRE FOR CONSTITUTIONAL

RIGHTS
......................................................................................SECOND
RESPONDENT

Neutral citation: Judicial
Service Commission v Cape Bar Council (Centre for Constitutional
Rights as amicus curiae) (818/11) [2012] ZASCA 115 (14 September
2012).

Coram: Brand, Cloete,
Snyders, Mhlantla et Petse JJA

Heard: 16 August 2012

Delivered: 14 September 2012

Summary: Absence of President of
the SCA from meeting of the JSC – his deputy not invited –
JSC not properly constituted
– decisions at meeting
consequently invalid – failure by the JSC to observe obligation
to give reasons for decision
not to recommend any candidate for
appointment to existing vacancies – prima facie
inference that decision was irrational not rebutted.

________________________________________________________________

ORDER

________________________________________________________________

On appeal from: Western Cape
High Court, Cape Town (Koen and Mokgohloa JJ sitting as a court of
first instance):

1. The appeal is dismissed with costs
including the costs of two counsel.

2. Paragraph 1 of the order of the
High Court is amended to read:

(a) ‘That the proceedings of the
first respondent (the JSC) on 12 April 2011 that resulted in the JSC
not recommending candidates
to fill two vacancies on the bench of
this court (the WCHC) were inconsistent with the Constitution in that
both the President
and the Deputy President of the Supreme Court of
Appeal were absent and those proceedings are accordingly declared
unlawful and
consequently invalid.’

3. Save for the amendment in 2 above,
the orders of the High Court are confirmed.

________________________________________________________________

JUDGMENT

________________________________________________________________

BRAND JA (CLOETE, SNYDERS, MHLANTLA
et PETSE JJA CONCURRING):

[1] The first appellant is the
Judicial Service Commission, established by s 178 of the
Constitution, 1996. The second appellant
is the chairperson of the
first appellant. Since there is no difference in the case for and
against the two appellants, I propose
to refer to the first appellant
only and to do so by the acronym ‘JSC’. The respondent is
the Cape Bar Council (CBC).
It is the controlling body of the Society
of Advocates in the Western Cape province, generally known as the
Cape Bar. In the main,
the members of the Cape Bar practice their
profession in the Western Cape High Court Cape Town (WCC).

[2] On 12 April 2011 the JSC
interviewed candidates for judicial appointments in the WCHC. Before
the meeting, three vacancies were
advertised. Numerous persons
applied. A subcommittee of the JSC examined the applications and
prepared a short list of seven candidates,
to wit Adv R A Brusser SC,
Ms J I Cloete, Adv M Fitzgerald SC, Mr R C A Henney, Mr S J Koen, Adv
S Olivier SC and Adv O L Rogers
SC. Of the seven candidates one, Mr
Henney, was black, six were white and one, Ms Cloete, was a woman. At
the meeting all these
candidates were interviewed. Thereafter the JSC
decided to recommend only one of them, Mr Henney, for judicial
appointment, with
the result that the other two available positions
remained vacant, at least until the next meeting of the JSC.

[3] Aggrieved by this decision not to
fill the two vacancies, the CBC brought an application in the WCHC
for the following order:

(1) Declaring the proceedings of the
JSC on 12 April 2011 to be inconsistent with the Constitution,
unlawful and consequently invalid.

(2) Declaring the failure by the JSC
on 12 April 2011 to fill two judicial vacancies on the Bench of the
WCHC to be unconstitutional
and unlawful.

(3) Directing the JSC, properly
constituted, to reconsider afresh the applications of the shortlisted
candidates who were not selected
on 12 April 2011 for two vacancies
on the WCHC (and who persist in their applications) in the light of
the judgment of that court.

[4] The application was supported by
two amici curiae. One of them, the Centre for Constitutional
Rights, a non-party political and non-profit unit of the F W de
Klerk Foundation,
was also allowed to appear as an amicus curiae
on appeal. In the event, the application met with complete
success in that the court a quo (Koen and Mokgohloa JJ) granted the
order
in the exact terms sought. The appeal against that judgment,
which has since been reported as Cape Bar Council v Judicial
Service Commission (Centre for Constitutional Rights and another as
amici curiae) 2012 (4) BCLR 406 (WCC), is with the leave of the
court a quo.

[5] In broad outline the CBC rested
its application on two legs, which both found favour with the court a
quo. First, that because
neither the President nor the Deputy
President of this court attended the meeting of the JSC on 12 April
2011, the JSC was not
properly constituted, with the consequence that
the decisions taken at the meeting were unconstitutional, unlawful
and invalid.
Secondly, that in all the circumstances the JSC had no
reason not to recommend candidates for the two remaining vacancies,
which
rendered its failure to do so irrational and therefore
unconstitutional.

[6] Apart from contesting the validity
of both these grounds in the court a quo, the JSC raised two points
in limine. First, that the decisions of the JSC were expressly
excluded from the ambit of review under the provisions of the
Promotion of Administrative
Justice Act 3 of 2000, (PAJA), and that
in consequence, so the JSC contended, these decisions were not
subject to judicial review
at all. Secondly, that the application was
fatally defective because neither Judge Henney nor the six
unsuccessful shortlisted
candidates had been joined as parties. Both
these points in limine were dismissed by the court a quo. Of
these two points, only the second, founded on the basis of
non-joinder, was pursued by the
JSC on appeal.

[7] After leave to appeal had been
granted by the court a quo and in an obvious attempt to avoid the
non-joinder debate, the CBC
formally sought and obtained directions
in terms of Rule 11(1)(b) from the Deputy President of this court.
Pursuant to these directions
Judge Henney and the six unsuccessful
candidates were called upon to indicate whether they consented to be
bound by the judgment
of this court on appeal, notwithstanding the
fact that they had not been joined as parties to the proceedings. Any
of those who
refused to consent were granted leave, in terms of the
directions, to file affidavits with this court. Once such affidavit
had
been filed, so the directions further provided, that party would
be considered to have been formally joined. If none of those called

upon expressly conveyed their refusal to consent, so the directions
concluded, this court would proceed to give judgment without

entertaining the non-joinder issue.

[8] In response to the directions, the
six unsuccessful candidates formally consented to be bound by the
judgment of this court.
Judge Henney, on the other hand, refused to
grant his consent. In addition, it turned out that the JSC sought to
oppose the request
for directions, but that its opposing affidavit
was only filed after the directions had already been issued. When all
this came
to the notice of the Deputy President, he arranged a
meeting with the representatives of Judge Henney and all the parties.
At the
meeting it was agreed that the issue of the directions would
be dealt with as part of the appeal.

[9] In the meantime, the non-joinder
issue also led to an application by the JSC for this court to receive
further evidence on appeal.
In essence the proposed evidence concerns
the matter of J Arthur Brown v The Director of Public
Prosecutions, Western Cape in which Judge Henney gave judgment
against Mr Brown. In his application for leave to appeal Mr Brown
claimed that ‘the Constitutional
Court and the Supreme Court of
Appeal have declared the proceedings of the JSC of 12 April 2011 to
be unlawful and unconstitutional’
which means, so Mr Brown
maintained, that Judge Henney was not properly appointed to the Bench
when he gave judgment against him.
The JSC’s declared purpose
of introducing this evidence was to show that, although Mr Brown is
clearly wrong about which
court had pronounced upon the validity of
the 12 April 2011 meeting, the judgment of the court a quo has a real
impact on Judge
Henney’s position as a judge. Ergo, so the JSC
argued, he should have been joined as a party to the proceedings from
the
start.

The issues

[10] Hence the issues presented for
decision are:

(a) Whether the JSC’s
application to adduce further evidence on appeal should be granted.

(b) The validity and status of the
directions issued by the Deputy President of this court.

(c) Whether Judge Henney should have
been joined as a party to the proceeding in the court a quo.

(d) Whether the JSC was properly
constituted when it interviewed the candidates for the vacancies in
the WCHC on 12 April 2011 and,
if not, whether that resulted in the
invalidity of the decisions taken at the meeting.

(e) Whether, in the circumstances, the
decision of the JSC not to recommend any of the candidates to fill
the two remaining vacancies,
was irrational and therefore
unconstitutional.

I propose to deal with the third
issue, concerning non-joinder, first. My reasons for doing so will
hopefully become apparent in
due course.

The non-joinder issue

[11] As the six unsuccessful
candidates had consented to be bound by the judgment of this court
before the appeal was argued, the
JSC no longer contends that they
should have been joined. It persists in its argument in regard to
Judge Henney. After the JSC
meeting of 12 April 2011, it recommended
Judge Henney for judicial appointment. In the event, the President of
the Republic appointed
him as a judge, in terms of s 174(6) of
the Constitution, on 10 May 2011. After that happened the CBC made it
clear at all
times that it did not challenge the validity of Judge
Henney’s appointment and that in consequence, no order setting
aside
his appointment was sought. Nonetheless, the JSC contended that
the joinder of Judge Henney as a party to the proceedings, was
required. In support of this contention the JSC argued that the first
declaratory order sought – ie, that the proceedings
of the JSC
on 12 April 2011 were inconsistent with the Constitution and thus
invalid – had a direct bearing on the interests
and rights of
Judge Henney, because if granted, it would inevitably lead to the
setting aside of his appointment.

[12] It has by now become settled law
that the joinder of a party is only required as a matter of necessity
– as opposed to
a matter of convenience – if that party
has a direct and substantial interest which may be affected
prejudicially by the
judgment of the court in the proceedings
concerned (see eg Bowring NO v Vrededorp Properties CC 2007
(5) SA 391 (SCA) para 21). The mere fact that a party may have an
interest in the outcome of the litigation does not warrant a
non-joinder
plea. The right of a party to validly raise the objection
that other parties should have been joined to the proceedings, has
thus
been held to be a limited one (see eg Burger v Rand Water
Board 2007 (1) SA 30 (SCA) para 7; Andries Charl Cilliers, Cheryl
Loots and Hendrik Christoffel Nel Herbstein & Van Winsen
The Civil Practice of the High Courts of South Africa 5 ed
vol 1 at 239 and the cases there cited.)

[13] Despite the limitations imposed
by these authorities, the point in limine would clearly be
good if the JSC was right in its contention that the first
declaratory order inevitably gave rise to the setting
aside of Judge
Henney’s appointment. As I see it, the short answer to this
contention is, however, that this is not so. The
mere fact that an
administrative decision was unlawful does not visit all its
consequences with automatic invalidity. Unless and
until an
administrative decision is challenged and set aside by a competent
court, the substantive validity of its consequences
must be accepted
as a fact (see eg Camp’s Bay Ratepayers and Residents’
Association v Harrison 2011 (4) SA 42 (CC) para 62). Moreover,
even if an administrative decision is challenged and found wanting,
courts still have a residual discretion
to refuse to set that
decision aside (see eg Seale v Van Rooyen NO 2008 (4) SA 42
(SCA) para 13). In a sense, the ‘invalid’ administrative
decision is then, in the exercise of the court’s discretion,

clothed with validity (see eg Chairperson, Standing Tender
Committee v J F E Sapela Electronics (Pty) Ltd 2008 (2) SA 638
(SCA) paras 28-29; Eskom Holdings Ltd v New Reclamation Group
(Pty) Ltd 2009 (4) SA 628 (SCA) para 9). The underlying reason
for this common law principle, which is confirmed in effect by
s 172(1) of our Constitution,
was succinctly formulated thus in
Oudekraal Estates (Pty) Ltd v City of Cape Town 2004 (6) SA
222 (SCA) para 36:

‘.
. . [A] court that is asked to set aside an invalid administrative
act in proceedings for judicial review has a discretion whether
to
grant or to withhold the remedy. It is that discretion that accords
to judicial review its essential and pivotal role in administrative

law, for it constitutes the indispensable moderating tool for
avoiding or minimising injustice when legality and certainty
collide.’

[14] The result is therefore that the
first declaration sought, would not in itself affect the validity of
Judge Henney’s
appointment. Furthermore, as I see it, anyone
who seeks the setting aside of Judge Henney’s appointment would
have to persuade
the court not only that the recommendation of the
JSC was invalid, but also that the dire consequences of the setting
aside of
his appointment more than a year after the event, would be
justified. Finally I believe that, if the appeal were to be
unsuccessful,
the relevant paragraph of the order in the court a quo
could be trimmed down so as to avoid any impact on the validity of
Judge
Henney’s appointment.

[15] Having said all that, it must be
accepted, in my view, that Judge Henney’s appointment would, to
some extent, be tainted
by the first declarator. Any doubt that this
would be so is removed by what happened in the Brown case. But
the court a quo found that the casting of this potential shadow over
Judge Henney’s appointment, in itself, is not
enough to render
him a necessary party. It found support for this finding in the
judgment of this court in Gordon v Department of Health,
KwaZulu-Natal [2008] ZASCA 99; 2008 (6) SA 522 (SCA). What happened in Gordon
was that the appellant, Mr Gordon, applied for a promotion post in
the department which was the respondent in that case. Though
the
selection committee found him the most suitable candidate, the
department appointed a Mr M to the post. Aggrieved by his
non-appointment,
Mr Gordon instituted a claim against the department
in the Labour Court for so-called protective promotion. As explained
in the
judgment of this court (para 4) this essentially amounted to a
claim for all the benefits of the promotion post without an actual

appointment to that post. In consequence, the appointment of Mr M to
the post would remain intact. The Labour Court found against
Mr
Gordon on the merits. On appeal to the Labour Appeal Court, that
court mero motu raised the non-joinder of Mr M as a reason why
the matter should not be entertained. Eventually the point of
non-joinder thus raised,
was upheld by the LAC on the basis that, if
Mr Gordon’s claim were to succeed, Mr M would be confronted
with the finding
that, as an objective fact, he was not suitable for
the post to which he was appointed.

[16] But in upholding Gordon’s
appeal against that decision of the LAC, this court said inter alia
(para 10):

‘The
. . . appointee [who was found to be unsuitable] has no legal
interest in the matter if the order will be directed at the employer

(the author of the unsuitable appointment) to compensate the
'suitable' but unsuccessful applicant. Of course the successful but

'unsuitable' appointee will always have an interest in the order to
confirm his/her suitability for the job but this is not a direct
and
substantial interest necessary to found a basis for him or her to be
joined in the proceedings. . . . The successful appointee
can only
have a legal interest in the proceedings where the decision to
appoint him is sought to be set aside which can lead to
his removal
from the post. He becomes a necessary party to the proceedings
because the order cannot be carried into effect without
profoundly
and substantially affecting his/her interests.’

[17] For the sake of argument I accept
that the first declarator may serve to motivate disgruntled litigants
like Mr Brown to query
the validity of Judge Henney’s
appointment. I do not believe, however, that that prospect in itself
would leave Judge Henney
in a worse position than the appointee in
Gordon who was found to be unsuitable. On the contrary, unlike
the position of the apppointee in Gordon, there is nothing in
the first declarator that reflects on Judge Henney’s
suitability for appointment as a judge. If Judge
Henney wanted a say
in the decision which could leave him with a tainted appointment, he
had ample opportunity, both in this court
and in the court a quo, to
become involved in the proceedings. And he will still have the
opportunity, if this appeal is dismissed
and an application is made
to set aside his appointment, to advance whatever argument he deems
fit because the judgment of this
court, although persuasive, will not
be binding on the court that hears that applicaiton. But be that as
it may. That is not the
issue. The issue is whether Judge Henney was
a necessary party. And for the reasons given I agree with the court a
quo’s
finding that he was not. It follows that, in my view, the
non-joinder point taken by the JSC was rightly dismissed.

[18] For purposes of the non-joinder
issue, I have assumed that both the JSC’s application to
introduce new evidence on appeal
as well as its attempt to avoid the
directions issued by the Deputy President, should succeed. However,
it is apparent in my view
that neither of these took the
consideration of that issue any further. Nor would they have any
impact on the remaining issues
in this case. In addition, neither the
JSC nor the CBC sought any special costs order with regard to these
matters. In the circumstances
they may, in my view, be safely passed
over without any further consideration.

Are the impugned decisions of the
JSC reviewable?

[19] In the court a quo the JSC raised
the further preliminary issue that the impugned decisions were not
reviewable under PAJA.
In support of that contention it relied on the
provisions of s 1(gg) of PAJA which is one of the nine pertinent
exclusions
from the ambit of what would otherwise be ‘administrative
action’ and which are thus rendered immune from judicial review

under the Act. That section refers to:

‘A
decision relating to any aspect regarding the nomination, selection
or appointment of a judicial officer or any other person,
by the
Judicial Service Commission in terms of any law’.

[20] The court a quo agreed with the
contention that the impugned decisions of the JSC are excluded from
review under PAJA by s 1(gg).
Nonetheless it found these
decisions reviewable, in principle, under the doctrine of legality.
The correctness of this finding
is not challenged by the JSC on
appeal. As a result, the doctrine of legality can, for present
purposes, be stated without elaboration
and purely as the underlying
substructure for this court’s consideration of the remaining
issues.

[21] As Ngcobo CJ said in Albutt v
Centre for the Study of Violence and Reconciliation 2010 (3) SA
293 (CC) para 49, it has by now become axiomatic that the doctrine or
principle of legality is an aspect of the rule of law itself which

governs the exercise of all public power, as opposed to the narrow
realm of administrative action only. The fundamental idea expressed

by the doctrine is that the exercise of public power is only
legitimate when lawful (see Fedsure Life Assurance Ltd v Greater
Johannesburg Transitional Metropolitan Council [1998] ZACC 17; 1999 (1) SA 374
(CC) para 56). By way of example it was held in Fedsure, on
the basis of the legality principle, that a body exercising public
power has to act within the powers lawfully conferred upon
it. And in
Pharmaceutical Manufacturers Association of SA: In re Ex Parte
President of South Africa [2000] ZACC 1; 2000 (2) SA 674 (CC) (para 20) it was
held that the principle of legality also requires that the exercise
of public power should not be arbitrary
or irrational (see also
Albutt supra para 49 and the cases cited in footnote 43).

[22] The JSC’s power to advise
the President on the appointment of judges of the High Court is
derived from s 174(6)
of the Constitution. Hence it is
undoubtedly a public power. In the event, this court has recently
held that the proper composition
of the JSC is a matter for review
under the doctrine of legality (see Acting Chairperson: Judicial
Services Commission v Premier of the Western Cape Province 2011
(3) SA 538 (SCA)). Moreover, in accordance with legal principle that
became well settled in many cases since Pharmaceutical
Manufacturers, the decisions of the JSC that are challenged by
the CBC are, in principle, subject to review on the basis of
irrationality. This
brings me to the first challenge based on the
alleged improper composition of the JSC when the decisions not to
recommend any of
the unsuccessful candidates were taken.

Composition of the JSC

[23] The composition of the JSC is
regulated by s 178(1) of the Constitution. The relevant part of
this section provides:

‘178
Judicial Service Commission

(1)
There is a Judicial Service Commission consisting of–

(a)
the Chief Justice, who presides
at meetings of the Commission;

(b)
the President of the Supreme
Court of Appeal;

(c)
one Judge President designated
by the Judges President;

(d)
the Cabinet member responsible for the administration of justice, or
an alternate designated by that Cabinet member;

(e)
two practising advocates nominated from within the advocates'
profession to represent the profession as a whole, and appointed by

the President;

(f)
two practising attorneys nominated from within the attorneys'
profession to represent the profession as a whole, and appointed by

the President;

(g)
one teacher of law designated by teachers of law at South African
universities;

(h)
six persons designated by the National Assembly from among its
members, at least three of whom must be members of opposition parties

represented in the Assembly;

(i)
four permanent delegates to the National Council of Provinces
designated together by the Council with a supporting vote of at least

six provinces;

(j)
four persons designated by the President as head of the national
executive, after consulting the leaders of all the parties in
the
National Assembly; and

(k)
when considering matters relating to a specific High Court, the Judge
President of that Court and the Premier of the province concerned,
or
an alternate designated by each of them.

.
. .

(4)
The Judicial Service Commission has the powers and functions assigned
to it in the Constitution and national legislation.

(5)
The Judicial Service Commission may advise the national government on
any matter relating to the judiciary or the administration
of
justice, but when it considers any matter except the appointment of a
judge, it must sit without the members designated in terms
of
subsection (1) (h)
and (i).

(6)
The Judicial Service Commission may determine its own procedure, but
decisions of the Commission must be supported by a majority
of its
members.

(7)
If the Chief Justice or the President of the Supreme Court of Appeal
is temporarily unable to serve on the Commission, the Deputy
Chief
Justice or the Deputy President of the Supreme Court of Appeal, as
the case may be, acts as his or her alternate on the Commission.

(8)
The President and the persons who appoint, nominate or designate the
members of the Commission in terms of subsection (1) (c),
(e),
(f) and
(g),
may, in the same manner appoint, nominate or designate an alternate
for each of those members, to serve on the Commission whenever
the
member concerned is temporarily unable to do so by reason of his or
her incapacity or absence from the Republic or for any
other
sufficient reason.’

[24] With particular reliance on
subsecs 178(1)(b) and 178(7), the CBC contended that because both the
President of this court and
his deputy were absent from the meeting
on 12 April 2011, when the shortlisted candidates were interviewed
and their selection
decided upon, the meeting and the decisions taken
were unconstitutional. For its factual basis the contention rested on
what was
common cause, namely that neither the President, Mpati P,
nor his deputy, Harms DP, were present at that meeting. As to how
this
happened, the JSC explained in its answering affidavit, that it
met for just over a week, from 4 April to 12 April 2011. Mpati P
was
present from 4 April to 11 April 2011. He left the meeting at the end
of the proceedings on 11 April 2011 for an important
engagement after
being excused by the Chief Justice as the chairperson. Harms DP
was not invited to attend on the 12th because it was
thought unnecessary to do so.

[25] The CBC’s contention that
the meeting of 12 April 2011 and, in consequence, the decisions taken
at that meeting was unconstitutional,
was upheld by the court a quo.
The JSC’s appeal against that finding is based on two
arguments: (a) that the JSC held a single
meeting from 4 to 12 April
2011 and that, because Mpati P was present for most of the time
during that period, it cannot be
said that he was ‘temporarily
unable to serve on the Commission’, as contemplated in s 178(7)
of the Constitution;
and (b) that, in any event, the full compliment
of the JSC is not necessary for its proceedings and decisions to be
valid.

[26] The court a quo found the first
argument to be without merit. I agree. As I see it, there is simply
no basis for the argument
that there was a single meeting which
lasted from 4 April to 12 April 2011. Over that period the JSC
obviously had different meetings.
At some of those meetings it was
differently constituted. That follows from the provisions of subsecs
178(1)(k) and 178(5). When
it considered any matter relating to a
specific High Court, the Judge President of that court and the
Premier of that province
became constituent members in terms of
s 178(1)(k). On the other hand, s 178(5) dictates that when
the JSC considered
matters not concerning appointment of judges, it
had to sit without the members designated in terms of subsecs (1)(h)
and (1)(i).
It follows that the determination of whether or not a
meeting of the JSC was properly constituted must be made with regard
to who
was present at that meeting and the purpose for which it was
held. Moreover, the argument that a member must be regarded as
present
for the whole week if he or she was there at the start of the
first day, could clearly lead to absurd consequences.

[27] With regard to the JSC’s
contention that it is impractical to insist that every meeting must
be attended by every member
or his/her alternate, I believe that
s 178(7) requires a distinction to be drawn between the Chief
Justice and the President
of the SCA, on the one hand, and the rest
of the members on the other. Barring situations which would warrant
invocation of the
principle expressed by the maxim lex non cogit
ad impossibilia, s 178(1)(b) read with s 178(7)
requires the presence of the Chief Justice and the President of this
court, or their
designated alternates, for the valid composition of
the JSC. The position may be different with regard to the persons
appointed
in terms of subsecs (1) (c), (e), (f) and (g) for
whom alternates ‘may’ be appointed. But it is no
different
from the position of the Premier and the Judge President of
a specific High Court provided for in subsec (1)(k). In Acting
Chairperson: Judicial Service Commission v Premier of the Western
Cape Province 2011 (3) SA 538 (SCA) this court held that, in
circumstances contemplated in s 178(1)(k), a meeting of the JSC
was not properly constituted
in the absence of the Premier or her
designated alternate. As I see it, the conclusion can be no different
in this case. Lastly,
I can see no answer to the further
consideration that swayed the court a quo. It is this. On the JSC’s
interpretation of
s 178(7), the Deputy President of this court
would not have been permitted to attend the meeting of 12 April 2011,
even if
he happened to be present at the venue, because the President
was not ‘unable to serve’ for purposes of s 178(7),

though he could not be present. This inevitable conclusion of the
interpretation contended for by the JSC is, in my view,
self-evidently
unsustainable.

[28] This brings me to the JSC’s
alternative contention, that a full compliment of the JSC is not
necessary for the validity
of its decisions. As support for this
contention the JSC sought to rely on Minister of Health v New
Clicks SA (Pty) Ltd 2006 (2) SA 311 (CC). This judgment is to be
understood against the background of the general principle thus
formulated by Innes CJ in Schierhout v Union Government 1919
AD 30 at 44:

‘[W]henever
a number of individuals, were empowered by Statute to deal with any
matter as one body; the action taken would have to
be the joint
action of all of them . . . for otherwise they would not be acting in
accordance with the provisions of the Statute.’

[29] What
Chaskalson CJ pointed out in New
Clicks (para 171) was that this is
not an immutable rule and that the question whether the legislature
intended to visit the decisions
of a body established by a particular
statute with invalidity, unless it was taken by all the members of
the body jointly, is always
dependent on an interpretation of the
particular empowering statute. In New
Clicks Chaskalson CJ concluded that
a proper interpretation of the empowering legislation in that case
did not warrant the inference of
invalidity.

[30] With regard
to the interpretation of s 178(1) of the Constitution, on the
other hand, this court decided in Acting
Chairperson: Judicial Service Commission v Premier of the Western
Cape Province 2011 (3) SA 538 (SCA)
paras 9-18, that in the circumstances contemplated by
subsec 178(1)(k), the JSC can take no valid decision in the
absence
of both the Premier and her designated alternate. Counsel for
the JSC did not contend that, in the present context, there is a
difference between the provisions of s 178(1)(k), on the one
hand, and subsecs 178(1)(b) and 178(7) on the other. I can see
no
difference either. It follows that, if the JSC cannot take a valid
decision in the absence of either the Premier or her alternate,
the
position can be no different with regard to the absence of both the
President of this court and his deputy. This means that
we are bound
by the decision in Premier of the
Western Cape.

[31] Counsel for
the JSC was thus compelled to submit, albeit reluctantly, that
Premier of the Western Cape
was wrongly decided. Their first argument in support of this
submission was that no reference was made in that case to the
provisions
of subsecs 2(1) and (2) of the Judicial Service Commission

Act 9 of 1994. These sections, which were introduced by the Judicial

Service Commission Amendment Act 20 of 2008, read as follows:

‘2
Acting Chairperson and vacancies

(1)
When the Chairperson is for any reason unavailable to serve on the
Commission or perform any function or exercise any power,
the Deputy
Chief Justice, as his or her alternate, shall act as chairperson.

(2)
If neither the Chief Justice nor the Deputy Chief Justice is
available to preside at a meeting of the Commission, the members

present at the meeting must designate one of the members holding
office in terms of section 178 (1) (b)
or (c)
of the Constitution as acting
chairperson for the duration of the absence.’

[32] Section 2(2), so counsel’s
argument went, is an acknowledgement by the legislature that meetings
of the JSC can be validly
held and decisions validly taken in the
absence of both the Chief Justice and his deputy. The correctness of
that conclusion cannot
be gainsaid. It obviously presupposes that
where both the Chief Justice and his deputy are unavailable, the
meeting of the JSC
must go on. Furthermore, I have no difficulty with
the next logical step in counsel’s argument, that the same must
hold true
for the President of this court and his deputy. If both of
them are unavailable, the JSC can still validly meet. But the
question
whether the argument assists the case of the JSC depends on
the meaning ascribed to ‘unavailable’ in the section. It

will be remembered that Harms DP was not invited to attend the
meeting of 12 April. There is no indication that if he were so
invited he would have been unable to attend. Counsel for the JSC was
therefore constrained to argue that in the context of s 2(2)
of
the JSC Act, the concept ‘unavailable’ includes absence
for any reason, or, for that matter, without any legitimate
reason at
all. It would also mean, so counsel for the JSC fairly conceded, that
even if the Chief Justice and his deputy were absent
simply because
they were not invited, they must be looked upon as ‘unavailable’
for purposes of s 2(2). I find
this interpretation of the
section unsustainable. I do not accept that the proper composition of
a body as important as the JSC
can depend on the whim of whomever is
responsible for the administrative task of sending invitations.

[33] As I see it, unavailability must
broadly bear the same meaning as ‘temporarily unable to serve’
in s 178(7)
of the Constitution. If both the Chief Justice and
his deputy are unavailable – in the sense that they are unable
to attend
– the meeting must go on. Thus understood, I believe
s 2(2) amounts to little more than an invocation of the
principles
expressed by the maxim lex non cogit ad impossibilia.
As I see it, this interpretation is supported by the fact that the
primary aim of s 2(2) is clearly not to determine the

composition of the JSC. That is governed by s 178 of the
Constitution. What s 2(2) of the JSC Act is aimed at is merely

to determine who should be the chairperson of the JSC when the Chief
Justice is ‘unavailable’ or ‘temporarily
unable to
serve’ – as contemplated in s 178(7) of the
Constitution – and his deputy is similarly unavailable.
So
interpreted, I do not believe that the reference to s 2(1) and
s 2(2) of the Judicial Service Commission Act has any impact on
the correctness of the decision of this court in Premier of the
Western Cape.

[34] The further argument by counsel
for the JSC as to why Premier of the Western Cape was wrongly
decided, relied on s 178(6) of the Constitution. That section,
so it was pointed out by counsel, requires only
that decisions of the
JSC be supported by a majority of its members which in this case
would be 13 out of 25. This means, so the
argument went, that a valid
decision can be taken as long as there is a quorum of thirteen
members who all vote the same way. I
am not persuaded on this
argument that Premier of the Western Cape was wrongly decided.
On the contrary, as I see it, s 178(6) has nothing to do with
the proper composition of the JSC. It determines
no more and no less
than what would happen in the event of a disagreement between
members.

[35] Acceptance of counsel’s
argument would mean, for instance, that matters relating to a
specific High Court could be determined
in the absence of the Judge
President of that court and the Premier of the province concerned or
an alternate designated by both
of them, which would be in direct
conflict with the provisions of s 178(1)(k). What is more, I
believe it is clear from s 178
of the Constitution that the JSC
has been created in a structured and careful manner. Its composition
obviously sought to ensure
that persons from diverse political,
social and cultural backgrounds, representing varying interest
groups, would participate in
its deliberations. Any interpretation of
s 178 which would allow decisions of the JSC to be validly taken
with the unjustified
exclusion of one or more of these interest
groups, would therefore negate the very essence of the constitutional
design.

[36] I therefore agree with the court
a quo’s finding that, in the absence of the President of this
court, and his deputy
without justification, the JSC was not properly
constituted at its meeting of 12 April 2011 and that its decisions at
that meeting
with regard to the unsuccessful six candidates were
therefore not validly taken. Save for one reservation, the declarator
in terms
of paragraph 1 of the court’s order can therefore not
be faulted. The reservation relates to the position of Judge Henney.

Since he was not a party to the proceedings and no relief was sought
against him, I think it would be prudent to limit the declarator
of
invalidity so as to make it clear that the decision has no effect on
him. As I see it, it also follows that in so far as paragraph
3 of
the court a quo’s order is consequent upon the declarator in
paragraph 1, the former must likewise be confirmed.

The JSC’s failure to fill the
two vacancies

[37] This brings me to the CBC’s
further contention that, in all the circumstances, the JSC’s
failure to recommend any
of the unsuccessful candidates for
appointment to the two remaining vacancies, was irrational and
therefore invalid. Underlying
this contention are the provisions of
s 174(1) and (2) of the Constitution. Section 174(1) provides
that ‘[a]ny appropriately
qualified woman or man who is a fit
and proper person may be appointed as a judicial officer.’ In
terms of s 174(2)
the ‘need for the judiciary to reflect
broadly the racial and gender composition of South Africa must be
considered when
judicial officers are appointed.’

[38] Three of the shortlisted
candidates, namely Rogers SC, Fitzgerald SC and Olivier SC, were
supported by the CBC on the basis
that they met the requirements in
s 174(1). Rogers, in particular, was strongly recommended as
eminently suitable for judicial
appointment. In this light the CBC
asked the JSC for reasons why it decided to leave two vacancies
instead of recommending any
one of these candidates. The JSC’s
only response was that none of these candidates received a majority
vote. In its founding
papers the CBC contended that this amounted to
no reason at all which, in the circumstances, warranted the inference
that the decision
not to recommend any candidate to fill the two
vacancies, was irrational and thus unlawful. Moreover, so the CBC
maintained, not
recommending any of the unsuccessful candidates would
not be warranted by the considerations contemplated in s 174(2).

[39] In its answering affidavit the
JSC did not deny that the three candidates proposed by the CBC were
appropriately qualified
persons who were fit and proper for judicial
appointment as contemplated by s 174(1), or even that Rogers SC
was eminently
suitable for judicial appointment. Nor did it profess
to have been influenced by considerations of racial and gender
representivity
contemplated in s 174(2) when it decided not to
recommend any of the unsuccessful candidates. The only reason it gave
why
these candidates were nonetheless not recommended to fill the two
vacancies, was that they did not secure sufficient votes for
recommendation. In this regard the JSC referred to s 178(6) of
the Constitution which requires its decisions to be supported
by a
majority of all its members, as opposed to a majority of those
present at the meeting. This means, so the deponent on behalf
of the
JSC explained, that because it comprised 25 persons for purposes of
recommendation proceedings, a candidate was required
to secure at
least thirteen votes in order to be recommended. Since Rogers SC
gained twelve votes only and the other candidates
even less, none of
them received a majority vote and that is the reason why they were
not selected.

[40] In any event, so the JSC
contended in its answering affidavit, it was neither obliged to give
any reason why a candidate was
not recommended, nor able to do so
save for stating that the candidate did not secure enough votes. Its
explanation why it was
unable to do so went along the following
lines. After the interviews regarding vacancies in a particular court
are completed, the
members of the JSC deliberate on the candidates in
private. During these deliberations the members are encouraged to,
and do, freely
voice their views and their concerns with regard to
the individual candidates. Thereafter members are called upon to
exercise their
vote. No one is asked to vote against a particular
candidate, but a candidate who fails to secure a majority vote in his
or her
favour is not recommended.

[41] In order to protect members from
undue pressure, so the deponent for the JSC said, votes are exercised
by secret ballot. In
the result, nobody knows how another member has
voted, or why he or she has voted one way or the other. Moreover, as
the vote is
secret, a member is not required to explain to anyone how
or why he or she voted in a particular way. In the result it is not
possible
for the JSC to furnish reasons to any candidate, or to
anybody else, why he or she failed to secure a recommendation for
appointment.
In order to furnish the reasons, each member would have
to explain why they voted in a particular way. That would, by its
very
nature, so the deponent for the JSC contended, render nugatory
the process of keeping their votes secret.

[42] In sum, the JSC thus answered the
charge that it had failed in its duty to provide reasons for not
recommending any of the
unsuccessful candidates at three levels: (a)
that there is no duty imposed upon it, either by the Constitution or
by any other
legislative enactment, to give reasons for that
decision; (b) that it has in any event given a reason for not
selecting any of
the unsuccessful candidates, namely that none of
them received enough votes; and (c) that because of its secret voting
procedure
it was not possible to provide better reasons than the one
it gave. I propose to deal with each of these three levels in turn.

[43] I think it is true to say that
there is no express constitutional or other legal enactment that
obliges the JSC to give reasons
for not recommending a candidate for
judicial appointment. That of course does not exclude an implied
obligation to do so. In contending
for the existence of such an
implied obligation, the CBC relied on two premises. First, that the
JSC is under a constitutional
duty to exercise its powers in a way
that is not irrational or arbitrary. Secondly, that because the JSC
is an organ of State (as
contemplated by s 239(b) of the
Constitution) it is bound (by s 195 of the Constitution) to the
values of transparency
and accountability. I do not think that the
validity of these premises can be denied and I did not understand the
JSC to do so.

[44] But once these premises are
accepted as valid, I cannot see how the inference of an obligation to
give reasons can be avoided.
It is difficult to think of a way to
account for one’s decisions other than to give reasons (see eg
Mphahlele v First National Bank of SA Ltd [1999] ZACC 1; 1999 (2) SA 667 (CC)
para 12). As to rationality, I think it is rather cynical to say to
an affected individual: you have a constitutional right
to a rational
decision but you are not entitled to know the reasons for that
decision. How will the individual ever be able to
rebut the defence
by the decision-maker: ‘Trust me, I have good reasons, but I am
not prepared to provide them’? Exemption
from giving reasons
will therefore almost invariably result in immunity from an
irrationality challenge. I believe the same sentiment
to have been
expressed by Mokgoro and Sachs JJ when they said in Bell Porto
School Governing Body v Premier, Western Cape [2002] ZACC 2; 2002 (3) SA 265
(CC) para 159:

‘The
duty to give reasons when rights or interests are affected has been
stated to constitute an indispensable part of a sound system
of
judicial review. Unless the person affected can discover the reason
behind the decision, he or she may be unable to tell whether
it is
reviewable or not and so may be deprived of the protection of the
law.’

[45] As I see it, the JSC is
therefore, as a general rule, obliged to give reasons for its
decision not to recommend a particular
candidate if properly called
upon to do so. I do not express any view as to how extensive these
reasons should be or who would
be entitled to request them, or under
what circumstances such a request could legitimately be made. That, I
think, will depend
on the facts and circumstances of every case. This
really leads me to the further enquiry as to whether the only
‘reason’
given by the JSC, namely that the unsuccessful
candidates failed to secure enough votes, must be regarded as
sufficient. The short
answer to this question, I think, is that it
was not. The CBC submitted that it amounted to no reason at all. I
agree. It just
changed the question from ‘why were they not
recommended’ to ‘why did they not secure enough votes’,
without
providing an answer.

[46] The reply by the JSC does not
serve any of the purposes for which reasons should be given. These
purposes were articulated
with admirable clarity by Lawrence Baxter
Administrative Law (1984) at 228 in the following statement,
which was endorsed by Schutz JA in Transnet Limited v Goodman
Brothers (Pty) Ltd [2000] ZASCA 151; 2001 (1) SA 853 (SCA) para 5:

‘In
the first place, a duty to give reasons entails a duty to rationalise
the
decision. Reasons therefore help to structure the exercise of
discretion, and the necessity of explaining why
a
decision is reached requires one to address one’s mind to the
decisional referents which ought to be taken into account.
Secondly,
furnishing reasons satisfies an important desire on the part of the
affected individual to know why a decision was reached.
This is not
only fair: it is also conductive to public confidence in the
administrative decision-making process. Thirdly –
and probably
a major reason for the reluctance to give reasons – rational
criticism of a decision may only be made when the
reasons for it are
known. This subjects the administration to public scrutiny and it
also provides an important basis for appeal
or review. Finally,
reasons may serve a genuine educative purpose, for example where an
applicant has been refused on grounds which
he is able to correct for
the purpose of future applications.’

[47] This brings me to the third level
of the JSC’s response, namely, that it was not able to give
reasons why the majority
did not recommend the unsuccessful
candidates because of its procedure of voting by secret ballot. I
think there are two answers
to this contention. The first, which
derives from principle, is this. Although s 178(6) of the
Constitution allows the JSC
a wide discretion to determine its own
procedure, that procedure must, as a matter of principle, enable the
JSC to comply with
its constitutional and legal obligations. If it
does not, the procedure must be changed. The JSC’s answer seems
to turn this
principle on its head. What it amounts to is that once
the JSC has adopted a procedure which does not allow it to give
reasons,
it is not legally required to do so. This, I believe, simply
renders its approach untenable.

[48] The second answer to the JSC’s
reliance on its inability to give reasons is the one given by the
court a quo (in para
125 of its judgment). It is founded on
s 2(f)(iii)(l) of the JSC’s rules of procedure that were
adopted by it and published
in the Government Gazette of 27 March
2003. The section deals with recommendations by the JSC of candidates
for appointment to
the Constitutional Court. It provides:

‘The
Chairperson and Deputy Chairperson of the Commission shall distil and
record the Commission’s reasons for recommending
the candidates
selected.’

[49] Proceeding from this section, the
court a quo posed the rhetorical question as to why, if the JSC’s
reasons for recommending
a Constitutional Court judge can be
distilled, the JSC would not also be able to distil its reasons for
recommending or not recommending
any other judge for appointment.
Before us the JSC sought to answer this question by reference to
s 174(4)(a) of the Constitution
which requires the JSC to
prepare a list of nominees with three names more than the number of
appointments to be made for submission
to the President. This, so the
JSC pointed out, is not the position with regard to appointment to
the High Court where s 174(6)
only requires the JSC to recommend
one nominee for each vacancy. Hence, so the JSC’s argument
went, the analogy relied upon
by the court a quo is not a valid one.

[50] Though I appreciate the obvious
difference relied upon in the JSC’s argument, I fail to
understand how that answers the
question posed by the court a quo.
The question originates from the JSC’s obligation to distil
reasons. It has nothing to
do with the purpose for which it may be
required to do so. Thus understood, the question remains: if the JSC
is able, despite its
procedure of voting by secret ballot, to distil
reasons for one decision, why can it not do so for another? The
further distinction
between recommending and not recommending a
candidate, which the JSC also sought to rely on in argument, again
appears, in the
present context, to be a distinction without a
difference. If there are five candidates, logic appears to dictate
that the reasons
for recommending four must include some motivation
for not recommending the unfortunate number five. What is more, if
the reasons
of the majority cannot be distilled from the open
deliberations which precede the voting procedure, there appears to be
no reason,
on the face of it, why the members cannot be asked to
provide their reasons anonymously. I appreciate that several
disparate reasons
may emerge, but again, on the face of it, I can see
no problem in regarding all of them as the reasons for the decision
of the
JSC.

[51] To recapitulate and lest I am
misunderstood: I am not suggesting that the JSC is under an
obligation to give reasons under
all circumstances for each and every
one of the myriad of potential decisions it has to take. Suffice it
for present purposes to
say that: (a) since the JSC is under a
constitutional obligation to act rationally and transparently in
deciding whether or not
to recommend candidates for judicial
appointment, it follows that, as a matter of general principle, it is
obliged to give reasons
for its decision not to do so; (b) the
response that the particular candidate did not garner enough votes,
does not meet that general
obligation, because it amounts to no
reason at all; (c) in a case such as this, where the undisputed facts
gave rise to a prima facie inference that the decision not to
recommend any of the suitable candidates was irrational, the failure
by the JSC to adhere to
its general duty to give reasons inevitably
leads to confirmation of that prima facie inference. In the
event, I agree with the finding by the court a quo that the failure
by the JSC on 12 April 2011 not to fill any
of the two vacancies on
the bench of the WCHC was irrational and unlawful.

Constitutionality of the JSC’s
voting procedure

[52] Having arrived at that
conclusion, the court a quo further held that, in any event, the
voting procedure adopted by the JSC
was in itself unconstitutional.
The reasons for this finding are thus summarised in paragraphs 139
and 141 of the judgment:

‘A
voting procedure of one vote per vacancy, as opposed to one vote per
candidate, is irrational in that it does not ensure that
decisions
are taken by the majority of members.’

And:

‘.
. . [W]here the voting procedure adopted resulted in the failure to
obtain [the required] majority because votes per vacancy were
spread
over more candidates than the number of vacancies for which they
compete, was irrational and failed to provide the opportunity
to the
majority of the members of the JSC to make a decision.’

[53] Counsel for the respondent did
not invite us to confirm these findings, but counsel for the amicus
curiae did. Yet I think we must decline that invitation. Apart
from the fact that the finding would be redundant, the actual voting
procedure
of the JSC is shrouded in obscurity. This is so because the
deponent to the answering affidavit on behalf of the JSC gave two
directly
conflicting versions in this regard. At one stage he stated
that each member has one vote per vacancy. Later on he said that each

member has one vote per candidate. The latter version he underscored
by the statement that ‘it is perhaps necessary to clarify
that
if, for example, there are three vacancies, each member of the JSC is
entitled to vote for up to three candidates. If he or
she so wishes,
they may vote for less.’ The court a quo accepted the latter
version as correct, precisely because it was
underscored. But, in
argument before us, counsel for the JSC submitted with surprising
certainty that ‘each member is accorded
one vote per candidate’
and that the version underscored by their client and accepted by the
court a quo was a ‘patent
error’. The amicus curiae’s
answer to this argument was that it is not open to the JSC to rely on
its self-created uncertainty to challenge the findings
of the court a
quo. That may very well be so. Nonetheless, I remain unconvinced that
there is any point in considering a finding
of constitutional
validity which would be both redundant and based on uncertain facts.

Costs

[54] Although the CBC was represented
by four counsel it only asked for the costs of two. In addition we
were informed that counsel
were not charging any fees. In consequence
the costs order sought in favour of the CBC would only pertain to the
costs of its attorneys
and the expenses incurred by two counsel. On
that basis the costs order sought shall be made.

Order

[55] The following order is made:

1. The appeal is dismissed with costs
including the costs of two counsel.

2. Paragraph 1 of the order of the
High Court is amended to read:

(a) ‘That the proceedings of the
first respondent (the JSC) on 12 April 2011 that resulted in the JSC
not recommending candidates
to fill two vacancies on the bench of
this court (the WCHC) were inconsistent with the Constitution in that
both the President
and the Deputy President of the Supreme Court of
Appeal were absent and those proceedings are accordingly declared
unlawful and
consequently invalid.’

3. Save for the amendment in 2 above,
the orders of the High Court are confirmed.

_____________________

F D J BRAND

JUDGE OF APPEAL

APPEARANCES:

For
Appellant: M T K MOERANE SC
T
L SIBEKO SC

Instructed
by: THE STATE ATTORNEY
CAPE
TOWN
Correspondents:
THE STATE ATTORNEY
BLOEMFONTEIN

For
Respondent: L ROSE-INNES SC

S
ROSENBERG SC
R
PASCHKE
N
MAYOSI

Instructed
by: HEROLD GIE
CAPE
TOWN

Correspondents:
McINTYRE & VAN DER POST

BLOEMFONTEIN

AMICUS
CURIAE: D IRISH SC
J
DE WAAL

Instructed
by: CLIFFE DEKKER HOFMEYR INC
CAPE
TOWN

Correspondents:
CLAUDE REID INC
BLOEMFONTEIN