JSC decision may fall outside administrative review
In paragraph 33 of the five-judge Supreme Court of Appeal (SCA) judgment in Mpumalanga Society of Advocates v Judicial Service Commission (JSC) & Others earlier this month a unanimous court found that: “The JSC is an organ of state. Accordingly, its decision constitutes administrative action within the meaning of s1 of the Promotion of Administrative Justice Act (Paja), as it exercises public power and performs a public function under the constitution and the Judicial Service Commission Act 9 of 1994. The JSC’s decision is therefore reviewable under s6 of the Paja.”
The high court from which the appeal emanated did not mention the Paja, nor did counsel appearing on either side in the appeal rely on the act other than in the comparative context of a rationality review, as far as can be gleaned from reports on the case.
Not one of the five judges who participated in the judgment took into consideration a provision in the Paja that excludes from the definition of administrative action “a decision relating to any aspect regarding the nomination, selection or appointment of a judicial officer or any other person by the JSC in terms of any law”.
The litigation was about a decision of the JSC in relation to an application regarding the selection or appointment of a judge, so the dispute falls four square within the exclusion quoted above.
Courts are not superhuman; they do make mistakes, as the juxtapositioning of the SCA findings and the provisions of the Paja set out above amply illustrates.
Mistakes made in judgments can be corrected in two ways. An appeal relying on the mistake is a possibility if the avenue is open to the dissatisfied litigant. Alternatively, the uniform rules of court have a provision in rule 42 that might be invoked.
In South African law courts generally become functus officio (their authority ends) once a final judgment is delivered, preventing them from altering the substance of their orders. However, they can correct mero motu (on their own initiative) patent, clerical or arithmetical errors to reflect their true intention, provided it does not prejudice the parties.
The error in question in this case is obviously a patent error. This explains why the court a quo and counsel did not raise the applicability of the Paja during the litigation. The SCA judgment is deemed to have been handed down as recently as July 7. It behoves the court to correct its erroneous reliance on the Paja, the ambit of which expressly does not include the JSC.
Paul Hoffman
Accountability Now
Time for SA to take Trump’s advice and ‘Drill, baby, drill’
James Cunningham’s polemic on the Gulf raised some interesting questions (“What future for the Gulf states in the wake of the Iran war?”, July 30).
Will US President Donald Trump get bored and retire to a safe distance, having lit the blue touch paper? He claims the US is self-sufficient in oil, so I’m sure he’d suggest the rest of us to “drill, baby, drill”.
That is certainly a good idea for South Africa and the UK, both of which have oil and gas on their doorsteps if they could only get their acts together.
Can Iran be contained to fulminate behind its borders with a low risk of lobbing missiles at its neighbours and damaging their tourist industries or provoking proxy outrage elsewhere in the world?
Will new pipelines make the Gulf and the Red Sea less important? Perhaps Knightsbridge will finally become an Arabian enclave.
What would TE Lawrence have made of it all, I wonder?
Bernard Benson
Parklands
Faith in ANC and legal processes wavers
Nicole Fritz’s article refers (“Paid influencers and fake news threaten SA democracy”, July 31).
In South Africa we have an added problem. The ANC regime knows it has blown it, with the country teetering dangerously on the edge of the cliff.
It knows from the last elections that past ANC voters are not convinced of its offering anymore. It also knows its leaders are largely incapable of earning an honest living and that their positions in government are the only thing keeping them afloat.
The temptation of committing electoral fraud to protect themselves is in the red danger zone. We need to ask international representatives to monitor the conduct of the cadre come November 4 or else we will soon stare into the abyss of another ANC “victory”.
If that were to be the case, all bets would be off. Johannesburg would look like a ride in the park compared to what will happen to our country then.
Andrea Robertson
Via Business Day online
JOIN THE DISCUSSION: Send us an email with your comments to letters@businessday.co.za. Letters of more than 200 words may be edited for length. Anonymous correspondence will not be published. Writers should include a daytime telephone number.
Would you like to comment on this article?
Sign up (it's quick and free) or sign in now.
Please read our Comment Policy before commenting.