Quote of the week
Mr Zuma is no ordinary litigant. He is the former President of the Republic, who remains a public figure and continues to wield significant political influence, while acting as an example to his supporters… He has a great deal of power to incite others to similarly defy court orders because his actions and any consequences, or lack thereof, are being closely observed by the public. If his conduct is met with impunity, he will do significant damage to the rule of law. As this Court noted in Mamabolo, “[n]o one familiar with our history can be unaware of the very special need to preserve the integrity of the rule of law”. Mr Zuma is subject to the laws of the Republic. No person enjoys exclusion or exemption from the sovereignty of our laws… It would be antithetical to the value of accountability if those who once held high office are not bound by the law.
Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CCT 52/21) [2021] ZACC 18
Full High Court bench of FIVE judges?
This post is for the legal nerds out there who might be amused or amazed by the idea of five High Court judges sitting on the bench at the same time.
I hear that the High Court started hearing the application by Judge President John Hlophe against the Judicial Services Commission (JSC) and the Constitutional Court today with a full bench of FIVE judges. The five judges presiding over the hearing are Deputy Judge President Phineas Mojapelo, Judge Antonie Gildenhuys, Judge Seun Moshidi, Judge Rami Mathopo and Judge Dirk Marais.
This seems like a very surprising and unprecedented move and demonstrates the complex situation in which the High Court finds itself. Usually a full bench of the High Court consists of three judges while a full bench of the Supreme Court of Appeal consists of five judges.
The Constitution does state in section 173 that High Courts have the inherent power to protect and regulate their own process, but the Supreme Court Act states that a full bench of the High Court consists of three judges.
But section 13(1)(a) of the Supreme Court Act does provide for the hearing of a case not by a full bench but by a “full court” consisting of so many judges as the Judge President or his or her second in command may determine. This section states:
Deputy Judge President Mojapelo was therefore legally perfectly entitled to appoint a bench of five judges to hear this very important – even earth shattering – case. In fact, it seems like a rather wise move on his part as it allows a bench of five judges to hear the case and if they agree on the outcome, the decision will have somewhat more legitimacy than it would otherwise have had.
Maybe those practicising lawyers out there could let us know if they have ever encounter a High Court bench made up by five judges. None of my colleagues I have spoken to has.
Even though there are five judges sitting in this case, it does not solve the bigger constitutional problem, namely what happens if one of the parties want to appeal the judgment. It can be appealed to the Supreme Court of Appeal (SCA) but it cannot be appealed to the Constitutional Court as the CC is a party to the case.
I assume this must mean that the SCA will have to be considered the highest court of appeal in this matter. That is, if the High Court decides that they have the jurisdiction to hear the application of Judge President Hlophe at all.
Unprecedented stuff, that is for sure.
