The Peremptory Requirements Applicable Prior To Suing A Judge

In Mantashe v Justice Raymond Zondo N.O. and Another, the Johannesburg High Court reiterated the established peremptory requirements that must be satisfied, prior to instituting legal proceedings against a judge.

Background

The Pretoria High Court, in President of the Republic of South Africa v Office of the Public Protector and Others, ordered former President Jacob Zuma to appoint a Commission of Inquiry, to be chaired by a judge selected by the Chief Justice. Former President Zuma did so on 23 January 2018 in terms of section 84(2)(f) of the Constitution, read with the Commissions Act, 1947 (“Commissions Act”). This Commission of Inquiry came to be known as the Zondo Commission. 

Having considered the evidence before it relating to Bosasa, the Zondo Commission made the following findings against Mr Mantashe, the current Minister of Minerals and Energy and the former Secretary General of the African National Congress and its current chairperson (“the Minister”): 

“…there is a reasonable prospect that further investigation will uncover a prima facie case against Mr Mantashe in respect of the offence of corruption in terms of section 3 of the Prevention and Combatting of Corrupt Activities Act, 2004, and the matter is referred for investigation accordingly”.

Mr Mantashe sought to review and set aside the above findings in the Johannesburg High Court in Mantashe v Justice Raymond Zondo N.O. and Another. The Minister contended that the findings affected his reputation and his good name due to the suggestion that he may have been involved in acts of corruption, despite the Zondo Commission not finding evidence of corruption or fraud against him. The Minister also contended that the Zondo Commission exceeded its terms of reference.

A key point of opposition was that Mr Mantashe did not comply with the provisions of section 47 of the Superior Courts Act, 2013 (“the Act”). It was argued that this provision required the Minister to obtain consent from the President of the Supreme Court of Appeal (“SCA”) before instituting proceedings against former Chief Justice Raymond Zondo, which the Minister did not obtain.

The Minister contended that because he instituted the proceedings against the former Chief Justice in his capacity as the Chair of the Zondo Commission, consent from the President of the SCA was not required.

Courts findings

The court held that section 47 is peremptory. It applies to civil proceedings, including review applications, and extends to proceedings against judges in both their judicial and non‑judicial capacities.

The court rejected the Minister's contention that the former Chief Justice, when acting as Chair of the Zondo Commission, was not performing a judicial function for purposes of section 47. It held that the statutory framework supports a broad interpretation. In particular, the definition of “service” in the Judges' Remuneration and Conditions of Employment Act, 2001 (“Remuneration Act”) includes service as a Chairperson or member of a Commission under the Commissions Act. The appointment of the former Chief Justice as Chair pursuant to the court order directing former President Zuma to appoint a judge selected by the Chief Justice to head the Commission further supported the conclusion that he was acting in a judicial capacity.

Even if one were to attempt to distinguish between judicial and non‑judicial functions, the Court held that chairing a Commission of Inquiry falls “squarely” within ordinarily and legally recognised judicial functions for section 47 purposes.

The Court declined to follow Memela v Chairperson of the State Capture Commission of Inquiry, a judgment from the Pretoria High Court, which held that section 47 consent was not required for proceedings against the Chair of a Commission. The court concluded that Memela was clearly wrong and inconsistent with binding authority. It emphasised that section 47 draws no textual distinction between judicial and non‑judicial acts.

Condonation could not be sought ex post facto. The court found that the absence of prior consent renders the proceedings void ab initio. This resulted in the proceedings being deemed a nullity.

The Minister's application was dismissed with costs, including the costs of two counsel on Scale C.

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