IN THE HIGH COURT OF SOUTH AFRICA SOUTH GAUTENG HIGH COURT HELD IN JOHANNESBURG

CASE NO:

In the matter between
HLOPHE, MANDLAKAYISE JOHN Applicant

and

JUDICIAL SERVICE COMMISSION First Respondent
MINISTER OF JUSTICE AND
CONSTITUTIONAL DEVELOPMENT Second Respondent
JUDGES OF THE CONSTITUTIONAL COURT OF SOUTH FRICA Third Respondents
KROON AJ Fourth Respondent
JAFTA AJ Fifth Respondent

SECOND RESPONDENT'S ANSWERING AFFIDAVIT

I, the undersigned,

MOHAMED ENVER SURTY

do hereby make an oath and state as follows.

INTRODUCTION

1. I am the Deputy Minister of Basic Education but I was the Minister of Justice and Constitutional Development at aN material times in respect of this application.

2 I am authorised by the 2nd Respondent [Jeff Radebe] to make this affidavit and to confirm that the 2nd Respondent does not oppose the application. To the extent that the allegations in the Applicant's supplementary affidavit are relevant to the determination of the validity of the JSC's decision to conduct the hearing, I tender this affidavit.

3 Before I place on record my reason for recusing myself, I submit that it would be helpful to set out in brief the context within which the decision was taken.

4 By the time I was appointed as the Minister of Justice and Constitutional Development, the Constitutional Court (CC) Justices and the Applicant had already lodged their respective complaints with the Judicial Services Commission (JSC) and litigation surrounding the complaints had been instituted. The dispute was accordingly a matter of public concern with real implications, as far as I was concerned, for the credibility, respect and integrity of the judiciary.

5 I considered it my duty to bring an end to this ugly confrontation and took steps to facilitate a settlement between the two parties.

6 I engaged in informal settlement discussions with the applicants counsel at the time, Advocate Dumisa Ntsebeza SC, on the one hand, and the Deputy Chief Justice, Mr Justice Moseneke, on the other. My interactions with Adv Ntsebeza left me in no doubt that he was acting on behalf of the Applicant and that he kept the Applicant fully informed of what was transpiring between us.

7 It is not my intention to reveal details of our discussions with the parties or their representatives. Nor is it my intention to itemise each of those discussions. However, in view of the Applicant's allegation that my only engagement with him was in respect of his return to work, I am constrained to point out the following. I first raised the issue of the settlement of the dispute between the Applicant and the CC Justices with Adv Ntsebeza when I happened to meet him in Durban on 12 December 2008 at a conference. I thereafter held several discussions with Adv Ntsebeza telephonically and in person after that. On 11 February 2009, at the request of the Applicant, I met him and his counsel, Adv Ntsebeza. The purpose of the meeting was to discuss the Applicant's return to work. We however, in his presence discussed the need to settle the dispute. Given that the main purpose of the meeting was his return to work, we agreed that the settlement discussions should be deferred to later in order not to conflate the issues. After the meeting with the Applicant had ended, Adv Ntsebeza and I met to discuss the settlement of the dispute.

8 Early in March 2009 in a telephonic conversation with Adv Ntsebeza, I indicated to him, that I intended to recuse myself from the JSC hearings into the merits of the complaints. Adv Ntsebeza did not object to my decision and appeared to understand my reasons for doing so.

9 It is against this background that I set out my reason for recusing myself. As a result of my discussions, I was privy to their respective arguments, standpoints and the possible compromises that they might have been willing to make, In the circumstances, I was of the view that it would not be in the interests of either of the parties if I sat in on the hearings and the adjudication of the merits of the complaints. When I informed Adv Ntsebeza and thereafter the JSC that I might be constrained to recuse myself, neither suggested that there was not a proper basis for my recusal. I believed and continue to believe that one or other of the parties may have felt uncomfortable with the role that I had played if I did not recuse myself. Although neither of them had asked for my recusal, I am of the view that their possible discomfort or even perception of bias, whether expressed or not, was a sufficiently compelling reason for me to recuse myself. Moreover, I was concerned that if I participated that a party adversely affected by the decision would attribute it to the fact that I had been involved in trying to settle the dispute. In addition, I did not wish to jeopardise or prejudice the work of the JSC by participating in the proceedings when it had to decide on the merits of the respective complaints, in circumstances where I was privy to what may be regarded as privileged or confidential information about the parties.

10 I am now in a position to deal with the various allegations made by the Applicant in his founding and supplementary affidavits. In view of the fact that I have to a large extent dealt with most of the issues that have been raised, it is not my intention to answer each allegation. My approach is as follows. I dispute each of the allegations to the extent that it is inconsistent with what is contained in this affidavit. I respectfully pray that my failure to deal with any particular allegation is not regarded as an acceptance of its correctness. I must also point out that the allegations relevant to me are made mainly in the supplementary affidavit. It is the applicable allegations made therein that I respond to.

AD PARA 6.1

11 I am not aware that the JSC had sought an opinion on my recusal. I have not seen it, nor has it been brought to my attention.

12 I must stress that I was not a party to the JSC's decision to "press on" with the hearing in my absence or that of a possible designated alternate. To the extent that that decision demonstrates bias, that allegation cannot apply to me: I was not part of that decision, having already recused myself.

13 Save as is consistent with the foregoing and what is contained in this affidavit as a whole, I deny the allegations in this sub-paragraph.

AD PARA 62

14 I do not know what communication the JSC made in respect of my decision to recuse myself. However, I acknowledge that it is a decision that took without a request being made by any of the parties. Having regard to my reason for recusing myself, submit that my decision was proper, appropriate and legally competent. I submit further that it was proper, appropriate and legally competent for the JSC to accept my decision.

15 Save as is consistent with the foregoing and what is contained in this affidavit as a whole, I deny the allegations in this sub-paragraph.

AD PARA 63

16 I have set out my reasons for recusing myself. As I have pointed out, they were conveyed to Adv Ntsebeza, counsel for the Applicant at the time. During the proceedings of I April 2009, the record of the proceedings reflect that the Applicant's new counsel indicated that they would request me to supply my reasons for recusing myself. They did not.

17 I accept that neither the Applicant nor the Justices of the CC had sought my recusal. I recused myself because I had engaged in settlement discussions and had in the course of that process acquired information that was privileged or confidential. I accordingly deny that my involvement with the Applicant, and his counsel, concerned only the issue of whether or not he should resume his office as Judge President.

18 Save as is consistent with the foregoing and what is contained in this affidavit as a whole, I deny the allegations in this sub-paragraph.

AD PARA 6.4

19 I dispute the contention that a decision to recuse oneself must be preceded by a formal application for recusal by an affected party. With respect, that simply is not the law. Arguments will be made on my behalf at the hearing of the matter to show that in law, in appropriate circumstances, a party has a right to request the recusal of a decision maker. The converse of that right is a duty on a decision maker, in appropriate circumstances, to recuse himself or herself with or without such a request.

20 It is not clear whether the Applicant accuses me of bias or not. Whether he does or does not, I state categorically that I am not biased against him. I would not have attempted to settle the dispute if I was biased against him. To the extent that he suggests that the decision to press on with the inquiry demonstrates the JSC's bias against him, with respect that cannot apply to me: I was not part of that decision.

21 I have pointed out that I recused myself because I engaged in informal settlement discussions. As a result I became privy to information that I would otherwise not have acquired. To my knowledge the other members of the JSC had not attempted to play such a role and did not acquire such information. In the circumstances, the basis of my decision to recuse myself did not apply to them. Consequently, nothing adverse can be read into my decision to recuse myself, while the other members did not consider it necessary to recuse themselves.

22 Save as is consistent with the foregoing and what is contained in this affidavit as a whole, I deny the allegations in this sub-paragraph.

Deponent

PRETORIA, May 14 2009

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