First appointed as a judge: 2006, (KwaZulu-Natal, Pietermaritzburg)
Date of Birth: 13 September 1959
- Intech Instruments v Transnet Ltd t/a South African Port Operations (4690/2008)  ZAKZDHC 49 (1 November 2017)
- Cape Bar Council v Judicial Service Commission  2 All SA 143 (WCC)
- Shoprite Checkers (Pty) Ltd v Everfresh Market Virginia (Pty) Ltd t/a Wild Break 166 (Pty) Ltd (6675/09)  ZAKZPHC 34 (25 May 2010)
- Moor and Another v Tongaat Hulett Pension Fund and Others (2118/2014)  ZAKZDHC 55 (22 December 2016)
In KwaZulu-Natal High Court Judge Pete Koen, the Judicial Service Commission (JSC) will be interviewing a candidate who has previously found against the body. Something which could incite the sometimes ill-tempered wrath of Chief Justice Mogoeng Mogoeng during interviews.
In the 2012 High Court matter of Cape Bar Council v Judicial Service Commission & Others, the applicants sought to declare the JSC’s proceedings and subsequent failure to fill two vacancies on the Western Cape High Court unconstitutional and invalid. During the interviews in question neither the president nor deputy president of the Supreme Court of Appeal had been present — the JSC had also declined to appoint various favourites, who were members of the Bar Council.
Koen, with Judge Fikile Mokgohloa concurring, held that the JSC’s exercise of a public power was reviewable under the principle of legality, regardless of whether it was reviewable under the Promotion of Administrative Justice Act (PAJA). He also found that the failure to fill the two vacancies did not constitute administrative action and were not reviewable under PAJA.
On the composition of the JSC, Koen held that neither section 178 of the Constitution which governed the composition of the JSC, nor any other Constitutional provision provided “that the first respondent may be comprised and consist of only some of the persons referred to in Section 178 (1)” of the Constitution.
He found the Constitution did not stipulate a quorum for the JSC, nor did it provide that the JSC may determine a quorum. Koen also found that by making provision for alternates to the Chief Justice and the President of the SCA, the Constitution “clearly implied that at least those positions … must be occupied either by the member named or his alternate.”
Koen held that the membership of the JSC had been “selected for a particularly constitutionally significant purpose”, which could be thwarted if it was deprived of the services of one or more of its members. “Accordingly, there must be full attendance and participation by all members of the first respondent.”
He therefore declared the sitting for the Western Cape vacancies was “clearly not in accordance with the dictates of the Constitution and hence unlawful and constitutionally invalid.”
On the failure to fill the two vacancies Koen found that it was “incumbent upon the JSC to account for its failure to have appointed at least those considered to be appropriately qualified and fit and proper candidates.”
The JSC had argued that no other candidate had obtained the necessary majority of votes, and no decision had been made to keep the two vacancies open. He felt this raised the question of whether the process by which the JSC recommended a candidate was “a sufficiently transparent and accountable process” and was not arbitrary or irrational.
The JSC had also argued that the reason for the non-appointment of the unsuccessful candidates was that none of them received a majority of votes, and that it was neither possible nor legally required for the JSC to provide reasons.
Koen found that there was no reason why the JSC could not give reasons, since the procedure of the Commission provided that reasons for recommending candidates for appointment to the Constitutional Court were distilled and recommended.
Koen held that the JSC’s process “is not transparent and appears arbitrary and irrational.” He also found that the voting procedure fluctuated between commissioners having one vote per candidate and one vote per vacancy. Koen noted that the system of one vote per vacancy was arbitrary and irrational as it made a candidate’s chances of appointment dependent on the number of other candidates shortlisted. He therefore held that a voting procedure of one vote per vacancy, rather than one vote per candidate, was irrational as it did not ensure that decisions were taken by the majority of members.
“Simply advancing as justification that the remaining two vacancies were not filled because none of the unsuccessful candidates were able to achieve the required majority, where the voting procedure adopted resulted in the failure to obtain such 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,” wrote Koen, granting the application..
The SCA upheld the findings regarding joinder, quorum and failure to recommend candidates to fill the two remaining vacancies and dismissed the appeal. The SCA declined to making findings on the issue of the voting procedure, holding that the procedure was “shrouded in obscurity”, and that it was not necessary to consider a finding of constitutional invalidity “which would be both redundant and based on uncertain facts.”
Of the four terms Koen has acted at the SCA, the two most recent were successive ones from December 2019 – March 2020 and again from April 2020 until May 2020.
During those stints Koen wrote for the majority in Mahlangu & Another v Minister of Police which dealt with the minister’s liability for damages related to the appellants detention in terms of various court orders.
This detention spanned the period from the appellants’ first court appearance following arrest until charges against them were withdrawn and they were released. They had been arrested without a warrant on four counts of murder.
The trial court found the arrest and detention to be unlawful and an appeal had been dismissed by a full bench of the high court.
Koen held that every court order, including an initial order for detention “should be a deliberative judicial act and must consider the rights of the arrested person and weigh those in the scales of justice against the interest of the public to have persons reasonably suspected of being perpetrators of crime detained, where appropriate, pending their prosecution. A court order which simply directs the detention of an accused person without giving due consideration to these constitutional imperatives … is liable to be impugned.”
Koen found that police could be liable for persons being denied their freedom even when a court had ordered their detention in two situations.
Firstly, when the arresting officer at the time of the unlawful arrest foresaw continued detention by the court following the first court appearance, where the post-appearance detention was sufficiently closely linked to an initial unlawful arrest.
Secondly, when the police committed wrongful conduct independent of the arrest, which was “intended to influence the prosecutorial decision to request and/or the court’s discretion to direct the further detention of the arrested person”.
The police would be liable for wrongful conduct subsequent to an arrest, whether the arrest was lawful or unlawful, which caused a detained person to be deprived of their liberty after the first court appearance, until the unlawfulness could be remedied.
Describing the pleadings as “anything but a model of clarity” Koen nevertheless found that they were “widened by the evidence”, and that omissions in the pleadings had been cured.
He also found that the inclusion of an inadmissible confession in the docket at the first appearance had factually caused the order for the further detention of the plaintiffs.
The key issue was “whether the plaintiffs proved legal causation, and whether the Minister should be held liable for the full period of their judicial detention.” This required consideration of whether the plaintiffs could and should have applied for release on bail, “and what limits of liability the legal convictions of the community and legal policy determine.”
Koen found that, on the balance of probabilities, had the plaintiffs applied for bail, the court hearing the application would have concluded that the confession was inadmissible, which, on the assumption it was the reason for their continued detention, would have led to the release of the plaintiffs.
The appeal was upheld, and plaintiffs were awarded damages of, respectively, R190 000 and R150 000. Two of Koen’s colleagues concurred while the remaining two wrote separate dissenting judgments and would have awarded a greater amount of damages to the plaintiffs.
The Pietermaritzburg-born Koen obtained a B.Com (1980) and an LLB (1982, cum laude) from the then-University of Natal.
After working as an attorney for a short period, Koen joined the Bar in 1988 and was conferred silk ten years later. He was appointed to the KwaZulu-Natal division of the high court in 2006 and has spent four terms acting at the SCA.
Other professional activities include five years lecturing part-time on contract and civil procedure at the University of KwaZulu-Natal and holding the position of chairperson of the Pietermaritzburg Society of Advocates in 2005. He is currently in the editorial board of the South African Journal of Criminal Justice.