Dear Editor,

In paragraph 33 of the unanimous five judge SCA judgement in Mpumalanga Society of Advocates v Judicial Service Commission and Others (1186/2024) [2026] ZASCA 99 (7 July 2026) a unanimous court found that:

‘[33] The JSC is an organ of State. Accordingly, its decision constitutes

administrative action within the meaning of s 1 of the Promotion of

Administrative Justice Act 2000 (the 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 s 6

of the PAJA.’

The High Court from which the appeal emanated (per Sutherland DJP) did not mention the PAJA, nor did counsel appearing on both sides in the appeal rely on the PAJA, 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 judgement of the SCA had taken into consideration a provision in the PAJA, which excludes from the definition of ‘Administrative Action’:

“ (gg) a decision relating to any aspect regarding the nomination, selection or appointment of a judicial officer or any other person, by the Judicial Service Commission in terms of any law; [Para. (gg) substituted by s. 26 of Act 55 of 2003 (wef 31 March 2005).]”

The litigation was about a decision of the JSC in relation to an application regarding the selection or appointment of a judge. The dispute falls four square within the exclusion quoted above.

Courts are not super-human, they do make mistakes as the juxta positioning 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. Obviously, an appeal relying on the mistake is a possibility if the appeal avenue is open to the dissatisfied litigant. Alternatively, the Uniform Rules of Court have a provision in Rule 42 which 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 7 July. It behoves the court to correct its erroneous reliance on the PAJA the ambit of which expressly does not include the JSC.

Yours in accountability,

Paul Hoffman SC