How are judges held accountable?
There are two ways that judges generally consider themselves accountable. The first is through the appeal and review process of their judgements. If a judge makes a mistake in a judgement, a more senior court may overturn that decision and give a different order. This is why it is often said that judges are accountable “through their judgments”. People are also free to read and criticise these judgments.
The second way in which a judge may be held accountable is outlined in the Constitution and legislation and is perhaps a more vexed process… We have previously lamented the slow pace of the judicial conduct process in previous blogs, but have outlined the process in greater details below.
The Constitution and removal of a Judge
- A judge may be removed from office only if—
- (a) the Judicial Service Commission finds that the judge suffers from an incapacity, is grossly incompetent or is guilty of gross misconduct; and
- (b) the National Assembly calls for that judge to be removed, by a resolution adopted with a supporting vote of at least two thirds of its members.
- The President must remove a judge from office upon adoption of a resolution calling for that judge to be removed.
- The President, on the advice of the Judicial Service Commission, may suspend a judge who is the subject of a procedure in terms of subsection (1).
The Judicial Service Commission (JSC) therefore sits at the centre of the process for holding judges accountable for the performance of their functions. But what standards are judges held accountable to? And what happens when they fall short of those standards?
Judicial norms, accountability and misconduct
By law, courts are independent and judges are required to apply the law impartially, without fear, favour or prejudice (section 165(2) of the Constitution). The Chief Justice (CJ), as head of the judiciary, is required to ensure that courts and judges remain independent but also effective in resolving disputes, upholding the law and administering justice.
The CJ does this through establishing and monitoring norms and standards for the functions of judges in all courts.[1] The first set of norms and standards were published by the CJ in 2014 and they govern everything from allocating cases to judges, where and how long a court must sit (4.5 hours a day), the period in which cases must be finalised (1 year for civil, 6 months for criminal), and when judgment must be handed down (3 months). Importantly, a failure to adhere to the norms and standards constitutes misconduct by a judge.
In addition to the norms and standards, judges are also required to follow a strict Code of Judicial Conduct (the ‘Code’). Like the norms, the Code is developed and published by the Chief Justice as head of the judiciary.[2] The Code sets out the ethical standards which all judges must observe in the official role as judicial officers but this Code also extends into their private lives. For example, a judge may not be a member of a political party, or comment publicly on issues which may affect a pending court case. They may also not belong to certain organisations or participate in activities which practice discrimination, nor may they be involved in any political controversy.
Significantly, the Code also applies after a judge retires (albeit on terms less strict). A judge’s failure to abide by the Code may also constitute misconduct.
Misconduct also includes serious violations of the JSC Act, such as receiving unauthorised fees or allowances, or holding an office of profit while being a judge; or a judge’s failure to submit registerable interests; or generally any wilful or grossly negligent violation of the Code or the Norms and Standards.
Complaints against judges
Any member of the public may file a complaint against a judge for misconduct. The complaint must be in the form of a sworn statement or affidavit setting out all the facts relating to the matter, and must be submitted to the JSC. The general framework for judicial complaints is set out in section 14 of the JSC Act, while the process for dealing with complaints against judges is detailed in sections 15, 16 and 17.
The Chief Justice, as chair of the JSC, receives all complaints on its behalf and determines the level of seriousness of the complaint, and how it should be dealt with. Where necessary, the CJ refers complaints to the Judicial Conduct Committee (‘the JCC’ or ‘Conduct Committee’) to determine whether the complaint should lead to an inquiry or a tribunal. The Conduct Committee is constituted by up to four judges from various courts, with the CJ as chair.
‘Lesser’ complaints
After receiving the complaints, the Chief Justice will refer ‘lesser’ or less-serious complaints to the Head of Court, who will deal with it at the court level. Less serious complaints include those which are solely related to the merits of a judgment; frivolous or hypothetical complaints; or those which do not relate to incapacity or misconduct by a judge. These are dealt with in terms of section 15 and can be summarily dismissed by the Head of Court. However, the Head of Court may also decide that the complaint is serious enough to warrant a further inquiry and, in such a case, may refer it back to the JCC.
‘Serious’ complaints for Inquiry
A second category of complaints are those that are considered ‘serious’ but not so serious as to require that a judge be removed from office should they be found guilty. Once such a complaint is received, the Conduct Committee can designate the CJ or any other member to hold a fact-finding inquiry into validity of the complaint, in terms of section 17.
In January 2020, Western Cape Deputy Judge President Goliath filed complaint against Judge President Hlophe and fellow Judge Gayaat Salie-Hlophe, and both of these were referred to an inquiry. In such an inquiry, neither the complainant nor the respondent judge has a duty to prove or disprove any fact. However, they are obliged to cooperate by providing any information or statement required by the inquiry. They are also required to participate in any hearing held in terms of the inquiry.
The result of an inquiry
At the end of the inquiry, the inquiry chair may decide to dismiss the complaint, or make a finding that the respondent judge is guilty of behaving in a manner ‘unbecoming’ of a judge. They can impose a sanction or punishment including an apology or compensation to the complaint, a reprimand, a warning, counselling, a training course or other corrective measure. In the only case that has gone to an inquiry, involving Gauteng Judges Nana Makhubele and Neil Tuchten, the inquiry chaired by Goliath DJP dismissed Judge Makhubele’s complaint as unfounded.
The inquiry can also recommend that a complaint is actually serious enough that a judge – if found guilty – can be impeached. They then refer this back to the Committee, which in turn recommends that the JSC appoint a Judicial Conduct Tribunal.
Impeachable complaints for Tribunal
For the most serious complaints, which may ultimately lead to a judge being impeached, the Committee recommends that the JSC appoint a Tribunal. The work of the Tribunal is to thoroughly investigate the complaint and make a recommendation of impeachment to the JSC. The JSC has appointed tribunals in the case of 2008 Judge Hlophe Complaint, the Judge Motata complaint, the Judge Mabel Jansen complaint, and, most recently, the Judge Makhubele complaint.
While the Tribunal is also a fact-finding body like the inquiry, an important difference is that the Tribunal appoints a prosecutor seconded from the National Prosecuting Authority (NPA) as evidence leader. The Tribunal also sits with three members, two of whom must be judges and the other a non-judicial member. The Tribunal’s work is to thoroughly investigate the complaint against the judge, including the subpoena of witnesses, and hear arguments from both the evidence leader, and the judge on whether the Tribunal should recommend impeachment or not. The complainant most often becomes a witness in this process.
JSC’s complaints process track record
The JSC does not have a good track record when it comes to running its processes through to completion – and the Tribunal is no different. Since 1994, there has only been one tribunal which has reached finality – but only after 11 years. In the case of Judge Motata, a Tribunal chaired by Judge President Achmat Jappie found Judge Motata guilty of gross misconduct and recommended that he be impeached. After a few more months of delay, the JSC met to consider the Tribunal’s report and decided to uphold the finding that Judge Motata had committed misconduct, but it was not ‘gross misconduct’, warranting impeachment. It went on to issue the alternative punishment of a fine equivalent to a year’s salary, which Judge Motata must pay to the SA Judicial Education Institute (SAJEI).
“The minefield of bureaucracy, coupled with a system that just does not seem to have any appetite to resolve complaints expeditiously, is a risk to the legitimacy of the judiciary.”
Judicial accountability as a means to what end?
As we stated previously, the slow and obscure system of dealing with complaints against judges is a cause of deep concern. The minefield of bureaucracy, coupled with a system that just does not seem to have any appetite to resolve complaints expeditiously, is a risk to the legitimacy of the judiciary.
Members of the public expect the highest ethical conduct from judges, and where they fall short, the public is right to expect that they will be dealt with swiftly. The twelve years it took the Motata complaint to reach its anti-climatic conclusion, alongside the decade-long Hlophe complaint, give one the distinct impression that the JSC is in no rush to hold judges accountable. It appears as if the JSC is content to see judges go through the motions of what looks like a judicial accountability system, and that has become an end in itself.
[1] In terms of section 165(5) of the Constitution and section 8(2) of the Superior Courts Act 10 of 2013
[2] In terms of section 12 of the Judicial Service Commission Act 9 of 1994 (as amended).
