WHAT IS A JUDICIAL CONDUCT TRIBUNAL?
When the Judicial Service Commission (JSC) receives a complaint regarding a judge that it considers serious it will form a Judicial Conduct Committee to assess the complaint. If the Judicial Conduct Committee finds that the complaint requires further investigation it will recommend to the JSC that a Judicial Conduct Tribunal is established in order to properly deal with the matter.
A Judicial Conduct Tribunal is established through Part IV (sections 19 to 34) of the Judicial Service Commission Act 9 of 1994 (as amended).
COMPOSITION OF A JUDICIAL CONDUCT TRIBUNAL
A tribunal comprises two judges and a non−judicial member taken from a list approved by the Chief Justice (and with the Justice Minister’s approval). The Tribunal may appoint a member of the National Prosecuting Authority as evidence leader. This is usually a senior prosecutor who has the responsibility to gather the evidence relating to the complaint and present it at the hearing.
The respondent judge (the judge accused of misconduct) is entitled to attend the tribunal‘s hearing and to have legal representation present.
The complainant may also attend the hearing and have their legal representative present.
PROCEDURE OF A JUDICIAL CONDUCT TRIBUNAL
The tribunal enquires into the allegations and submits a report of its findings to the JSC. The Terms of Reference of what the tribunal may inquire into are decided by the JSC when it appoints the tribunal.
The Tribunal may conduct its investigation through:
- collecting evidence;
- conducting a formal hearing;
- making findings of fact; and
- making a determination on the merits of the allegations levelled against a judge accused of misconduct;
The Tribunal is entitled to subpoena documents and may call witnesses to testify at the hearing. All evidence and testimony at the tribunal must be given under given under oath. It is therefore a crime to give false evidence or testimony at the tribunal. It is also a crime for a witness to fail to attend a tribunal hearing without an excuse, or to refuse to answer questions. Anyone who hinders or obstructs the functions of the tribunal may also be found guilty of a crime.
The tribunal may make a recommendation that a judge be removed from office through impeachment.
For more details on this procedure you can read the rules made in terms of Section 25(1) of the JSC Act to regulate procedures before Judicial Conduct Tribunals.
Judicial Conduct Tribunals are meant to form part of the ongoing development of the system of holding judges accountable, not just through their judgments being appealed, but through their conduct being held up to scrutiny by their peers.
CAN THE PUBLIC ATTEND THE TRIBUNAL?
Tribunals are generally closed to the public, although the Tribunal President may determine that all or part of the hearing can take place in public. The Judicial Conduct Tribunal for Judge Motata and that for Judge Hlophe was open to the media.