WHAT IS THE JUDICIAL CONDUCT COMMITTEE?
When the Judicial Service Commission (JSC) receives a misconduct complaint against a judge it will refer it to the Judicial Conduct Committee to assess the complaint and properly deal with it.
The Judicial Conduct Committee is a 6-member body exclusively made up of judges and forms 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.
The Judicial Conduct Committee is established through Chapter 2 (Part 1) of the The Judicial Service Commission Act 9 of 1994 (sections 7 to 10). The different categories of complaints are dealt with in terms of section 14 to 17, and the processes of the JCC are in terms of section 18.
COMPOSITION OF THE JUDICIAL CONDUCT COMMITTEE
The Judicial Conduct Committee has six members who are all judges. The Chief Justice is chairperson of the JCC and is joined by the Deputy Chief Justice and four other judges who are designated by the Chief Justice (in consultation with the Justice Minister) as members.
At least two of the four judges designated by the Chief Justice must be women.
The four judges on the JCC are changed quite frequently. The four judges serve for a period of two years, which may be extended for another two years. However, these four judges may not sit on the JCC for more than four years in total.
Where there is a complaint involving any member of the JCC, they may not sit to decide that complaint.
The members of the JCC for 2020/2021 are:
- Chief Justice Mogoeng Mogoeng
- Deputy Chief Justice Zondo
- Justice Nambitha Dambuza
- Justice Phineas Mojapelo
- Justice Margaret Victor
- Justice Dumisani Zondi
The Chief Justice may delegate any of his responsibilities as chairperson of the JCC to the Deputy Chief Justice or the Committee as a collective.
CATEGORIES OF JUDICIAL MISCONDUCT COMPLAINTS
It is important to note that the law places misconduct complaints against judges in different categories, which all have different consequences.
The different categories and how they should be dealt with is in terms of Part III of the Judicial Service Commission Act (sections 14 to 18).
Lesser Misconduct Complaints
These are complaints which relate to minor misconduct or those that:
- Do not fall within the parameters of the JSC Act (i.e., they do not relate to the conduct of a specific judge).
- Are not in the form prescribed by the JSC Act (e.g., not a written under oath, or do not state the grounds of complaint).
- Solely relate to the merits of a judgment or order made by a judge (judgments and orders must be appealed through the court system).
- Are “frivolous” or lack substance.
- Are hypothetical.
These complaints may be dismissed immediately or if it is found to be substantiated, a judge may be punished through:
- An apology to the complainant
- A reprimand,
- A written warning,
- Appropriate counselling (paid for by the judge)
- Specific training (paid for by the judge)
- Any form of compensation
- Any form of corrective measure
Serious but non-impeachable misconduct complaints
These are complaints which relate to serious misconduct, but which may not lead to a judge being removed from office through impeachment.
If the complaint is substantiated, a judge will be found guilty of misconduct and acting in a way unbecoming of a judge. They may be punished through any of the measures listed for Lesser Complaints but may also include a fine or suspension.
Gross misconduct complaints
A complaint of gross misconduct is the most serious complaint against a judge. Where a judge is found guilty of gross misconduct, they may be removed from office through the process of impeachment.
PROCEDURE OF THE JUDICIAL CONDUCT COMMITTEE
Complaints of misconduct against judges are submitted to the Secretariat of the JSC, currently Mr Sello Chiloane and Ms Kutlwano Moretlwe. The secretariat then refers this complaint to the Chairperson of the Judicial Conduct Committee, which is usually the Chief Justice or the Deputy Chief Justice (if delegated by the CJ).
The Chairperson of the JCC conducts an initial ‘screening’ process, where he considers whether the complaint is valid to be considered, and whether it is so serious constitute misconduct or gross misconduct. Importantly, the Chairperson only relies on the version provided by the complainant in making this decision.
After the Chairperson screens the complaint, he then decides on which route the complaint must take – this we call “channelling”.
In channelling the complaint, the chairperson may dismiss the complaint on the grounds including when it relates to a court order or judgment, it is frivolous and lacks merit, or is hypothetical.
If not dismissed, the chairperson may channel the complaint to:
- The Head of Court, if the complaint is considered a “lesser complaint” (relating to minor misconduct, where the punishment may either be an apology, a reprimand, a written warning, counselling, training and/or compensation). Upon further inquiry, the Head of Court may upgrade the complaint to one of serious misconduct and may be refer it back to the JCC.
- The JCC for consideration, if the complaint is of serious misconduct but which may not lead to impeachment, or gross misconduct that may lead to a judges’ impeachment.
Regardless of which route the chairperson decides to channel the complaint, he must inform both the respondent and the complainant of his decision and invite the respondent to make representations in the process to follow.
Processing by JCC
When the JCC receives the complaint after the chairperson’s screening process, or by referral from the Head of Court, the JCC must decide on the process the complaint will follow.
Inquiry Proceedings – serious misconduct
For complaints of serious misconduct but which will not lead to a judge’s impeachment, the JCC may conduct an inquiry.
An inquiry is usually done by one member of the JCC but may also be more than one.
An inquiry is an active investigation into the allegations, done in an inquisitorial way, where the presiding member of the JCC invites both the complainant and the respondent to submit affidavits.
No one has any responsibility to prove or disprove any allegation, but the inquiry must proactively find the information. The inquiry may also hold one or more hearings, where the parties may submit statements or arguments.
Following the inquiry, the presiding member of JCC may:
- Dismiss the complaint for lacking merit.
- Find that that complaint is substantiated, and the judge is guilty of misconduct; or
- Find that the allegations may constitute gross misconduct and recommend that the Judicial Conduct Committee recommend that the JSC establish a Judicial Conduct Tribunal.
If the Inquiry finds a judge guilty of misconduct (but not gross misconduct), it may recommend punishment including an apology, a reprimand, a written warning, compensation, appropriate training or counselling, or any other appropriate corrective measure. Importantly, the judge must pay for these corrective measures themselves.
Tribunal proceedings – gross misconduct
For complaints of gross misconduct which may lead to a judge being removed from office through impeachment, the JCC must consider the recommendation from the chairperson after the screening process.
Before the JCC considers the chairperson’s recommendation, it must ask that the complainant and respondent to submit statements to assist the JCC in coming to its decision. These submissions will be considered at a meeting of the JCC.
At its meeting, the JCC must consider the complaint, the chairperson’s recommendation and the statements by the parties and decide whether there are prima facie (preliminary) grounds the misconduct complained of can constitute gross misconduct which might lead to a judge being removed from office through impeachment.
If the JCC finds that there are such prima facie grounds for gross misconduct, then it must recommend that the JSC appoint a Judicial Conduct Tribunal.
Any party that is aggrieved by the decision of the Judicial Conduct Committee to dismiss a complaint may appeal the decision.
The JCC’s decision to dismiss a complaint must go to a panel of the JCC that includes at least three members or more. The appeal must be presided over by the chairperson, or an acting chairperson designated by the Chief Justice.
CAN THE PUBLIC ATTEND JUDICIAL CONDUCT COMMITTEE PROCEEDINGS?
Judicial Conduct Committee proceedings are generally closed to the public, even when the JCC holds hearing during an inquiry. However, the chairperson may decide that all or part of the meeting of the JCC may be open to the public based on public interest and where there a good cause is shown.
To make a request to attend a Judicial Conduct Committee meeting, one can contact Mr Sello Chiloane, the Secretariat of the JSC on (010) 493 2687 or (010) 493 2633 or email; Chiloane [at] concourt [dot] org [dot] za.
IS THE JUDICIAL COMPLAINTS SYSTEM FIT FOR PURPOSE?
Judges Matter does not believe that the current system to hold judges accountable for misconduct is efficient or effective. Although there is an understandable need to protect the right to procedural fairness and safeguard judicial independence from frivolous complaints, the current system has multiple decision-making processes which make it vulnerable to delays and obstruction through litigation, among other means.
We believe that the judicial conduct system should be streamlined, and more administrative resources should be invested in making the system deal with complaints much faster than it currently does.
South Africa has a pool of excellent retired judges who could act as guardians of the ethics and reputation of the judiciary by getting involved in the conduct proceedings as early as at the screening stage.