What is Judicial Misconduct?
In South Africa, there has traditionally been no definition of judicial misconduct. However, judges were expected to uphold certain ethical standards which were developed through practice over the years and in court decisions (which form part of our common law).
In 2012, the The Judicial Service Commission Act 9 of 1994 was amended to provide for a written The Code of Judicial Conduct which will not only define what misconduct looks like but also provide useful guidance to judges on how they should behave. Related to the Code, is the The Norms and Standard for Performance of Judicial Functions which was brought into force in 2014. As the name suggests, the Norms and Standards guide how judges should performance their day-to-day functions, including court performance.
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 JSC Act (sections 14 to 18).
LESSER MISCONDUCT COMPLAINTS
The JSC Act categories “Lesser Complaints” as those 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 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
These complaints are dealt with by the Chief Justice as chairperson of the Judicial Conduct Committee or the Head of Court where the judge is based.
SERIOUS BUT NON-IMPEACHABLE MISCONDUCT COMPLAINTS
The second category 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.
Serious but non-impeachable misconduct complaints are dealt with by the Judicial Conduct Committee.
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.
Gross misconduct complaints are dealt with by the JSC itself but based on the recommendations of a Judicial Conduct Tribunal.
If the JSC finds that a judge is guilty of gross misconduct, they may recommend that the judge be removed from office by the National Assembly, which must do so through a vote by two-thirds of its members.
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.