Advocate Ngalwana’s complaint against Justice Kriegler – The JCC Decision
Advocate Vuyani Ngalwana, a senior advocate, lodged a complaint with the Judicial Conduct Committee (JCC) against Justice Johann Kriegler.
The complaint was lodged in terms of section 14(4)(b) and 14(4)(e) of the Judicial Service Commission Act (the JSC Act), read with articles 4(a), 5, 11 and 12(1)(d) of the Code of Judicial Conduct (the Code). The complaint arose from various utterances allegedly made by Kriegler in the media, against Judge President Hlophe of the Western Cape High Court. The crux of the complaint was that Kriegler had “persistently attacked Hlophe in his utterances”. The JCC considered the complaint and reached its decision on 29 July 2022.
The allegations levelled against Kriegler by Ngalwana
In his complaint Ngalwana alleged that Kriegler made various critical comments against Hlophe. These alleged critical comments were published on TimesLive on 1 March 2021 (the 1st alleged attack), News24 on 17 April 2021 (the 2nd alleged attack), in a Media Report on 3 July 2018 (the 3rd alleged attack), and on the Independent Online in September 2009 (the 4th alleged attack).
In the 1st attack, it is alleged that Kriegler said that Hlophe, in his acquittal of a politician, employed “contrived reasoning”. As a result of this comment, it is alleged that Kriegler contravened articles 11(1)(b), (e) and (f) of the Code, which prohibits public criticism of a judge by another judge. Ngalwana also alleged that Kriegler went as far as saying that Hlophe is “unfit to be a judge”. This second part to the 1st alleged attack was said to have contravened article 4(a), 5, 11, 12(1)(d), and 17(2) and (3) of the Code and the JCC indeed found that it contravened article 11 of the Code.
In the 2nd attack it was alleged by Ngalwana that Kriegler commented and called for the “punishment and jailing” of Hlophe. This occurred after a finding of gross misconduct by the Judicial Conduct Tribunal (the JCT) against Hlophe on 9 April 2021. Ngwalwana alleged that Kriegler again contravened article 11 of the Code. Ngalwana also alleged that this comment contravened article 12(1)(d) of the Code. This article provides that judges may not ‘use or lend the prestige of the judicial office to advance the private interests of the judge or others.’ In this instance Ngalwana alleged that Kriegler lent prestige of his office to advance the interest of the main parliamentary opposition party, the Democratic Alliance (DA) which had issued a statement urging the JSC to urgently “get rid of him” (Hlophe).
In the 3rd attack, Ngalwana alleged that Kriegler expressed “disgust” after a postponement of Hlophe’s hearing. It was alleged that Justice Kriegler stated that “FUL is disgusted but not surprised. Hlophe has attempted for more than 10 years to defeat the attempts to bring him to justice. This is just the latest attempt.” Ngalwana alleged that these comments contravened articles 4(a), 5, 11, 12(1)(d), and 17(2) and (3) of the Code.
In the 4th attack, Ngalwana alleged that Kriegler had commented that Hlophe was ‘a manifestation of the problem’ within the judiciary. He also alleged that Krigeler said that the independence of the judiciary should not be sacrificed on the ‘altar of transformation.’ Ngalwana’s complaint here was premised on the allegation that Kriegler was pre-judging the complaint by the ConCourt justices against Hlophe. According to Ngalwana this was in contravention of article 4(a), article 5, article 11, article 12(1)(d), article 17(2), and (3) of the Code.
The status of Ngalwana’s complaint
Ngwalwana’s complaint against Kriegler was treated as a ‘section 17’ complaint, which is serious but non-impeachable. This meant that it would be dealt with through an inquiry conducted by a member of the JCC, in term of section 17(1) of the JSC Act. In this instance, the complaint was adjudicated only on the submissions, without any hearing (this is in terms of section 17(3) and (4)(b) of the JSC Act). The inquiry was conducted by JCC member Judge Dumisani Zondi of the Supreme Court of Appeal (SCA).
The decision by the JSC
In reaching the decision of the JCC, Justice Zondi ventured into a comparative study between South Africa, the United States of America (USA), and the United Kingdom (UK). In addition to these jurisdictions, he considered the Bangalore Principles of Judicial Conduct. Justice Zondi undertook this exercise to grapple with the question of how the Code applied to Justice Kriegler as a retired judge. Justice Kriegler was first appointed as a permanent judge in 1993 in the Appellate Division, which was the highest court in the land at that time. When the ConCourt was newly formed in 1994, Justice Kriegler was appointed as one of the founding members of the now apex court. He retired from the bench in 2002. Hence the comparative study undertaken by Zondi considered the applicability of the Code to retired judges.
In the comparative study, Justice Zondi found that the USA Code of Conduct for judges applied to all judges, except part-time judges, judges ex-tempore, and retired judges. The UK Guide to Judicial Conduct on the other hand provides that, ‘even in retirement a former judge may still be viewed by the general public as a representative of the judiciary, and any activity that may ruin the reputation of the judiciary should be avoided’ by retired judges too. The UK Guide on Judicial Conduct further warns against ‘judges expressing conflicting views in debate, because a public conflict between judges, expressed out of court, may bring the judiciary into disrepute and diminish the authority of the court’.
Zondi also noted that the Bangalore Principles of Judicial Conduct confirm that judges also have the right to freedom of expression, belief, association, and assembly. However, there is a limitation imposed on these rights in relation to judges. When exercising these rights, judges are expected to conduct themselves in a way that maintains the dignity of the judicial office, and the impartiality and independence of the judiciary.
Having considered the legal framework for the conduct of judges, Zondi dismissed all the complaints against Kriegler, except for the complaint relating to a comment published on 1 March 2021 in a TimesLive publication. There Kriegler had stated that Hlophe was “unfit to be a judge”. This comment was made in relation to the bribery and corruption trial of senior ANC politician Bongani Bongo, which case Hlophe had allocated to himself. As the presiding judge, Hlophe found Bongo not guilty as charged.
In response to this misconduct charge, Kriegler stated that he could not recall precisely what he said in this impugned comment published in TimesLive. However, he was confident that whatever he might have said it would have been ‘germane to the situation, appropriate and abundantly warranted at that time’.
Zondi was not convinced by Kriegler’s response to the misconduct charge. Zondi found that this 1 March 2021 statement amounted to public criticism of one judge by another, which is proscribed by article 11(1)(f) of the Code. Zondi reasoned that the statement that Hlophe was ‘unfit to be a judge’ was made in circumstances where the JCT had not yet found Hlophe guilty of gross misconduct.
Judge Zondi ordered Kriegler to retract his 1 March 2021 statement and (ironically) apologise to the complainant, Ngalwana.
It is indeed so that a judge’s appointment is a lifetime appointment. When a judge retires and is no longer in active service, the rules and regulations that applied when the judge was in active service largely continue to apply even in retirement. Although judges are entitled to their Constitutionally enshrined rights, which include the right to freedom of expression, belief and opinion, those rights are limited by the provisions of the Code. ‘Judges activities must at all times be consistent with their status as a judge,’ the Code says, and this equally applies to retired judges.
According to article 11 of the Code titled ‘Restraint’, judges cannot criticise each other or another branch of the judiciary publicly. This is so, unless such ‘criticism is relevant to judicial proceedings before the judge, criticising another judge, or to an academic presentation made for the advancement of legal education. The objective article 11 of the Code is to protect the integrity of the judiciary.
No strong view is taken on the wisdom of the Code, as it is possible to have instances where some comments by judges may cause harm to the integrity and esteem of the judiciary. However, it is possible to have other instances where such prohibition comes dangerously close to muzzling judges from speaking out against bad behaviour by powerful members of society, such as businesses, government, and even other judges. In such instances, it would be fair and reasonable for judges to criticise other judges, as we do expect our judges to be morally outspoken.
It is probably correct to say that “[c]onfidence might be harmed where the former judge criticises his or her former colleague on the bench, particularly when those colleagues remain on the bench,” to quote Judge Zondi.
Kriegler has expressed intention to appeal the decision of the JCC. This is therefore a developing matter.