Judge challenges constitutionality of JSC Act

According to Business Day, Judge Nkola Motata has instituted a court challenge to the constitutionality of the Judicial Service Commission (JSC) Act.

This system of holding judges to account has been frozen over the last three years as a result of challenges by Judges Jafta and Nkabinde to the tribunal’s constitutionality. It is the structure that deals with complaints against judges that could result in them being impeached. This challenge has been rejected, and the tribunal was going to reconvene on the question of the complaint laid against Judge President Hlophe, as well as complaints about a number of other judges.

The question of how judges are held accountable is often discussed in the JSC. The answer from judges usually focuses on the substance of their judgments, and they reply that their judgments may be taken on appeal. Other candidates look to the system of the complaints against judges, which are brought in terms of the constitution, laws and regulations, which create a complaints committee and a tribunal, to hear such complaints. The tribunal is made up of two judges, appointed by the Chief Justice, and another person who is appointed by the Chief Justice with the agreement of the Minister of Justice. The “other person” is the issue that Judge Motata is questioning, amongst others. Is that constitutional or does it violate the separation of powers?

This story goes back to the day that it is alleged Judge Hlophe went to put in a word for a friend of his facing some serious legal issues. The President still faces legal issues, and Judge Hlophe is still in his position. As a result, Judge Motata, who faces complaints made in 2008, the another in 2011, both as a result of his drunken car crash into the wall of a Hurlingham home in 2007 — will see these complaints remain unresolved for the foreseeable future.

The problem of impunity is frequently presented as one that lies in one person in South Africa. However, the problem of the impunity of the powerful is one that exists in many spheres. We may look and find the President at the source of many problems, such as this one, SAA, the Treasury and so on. A more important question is can the systems deliberately and thoughtfully move to cleanse themselves of those who are deliberately misusing them? And if they cannot, is it the fault of those who are guilty of wrong-doing, or those who are supposed to be holding wrong-doers to account?