Judicial bribery and corruption

The SSA allegations: a threat to the credibility of the judiciary.

Explosive allegations of corruption were made at the Zondo Commission of enquiry by Acting SSA director-general Loyiso Jafta. “We have very strong circumstantial evidence some of the money went into the hands of members, or a member, of the judiciary,” Jafta told commission chairperson Deputy Chief Justice Raymond Zondo.  [Source] The allegations have not been levelled at a particular judge. The bribes were allegedly paid in order to influence judges in favour of President Zuma.

These allegations are very serious. 

The Constitution provides that the courts are “independent and subject only to the Constitution and the law”, which must be applied impartially and without fear, favour, or prejudice. The Bangalore Principles, which provide the international best practice standard for judicial conduct, require that judges exercise their functions “free of any extraneous influences, inducements, pressures, threats or interference”. It is surely impossible for any judge to act consistently with these requirements if they have received money from the SSA.

It is surely impossible for any judge to act consistently with these requirements if they have received money from the SSA.

Facing the possibility of corruption in the judiciary

The allegations also turn an unwelcomed spotlight onto the possibility of corruption in the judiciary. A 2018 Afrobarometer survey indicated that 32% of citizens say that most, or all magistrates and judges are corrupt, while a further 47% of South Africans say that some magistrates and judges are corrupt.

There has never been any definite evidence of corruption by judges to support these perceptions, regardless the allegations made at the Commission will be harmful for public confidence in the judiciary.

The allegations made at the Commission will be harmful for public confidence in the judiciary.

There is a system for reporting complaints about judicial conduct. [Read more here.]

The Judicial Services Commission receives complaints about judicial conduct, and if they are substantive the complaints are referred to the judicial conduct committee made up of a panel of judges. The conduct process is notable for its glacial pace.

Where to from here?

We have not been given the name of the judge suspected of receiving a bribe. Any serious allegation of this nature must be investigated, but it is difficult to imagine how this can be done without involving judges in the investigation itself. This is not ideal, as the appearance of the judiciary investigating itself may not inspire confidence. The process of a judicial commission of enquiry is labelled as lengthy, expensive and often times, inconclusive – not resulting in convictions, following the Farlam Commission, Seriti Commission and potentially the Zondo Commission.

…the appearance of the judiciary investigating itself may not inspire confidence.

The National Prosecuting Authority has the mandate for prosecuting crimes, and a judge receiving a bribe would be a criminal offence. The investigation of this would most likely fall to the police, who have little credibility in such high-level investigations, although the NPA under new leadership might be more credible.

An independent commission headed by credible legal professionals who are not judges is unlikely to draw support from the judiciary, who will argue they are entitled to investigate their own. While a workable solution may be difficult to find, it is urgent and necessary to ensure the judiciary are not permanently stained with the allegations that have been made.