The accountability for 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. This 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 Chief Justice decides where the Tribunal will sit.
This second system of holding judges to account was recently frozen in the process surrounding Judge Hlophe’s tribunal by the constitutional challenge by Judges Jafta and Nkabinde to the tribunal’s constitutionality, which is the structure that deals with complaints against judges that could result in them being impeached. This challenge has been rejected, and the tribunal will now need to reconvene on the question of the complaint laid against Judge President Hlophe.
The complaint made around Judge Hlophe’s tribunal was originally laid by Acting Judge Jafta (AJ) (now permanently appointed to the Constitutional Court), Judge Nkabinde (J), Deputy Chief Justice Moseneke (DCJ) (now retired), Mokgoro J (now retired), Ngcobo J (now retired), O’Regan J (now retired) Van der Westhuizen J (now retired) and Yacoob J (also, now retired). They were also joined by Skweyiya J and Madala J, who have both since passed. Kroon AJ was never appointed permamently to the Court, but has also since retired. The passage of time is illustrated by the fact that of the original group, only Jafta AJ and Nkabinde J remain on the court.
This process will also be the type of process to deal with, for example, complaints against Judge Jansen on issues around her racist comments, and should anyone lay a complaint, against the comments of Judge Allie in the JSC interviews of April 2016 , excoriating her colleagues. Should any of these amount to incapacity, gross incompetence or gross misconduct, and Parliament votes to remove them by a 2/3 majority, they are then impeached.