JUDGES MATTER EXPRESSES DEEP CONCERN AT JSC’S DECISION NOT TO SUSPEND JUDGE ACCUSED OF SEXUAL HARASSMENT

The Judicial Service Commission’s inconsistent treatment of judges accused of gross judicial misconduct risks undermining the judiciary, harming the investigation and discourages victims.

Judges Matter expresses its deep concern at the Judicial Service Commission’s announcement today (15 February 2024) that it will not be recommending that Judge Selby Mbenenge, the Judge President of the Eastern Cape High Court, be placed on suspension pending a sexual harassment investigation against him. The JSC’s reason is that the judge is already on special leave.

Judges Matter believes that the JSC’s decision not to recommend suspension pending a tribunal investigation is inconsistent and unfair. It risks undermining the judiciary and victims of sexual and gender-based violence.

We say so for the following reasons:

Since the amendment of the JSC Act in 2010, the JSC has consistently recommended that judges accused of gross judicial misconduct be placed on suspension pending a judicial conduct tribunal investigation against them. There are at least 5 judges currently on suspension for various acts of misconduct: Judge John Hlophe, Judge Tintswalo Nana Makhubele, Judge Mushtak Parker, Judge Tshifiwa Maumela, and Judge Nomonde Mnqibisa-Thusi.

Like Mbenenge, all the judges who have been placed on suspension were required to finalise part-heard cases and deliver all judgments. The JSC does not explain in its statement why mandatory suspension was deemed appropriate for other judges but voluntary special leave is appropriate for Judge Mbenenge.

The complaint against Judge Mbenenge is extremely serious and will no doubt need thorough investigation. The JSC appears to be giving him special, more favourable treatment. This risks undermining the investigation, and the findings of the JSC. We believe it will also send a negative, discouraging message to victims of sexual harassment. The JSC must explain if it considered these impacts of its decision.

Alison Tilley, co-ordinator of Judges Matter says:
“We raise these concerns within the wider context of a pervasive culture of sexual harassment in the legal profession and in  South African society. It is troubling that the JSC has decided to act inconsistently in this case involving one of the most senior judges in South Africa, and in a case involving allegations of this nature. We are concerned about the  chilling effect of the JSC’s decisions on potential victims coming forward. Judges Matter calls on the JSC to explain the rationale behind its decision not to suspend Judge Mbenenge.”

DOWNLOAD JUDGES MATTER STATEMENT HERE

JSC MEDIA STATEMENT:

15 February 2024

Following its decision on 6 December 2023 to recommend to the Chief Justice that the complaints of Ms A Mengo against Eastern Cape Division Judge President Selby Mbenenge be referred to a Tribunal for investigation, the Judicial Service Commission (JSC), constituted without members designated by the National Assembly and National Council of Provinces in terms of section 178(1)(h) and (i) of the Constitution, invited the parties to make submissions whether or not the JSC should advise the President in terms of section 177(3) of the Constitution of the Republic of South Africa that it is desirable that the President place Judge President Mbenenge on suspension pending the conclusion of the investigation of the complaints by a Tribunal to be constituted by the Chief Justice.

After considering the submissions of the parties, the JSC without the members designated in terms of section 178(1)(h) and (i) of the Constitution, decided on 2 February 2024 that the President be advised that it is not desirable that the President suspend Judge President Mbenenge. The reason for the decision of the JSC is that Judge President Mbenenge is on special leave pending the outcome of the Tribunal and in this period is required to finalise all partly-heard matters. Ends.

Enquiries: Adv Baloyi SC: 0836315741 and Mr M Notyesi: 072 334 9357

Issued by the Judicial Service Commission
15 February 2024

DOWNLOAD PRESS RELEASE HERE

BACKGROUND NOTES:

– On 19 February 2023 the Sunday Times reported that Ms AM (an official employed at the Makhanda High Court)
filed a complaint of sexual harassment against Eastern Cape Judge President Selby Mbenenge.
– On 21 February 2023 Judges Matter issued a statement calling on Judge Mbenenge to step down pending further processing of the complaint against him. He refused.
– The Chief Justice classified the complaint as one of gross judicial misconduct and referred it to the Judicial Conduct Committee.
– On 14 September 2023 a panel of 3 judges of the Judicial Conduct Committee heard submissions from both the complainant and Judge Mbenenge and ruled that there was a prima facie case of gross judicial misconduct which, if confirmed, will lead to his impeachment. Simultaneously, the JCC recommended that the JSC appoint a Judicial Conduct Tribunal to probe the matter further.
– On 7 December 2023 the JSC accepted the Judicial Conduct Committee’s recommendation and instructed the Chief Justice to set up a Judicial Conduct Tribunal to further probe the sexual harassment allegations against Judge Mbenenge. At the same time, the JSC requested both the complainant and Judge Mbenenge to put forward reasons why Judge Mbenenge should not be placed on suspension.
– On 2 February 2024 the JSC decided that it was not desirable to advise the president to place Judge Mbenenge on suspension as he was already on special leave.

About Judges Matter:

Judges Matter is a civil society project dedicated to monitoring the South African judiciary to ensure transparency and accountability. Based at the Democratic Governance and Rights Unit at the UCT Law Faculty, Judges Matter conducts applied research and advocacy to monitor the appointment of judges and magistrates, their discipline for misconduct, and how the judiciary is governed and administered. More information is available on www.judgesmatter.co.za and on Twitter: @WhyJudgesMatter.

The post [UPDATE] Statements On Complaint Against Eastern Cape High Court Judge President Mbenenge appeared first on Judges Matter.

15 September 2023

Judges Matter notes the ruling by the Judicial Conduct Committee (dated 14 September 2023) to refer the sexual harassment complaint against Eastern Cape Judge President Mbenenge to a tribunal investigation.

This triggers section 19(4) of the Judicial Service Commission Act, which requires the JSC to advise the president of the need to suspend the judge pending the tribunal’s investigation.

A Judicial Conduct Tribunal investigation is set up for the most serious category of judicial misconduct, which is gross misconduct where the sanction could be impeachment of the judge and removal from office.

As Judges Matter indicated in our February 2023 statement (see here):

– This is an extremely serious complaint and must have an impact on the functioning of the Eastern Cape High Court division. A Judge President plays an important leadership role in the judiciary and the day-to-day management of the high courts in the province. There is therefore a need for the JSC to act swiftly.

– Sexual harassment is an ongoing problem in our country, and in the legal profession. Despite this, there is still no over-arching anti-harassment policy in the judiciary.

Alison Tilley, Judges Matter head says: “It is well past time that the judiciary adopt an anti-sexual harassment policy which will regulate the conduct of judicial officers, court staff and court users. The vital aim of this anti-sexual harassment policy should be to protect victims and combat this scourge.”

About Judges Matter:
Judges Matter is a civil society project dedicated to monitoring the South African judiciary. Based at the Democratic Governance and Rights Unit at the UCT Law Faculty, Judges Matter conducts applied research and advocacy to monitor the appointment of judges, their discipline for misconduct, and how the judiciary is governed and administered. More information is available on www.judgesmatter.co.za and on Twitter: @WhyJudgesMatter.

For comment:
Alison Tilley | alison@judgesmatter.co.za
Zikhona Ndlebe | zikhona@judgesmatter.co.za

The post [Media Statement] Judges Matter statement on sexual harassment investigation Into Eastern Cape Judge President appeared first on Judges Matter.

Former Supreme Court of Appeal Judge Willie Seriti and former Judge President Hendrik Musi are two retired judges are facing a judicial misconduct investigation over their role in a commission of inquiry into a corrupt arms deal.

They are accused of not doing a proper investigation, or at least following judicial ethical standards during the course of the investigation.

Their case brings up questions about judicial ethical standards for judges involved in commissions of inquiry, and whether they may be held accountable for missteps committed during the course of a commission investigation.

THE STORY BEHIND THE SERITI / MUSI CONDUCT COMPLAINT:

The establishment of the Arms Deal Commission of Inquiry

In 2011, Terry Crawford-Brown, an anti-arms deal and corruption activist, petitioned the Constitutional Court to compel former president Jacob Zuma to establish a commission of inquiry into allegations of criminal misconduct and corruption surrounding the 1999 Arms Deal worth R30 billion (which ultimately escalated to R142 billion).

In response, Zuma established the Arms Deal Commission of Inquiry to investigate whether the military equipment purchased in the deal was properly procured, whether there was any fraud or corruption, and whether the job opportunities associated with the arms deal had materialised or not.

Judge Willie Seriti, then a justice of the Supreme Court, was appointed by President Jacob Zuma to lead the probe (hence it was sometimes called the ‘Seriti Commission’). Later, Judge Hendrick Musi, the then Judge President of the Free State High Court, was appointed to assist Seriti.

The Arms Deal Commission investigation

During the course of its investigations, several NGOs called for the Seriti Commission to be disbanded due to its failure to call crucial witnesses while disregarding the evidence of other key witnesses. But the Commission persisted.

After an investigation lasting 4 years, the Arms Deal Commission submitted its final report to the president in December 2015.  The report found that that the Arms Deal the jobs envisaged to be created had been created, but that there was no evidence of improper procurement, fraud or corruption. In short, according to the Commission, no one had done anything untoward, and nobody should be prosecuted.

High Court review of Arms Deal Commission report

In 2016, two NGOs, Corruption Watch and Right2Know, filed an application in the North Gauteng High Court to set the Seriti Commission’s findings aside on the grounds that no proper investigation was conducted.

While the Presidency previously opposed the NGOs’ court application, in 2019 that opposition was withdrawn. Judge Seriti and Musi had not opposed the court action.

With no opposition, a full bench of 3 judges of the North Gauteng High Court set aside the Seriti Commission’s report, saying that the commission:
– manifestly failed to enquire into key issues,
– refused to accept critical reports based on a misunderstanding on the law,
– accepted facts that a reasonable commission would have probed further,
– failed to examine the record of a related and relevant corruption trial,
– misunderstood the flexible rules of a commission of inquiry and applied the strict rules of a court of law.
See the full judgment: Corruption Watch v Arms Procurement Commission 2020 (2) SA 165 (GP)

The Government decided not to appeal the judgment. However, in 2022, after a judicial misconduct was filed against them ( more on that below) Judges Seriti and Musi attempted to appeal the judgment on the basis that they believed that the Government would oppose the NGOs case on their behalf. The Full Bench of the North Gauteng dismissed the appeal on the grounds the judges had delayed in filing their appeal plus there were no prospects that the appeal would succeed.

HOLDING THE COMMISSION JUDGES ACCOUNTABLE

NGOs submit complaints against two judges

On 11 August 2020, non-profit organisations Shadow World Investigations and Open Secrets submitted a complaint to the JSC, asking for the two judges to be held accountable for “their failure to adequately investigate the arms deal“. The complainants suggested that the judges’ actions could potentially constitute gross judicial misconduct, arguing that the Commission’s final report “materially misled the public” and contributed to covering up alleged corruption related to the arms deal.

– See also: Open Secrets complaint: [https://www.opensecrets.org.za/jsc-complaint/
– News; 20.8.2020 | Why we have complained to the Chief Justice about Judges Willie Seriti and Hendrick Musi’

Update: [May 2021] Chief Justice refers complaint to Judicial Conduct Committee

In May 2021, Deputy Chief Justice Raymond Zondo wrote a letter to the complainants classifying the complaint as ‘serious’ and confirmed that the complaints had been referred to the Judicial Conduct Committee for further investigation.

– See also: https://www.opensecrets.org.za/referral-of-shadow-world-investigations-and-open-secrets-complaint-to-the-judicial-conduct-committee/
– News:11 May 2021 | ‘JSC committee to investigate complaint against arms deal judges.’
– News:11 May 2021 | ‘Arms Deal Inquiry judges to face misconduct investigation – JSC.’

Update: [June 2021]: The two judges file a high court application

In June 2021, on the eve of the hearing by the Judicial Conduct Committee, the two judges filed an application to challenge the constitutionality of the Judicial Service Commission (JSC) Act. They did so on the grounds that it impermissibly expanded the definition of a ‘judge’ in terms of the Constitution.  They also questioned the JSC’s authority to investigate judges who were no longer in active service, arguing that “retired judges” should not be included in the definition of a judge under the JSC Act, and thus not subject to the complaints procedure including the Judicial Code of Conduct.

– See: www.opensecrets.org.za/Seriti-J-and-Another-v-JSC-and-Others-Founding-papers.pdf
– News:2 July 2021 | ‘JSC Act is unconstitutional, say arms deal commission judges’ 

Update: 14 March 2023: Judges court application is heard.

Judges Seriti and Musi’s application was heard in the South Gauteng High Court on 14 March 2023 before a full bench including Deputy Judge President Roland Sutherland and Judges Lotter Wepener and Edwin Molahlehi.

– News: 14 March 2023 | ‘Retired judges who headed arms deal commission challenge judicial service act’

Update: 14 April 2023: Court application is dismissed

In a judgment by Deputy Judge President Roland Sutherland, the South Gauteng High Court dismissed Seriti and Musi’s application, and found that the JSC Act’s definition of a ‘judge’ is in line with the Constitution, and did not impermissibly expand on that defection. Furthermore, the definition of a ‘judge’ includes those judges  who are no longer in active service (so-called ‘retired’ judges). That’s because a judge is appointed for life and they may only leave the judiciary through resignation (as opposed to retirement).

“The choice of making a person a judge for life is bound up with the expectations of the character of judgeship and especially the independence that a judge is required to assert in the South African context. “

– See the full judgment: Seriti and Another v Judicial Service Commission and Others (32193/2023) [2023] ZAGPJHC 332 (14 April 2023)

The judgment clears the way for a JSC investigation into the allegations of gross misconduct against the two retired judges. Both judges are now facing an investigation for “incapacity, gross incompetence or gross misconduct”.

– News: 14 April 2023 | ‘Seriti and Musi’s challenge to JSC act dismissed’

Update: 26 July 2023 | JCC holds preliminary hearing into complaint

Following the April 2023 judgment, the Judicial Conduct Committee held a preliminary hearing to determine the further progress of the complaint against Judges and Musi. Importantly, this is the first hearing where the JCC receives a formal response from both judges.

The hearing was chaired by Deputy Chief Justice Maya joined by Justice Zondi and Mabindla-Boqwana. The two judges sent their legal representatives while the two complainants, Open Secrets and Shadow World Investigations, also sent theirs.

The JCC will soon issue a decision which will determine the further progress of the complaint.

REFERENCED ON JUDGES MATTER:

REFERENCED IN:

• https://www.judgesmatter.co.za/opinions/issues-facing-the-judiciary-in-2021/
• https://www.judgesmatter.co.za/opinions/judicial-bribery-corruption/
• https://www.judgesmatter.co.za/opinions/the-legitimacy-of-the-sa-judiciary-in-2018/

USEFUL RESOURCES

• https://www.opensecrets.org.za/what_we_do/investigations/the-arms-deal-and-the-seriti-commission/
• August 2022 | The judges filed leave to appeal http://www.saflii.org/za/cases/ZAGPPHC/2022/643.html
• https://www.sahistory.org.za/article/seriti-commission
• https://shadowworldinvestigations.org/projects-and-publications/challenging-the-arms-trade-and-the-militarism-that-supports-it/south-african-arms-deal/
• https://shadowworldinvestigations.org/wp-content/uploads/2021/06/110621-SWI-OS-Media-Statement.pdf
• https://shadowworldinvestigations.org/wp-content/uploads/2021/07/020721-SWI-OS-Media-Statement.pdf

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These are some of the questions the Judicial Conduct Tribunal into a misconduct complaint against Gauteng High Court Judge Nana Makhubele will have to answer when it begins its hearings on Tuesday (21 February 2023) in Rosebank, Johannesburg.

THE judicial CODE OF ethics and the law

In the first part of the complaint, Judge Makhubele is accused by rail commuter activist group #UniteBehind of having held the position of a high court judge from 1 January 2018, while at the same time serving as chairperson of the board of state-owned train company, Passenger Rail Agency of South Africa (PRASA) from 19 October 2017 to 16 March 2018.

These dual roles, #UniteBehind argues, are incompatible with each other as it means the judge is answerable to both the judiciary and the transport minister, in violation of the separation of powers principle and the law, and several provisions of the Judicial Code of Conduct.

In the second part of the complaint, which is even more serious, #UniteBehind alleges that while Judge Makhubele was chairperson of PRASA, she worked to advance the interests of a company whose procurements with PRASA have been set aside on the grounds of corruption linked to state capture.

Judge Makhubele strenuously denies these allegations, arguing that her involvement at PRASA happened before she became a judge (which she says occurred from 1 June 2018). Therefore, the Judicial Service Commission has no power to investigate these PRASA-related activities. In any event, Judge Makhubele argues, #UniteBehind has put up no evidence that she favoured the interests of one company over another during her tenure as board chairperson.

The Zondo Commission into State Capture tried to investigate some of these allegations as part of a broader investigation into corruption at PRASA but could not complete Judge Makhubele’s evidence before the end of the commission’s life. It now falls onto the Judicial Conduct Tribunal to test the two competing versions of what happened, and hopefully get to the truth.

The fact that Judge Makhubele was the only judge to come before the Zondo Commission is only one of several reasons why the Tribunal is significant. To understand the significance, it is important to  understand the full context of the complaint and the process to hold judges accountable for misconduct.

In January 2019, #UniteBehind filed a complaint of judicial misconduct against Judge Makhubele by submitting an affidavit to the Judicial Service Commission (JSC) in terms of section 14 of the JSC Act of 1994. Inexplicably, the complaint waited a year before it was referred to then Chief Justice Mogoeng in February 2020, who determined that it was serious enough to warrant a hearing by the Judicial Conduct Committee.

The JCC hearing happened in March 2020, where Judge Makhubele was given an opportunity to state her version of events. After this hearing, the JCC ruled that the complaint against Judge Makhubele was so serious that, if substantiated, it would constitute gross misconduct that could lead to her impeachment. This is the most serious category of misconduct a judge can face. The JCC recommended that the Judicial Service Commission establish a tribunal, which happened in October 2020.

Further delays occurred, which included litigation by Judge Makhubele and the recusal of the Tribunal president, Judge Fritz Brand. Finally, at the end of 2022, a date for the tribunal hearings was finally confirmed as 21 February 2023.

When does a judge become a judge?

The appointment of the Tribunal is significant because of the powers a tribunal has to probe the truth. Chaired by a retired judge, with a senior prosecutor as evidence leader, the Tribunal has sweeping powers of investigation, and may call any witness to submit evidence or testify before it. Importantly, the Tribunal may cross-examine witnesses to get to the truth.

For example, Gauteng High Court Judge President Dunstan Mlambo is one of the witnesses who will testify at the Makhubele Tribunal. He will give evidence on the first part of the complaint, which is the exact timing of when Judge Makhubele became a judge. #UniteBehind says 1 January 2018, she says 1 June 2018. Judge Mlambo’s evidence will therefore answer the question of when exactly a person becomes a judge, and also why there’s a discrepancy in the dates, and how it came to be that Judge Makhubele’s appointment as a judge was signed off by two presidents (Zuma, in 2017, and Ramaphosa in 2018).

The determination of when Judge Makhubele became a judge is the first hurdle in the way of #UniteBehind’s complaint because, if it is established that she only became a judge on 1 June, then the Tribunal (and the JSC, of which it is a part) has no jurisdiction to investigate the PRASA-related aspects. The entire complaint will therefore be dismissed.

State capture

If the first complaint passes the hurdle, and it is established that Makhubele became a judge on 1 January 2018, then the Tribunal will shift to investigating the second part of the complaint, which is what happened while Makhubele was at PRASA.  A key witness on this aspect will be Ms Martha Ngoye, the former head of PRASA’s legal division.

At the Zondo Commission, Ms Ngoye testified that Judge Makhubele improperly involved herself in a legal dispute between PRASA and Siyaya Limited, a company which had some of its contracts set aside on the grounds of corruption – and that PRASA almost lost R59 million through Makhubele’s intervention. #UniteBehind therefore argues that in seeking to intervene on behalf of Siyaya, Makhubele was trying to advance state capture at PRASA and that this violates the Code of Judicial Conduct, and is not compatible with someone who holds the office of a judge.

Again, Makhubele denies #UniteBehind’s allegations, arguing that she was not acting alone, but with the collective of seven other PRASA’s board members who were trying to protect PRASA’s interests in the litigation. She says that the Siyaya’s lawyers improperly used her name in trying to claim the R59 million from PRASA, and that she had no role to play. She has gone as far as laying a professional complaint against Siyaya’s advocate.

Who judges the judges?

The Tribunal therefore has its work cut out in trying to get to the truth of what exactly Judge Makhubele’s role was at PRASA, and whether her actions constitute gross judicial misconduct of the kind that lead to impeachment. Once the hearings are done, the Tribunal will submit a report to the JSC. Based on this report, the JSC may vote to punish the judge through a fine or impeachment, and through requesting parliament to remove the judge from office.

The four years it has taken for the complaint to reach the stage of tribunal hearings is also a concern. This concern speaks to the structural problems in the design and function of the judicial misconduct system. These problems include a system that is far too complex, with multiple stages of decision-making, all vulnerable to court cases and delays. And exasperated by the fact that the Judicial Conduct Committee is made up of currently sitting judges, who deal with complaints when they have time, which is often during court recess periods.

These and other problems mean that the JSC is far too slow in dealing with complaints against judges. This is unfair to both the judges implicated and the public who rely on the integrity of the judiciary.

So who judges the judges? The Tribunal this week will give us a clue on how seriously the South African judiciary takes this question.

Mbekezeli Benjamin, Judges Matter
Judges Matter is a civil society project that monitors the judiciary in South Africa. Through research and advocacy on how judges are appointed and how judges are disciplined for misconduct,  Judges Matter ensure transparency and accountability. For more, visit www.judgesmatter.co.za and follow @WhyJudgesMatter #MakhubeleTribunal.

A version of this article was published in GroundUp (21 February 2023): 

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In our last instalment we discussed the Judicial Service Commission’s (JSC) mis-dealings against Judge Motata, which resulted in a review application being launched by Freedom Under Law (FUL), a civil society watchdog.

Freedom Under Law, launched the review application proceedings because the JSC decided not to adopt the findings of the Judicial Conduct Tribunal (the Tribunal). On 12 April 2018, the Tribunal found that Judge Motata’s conduct at the scene of his motor accident and the remarks he made were racist and thus impinged on and were prejudicial to the impartiality and dignity of the courts.

The Judicial Tribunal’s findings against Motata

The Tribunal also found that the lack of integrity in the way Judge Motata allowed his defence to be conducted at his trial was incompatible with or unbecoming of the holding of judicial office. The Tribunal further found that to permit Judge Motata to remain in judicial office would negatively affect the public’s confidence in the justice system. The Tribunal accordingly recommended to the JSC that the provisions of section 177(1)(a) of the Constitution should be invoked, implying that Judge Motata should be found guilty of gross misconduct and impeached from office.

The JSC’s rejection of the Judicial Tribunal’s findings

Despite the findings of the Tribual, the JSC failed to make findings in line with the recommendations of the Tribunal. Instead, the JSC concluded that Judge Motata was not guilty of gross misconduct, but rather guilty of the lesser offence of misconduct. As a result, the JSC rejected the Tribunal’s recommendation that the JSC should invoke the removal mechanism embodied in section 177(1)(a) of the Constitution, effectively refusing to impeach Motata. As sanction for Judge Motata’s misconduct, the JSC imposed a fine of R1 152 650.40 to be paid by Judge Motata to the South African Judicial Education Institute (SAJEI). It is the decision by the JSC not to adopt the findings of the Tribunal that Freedom Under Law seeks to have reviewed and set aside.

“It is the decision by the JSC not to adopt the findings of the Tribunal that Freedom Under Law seeks to have reviewed and set aside.”

The objectives of the review application are to assert the proper standard by which judges’ misconduct should be dealt with by the JSC. The review application also inevitably aims to ventilate issues of judicial integrity and accountability in respect of judges.

Freedom Under Law’s review application of the rejection of the Tribunal findings

In its review application, Freedom Under Law asked for a declaratory order in relation to section 47 of the Superior Courts Act 10 of 2013 (the Act).  Section 47 of the Act stipulates that:

“Notwithstanding any other law, no civil proceedings by way of summons or notice of motion may be instituted against any judge of a Superior Court, and no subpoena in respect of civil proceedings may be served on any judge of a Superior Court, except with the consent of the head of that court or, in the case of a head of court or the Chief Justice, with the consent of the Chief Justice or the President of the Supreme Court of Appeal, as the case may be.”

The objectives of section 47(1)(a) of the Act are to insulate judges from unwarranted and ill-conceived proceedings aimed at them. It is well known that the core function of judges is to adjudicate disputes involving competing interest daily. Judgements handed down and statements made in judgements by judges have the potential to displease some litigants, which may result in judges being dragged to court to defend their judgment in litigation. It is important for the adjudication function of judges that they should be protected from the lingering threats of legal proceedings being directed at them arising from the execution of their judicial responsibilities. Section 47(1)(a) of the Act is necessary to ensure that judges adjudicate disputes without fear, favour, or prejudice.

Freedom Under Law advanced arguments to the effect that the provisions of section 47(1)(a) of the Act do not apply in the review proceedings instituted against the decision of the JSC relating to Judge Motata. In essence Freedom Under Law’s argument was that there was no need to request consent from Judge President Mlambo to cite Judge Motata in the review proceedings. Freedom Under Law advanced two arguments as follows:

• In the first instance, Freedom Under Law argued that section 47(1) of the Act does not require a litigant to obtain consent to institute proceedings against retired judges. In essence Freedom Under Law was arguing that retired judges no longer enjoy the protection of section 47(1) of the Act because they no longer render judicial functions. The absence of protection by the section does not pose a threat to the independence of the proper functioning of the judiciary.

In respect of the above argument Mlambo JP found that Freedom Under Law’s argument was misdirected for various reasons. First, Section 47 of the Act does not make a distinction between retired judges and judges still in active service to the judiciary. Second, there are retired judges who continue to feature in judicial functions and other activities. These might include finalising part heard matters and sometimes retired judges are called upon to undertake new work allocations either in their divisions or in others. It must however be noted that Judge Motata had been on special leave since the drunken driving accident and after his retirement in February 2017 he had never been called to perform any judicial or other activities. Nonetheless, Mlambo JP concluded that Section 47 of the Act does not limit the scope of application of the leave to sue doctrine to judges in active service but also includes retired judges.

“…section 47 of the Act does not make a distinction between retired judges and judges still in active service to the judiciary. Second, there are retired judges who continue to feature in judicial functions and other activities.’

• In the second instance, Freedom Under Law argued that the phrase ‘civil proceedings’ in section 47(1) of the Act should not be interpreted to countenance review proceedings instituted against administrative decision makers such as the JSC and not against judges, even if such judges have an interest in the matter or outcome thereof.

In respect of the above argument, Judge President Mlambo found that the clear language of section 47(1) of the Act is that consent of the head of the court where the judge has been appointed is necessary in any intended proceedings. This applies whether the judge participates in those proceedings or not.

Considering the above arguments by Freedom Under Law and findings made by Judge President Mlambo, the latter concluded that consent as ordained by Section 47(1) of the Act is required to cite Judge Motata in the review proceedings.

In deciding whether good cause had been shown by Freedom Under Law to warrant the requisite consent to cite Judge Motata in the review proceedings Judge President Mlambo noted that Judge Motata’s involvement in the review proceedings would in no way impede the functioning of the High Court in which he formerly served (Gauteng Division of the High Court of South Africa). Judge Motata’s inclusion in the review proceedings would not  undermine the independence of the judiciary. As a result, consent to cite Judge Motata in the review proceedings was granted by Mlambo JP.

Freedom Under Law has passed through the first hurdle in the review application against the decision of the JSC. We now await the hearing of the main review application, which will be ground-breaking as it is aimed at upsetting the JSC’s decision by challenging the lawfulness, rationality, and validity of the decision not to find Judge Motata guilty of gross misconduct.

A judge’s appointment is a lifetime appointment

It would not be surprising that some people would wonder, what difference will the review application by Freedom Under Law make given that Judge Motata has already retired. It is important to note that a judge’s appointment is a lifetime appointment. A judge retains the status of being a judge even after retirement. Although retired judges no longer feature in the running of the courts, some continue to feature in the judicial functions and activities. Retired judges are sometimes appointed to undertake new work allocations either in their divisions or in others and are also sometimes requested to preside over commissions of inquiry. Given the fact that retired judges continue to play a role in the judiciary, it is important that complaints against judges be brought to finality, regardless of whether the judge is retired or not.

“Given the fact that retired judges continue to play a role in the judiciary, it is important that complaints against judges be brought to finality, regardless of whether the judge is retired or not.”

Some complaints may seem trivial when compared to other complaints, such as a drunken driving complaint versus a complaint about an attempt to influence Constitutional Court judges. However, the JSC Act makes provision for four grounds upon which any complaint against a judge may be lodged. These grounds are:

• Incapacity or gross incompetence or gross misconduct; or
• Any wilful or grossly negligent breach of the Code of Judicial Conduct; or
• Accepting, holding, or performing any office of profit or receiving any fees, emoluments, or remuneration or allowances other than those in relation of one’s position as a judge; or
• Any other wilful or grossly negligent conduct that is incompatible with or unbecoming the holding of judicial office, including any conduct that is prejudicial to the independence, impartiality, dignity, accessibility, efficiency or effectiveness of the courts.

It is important that the complaint against Judge Motata be brought to finality

The above grounds upon which a complaint may be lodged against a judge are all encompassing in respect of unacceptable conduct by those who hold the office of a judge. Therefore, the complaint of drunken driving is as serious as any other complaint against a judge and must be dealt with in the same manner as any other complaint would be dealt with.

It is important that the complaint against Judge Motata be brought to finality. The review proceedings will bring certainty in respect of the standard by which judges’ misconduct should be dealt with by the JSC and the standard by which judges are to conduct themselves accordingly.

The post Freedom Under Law versus Judge Motata appeared first on Judges Matter.

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.

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Judge Motata’s charges of criminal misconduct

Judge Motata was subsequently charged with two counts of criminal misconduct. The first charge was a contravention of section 65(1)(a) of the National Road Traffic Act, 1996 (“the NRTA”), that being driving a motor vehicle under the influence of alcohol. The second charge was one of defeating and obstructing the ends of justice, with the alternative to this count being a contravention of section 67(1)(a) of the South African Police Service Act, 1995, that being resisting arrest. Judge Motata pleaded not guilty to both charges levelled against him. The recording by Mr Baird was later admitted into evidence in the court case against Judge Motata in respect of these charges.

On 2 September 2009 Judge Motata was convicted on the first charge against him as it had been proven before the Johannesburg Regional Magistrates Court that Judge Motata was driving under the influence of alcohol on 6 January 2007. Judge Motata was however, acquitted on the remaining charge, namely the crime of defeating and obstructing the course of justice by resisting arrest. Judge Motata’s conviction was confirmed on appeal at the High Court. The High Court was ultimately satisfied that the Magistrate was entitled to conclude that Judge Motata’s guilt had been proved beyond a reasonable doubt.

The JSC proceedings leading up to the JSC decision

After the incident of 6 January 2007, three complaints were lodged with the JSC against Judge Motata. The first complaint was lodged by The Catholic Commission for Justice and Peace on 8 January 2007, requesting that the JSC investigates Judge Motata’s conduct which allegedly brought disgrace on him, the judiciary and undermined public respect.

The second complaint was lodged by AfriForum on 5 July 2008, alleging that Judge Motata had committed gross racist misconduct, and should therefore be impeached in terms of section 177 of the Constitution of the Republic of South Africa, 1996 (the Constitution).

The third complaint was lodged by Advocate Gerrit Pretorius SC (“Pretorius SC”) on 22 May 2011 alleging that Judge Motata’s conviction was a sufficient reason why he should no longer be a judge, and that motivation for his removal was compounded by his unsubstantiated denial that he was intoxicated on 6 January 2007. Pretorius SC further alleged that Judge Motata’s conduct caused the judge’s office to be the object of ridicule, and that his false denial that he was drunk strikes at the heart of the judiciary’s integrity.

The Judicial Complaints Tribunal’s finding on Judge Motata’s case

The complaints were considered by the Judicial Conduct Committee (the JCC) on 14 May 2011. The JCC recommended, in terms of section 16(4)(b) of the JSC Act, that the AfriForum complaint be investigated and reported on by the Judicial Conduct Tribunal (JCT). The JCT was accordingly appointed on 4 March 2013.

The JCT, inter alia, found that Judge Motata’s conduct at the scene of his motor accident and the remarks he made were racist and thus impinge on and are prejudicial to the impartiality and dignity of the courts. The JCT also found that the lack of integrity in the manner in which Judge Motata allowed his defence to be conducted at his trial was incompatible with or unbecoming of the holding of judicial office. The JCT further found that to permit Judge Motata to remain a judicial officer would negatively affect the public’s confidence in the justice system. The JCT accordingly recommended to the JSC that the provisions of section 177(1)(a) of the Constitution should be invoked, implying that Judge Motata should be found guilty of gross misconduct and impeached from office.

Image: Paul Botes, Mail & Guardian

The JSC refuses to remove Motata

On 10 October 2019, the JSC rejected the JCT’s conclusions and refused to make a finding that Judge Motata was guilty of gross misconduct or to invoke the mechanism provided for under section 177(1)(a) of the Constitution for the removal of judges. The majority of the JSC accordingly concluded that Judge Motata was not guilty of gross misconduct, but rather guilty of the lesser offence of misconduct, and therefore rejected the JCT’s recommendation that the JSC should invoke the removal mechanism embodied in section 177(1)(a) of the Constitution. As sanction for Judge Motata’s misconduct, the JSC imposed a fine of R1,152,650.40 to be paid by Judge Motata to the South African Judicial Education Institute.

JSC decision regarding Motata was not unanimous

Of utmost importance for the purposes hereof is that the decision of the JSC was not unanimous. A minority concluded that Judge Motata’s conduct constituted gross misconduct. Before assessing the merits of the allegations against Judge Motata, the minority considered the applicable standards of conduct required of a judicial officer. Sources referred to include the Constitution; the Code of Judicial Conduct adopted in terms of section 12 of the JSC Act (the Code); international standards and conventions of judicial conduct; and jurisprudence of foreign; comparative jurisdictions regarding the removal of judges for gross misconduct. Applying these principles to facts before it, the minority found that Judge Motata’s conduct fell short of the required standards, and that he was guilty of misconduct. The minority then turned to the question of whether Judge Motata’s misconduct amounted to gross misconduct as contemplated under section 177(a) of the Constitution. The minority accordingly supported the JCT’s recommendation that the matter be referred to Parliament in order to invoke impeachment proceedings against Judge Motata in terms of section 177(1)(b) of the Constitution.

Freedom Under Law’s application to overturn Motata decision

Freedom Under Law (FUL) has now brought an application to overturn the majority decision holding that Judge Motata was not guilty of gross misconduct. In their application they note that the JSC, when fulfilling its mandate of protecting and promoting the essential features of the judiciary, must consider the standards of judicial conduct. In doing so, it must ask various questions. First, whether the judge in question has destroyed confidence in his or her ability properly to perform judicial functions. Second, whether his or her conduct is so inimical to that required of a judge that public confidence in his or her integrity or impartiality would be destroyed. Third, whether the judge has acted in such a manner so as to reveal him or herself unfit for the high office of judge.

According to FUL it is apparent that the decision of the majority of the JSC failed expressly to determine a standard of judicial conduct or even engage with this question beyond the bare bones provided by section 177(1)(a) of the Constitution.   The JSC therefore considered the conduct of Judge Motata against an impermissibly vague standard which, in the circumstances, amounts to nothing more than the personal opinions of those members of the JSC who endorsed the majority decision.

According to FUL Judge Motata has tarnished his integrity irreparably. His conduct is destructive of public confidence in his ability to perform judicial roles with the necessary standards of integrity and impartiality, particularly when it comes to race and gender. He is consequently unfit to hold judicial office. The retention of Judge Motata as a judge is inimical to the public perception of the integrity and impartiality of the judiciary as a whole.

In the review application launched at the Johannesburg High Court FUL raises two grounds for review. The first ground for review is the unlawful abuse of discretion and irrationality of the decision of the JSC. The second ground for review is an error of law or that the JSC misconstrued its powers.

FUL submits that in reaching the decision, the JSC misconstrued its powers and thus committed material errors of law. By purporting to revisit, and ultimately to reject factual findings made by the JCT, such as that Judge Motata was driving under the influence of alcohol and had tried to use his status as a judge to prevent the police officers from performing their duties, the JSC misconstrued its powers, arrogated powers for itself that it does not have under the JSC Act, and thereby committed an error of law in reaching the decision.

JSC’s decision regarding Motata is unconstitutional

By launching the review application FUL accordingly submits that Judge Motata’s conduct impinged on the independence and impartiality of the judiciary, constituted gross misconduct, and evidenced his incapacity to continue in judicial office. Judge Motata’s conduct warranted his removal in accordance with section 177(1)(a) of the Constitution. However, the decision by the JSC failed to hold Judge Motata accountable for his actions. Therefore, the decision by the JSC falls to be set aside as it is irrational, unconstitutional, and invalid.

The criticism of conduct proceedings Judges Matter has is borne out by this case, among others. It has taken the JSC approximately 12 years to decide in respect of the complaint(s) lodged with the JSC against Judge Motata and in its handling of the case it is evident that the JSC has not been able to manage these processes effectively. The review application lodged by FUL has good prospects of success, and the JSC clearly must attentively consider the criteria it uses to assess misconduct. A similar concern exists in respect of appointments and the JSC needs to be clear about the criteria it applied when seeking to recommend candidates for permanent appointment on the bench.

*Feature image courtesy of enca

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As readers will recall, Judge President (JP) Hlophe is in the middle of two different disciplinary matters which have been brought against him. The first goes back to 2008 and deals with an allegedly inappropriate approach by JP Hlophe to justices of the Constitutional Court. The second relates to a complaint lodged by Deputy Judge President (DJP)  Goliath, who is JP Hlophe’s deputy at the Western Cape High Court.

The roots of this second complaint go back prior to 2019, when a number of events caused the DJP concern. The DJP, we now learn, raised these issues with the Chief Justice in a meeting which took place on 11 October 2019. The Chief Justice took no action following that meeting. The Office of the Chief Justice says that so far, none of those who have asked him to intervene in the ongoing crisis in the Western Cape High Court could, “when he pertinently asked them to, point to any provision in the Constitution, Judicial Service Commission Act, any other Act of Parliament, any Regulation or rule that empowers him to discipline a Judge or cause him or her to be suspended as many have suggested”.

The statement goes on to say, “As the Chief Justice has previously iterated, he never had nor has he now the legal authority to personally deal with these issues outside of the processes under the JSC Act. To suggest otherwise could either be actuated by nefarious reasons (eg a longstanding desperation to find fault) or misapprehension of the law.”

However, is there a role the CJ could play which does not involve him personally and alone disciplining judges, which he correctly states is not his role?

How are judges held accountable? There are two ways that judges generally consider themselves accountable. The first is through the longstanding idea that judges account through the judgments they write, and the appeal and review process of their judgments. If a judge makes a mistake in a judgment, a more senior court may overturn that decision and give a different order. There is a second, and perhaps more vexed process, outlined in the Constitution and the JSC legislation.

When the JSC, which the Chief Justice chairs, receives a complaint regarding a judge that the commission considers serious it will refer the matter to the Judicial Conduct Committee to assess the complaint. If the Judicial Conduct Committee finds that the complaint requires further investigation it will recommend to the JSC that a Judicial Conduct Tribunal is established in order to properly deal with the matter. The Tribunal will then hand down a decision, which may potentially lead to the matter being referred to Parliament and the judge in question being impeached.

Where, then, does the Chief Justice appear?

The Commission’s Judicial Conduct Committee comprises the Chief Justice, who is the Chairperson of the Committee, the Deputy Chief Justice and four other judges designated by the Chief Justice in consultation with the Minister. The Chairperson may, either generally or in a specific case, delegate any of his or her powers or functions as Chairperson of the Committee to the Deputy Chief Justice.

The Chief Justice, as chairperson, has a number of powers in relation to conduct hearings.

The Chief Justice has delegated the chairpersonship of this committee to the Deputy Chief Justice, who is currently Justice Zondo, well known now as the chair of the Zondo Commission into State Capture. That delegation could be rescinded, and the Chief Justice could resume his role as chair. Given the workload of the DCJ, it would not seem unreasonable to expect the CJ to do so.

The Chief Justice has in the past few months found himself able to chair the conduct committee of a younger woman judge, Judge Nana Makhubele, who has been accused of inappropriate actions in relation to her position on the interim board of Prasa after her interview, and then appointment as a judge. He wrote the decision for the unanimous committee in which they say they are satisfied that the allegations against her are very serious.

“If they were to be proven, it is likely that a finding of gross misconduct would be made,” the decision reads.

The Chief Justice, as chairperson, has a number of powers in relation to conduct hearings. You lodge a complaint about a judge with the Chairperson of the Committee — if it is serious, the Chairperson refers the complaint to the whole Conduct Committee. The committee must then consider whether it should recommend to the JSC that the complaint should be investigated and reported on by a Tribunal. The chair of the committee has a key role to play, and the speedy disposition of matters must be a primary concern.

Whenever it appears to the Commission that there are reasonable grounds to suspect that a judge is suffering from an incapacity; is grossly incompetent; or is guilty of gross misconduct of the Constitution, the Commission must request the Chief Justice to appoint a Tribunal.

The Chief Justice must appoint a Judicial Conduct Tribunal, whenever requested to do so by the Commission. A Tribunal comprises two judges, one of whom must be designated by the Chief Justice as the Tribunal President; and one other person. This would no doubt be done in consultation, but the speedy appointment of a Tribunal lies directly in the hands of the Chief Justice.

The Tribunal may run into difficulties, as in Judge President Hlophe’s case. Two issues have arisen. The first was an application by JP Hlophe for the recusal of one of the Judges on the Tribunal. The Judge concerned recused himself. The CJ’s role was to convene the tribunal, and thus theoretically to reconvene the tribunal.

The second issue turns on whether JP Hlophe’s legal fees have been paid. The accused in any matter is entitled to legal representation, but not at any cost. The Chief Justice can ask the Department of Justice to resolve the matter — to either pay up, or refuse to pay. If the department will not pay, the Tribunal must make an order as to proceeding, as in any matter where the defendant cannot afford to litigate with the counsel of their choice.

The decision of the Tribunal is referred back to the Judicial Service Commission, containing its findings and the reasons for them. The Chief Justice is the chair of the JSC, and again the chair of the commission has a key role to play, and the speedy disposition of matters must be a primary concern of his.

The JSC, chaired by the CJ, may then make a finding, and if that finding is one of incapacity, gross incompetence or gross misconduct, the JSC may refer that finding to Parliament, where a two-thirds majority of members is needed to vote for the impeachment of a judge.

The convening power of the role of the Chief Justice as chair of the various structures which deal with judicial conduct is critical, as is his chairpersonship of the JSC and as chair of other structures. In addition to this, his ability to use “soft power” should not be underestimated. The leadership of any entity has the power to encourage, persuade and warn, which are not in the formal powers of a leader, but are critical in making any institution function well.

We would suggest that the role of the Chief Justice in conduct matters is more substantial than perhaps the CJ has conceded thus far.

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