Freedom Under Law report on Judicial Service Commission should be urgently considered

The judiciary is the one arm of the state that has, at least in significant part, been faithful to its constitutional obligations. The less said about the other arms of the state, the better.

For this reason, the composition of the judiciary is vital to the future of the vindication of constitutional values in this country. Alas, the body enjoined to deal with appointments, promotion and discipline of the judiciary has not kept to its side of the constitutional bargain. Freedom Under Law (FUL) has recently produced an important report reviewing the activities of this body, the South African Judicial Service Commission (JSC), from 2009 to 2020.

The report is timely, partly because the JSC sits next week to make judicial appointments and because there has been an overall disquiet, particularly over the past few years, over the performance of the JSC with regard to the process involved in judicial appointments as well as the JSC’s excruciating inability to exercise its disciplinary jurisdiction with any measure of expedition and efficacy.

One of the significant points made in the report is the unwieldy nature of the JSC, in which, depending on which court has vacancies, there can be 23 or 24 members. The report advocates certain structural changes. 

It suggests that there be an increase in the number of senior judges on the JSC by including, for example, a judge from each of the Constitutional Court and Supreme Court of Appeal, elected by their peers. It also suggests a reduction of the number of political party appointees by reducing the number of MPs appointed from the National Assembly to four (from six), a reduction of the number of MPs appointed from the National Council of Provinces to two (from four) and the reduction in the number of presidential appointees to two (from four).

Regrettably, the report, in the latter case, did not suggest that the President should be restricted to appointing members from the ranks of civil society.

Clearly, in response to the all too often abusive and directionless questioning by members of the JSC of candidates for appointment, the report strongly advocates the adoption of clearer guidelines for the appointment and promotion of judicial officers. The purpose of these guidelines is to ensure, among other things, that the JSC is more readily held to account for its decisions in terms of an objective yardstick against which its decisions may be assessed.

While the assessment of a candidate’s understanding and commitment to the transformation of the legal system is manifestly a paramount issue, the report notes, that this assessment “must not be based crudely on their race and gender but rather on their professional and community record”.

Even-handed interviews

Furthermore, interviews need to be consistent and even-handed. It has been apparent for a long time that certain candidates are recipients of a “sweetheart” interview while others are subject to personal attacks without evidence, smears on their personal reputation and deliberate attempts to demean a candidate in the eyes of the public in general and the legal community in particular.

The chair of the JSC, being the Chief Justice, is also not spared criticism. The report argues, “The chair is required to ensure equitable treatment between candidates in terms of the length and breadth of interviews, to ensure the relevance of all lines of questioning (having regard to the adopted criteria) and to bring about a swift end to inappropriate lines of questioning.”

Interestingly, the report notes that during the tenure of Chief Justice Mogoeng Mogoeng, he had “his hands full with several forceful and indeed unruly Commissioners, the regulation of which was weakened by the fact that the JSC resorted to virtual meetings necessitated by the Covid-19 pandemic”.

Mercifully, a few of these forceful and unruly members no longer sit on the JSC. However, the challenge for the chair remains clear. He or she needs to keep deliberations strictly to the purpose of the JSC as opposed to allowing populist vituperation to dominate.

In particular, the report recommends that the JSC develops a code of conduct for commissioners which sets out the standard appropriate measure of conduct during JSC interviews.

Correctly, the report notes that it is not merely in the case of judicial appointments that the JSC has failed its constitutional mandate.

Disciplinary matters

In its conduct in respect of disciplinary matters relating to judges, its record, in certain cases, has been even more lamentable. For example, on 30 May 2008, the justices of the Constitutional Court registered a complaint to the JSC against Judge President John Hlophe. In August 2009, the JSC inexplicably decided that the complaint disclosed no prima facie evidence of gross judicial misconduct to warrant a full inquiry. Thus, the JSC considered the matter to have ended.

Following a series of court cases, a Judicial Conduct Tribunal was finally appointed by the JSC to hear the Hlophe matter on 30 September 2013. Inexplicably, two judges of the Constitutional Court, Justices Bess Nkabinde and Chris Jafta, both of whom were approached by Judge Hlophe and the engagement with whom was crucial to the case brought by the Constitutional Court judges, challenged the jurisdiction of the Judicial Conduct Tribunal to hear the matter.

On 10 March 2016, the Supreme Court of Appeal, in an eloquent judgment written by Judge Mahomed Navsa, dismissed the appeal of the two justices and noted with great dismay that the matter had remained unresolved since 2008. Justices Nkabinde and Jafta were undeterred and appealed this decision to the Constitutional Court, which dismissed their application for leave to appeal on 16 May 2016.

Two years later, on 2 July 2018, the Judicial Conduct Tribunal reconvened. But then one of its members, Judge Cagney Musi, recused himself after Judge Hlophe had applied for his recusal. Finally, the matter got under way in December 2020, 12 years after the original complaint. The Judicial Conduct Tribunal gave its decision on 9 April 2021, unanimously concluding that Judge Hlophe was guilty of gross misconduct in terms of section 177 of the Constitution.

It took almost a further year until 26 July 2022 for the JSC to finally recommend the suspension of Judge Hlophe from judicial office. Leave aside the fact that it now appears as if impeachment proceedings against Judge Hlophe through Parliament are imminent. The JSC took some 14 years to come to a plausible decision in this case.

The case of Judge Nkola Motata, who had been convicted in the Johannesburg Regional Court of driving a vehicle while under the influence of intoxicating liquor, suffered a similar fate. Eventually, the Judicial Conduct Tribunal, which had been constituted to deal with this matter, found that there was overwhelming evidence that Judge Motata’s conduct was unbecoming of a judicial officer and that steps to impeach him should be taken. In an astonishing decision, the majority of the JSC resolved to reject this recommendation and found that the conduct of Judge Motata did not meet the required standard of gross misconduct.

By the way, Judge Motata, who retired in 2018, had been on leave of absence since 2007. He has received his judicial remuneration throughout and beyond this period because a retired judge maintains the status of a judge and continues to receive a judicial salary throughout his life, even after retirement. It is only now that it appears that Judge Motata may face the prospect of impeachment, with an end to further costs to be paid by the taxpayer.

‘A better pace’

In the light of this dilatory record, the report deals with the incapacity of the JSC to deal adequately with all the complaints. It notes that, in the latest financial year, 121 complaints have been lodged against judges. Accordingly, it correctly recommends that an increased JSC infrastructure should be set up to deal with these complaints to ensure that they proceed through the JSC disciplinary mechanism “at a better pace”. 

Timelines for the resolution of different kinds of complaints from the date of receipt to the date of final action by the JSC should be introduced. This is important in that while the JSC’s function is clearly to institute disciplinary action against judges where there is prima facie evidence of judicial misconduct, at the same time it also behoves the JSC to protect judges against frivolous and vexatious complaints which have absolutely no basis in fact and which can prejudice a judge in particular and the judicial system in general, if not dealt with expeditiously.

The report also recommends that the JSC should make recommendations regarding the suspension of judges pending the resolution of complaints for impeachable conduct as its default policy.

Finally and significantly, it contends that the Judicial Conduct Tribunal and the Judicial Conduct Committee, which are there to “receive, consider and to deal with complaints against judges, should be constituted entirely of retired judges who would be better placed to deal expeditiously with complaints and would not have a problem of having to sit in judgment on their colleagues”.

This is an important report. The JSC is the constitutional gateway to the promotion and protection of an independent judiciary suitably equipped to transform the South African legal system so that the central values of the Constitution — freedom, dignity and equality — are justifiably employed to ensure the renovation of the South African legal system so that it supports the constitutional vision of a country based substantively on these values. To date, it has performed poorly. The changes proposed by FUL should receive immediate consideration.