13 October 2023
Accountability in the judiciary is eroding, warn the authors of this article. Illustration: Lisa Nelson
The long delays in dealing with complaints against Judge President John Hlophe and Judge Nkola Motata have shown that there are major challenges in holding judges accountable for misconduct.
Problems with the process have serious implications for public confidence in the judiciary, and for the rule of law and constitutional democracy.
Judges are vested with extensive powers, and their independence is strongly protected. If these powers are abused and errant judges cannot be removed from office, the potential repercussions are far-reaching.
Complaints are dealt with by the Judicial Service Commission (JSC). In a labyrinthine process, these complaints are received by the Judicial Conduct Committee (JCC). Complaints may be dismissed outright and less serious complaints may be dealt with via a range of sanctions short of impeachment.
For more serious complaints, which (if proved) may lead to the removal of a judge from office, the JCC will recommend to the JSC that a Judicial Conduct Tribunal (JCT) be established to conduct an inquiry. The finding of the Tribunal must then be endorsed by the JSC. If this results in a recommendation that a judge be removed from office, the matter is then sent to Parliament. If Parliament votes for removal by a two-thirds majority, the President must then formally remove a judge from office.
At the time of writing, no judge has yet been removed from office through this process. The possibility of removal is an important accountability mechanism, which is vital to securing judicial independence.
On the one hand, If judges could be removed at the whim of the executive or Parliament, this would weaken their independence.
What is required is a balanced process, one that enables accountability while securing judicial independence.
How the JSC has performed its role has been the subject of much criticism as it threatens both judicial accountability and independence.
In September, Freedom Under Law (FUL) hosted a webinar enabling civil society organisations to discuss the complaints process. We did so to begin developing civil society’s suggested reforms to the complaints process. The webinar provided an opportunity for organisations to share their insights and experiences of the process.
FUL presented the findings of a recent research report, which examined the JSC’s performance, and made suggestions for reforms. Judges Matter shared insights from their research and monitoring of the complaints process, and #UniteBehind and Open Secrets shared their experiences as current complainants. Open Secrets, together with Shadow World Investigations, have lodged a complaint against retired Judges Willie Seriti and Hendrick Musi for their conduct in running the commission of inquiry into the arms deal.
#UniteBehind have lodged a complaint against Judge Tintswalo Annah Nana Makhubele for her conduct in serving as chair of the board of control of PRASA while simultaneously serving as a judge, and for her conduct while at PRASA, which is alleged to have enabled corruption.
These inputs provided a wide range of helpful insights into the functioning of the complaints process, and gave a remarkably consistent picture of its problems.
First, there is a problem with the basic institutional design. The complaints process is poorly designed, making the handling of a complaint so convoluted as to be almost unworkable. Timelines between different stages in the process can drag on interminably and each stage provides an avenue for potential litigation, with judges frequently taking the opportunity to litigate every point they can potentially on the state’s dime. Many of the steps in the process appear to be unnecessary.
Second, there are issues of institutional capacity. The members of the JCC are sitting judges with busy workloads, which places a tremendous amount of strain on the processing of complaints. When deciding complaints, the JSC sits as a “small JSC” (without members of Parliament), and functions on an ad-hoc basis without any continuity. It has frequently been unable to complete its work due to failing to meet a quorum. The secretariat is also significantly under-capacitated.
These factors lead inexorably to a third problem, the notorious delays in the process. Complaints are dealt with extremely slowly, and the fact that so few cases have been finalised presents a fundamental problem of credibility. Without civil society organisations vigorously pursuing complaints, many complaints would likely not be at the point that they are now.
A fourth issue relates to the role of complainants in the process. Organisations that have been involved in bringing complaints describe frustrations with their role during hearings being circumscribed. They noted that it fell on them to create impetus for complaints to proceed.
A fifth issue is legal costs. There are two aspects to this. The first is the scope and responsibility of the payment of the legal costs of the judges defending themselves against complaints. For instance, the Makhubele tribunal’s most recent postponement has been due to a dispute between Judge Makhubele and the state attorney regarding payment of her eight-member legal team, the costs of which are significant.
Another aspect is the costs incurred by organisations who have brought complaints and have played a significant role in the ongoing process. There is no way that these organisations are able to reclaim their substantial costs. To expect a small organisation to make such a contribution is problematic and puts complainants at a serious disadvantage.
There are further issues, such as a lack of transparency about the status and outcome of complaints, the JSC following an inconsistent practice in making recommendations to suspend judges facing serious complaints, and questionable decision-making by the JSC in determining the outcome of complaints.
Several suggestions for reform emerged from the discussions.
FUL’s report highlights the need to
The role of retired judges prompted some interesting debate, with some reservations being expressed as retired judges may still be constrained by professional connections to former colleagues. And as the Open Secrets complaint showed, the conduct of retired judges themselves can be an issue.
Reform will likely need to take place in both the short and long term. In the short term, the capacity of the JSC could be improved by increasing the secretariat and staffing the JCC with more judges (retired or otherwise) to enable it to deal with complaints quicker.
The “small JSC” needs to be formalised as a permanent, working structure. In the longer term, institutional reforms need to be made, which may include re-writing the legislation to streamline the process and make it less vulnerable to litigation.
In the long term, it should be considered whether the legislation should outline a more ambitious manner to deal with judicial misconduct. Further, the desirability for judges to oversee their own misconduct processes, while acknowledging the need to balance independence and accountability, should be interrogated.
An important underlying issue was raised about the teaching of legal ethics. Some law schools do not have a self-standing course in legal ethics. Further, the legal ethics course offered by the law societies is taught in the context where students are focused on and driven by passing admission exams, leaving little room for critical engagement and careful study.
Unsurprisingly, the academic literature on legal ethics in South Africa is almost non-existent. There is a general lack of accountability in the legal profession with the Legal Practice Council exhibiting similar failings in its disciplinary processes as the JSC. This means that judges are being drawn from a profession with a lack of accountability.
The time is ripe for reform. At its October sitting, the JSC announced that it is seeking to have legislation amended to expand the composition of the JCC. This shows some recognition that the system is not functioning adequately and needs to be reformed. It is hoped that the JSC and lawmakers will embrace the further suggestions which emerged from this civil society engagement.
Views expressed are not necessarily those of GroundUp.