High court dismisses judges Seriti and Musi's challenge to the JSC Act

Deputy judge president Roland Sutherland says the retired judges' argument “cannot be sustained”

14 April 2023 - 19:36 By FRANNY RABKIN
subscribe Just R20 for the first month. Support independent journalism by subscribing to our digital news package.
Subscribe now
The Johannesburg high court has dismissed a challenge by retired judges Willie Seriti and Hendrick Musi against constitutionality of the Judicial Service Commission Act.
UNLAWFUL The Johannesburg high court has dismissed a challenge by retired judges Willie Seriti and Hendrick Musi against constitutionality of the Judicial Service Commission Act.
Image: PEGGY NKOMO

The Johannesburg high court on Friday dismissed an application that would have allowed retired judges facing misconduct complaints to escape being held accountable by the Judicial Service Commission (JSC). 

The case had been brought by retired Supreme Court of Appeal justice Willie Seriti and retired Free State high court judge president Hendrick Musi, who challenged the constitutionality of the Judicial Service Commission Act, after a complaint was laid against them for the way they conducted the arms deal commission of inquiry. 

The judicial commission of inquiry into the arms deal, chaired by Seriti, exonerated all involved from wrongdoing. But its findings were set aside in 2019 by the Pretoria high court, which found the commission had failed to comply with its mandate to investigate the allegations.  

After the judgment, a complaint was made to the judicial conduct committee (JCC) by the NGOs Open Secrets and Shadow World Investigations.

In May 2021, the JCC’s acting chair, then deputy chief justice Raymond Zondo, referred it to the JCC for a further decision. He said having only heard the version of the two NGOs, he was satisfied that if the complaint was established, “it is likely to lead to a finding ... of gross misconduct”.  

The day before the JCC was supposed to decide on the way forward regarding the complaint, the two judges applied to court to challenge the JSC Act. “We are aggrieved that we have to be put through a complaint process when we have long retired,” said Seriti in a founding affidavit.  

The retired judges argued the JSC Act had impermissibly, and unconstitutionally, extended the definition of “judge” to include judges who had been discharged from active service.   

But in a judgment on behalf of three judges, Gauteng deputy judge president Roland Sutherland said their argument “cannot be sustained on a proper interpretation of the enactments” — the constitution, the JSC Act and the Judges Remuneration and Conditions of Service Act.  

The two judges had argued that the constitution says judges hold office until they are discharged from active service in terms of an act of parliament. That “act of parliament” was the Judges Remuneration and Conditions of Employment Act, in which judges were defined as those in active service, which meant those serving in a permanent capacity.   

Yet in the JSC Act, the definition of a judge expressly included “a judge who has been discharged from active service in terms of that act”. They argued that the JSC Act was therefore “in direct conflict with the constitution”.  

But Sutherland said the “basic flaw” of Seriti and Musi’s argument was the “notion that a person can only be a judge during the term of active service or term of office”. They had conflated the status and identity of a judge with the concept of an office-holder, the judgment read. 

Applying the proper test for constitutional inconsistency, the constitution, the JSC Act and the Remuneration Act could all be read together and were not in conflict, Sutherland said.  

Though Seriti and Musi had repudiated the idea of the appointment of a judge “for life”, Sutherland said the Remuneration Act did contemplate the idea of a judge for life. In that respect it was “not different to the JSC Act. Neither statute was inconsistent with the constitution,” he said. 

The Remuneration Act used the concept of “discharge from active service”, rather than a “termination of office”, said Sutherland.

This was “significant nomenclature” because it pointed to a continuing judicial identity even when no judicial functions were being performed. Remuneration paid after discharge was a “salary” and not a pension. A retired judge also could still be called on to serve, whether compulsorily or voluntarily, he said. 

“The upshot of all these observations ... is that it plainly does contemplate a concept of a judge for life,” he said.   

TimesLIVE

Support independent journalism by subscribing to the Sunday Times. Just R20 for the first month.



subscribe Just R20 for the first month. Support independent journalism by subscribing to our digital news package.
Subscribe now

Would you like to comment on this article?
Sign up (it's quick and free) or sign in now.

Speech Bubbles

Please read our Comment Policy before commenting.