The Judicial Service Commission’s (JSC) system of dealing with complaints of gross misconduct against judges is “broken”, said Freedom Under Law in a report on Tuesday.
The JSC has been the subject of criticism for years, but the shambolic interviews for chief justice in February this year brought its procedures and composition into the limelight as never before. Prolonged delays in the resolution of complaints of impeachable conduct have further undermined the body’s legitimacy.
FUL was the second NGO this week to release a review of the work of the constitutional body that chooses and disciplines judges. The Helen Suzman Foundation released its own report on the JSC on Monday.
Both reports strongly criticise the JSC and make concrete proposals for reform, including increasing the capacity of the JSC’s administration and a greater role for retired judges in dealing with incoming complaints.
The two organisations also suggested amending the constitution so there are fewer politicians on the JSC when it interviews and recommends candidates for judicial appointment.
FUL said when it came the JSC’s disciplinary function, the system was set up “on paper to offer good prospects for ensuring that instances of gross judicial misconduct are resolved fairly and promptly”.
But the JSC’s track record, in practice, showed the opposite, the report said. HSF agreed that “in theory” the complaints procedure should run effectively and efficiently, but “in practice, this is not the case”, said the HSF report.
In terms of the constitution and the JSC Act, judicial conduct tribunals are established to investigate complaints of misconduct that are potentially impeachable. FUL’s report looked at all the instances where a judicial conduct tribunal was established since 2009. Only one of these has been finally resolved, said the report.
There is a tragic irony in that it took the JSC almost 14 years to rap a group of judges over the knuckles for not handing down judgments timeously.
— Freedom Under Law report
Though not all the delays were the JSC’s fault, FUL said: “It is impossible to reconcile the JSC’s sluggish approach with the need for complaints regarding misconduct ... to be managed with a sense of extreme urgency to protect the reputation and legitimacy of the bench.”
The only JCT matter that has been finally resolved, ended with a rap on the knuckles for a group of judges that had been late with judgments. “There is a tragic irony in that it took the JSC almost 14 years to rap a group of judges over the knuckles for not handing down judgments timeously,” said the FUL report.
The JSC’s handling of gross misconduct complaints had been characterised by “delay, inconsistency in the approach to suspension and constitutionally questionable decision-making”, said FUL’s report.
Both reports contrasted the suspensions of judges Nana Makhubele and Mushtak Parker, with Western Cape judge president John Hlophe remaining on the bench despite two gross misconduct complaints against him — one stretching back to 2008 and another made in 2020 by his deputy, Patricia Goliath.
It was only four months ago that the JSC recommended suspension for Hlophe in respect of the 2008 complaint. “Though the JSC has now finally called for JP Hlophe’s suspension, it is inconceivable that it took well over a decade to do so,” said the HSF in its report, adding it was difficult to avoid an impression that the same principles were not applied to all cases.
FUL said: “The JSC’s decision on this score is difficult to understand and is made harder to justify in light of its decision to suspend other judges accused of gross misconduct. It is difficult not to infer that judge Hlophe has been doggedly protected in his position by some underlying political motive.”
HSF recommended a more streamlined process to deal with the initial process of complaints, with a preliminary committee made up of retired and senior sitting judges to determine if complaints have any merit against them. FUL recommended a “small dedicated group” within the JSC to manage complaints and put in place timelines and benchmarks for the progression of complaints through the system.
FUL also recommended peopling judicial conduct tribunals and the judicial conduct committee, which receive and process misconduct complaints, with retired judges.
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