Quote of the week

Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.

L'Heureux-Dube and McLachlin JJ
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
22 February 2007

Judge Hlophe’s worst nightmare?

The Department of Justice this week tabled a Bill that would amend the Judicial Services Commission Act to deal with the Judge President Hlophe kind of case. Section 177 of the Constitution provides for the removal of a judge because of incapacity, gross incompetence and gross misconduct.

But when a complaint was lodged against Judge President Hlophe, the Judicial Services Commission (JSC) decided that there was insufficient evidence to refer the matter to the National Assembly for impeachment. No Judge had ever been impeached in South Africa since 1910.

The problem with the Hlophe matter was two-fold. First, a majority of members on the JSC who are not judges decided to believe Judge Hlophe for (what appears if one has to judge from news reports) political reasons. Second, those who thought that there was a problem with the conduct of judge Hlophe were hamstrung because there was no legal process in place to launch a proper investigation that would uncover the truth.


The amendments – apparently carrying the approval of the judicial leadership – will now provide for a process to deal with both impeachable and non-impeachable offences by judges.

Most importantly, according to the draft Bill, the initial investigation into misconduct will be conducted by a Committee comprising of the Chief justice and three other judges. No politicians will be involved in the process, thus safeguarding the independence of the judiciary.

In serious cases a three person tribunal – of which two has to be judges – will hear a case and make a recommendation to the JCS.

The amendments is clear that that no action could be taken or regulations gazetted without the consent of the Chief Justice because wherever the Minister is proposed to be involved he or she has to act “in consultation with” the Chief justice.

These amendments are absolutely crucial to establish a credible system to hold judges to account who does not comply to the basic minimum standards one would expect from a judge. It makes a clear distinction between impeachable offences (taking money, say and then doing favours for those whom one has taken the money from –something Judge Hlophe have been charged with) and non-impeachable offences (like drunken driving, say).

Let’s hope the Minister gets her act together and manages to pass the legislation as soon as possible.

SHARE:     
BACK TO TOP
2015 Constitutionally Speaking | website created by Idea in a Forest