As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
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
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.