An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
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.