Quote of the week
Mr Zuma is no ordinary litigant. He is the former President of the Republic, who remains a public figure and continues to wield significant political influence, while acting as an example to his supporters… He has a great deal of power to incite others to similarly defy court orders because his actions and any consequences, or lack thereof, are being closely observed by the public. If his conduct is met with impunity, he will do significant damage to the rule of law. As this Court noted in Mamabolo, “[n]o one familiar with our history can be unaware of the very special need to preserve the integrity of the rule of law”. Mr Zuma is subject to the laws of the Republic. No person enjoys exclusion or exemption from the sovereignty of our laws… It would be antithetical to the value of accountability if those who once held high office are not bound by the law.
Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CCT 52/21) [2021] ZACC 18
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
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.
