A statement from the judiciary on Thursday suggested that without a formal complaint on oath the Judicial Service Commission (JSC) is precluded from investigating an allegation of possible corruption made at the Madlanga commission this week against Gauteng’s acting judge president, Aubrey Ledwaba.
On Tuesday “Witness A”, a police officer, testified at the inquiry into criminality, political interference and corruption in the criminal justice system that ahead of a bail appeal hearing by alleged cartel kingpin Katiso “KT” Molefe his team had received information from “informers and sources” that R2.5m had been earmarked to secure bail for Molefe. They were told “Katiso Molefe will get bail”. This was “talking to corruption in the system”.
The witness said it was not clear whether the sources’ information related to corruption in the judiciary or at the National Prosecuting Authority (NPA). But he went on to outline several concerns about Ledwaba’s conduct during the hearing and about the reasoning in his judgment. He said that, during the hearing, “we even called the office, our commanders … and asked to be excused because we couldn’t bear what was going on in the bail hearing. It was traumatising.”
We reiterate a plea ... that any person who has evidence of a judge’s misconduct must promptly lodge a complaint with the Judicial Conduct Committee (JCC) of the Judicial Service Commission.
In her statement, chief justice Mandisa Maya said the judiciary noted Witness A’s testimony “with great concern”. The allegation was “yet to be tested and proved at this stage”. But it still had “the potential of damaging the integrity of the judiciary”, she said.
“We reiterate a plea ... that any person who has evidence of a judge’s misconduct must promptly lodge a complaint with the Judicial Conduct Committee (JCC) of the Judicial Service Commission.” The JSC’s disciplinary process was “triggered by a formal complaint on oath, which has not happened in this case,” said Maya.
Maya had also discussed the matter with Ledwaba, she said. He “strenuously” denied receiving money to grant Molefe bail. He indicated he would not take special leave, “which a judge may not be forced to take”. He was taking legal advice and wanted to appear before Madlanga “to give his side of the story”.
The net effect is that, for now at least, it is business as usual at South Africa’s busiest high court division, which Ledwaba is currently leading. On top of presiding in cases, judges president perform other important duties, such as assigning judges to cases.
In a statement on Friday, the judiciary monitoring organisation Judges Matter urged Ledwaba to “step back from his duties”. Stepping back was not an admission that the allegation was credible, but it was important to protect the integrity and dignity of the courts, the statement said. Ledwaba could not be reached for comment.
The JSC Act may be read in a way that does not necessarily tie the commission’s hands. Section 19(1) provides that there are two ways the commission can request a Judicial Conduct Tribunal: one is on the recommendation of the JCC (this process begins with a complaint); the other is when it appears to the commission “on any other grounds that there are reasonable grounds to suspect that a judge ... is guilty of gross misconduct”.
Though the JSC’s mandate is usually triggered by a complaint, this section suggests that it would not have to wait for a complaint to act — if there are reasonable grounds.
Whether there are reasonable grounds for the JSC to act is a separate question. Judges Matter said that while Witness A (also Witness B, whose testimony followed) made “strong allegations”, there had so far been no further evidence to “substantiate these suspicions”.
The bribery allegation lacks critical detail. Witness A, still not publicly identified, was not certain to whom the money was allegedly paid — the judge or a prosecutor. There was no evidence on when, where or how the alleged bribe happened. The informants are also unnamed, and the reliability of their information untested.
The law also does not allow complaints based purely on the merits of a judgment — these must be summarily dismissed, says the JSC Act. And, while Witness A’s complaints also related to Ledwaba’s conduct at the hearing, there are many appeal court judgments that criticise lower court judges for how they conducted their proceedings. This does not mean corruption.
However, Maya’s statement did not suggest that any consideration was given to a JSC self-triggered investigation, or whether this could be done. If the JSC Act is interpreted to require a complaint before it exercises its disciplinary mandate, it may have longer-term implications for how it does its work.
There is another possible route open: for the chief justice to herself lay a complaint. Former Gauteng judge president Dunstan Mlambo (now deputy chief justice) has laid complaints against judges in his former division for late delivery of judgments. However, when he did so, he had the facts to substantiate them. The situation here is different, with a nameless accuser and an unsubstantiated (at least for now) allegation.
The chief justice declined to comment, saying the judiciary “will not be engaging on this matter any further at this stage”.
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