The number of misconduct complaints against Constitutional Court judges increased by 1,500% in the past year, according to the Judicial Service Commission’s (JSC) annual report for 2020/21.
It has also emerged that the justice portfolio committee has not considered the JSC's annual reports since the current parliament was constituted in May 2019.
In the 2019/20 period, there was just one complaint against the Constitutional Court. The 2018/19 annual report also lists a single complaint. The year before that, there were four. But in 2020/21, there were 16 — a “huge” increase, according to the JSC. Of these, 10 were resolved during the course of the year and six are pending.
The report attributes the increase to “litigants who are dissatisfied with the orders of that court particularly in instances where the court grants such orders without the cases being argued in court”.
However, the Constitutional Court has always given orders without hearings. A request to the JSC for more information on the complaints went unanswered.
Legal organisations agreed that the spike was concerning but were cautious about commenting with so little information.
Lawson Naidoo of the Council for the Advancement of the South African Constitution (Casac) said the reporting year 2020/21 coincided with an increase in political attacks on the Constitutional Court and the judiciary generally. He said it could be that the complaints are frivolous and without merit.
Under the Judicial Service Commission Act, certain complaints must be summarily dismissed — if they do not fall within the complaint grounds under the act, are “frivolous or lacking in substance”, are “solely related to the merits of a judgment or order” or are hypothetical.
Naidoo said based on past experience, it is possible that the 10 resolved complaints fell into this category — “but then the report should say so”. He said this raised another important point: the dearth of information in the annual reports.
Mbekezeli Benjamin of Judges Matter agreed, saying the report was “disappointingly thin”.
One could read the report from cover to cover without really having a clear picture of the health of the judicial complaints system
— Mbekezeli Benjamin of Judges Matter
The JSC's annual report to parliament is a requirement of the JSC Act, which says it must include information on “all matters dealt with by the Judicial Conduct Committee [JCC]”.
Benjamin said: “One could read the report from cover to cover without really having a clear picture of the health of the judicial complaints system, and whether judges are being held accountable for misconduct.”
In particular, the reports deal only with complaints received that particular year, and then categorise which ones have been resolved and which are pending.
“This is not useful. The report should detail the nature of the complaints — are they frivolous complaints, serious complaints, or those that constitute gross misconduct? — and how they were resolved. Were they summarily dismissed? Referred to the head of court? Referred to a JCC inquiry? Or even a tribunal?”
The report should also “state the timelines in which the complaints were dealt with, as over the years the JSC has been embarrassingly slow in dealing with complaints”, said Benjamin.
An example of the thinness of the information provided appears from the reports themselves. In the 2017/18 report, the JSC said the JCC had recommended to the JSC that judicial conduct tribunals should be established for four judges because of one or more outstanding judgments. Judicial conduct tribunals are a serious step — the first towards impeachment.
Yet in the three subsequent annual reports to date, there is not a word about what has happened in respect of these tribunals. The Sunday Times could also find no public announcement of a tribunal in respect of these judges or the outcome. The JSC did not respond to questions.
On November 10, the office of the chief justice (OCJ) briefed parliament’s justice & correctional services committee. Minutes of the meeting reflect chair Bulelani Magwanishe, also a member of the JSC, saying the JSC had “never submitted a report to parliament on its activities”.
This was denied by the OCJ’s representative, who said annual reports had been submitted to the speaker’s office. The committee decided it would look into where the “missing link” was.
Parliament's spokesperson, Moloto Mothapo, said the 2020/21 report was in fact only tabled in parliament on November 10, the day of the meeting, and was indeed referred to the committee after it had been processed the following day. The 2018/19 report was tabled, and referred to the justice committee, in November 2020.
Magwanishe said he is following up on what happened with the other reports.
Naidoo said the office of the speaker is accountable for ensuring tabled reports are referred to committees, but MPs also have a duty to call for the reports. He said organisations like Casac and Judges Matter have been making noise about the JSC’s annual reports for some time.
“They can’t claim to have been unaware,” he added.
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