In July last year the Judicial Conduct Committee (JCC) decided that a judge with long-outstanding judgments could not be investigated by a judicial conduct tribunal — the only body that can recommend impeachment — because he had retired.
Three months later, the JCC recommended a tribunal for another judge, former chief justice Mogoeng Mogoeng no less, even though he was also retired.
The about-turn happened with no explanation. In giving its decision in Mogoeng’s case, the JCC made no reference to its earlier decision in relation to KwaZulu-Natal High Court judge Anton van Zyl.
Though the disciplinary processes in both cases are far from over, the finding by the majority in the Van Zyl panel and the contradictory approaches of the two JCC panels raise several alarming questions about the judicial disciplinary system.
The first is that they create uncertainty about whether retired judges can be impeached — with implications for the legality of the impeachment of Nkola Motata, who was impeached in March last year, long after he retired.
Second, Van Zyl faced complaints related to 10 delayed judgments, one outstanding from as far back as 2012. He had not given the JCC any explanation. On behalf of the majority of the panel, retired Constitutional Court justice Chris Jafta said this was “deeply concerning”.
“Some of them would have been pending for more than 10 years [and] the litigants’ lives have been adversely affected,” he said.
Yet the logical consequence of Jafta’s reasoning was that, because Van Zyl could not be impeached, the most severe sanction he could face was one that would follow from an investigation into “serious but not impeachable” conduct, such as an apology or a fine. An active judge, on the other hand, could face impeachment for the same conduct.
The judicial disciplinary process is known to be slow and has, in the past, often been delayed by litigation. If Jafta’s reasoning were to stand, the consequences for the same conduct could depend on how far a judge has to go before retirement. Worse, a perverse consequence could be that judges would be motivated to drag out their disciplinary processes to avoid the more severe sanction.
The decision also seemingly contradicts what the Supreme Court of Appeal (SCA) said in a case about Motata — that the fact he had retired was “irrelevant”.
Yet Jafta said that, as a matter of constitutional law, Van Zyl’s retirement meant he could not be impeached. Jafta said the purpose of impeachment was to remove a judge “from office”. But the constitution also says a judge “holds office” until they “are discharged from active service”.
The assertion that a judge who has vacated office under section 176 of the constitution may still be removed from office in terms of section 177 is a constitutional oxymoron. A judge cannot be removed from an office he or she no longer holds
— Chris Jafta, retired ConCourt judge
“The assertion that a judge who has vacated office under section 176 of the constitution may still be removed from office in terms of section 177 is a constitutional oxymoron. A judge cannot be removed from an office he or she no longer holds,” said Jafta.
The JCC was divided in the Van Zyl decision, three to two. Western Cape judge president Nolwazi Mabindla-Boqwana dissented from Jafta’s decision, saying the SCA’s Motata judgment was “binding precedent”. She was supported by chief justice Mandisa Maya.
The JCC majority’s answer to Mabindla-Boqwana was that the SCA’s reasoning on this score was not binding precedent because it was “obiter dicta” (remarks made in the course of a judgment), but they are not the “ratio decidendi” (reasons that led to the order given). In law, only the ratio is binding.
Mabindla-Boqwana disagreed: “It constituted a principle which was considered based on the fact that the court was dealing with a retired judge,” she said.
Then there are the contradictory approaches taken by the JCC panels in the Van Zyl and Mogoeng cases. JCCs are not courts so their previous decisions are not binding in the same way that courts’ previous decisions are.
But JCC decisions are exercises of public power and therefore they must, at least, be rational in law. If two panels are going to decide that the constitution means opposite things, it may be argued that rationality demands that they should at least say why.
On Friday the Judicial Service Commission (JSC) said the Van Zyl decision was “presently the subject of an inquiry in terms of section 17 of the JSC Act” as directed by the JCC’s decision. It “has therefore not served before the JSC”.
Section 17 deals with inquiries into complaints of “serious, non-impeachable” misconduct. However, at the end of a section 17 inquiry, a complaint may still be referred to a tribunal, if the inquiry leads in that direction. The JSC is considering the JCC’s decision in respect of Mogoeng.
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