There is a significant issue of discipline within the Judicial Service Commission (JSC), in two senses of the word.

First, the latest in a row of Judge John Hlophe complaints points to a worrying inability to deal with allegations of misconduct and this in the highest ranks of the institution.

Second, the JSC, the body constitutionally mandated to deal with judicial misconduct, is also legislatively obligated to produce annual reports on its work and submit these to Parliament. It has not done so since 2007, demonstrating a serious lack of discipline in respect of its legislative duties. Both of these failings should be a concern to us all. 

The judiciary is arguably the most highly regarded arm of state, not least because it defended constitutional principles and values when these came under attack during the era of state capture. It is an institution that can broadly be proud of its fiercely guarded independence and integrity. However, there are cracks, significant ones, and these must be addressed before they spread further. 

The two most well-known cases of alleged misconduct that have been disgracefully handled are those concerning Hlophe, Judge President of the Western Cape High Court, and the now-retired Judge Nkola Motata. 

Hlophe has faced serious allegations since 2005, including making racist remarks, receiving extrajudicial funds, evading tax in respect of these funds and seeking to influence South Africa’s apex court in respect of judgments pertaining to Jacob Zuma. This last complaint was made to the JSC by all the then judges of the Constitutional Court and has still not been resolved. The other complaints were allegedly not pursued due to a lack of evidence, according to a GroundUp report. If true, this should strike one as puzzling in light of Hlophe’s admission that he had not complied with taxation requirements and had thus applied for “amnesty” regarding this. Judicial leaders should not be asking for forgiveness, but be scrupulously compliant. Hlophe now faces fresh allegations from his own deputy, Judge Patricia Goliath, ranging from assault to improperly influencing judicial deployment, again allegedly to favour Zuma.  

Civil society leapt to its feet in light of the fresh allegations against Hlophe by the second-in-command of his court, calling for Hlophe’s immediate suspension. Chief Justice Mogoeng Mogoeng’s response to this outcry was perplexing. “Where I am legally empowered to act, I will not hesitate to do so,” he wrote in correspondence with the Cape Bar Council. Of the Judicial Conduct Committee (JCC), a body established in terms of the Judicial Service Commission Act, Mogoeng added that “[b]arring litigation or inescapable delays, the JCC has always done everything within its power to attend to complaints with the necessary speed. The need never arose to spur them into action or give unsolicited guidance on how they should do their work. And I think it would be most inappropriate to begin to do so now.”

(According to the Judicial Service Commission Act, the Chief Justice is the Chairperson of the JCC, although he may delegate the powers or functions of this office to the Deputy Chief Justice, which has evidently happened in respect of the latest Hlophe complaint.)

The JSC’s official media statement reads similarly to the Chief Justice’s words: “The JSC wishes to reiterate that the complaint will be properly dealt with by the JCC, a statutory body chaired by the Deputy Chief Justice of the Republic of South Africa, Justice R M M Zondo and comprising senior Judges of our Superior Courts … There is … no need for anyone to provide any unsolicited guidance on how the JCC should deal with complaints …”

Motata, the subject of the second prominent example of a poorly handled misconduct case, infamously got away with nothing more than a fine, more than a decade after a complaint was first made about his having uttered racist remarks at the scene of a car accident he caused when he drunkenly drove into a wall.

The handling of the complaints by the JSC has been nothing short of shameful. The consequences of this extend far further than Hlophe and Motata. It sets the tone for the entire institution. If a grave complaint against a Judge President brought forward by justices of South Africa’s apex court does not receive the attention it deserves, this does not bode well for the complaints that ordinary members of the judiciary, let alone the public, might want to lodge. If serious misconduct is left to fester, this can do great harm to an institution.  

The judiciary, however, makes the following argument to explain away the delays in the above two (and other) misconduct matters in its December 2019 newsletter: “Most cases of alleged misconduct against Judges have been speedily finalised, barring of course the Hlophe JP, Motata J as well as the Preller J, Mavundla J, Webster J and Phoswa J matters. These have been the subject-matter of a series of legal challenges that led to inordinate delays that nobody could have done anything about.”

(Interestingly, not mentioned in the list is the misconduct case involving Judge Makhubele. Although the complaint was lodged in January 2019, the process is still ongoing and there is no sign of a resolution. Makhubele is accused of serious misconduct linked to her role as chairperson of the Passenger Rail Agency of South Africa (PRASA), which she took up after her judicial appointment came into effect. It is also alleged that she was involved in corrupt activities at PRASA.) 

The following comes to mind: First, the JSC was a respondent in many of the legal proceedings, providing it with the opportunity to guide them to a speedy resolution. Second, given the momentous importance of the complaints, the judiciary was in a position to expedite the processes by means of priority case management. 

Both the judiciary and the JSC are led by the same individuals: the Chief Justice and the Deputy Chief Justice. It cannot be that a part of the judiciary tries to deflect blame away from itself by invoking court cases, since the very same leadership is in charge of these too and has great powers to bring about speedy resolution. Whichever way one looks at it, the leadership of the judiciary (which is also that of the JSC), cannot just shirk blame. Nothing can explain why these misconduct cases have dragged on over decades, least of all when the judiciary exercises control over both the misconduct cases as well as the relevant legal proceedings. 

It is evident from the JSC’s statement that the Chief Justice has opted to delegate the latest Hlophe complaint to Deputy Chief Justice Zondo. One might wonder why the Chief Justice has done so, given that the Deputy Chief Justice is currently snowed under with the State Capture Commission he is running. Also, who are the “senior Judges of our Superior Courts” on the JCC to which the JSC’s statement refers?

The second issue of discipline bedevilling the JSC is the lack of discipline when it comes to reporting on its work. 

The JSC Act states that every year it “shall … submit a written report to Parliament”, which must include information on: 

• “the activities of the Commission during the year in question”,
• “all matters dealt with by the Judicial Conduct Committee”,
• “all matters relating to, including the degree of compliance with, the Register of Judges’ Registrable Interests”, and
• “all matters considered by the Commission … including the number of matters outstanding and the progress in respect thereof”.

The only JSC reports listed on justice.gov.za are for the years 2004, 2006 and 2007. Where are the reports for all the other years? I spoke and then wrote to the Company Secretary of the JSC to request the missing reports, but I have thus far received none. This is because they do not seem to exist. 

The judiciary may well write that “[m]ost cases of alleged misconduct against Judges have been speedily finalised”, but we cannot possibly verify this statement as the institution does not provide us with data on the misconduct cases with which it has dealt, as it is obligated to do. 

Where are the parliamentary questions in light of the JSC’s blatant disregard for its reporting duties to this branch of government and thus the public? Where are the calls for this information from the legal community and civil society? How has the JSC for so many years been able to get away with silence on matters it is legislated to report on? This situation is disgraceful. 

 Calling for the reports will not be enough, however. They will need to be scrupulously studied. Reasons given for long delays in misconduct cases must be probed.

If ever the time was ripe for a broad campaign to hold the JSC to account, it is now. The JSC is in blatant dereliction of its duties and this is a concern to all who care about South Africa’s democracy.

Where is the leadership of the JSC? Seeking to placate the public with platitudes is not good enough. More, much more, is needed. MC

 Cecelia Kok is Head of Research and Advocacy Projects in South Africa for the Friedrich Naumann Foundation for Freedom.