Analysis of the third kind
24 March 2017 00:01 (South Africa)
Opinionista Alison Tilley

The role of the JSC in complaints about acting judges

  • Alison Tilley
    alison-tilley-01.jpg
    Alison Tilley

    Alison Tilley is the head of advocacy and special projects at the Open Democracy Advice Centre.

Comments by an acting judge in the matter of the residents of Bromwell Street, Woodstock, and their removal to distant housing, raise the question of a judge’s code of behaviour and the circumstances in which a judge or acting judge may be sanctioned.

What’s the point of being near a school? What’s the point of them being near transport? Where are they going to go?” asked Acting Judge Leslie Weinkove, hearing an application regarding the emergency accommodation of the 27 people due to be evicted from houses in Bromwell St, Woodstock. His comments, as well as others about the credentials of a deponent to an affidavit in the application, have caused an uproar.

The Department of Agriculture, Forestry and Fisheries has requested that Judge President John Hlophe of the High Court in Cape Town remove Acting Judge Weinkove from their case concerning fishing quotas for poor communities. The case is scheduled to be heard on February 6. The department will reportedly, in due course, also lodge a complaint against Weinkove at the Judicial Service Commission.

Judge Hlope himself is the subject of a complaint to the JSC which remains unresolved after several years.

The removal of a judge can be done in terms of sec 177 (1) of the Consitution where the Judicial Service Commission finds that the judge suffers from an incapacity, is grossly incompetent or is guilty of gross misconduct; and the National Assembly calls for that judge to be removed, by a resolution adopted with a supporting vote of at least two thirds of its members.

There is, in addition, a system for complaints against judges, which are brought in terms of the JSC Act and regulations. This framework creates a complaints committee and a tribunal, to hear such complaints. This complaints committee is made up of two judges, appointed by the Chief Justice, and another person who is appointed by the Chief Justice with the agreement of the Minister of Justice.

Complaints may be laid against judges in terms of the code of conduct, which among others requires of judges the following:

  • In conducting judicial proceedings judges personally avoid and dissociate themselves from comments or conduct by persons subject to their control that are racist, sexist or otherwise manifest discrimination in violation of the equality guaranteed by the Constitution.
  • In court and in chambers, judges always act courteously and respect the dignity of others.
  • In conducting judicial proceedings, judges give special attention to the right of equality before the law and the right of equal protection and benefit of the law.
  • In conducting judicial proceedings, a judge maintains order, acts in accordance with commonly accepted decorum, remains patient and courteous to legal practitioners, parties and the public, and requires them to act likewise.

However, Judge Weinkove is not a permanent judge, but rather an acting one.

What is an acting judge, and does that make a difference?

Prof Corder writes that there is a practice of appointing senior lawyers to the bench for a period of one to three months, usually to replace a judge on long leave or to help reduce a backlog of pending trials which:

... has ... been part of the administration of justice in South Africa for decades. As well as serving the direct purpose of allowing the court concerned to keep pace with the demands for its services, it has allowed those who are likely at some stage to be considered for judicial appointment a limited opportunity to experience judicial work, thus better informing any subsequent decision as to the person’s suitability for judicial office”. (Hugh Corder, “Appointment, Discipline and Removal of Judges in South Africa, in H.P. Lee (ed), Judiciaries in Comparative Perspective (2011), p. 105.)

Section 175(2) provides that the Minister of Justice must appoint acting judges “after consulting the senior judge of the court on which the acting judge will serve.” The section makes no mention of the circumstances in which such an appointment may be made, and no involvement by the JSC is contemplated. The decision must be made in good faith, having due regard to the advice given, but the advice of the senior judge does not bind the minister.1

Are complaints against an acting judge the same as against a permanent judge? The easy answer to such complaints is simply to wait until that judge’s term comes to an end, and then not reappoint them. However, what about sanctioning an acting judge?

The JSC Act defines a judge who is subject to the rules of the JSC as including:

. any person holding the office of judge in a court of similar status to a

High Court, ….and includes any Constitutional Court judge or judge performing judicial duties in an acting capacity.

Does that mean “an already permanently appointed judge who is acting in a senior court leadership role, or on a superior court like the SCA”? Or does “judge” mean a person, not permanently appointed as a judge, serving as an acting judge. If the former, then the only recourse is not appointing the person as an acting judge again, or possibly lodging a complaint with their professional body (such as the bar council or law society).

This does not seem a satisfactory answer. It leaves a potential accountability gap, especially if an acting judge is appointed repeatedly and has no intention of appearing before the JSC to seek permanent appointment. This issue might well need to be resolved by litigation. The issue of how acting judges are appointed remains a sore point, and one which the JSC has been promising to develop a policy on for some time. The next meeting of the JSC in April will hopefully not leave this issue again unanswered. DM

1Ibid.

  • Alison Tilley
    alison-tilley-01.jpg
    Alison Tilley

    Alison Tilley is the head of advocacy and special projects at the Open Democracy Advice Centre.

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