In South Africa, it’s easy to forget that accountability for wrongdoing is an important part of any functional society. Even more, any sign of possible wrongdoing by public officials must be investigated to ensure trust in public institutions.

There are few institutions that South Africans trust like the judiciary. But if retired judges Willie Seriti and Hendrick Musi have their way in court on Tuesday, 14 March, this trust could be dealt a heavy blow that will inspire elites who seek to undermine the authority and integrity of the courts.

Judges Seriti and Musi will be in court to argue that the definition of who is a judge must be amended to exclude retired judges; one consequence of which would be that retired judges could not be subject to investigation by the Judicial Conduct Committee (JCC).

Judges Seriti and Musi never raised an issue with the definition of “judges” until they found themselves at the centre of an investigation by the JCC into their conduct for their abysmal work in the Commission of Inquiry into Allegations of Fraud, Corruption, Impropriety or Irregularity in the Strategic Defence Procurement Packages – otherwise known as the Seriti Commission.

The Seriti Commission of Inquiry was set up to investigate irregularities in the multibillion-rand procurement of arms by the South African government in 1999, known as the Arms Deal.

Despite the overwhelming evidence of corruption, in 2015 Seriti and Musi found no irregularities in the Arms Deal procurement process.

They did this even though two people, Schabir Shaik and Tony Yengeni, were convicted of corruption related to the deal. Shaik was sentenced to 15 years in prison for corruption and fraud for his role in brokering a deal with French arms company, Thomson-CSF, to pay Jacob Zuma R500,000 for support and protection against future bids for arms procurement in South Africa, while Tony Yengeni was sentenced to four years in prison for accepting a bribe in the form of a 50% discount for a luxurious Mercedes-Benz SUV.

The commission, led by Seriti, was a wasted opportunity to hold those responsible, including former president Jacob Zuma, accountable for the corrupt Arms Deal. After close to R140-million was spent on the commission to get to the bottom of corruption in the controversial deal, South Africans had nothing to show for it.

Without question, the commission was a “monumental failure”. 

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In 2016, following court action initiated by Corruption Watch and Right2Know, the findings of the commission were set aside by the High Court of South Africa (Gauteng Division, Pretoria.

The high court concluded that the commission failed to look into and consider thousands of pages of evidence from other investigations. In his judgment, Judge Dunstan Mlambo said “the commission failed to inquire fully into the matters it had to investigate. The questions posed to the witnesses were hardly the questions of an evidence leader seeking to determine the truth”.

Judges Seriti and Musi are yet to explain their conduct to South Africans. 

The failure of these judges in considering this evidence is not like a failure by a layperson. These judges were selected for their excellent work in the judiciary. On the announcement that they would lead the commission, the Department of Justice described them as:

“Senior judges of high standing and integrity, who have impeccable track records in the legal and judicial work. They are judges of independent minds, who command respect from their peers and have exhibited leadership attributes in their added responsibilities other than presiding in court.”

Open Secrets and Shadow World Investigations wrote to the Judicial Conduct Commission in August 2020 to have both judges investigated for possible misconduct during their time leading the commission.

Then acting chairperson Judge Raymond Zondo found that the complaint warranted investigation. But instead of cooperating with the JCC, the duo has now attempted to evade accountability. They argue that because they are retired judges, the JCC has no power to investigate their conduct.

Essentially, it is their view that the current definition of a “judge” – as contained in the Judicial Service Commission Act – is unconstitutional as it includes retired judges. One does not need to be a lawyer or a senior judge to see that this argument is a poor attempt to evade accountability for their questionable conduct.

Judges, both active and retired, are rewarded handsomely for their service. Even beyond their time on the Bench, judges accrue income from the state. For many South Africans, their job pays them only for their time in service. But this is different for judges – retired judges are often called to help us solve the many complex crises we face in the country.

For example, retired Deputy Chief Justice Dikgang Moseneke led the commission of inquiry into the many deaths at Life Esidimeni. It is therefore very convenient that Judges Seriti and Musi have raised this argument when they are being investigated.

Their questioning of the definition of “judge” also has serious implications for how the JCC holds judges accountable.

Beyond that, it has even more serious implications for the public’s trust in the judiciary. This trust must be protected and the JCC must be empowered to do its work – failing to do so will be a failure to maintain the integrity of the courts and the independence of the judiciary.

If we fail to hold them accountable now, this will allow judges to retire in attempts to avoid accountability for misconduct and courts will be seen as illegitimate arbiters of truth.

Seriti and Musi may well be found not guilty of any misconduct. However, we won’t know until they sit before the JCC and answer for their conduct before their peers in the judiciary.

Their fundamental failure to do their jobs at the Seriti Commission, as confirmed by our courts, leaves unanswered many questions about their conduct. These include:

1. Why did they ignore key evidence of bribery, corruption and fraud in the commission?
2. Why did they deny key witnesses the opportunity to give testimony at the commission?
3. How did they expect South Africans to accept their finding that there was no trace of corruption in the Arms Deal?

There is no doubt that the work of commissions of inquiry will continue to be of significance in resolving our many crises. At a cost of millions (and in the case of the Zondo Commission, nearly a billion rand), now is the time for any semblance of misconduct by judges presiding over commissions to be fully investigated, whether they have since retired or not.

Failure to do so risks undermining the judiciary, which is an integral institution in a functioning democracy. DM