On 22 June 2023, the Supreme Court of Appeal handed down judgment in Freedom Under Law v JSC. The judgment is important for correcting a longstanding and serious failure by the Judicial Service Commission (JSC) in exercising its function to deal with complaints against judges.
A recap of the background to the case is necessary. In early 2007, High Court Judge Nkola Motata was involved in a car accident when he drove into the wall of a residential property in Johannesburg. He was subsequently convicted for driving a vehicle under the influence of intoxicating liquor.
Complaints were made to the JSC alleging that the judge had made racist remarks in the aftermath of the accident, and that during his criminal trial, he had advanced a defence which he knew to be untrue.
After unsuccessful challenges by Judge Motata to the validity of the applicable legal framework, he was found by a judicial conduct tribunal to have committed gross misconduct. According to the relevant legislation, the JSC was then required to decide whether to accept the tribunal’s finding, and if it did so, to refer the matter to Parliament to decide whether the judge should be removed from office.
The JSC chose not to refer the matter to Parliament. In a split decision, it found that while Judge Motata had committed misconduct, it fell short of the level of “gross misconduct” required by the Constitution for a judge to be removed from office. Judge Motata was fined just over R1-million, payable to the South African Judicial Education Institute.
Central to the JSC’s decision was a finding that a former member of the commission had instigated the complaint of advancing an untrue defence; and that Judge Motata’s responsibility for his “racially loaded utterances” was diminished due to intoxication and provocation.
Freedom Under Law (FUL) challenged the JSC’s decision. The high court rejected the challenge, but that decision has now been overturned by the SCA. The SCA found that there was no reasonable apprehension of bias flowing from the involvement of a commissioner in the lodging of a complaint, and that the JSC majority’s findings of diminished responsibility due to intoxication and provocation had “little support in the evidence”.
The SCA’s evaluation of the latter issue is especially scathing. It finds that the JSC majority made inaccurate assertions, failed to acknowledge or explain why it rejected key findings by the conduct tribunal, and in particular, that the JSC was “far too receptive” to the allegation of provocation, and “impermissibly made far more of it than a proper analysis of the evidence permits”.
The SCA also criticised the JSC for failing to consider the impact of Judge Motata’s conduct on the public perception of his ability to act with honesty and propriety.
These are striking criticisms of how the JSC performed its task in the Motata case. But they are consistent with longstanding and serious concerns about how the JSC has exercised its mandate to deal with complaints against judges. While the JSC is often discussed for the role it plays in the appointment of judges, its handling of complaints has arguably been more problematic.
In a report released last year, FUL evaluated the performance of the JSC over the preceding decade and found that, in its handling of complaints against judges, the commission had failed to resolve serious complaints within a reasonable timeframe, and had made serious errors of process and judgment in dealing with these complaints. The JSC has seemed unable or unwilling to take decisive action against judges accused of serious misconduct, even where, as in the case of Judge Motata, criminal conduct has been established.
The report also highlights how complaints of this nature need to be dealt with urgently in order to protect the reputation and legitimacy of the judiciary.
The SCA judgment bears out these concerns. In determining whether the matter should be sent back to the JSC to decide again, the majority of the SCA emphasised that 16 years had passed since the incident and that any further delay would not serve the interests of justice.
The court also highlighted the impact of Judge Motata’s actions on public confidence in the judiciary, finding that for as long as he was entitled to call himself a judge, “the judiciary continues to be stained in the eyes of the public”.
Removing a judge from office is an extraordinary step, one which has not yet been taken in South African history. This is so because it is crucial that judges have the independence to know that they are protected from political retaliation for unpopular decisions. Our constitutional democracy could not function if judges worked with the threat of being easily removed from office hanging over them.
But equally, that protection of independence cannot allow judges to stay in their positions when they have committed serious misconduct. As the SCA correctly observed, public trust (which is so crucial to the legitimacy of the judiciary) is undermined when this happens. The JSC’s failure to deal promptly and effectively with serious complaints against judges has done the judiciary no favours.
What happens next?
The SCA decision comprised two judgments, with the only meaningful difference between them being over the next step, with both judgments agreeing that the JSC’s decision to clear Judge Motata of gross misconduct could not stand. The minority SCA decision would have referred the matter back to the JSC to decide. This is, in a way, an understandable approach. The JSC is the body constitutionally mandated to deal with these issues, and it has recently shown significant improvements in its practice of dealing with appointments to the judiciary. Perhaps this will also herald changes to how it handles complaints.
But the JSC’s long history of taking a dilatory approach to handling this and other complaints seems to have persuaded the majority of the SCA that the only appropriate remedy was that the court substitute its own verdict and order the JSC to refer a finding of gross misconduct to Parliament. It is a damning indictment of how the JSC has dealt with this matter that the second-highest court in the country has now found that there is no possible outcome other than referring the matter to Parliament.’ DM