Crisis of ethics: Standardised response needed when judges are behaving badly

Judge Daniel Thulare of the High Court in Cape Town has been issued with an eviction notice by the Department of Public Works. Thulare had been occupying a house at a highly reduced monthly rental of R900. He had occupied the home in his previous position as chief magistrate of Cape Town. He was, however, appointed to the Bench in January 2022 and was no longer eligible for the housing benefit. Thulare is challenging the eviction order, arguing that a judge’s benefits cannot be reduced – a somewhat disingenuous argument.

The DA has now written to Minister of Justice Mmamoloko Kubayi to ask her to explain what she knows about the Thulare housing matter and also whether other judges are benefiting similarly. The party has also lodged a complaint with the Judicial Service Commission (JSC). The tawdry saga only serves to degrade the judiciary.

But, unfortunately, this is not an isolated incident. This year began with the finding by a judicial conduct tribunal that Eastern Cape Judge President Selby Mbenenge was guilty of misconduct over allegations of sexual harassment. While he was not found guilty of gross misconduct, this could lead to his removal from office. Furthermore, Parliament is considering the fate of two judges, Nana Makhubele and Mushtak Parker, who have both been found to have committed gross misconduct.

For a considerable period, South Africans could take pride that no judge had been removed from office. But since the removal from office of former judges John Hlophe and Nkola Motata in 2024, we could be facing a scenario where as many as four judges have been impeached.

Free State Judge Mpina Mathebula has been on special leave while criminal proceedings against him are under way; this has raised more than a few eyebrows. News reports indicate that the judge has not been suspended and there has yet to be a formal complaint of misconduct lodged against him with the JSC. In addition to the criminal charges against Mathebula, Judge Portia Phahlane of the High Court in Pretoria was arrested on corruption charges last year.

Two fundamental questions arise from these events: is there a crisis of judicial ­ethics, and is the system of dealing with complaints against judges adequate to address it?

Serious allegations against judges

The number of serious allegations against multiple judges makes it hard to avoid talking of a crisis. Allegations of serious wrongdoing have the potential to undermine not only the position of the individual judges, but of the whole judicial institution and, ultimately, the Constitution and the rule of law, which judges play such a central role in upholding. It is therefore not an exaggeration to describe multiple allegations of serious misconduct against judges as a form of crisis. To address it, it is crucial that allegations are dealt with efficiently, credibly and transparently.

Unfortunately, the JSC’s track record in this regard has not inspired confidence. In 2022, Freedom Under Law (FUL) published a report evaluating the JSC’s activities over the preceding decade. The report identified several areas of weaknesses with the judicial accountability process that remain relevant now.

The report is critical of the JSC’s decision-making in dealing with many complaints, and there are grounds for concern that the decision of the Mbenenge tribunal may be a continuation of this trend.

Without going into a detailed analysis of the decision, it is noteworthy that there have been powerful criticisms of the decision for applying the incorrect approach to evaluating the credibility of the complainant, and for the framework it applied in determining the allegation of sexual harassment being inconsistent with the Constitution.

The JSC will no doubt give serious consideration to these issues when it decides whether to endorse the tribunal’s finding.

The Mbenenge tribunal process also highlights a second issue raised in the FUL report, namely the role played by the complainant. The report argues that complainants should be given a more prominent role, but the practice of judicial conduct tribunals in this regard has been inconsistent.

Mbenenge tribunal

The Mbenenge tribunal exhibited a troubling feature of this phenomenon by prohi­biting the complainant’s legal representative from cross-examining the judge president, despite the complainant herself being subjected to “lengthy, fierce cross-examination” and the tribunal allowing the complainant’s representative to, in effect, cross-examine other witnesses. It is true that the judge president was cross-examined by the evidence leader, but the tribunal’s approach nevertheless invites concerns about the consistency and fairness of its proceedings.

This aspect illustrates a further instance of potentially question­able decision-making, and it also shows the lack of clarity about the exact role the complainant is permitted to play in such proceedings.

The JSC needs to clarify and standardise the position. Failure to do so undermines the process of holding judges accountable.

A third issue with the accountability process that was identified in the FUL report and continues to bedevil the process is the approach to suspending judges while allegations against them are dealt with.

The report argues for a default position that judges be suspended pending the resolution of complaints relating to potentially impeachable misconduct. This does not seem to be the case in respect of either Mathebula or Phahlane, both of whom are reported to be on special leave.

The difficulties of this approach were demonstrated in Mbenen­ge’s case. The judge president had also been placed on special leave and indicated that he would return to work immediately after the tribunal handed down its decision, despite the JSC still having to consider whether to adopt the tribunal’s finding. The JSC then had to issue a statement on the “status” of the judge president, indicating that he would remain on special leave until it had made its decision. These incidents illustrate why the recommendation of a default suspension policy ought to be implemented.

These suggestions illustrate various ways in which the process of dealing with complaints against judges could be improved. There are other steps that can be taken beyond relying on the outcome of the complaints process.

Ethical responsibilities of the judiciary

The leadership of the judiciary, headed by the chief justice, should take proactive steps to engage with their colleagues to remind them of their professional and ethical responsibilities. The South African Judicial Education Institute regularly provides professional education courses, and an intervention highlighting judges’ ethical duties would seem to be pertinent and timely. Attention should also be given to how questions of ethics and ­conduct are dealt with in the process of appointing judges. This is not to say that all the allegations that are in the news now could necessarily have been anticipated when the judges in question were appointed.

But it is striking that the JSC appears to have little to no independent capacity to vet the candidates who appear before it. Instead, it relies on public comments or objections by professional bodies or other interested parties to highlight concerns about candidates’ suitability. It is questionable whether this approach is sufficient.

What is clear is that the judiciary cannot sit back and wait for matters to unfold. The stakes are too high, and the harm to the credibility of the judiciary caused by multiple allegations of judicial misconduct too great, for an approach of “business as usual” to be taken. DM

Judith February is executive officer: Freedom Under Law and editor of Daily Maverick’s legal newsletter, Judith’s Prudence.

This story first appeared in our weekly DM168 newspaper, available countrywide for R35.