Our last hope against judicial impropriety
blurb:isstoday10072008
10 July 2008: Our last hope against judicial impropriety
The allegations and attendant controversy surrounding Judge-President John Hlophe presents South Africa with a potential constitutional crisis. It also highlights problems relating to the failure of having a practical mechanism to deal with judicial impropriety. The issue at hand relates to the complaint by the Constitutional Court about the alleged approach by Judge Hlophe to two judges of the Constitutional Court, Chris Jafta and Beth Nkabinde. It is alleged that Judge Hlophe sought to influence the two justices in a matter involving the ANC’s President, Jacob Zuma, and French company Thint, which is currently before the Constitutional Court.
The key questions arising from the abovementioned include whether Judge Hlophe’sbehaviour constitutes an improper conduct? If so, what sanctions are available under the law? Significantly, what does this issue portend for the twin problem of judicial independence and accountability?
If the allegations against Judge Hlophe are proven to be true, there is a strong case of interference with due process. Section 165 of our Constitution is very clear on the issue of independence, providing that judges must be independent, impartial and apply the law without fear, favour or prejudice. There is cause for concern that, if in fact the actions by the judge president were aimed at influencing the two justices on a matter before them, this is an affront to the solemn provisions and principles contained in the Constitution. This would clearly undermine the independence of the judiciary.
The matter has been correctly referred to the Judicial Services Commission, a body that is mandated to deal with issues relating to the judiciary, including investigation into the conduct and possible removal of judges. Both parties in this matter have been afforded an opportunity to submit their formal complaint and/or response to the charge. In this respect, the Commission must fully investigate the present issue and take decisive action if impropriety is proven in order to protect the integrity of this important institution.
Notwithstanding the factual details of this case, which will be dealt with by the JSC inquiry, or the controversy surrounding the notion of judicial accountability, there is a need for a legally binding and enforceable mechanism to deal with issues of impropriety. The issue of judicial accountability and the need for a legal framework to address issues of propriety of judicial officers require serious attention. The key question here is what can the JSC actually do and what remedies are available to it?
In this regard, Section 177(1) of the Constitution provides removal or impeachment as the only penalty/sanction for improper conduct, whereas Section 180(b) envisages national legislation that may provide for procedures for dealing with complaints against judicial officers. It would seem that the bar for removing a sitting judge is set quite high. Notably, there is no precedent in our recent constitutional history where impeachment proceedings were successfully instituted against a sitting judge.
Equally important will be the need to satisfy the second requirement under Section 177(1)(b) that the resolution of the National Assembly must be supported by at least by two-thirds of parliamentary majority. The fact that the JSC may find the judge guilty does not in itself mean such a finding will find wide support in Parliament or garner the necessary votes for a resolution to be passed.
It is an inescapable fact that judge president Hlophe may have supporters within the Commission, including in Parliament. These are the two critical institutions that have to take the only available sanction regarding improper conduct if the allegations are proven to be true. Moreover, South Africa presently does not have legislation providing for procedures of dealing with complaints against judges or providing other sanctions to deal with impropriety. The Constitution is the only legal framework dealing with issues of impropriety, but it does not clearly specify what constitutes proper or ‘improper conduct’, rules of behaviour, responsibilities, etc. Given this, how then do we deal with the Hlophe matter?
South Africa’s judicial system finds itself in an untenable position. In 2005, a number of Bills were published for public comment as part of the measures designed to rationalize the judicial system. One of the key Bills is the Judicial Services Commission Amendment Bill, which proposed, among other things, a code of conduct for judges. The Judicial Services Commission Amendment Bill was re-introduced in Parliament and public hearings were subsequently held in 2007 and 2008.
Notwithstanding the merits or demerits of the fierce criticism to the contents of the Bills, if enacted the Bill would have provided the Judicial Services Commission with ample tools to take decisive disciplinary action against any improper conduct. Surely accountability and practical mechanisms must be seen to be at the center of dealing with judges’ propriety? This can be achieved by enacting the Judicial Services Commission Amendment Bill as a mechanism for oversight over judicial conduct and accountability of judicial officers.
Indeed, the allegations against Judge Hlophe are very serious and the implications for the judiciary and for our judicial system are equally grave. Further complicating the Hlophe matter is the prevailing political climate relating to Jacob Zuma and the recent public statements on the judiciary by leading members of the ruling ANC. Therefore, the failure to act decisively or to clarify what constitutes improper behavior and attendant sanctions available will have dire consequences for the judiciary, its independence, accountability and ultimately undermine public trust.
Saki Mpanyane
Senior Reseacher: African Security Analysis Program, ISS
