JCC ruling raises constitutional condundrum

South African Judge Anton van Zyl, who retired in December 2021 with a long list of unwritten judgments – one dating back to 2012 – is mostly off the hook after a Judicial Conduct Committee (JCC) finding. GroundUp reports that, by majority, the JCC ruled that because he is no longer in active service, it has no authority to initiate a process of possible impeachment, and there is no point in referring his conduct to a Judicial Conduct Tribunal to determine whether he was incompetent, incapacitated or guilty of gross misconduct. He still has several outstanding judgments, and he refused to co-operate with the JCC, which was considering complaints from an unhappy litigant and from KZN Judge President Thoba Poyo-Dlwati. The ruling means he will receive all the perks of being a judge, including a salary for life. The JCC ruling was handed down in July 2024. But it has only now come to light following requests for updates on the matter from Judges Matter. Instead of referring the matter to a tribunal, the JCC directed that it be dealt with ‘urgently’ in terms of section 17 (3) of the Judicial Services Commission Act, which deals with ‘serious but non impeachable complaints’. A finding of guilt under this section only provides for penalties, including a written warning, an apology, compensation or ‘appropriate counselling’. Yet six months later, this referral has still not been finalised. JSC spokesperson, Advocate Sesi Baloyi, said: ‘There has not been a formal inquiry but the matter is being attended (to). The acting (JCC) chairperson has directed that letters be sent to the parties for written submissions in terms of the Act.’

Judges Matter researcher Mbekezeli Benjamin said the ruling was ‘startling’ and broke with clear precedent from the Supreme Court of Appeal (SCA) and the High Court which have confirmed that retired judges may be impeached. ‘But what’s worrying is that the ruling severely weakens accountability for judges. It effectively means that a judge may choose not do to their work of writing judgments for a decade, and simply wait until their retirement date before they sail off into the sunset with a full judges’ salary for the rest of their lives. ... We hope the Judicial Conduct Appeal Committee will reconsider this ruling.’ The JCC panel which heard the complaints against Van Zyl lodged in 2023 consisted of Judges Chris Jafta, Halima Saldulker, Nolwazi Mabindla-Boqwana, Jeremiah Shongwe and (then) Deputy Chief Justice Mandisa Maya. GroundUp notes that the first complaint was from a litigant, Kathy Barnard, who said Van Zyl heard her case relating to a property dispute on 3 September 2020 and reserved judgment. It had, at the time of the lodging of the complaint, not been handed down and she was ‘unable to make decisions about her property’. Poyo-Dlwati laid a complaint over Van Zyl’s failure to hand down eight reserved judgments, one dating back to December 2012, within the three month time-frame imposed by the Judicial Code of Conduct.

JCC decision

Full GroundUp report

The JCC ruling is in contrast to its recommended tribunal for another judge, former Chief Justice Mogoeng Mogoeng no less, even though he was also retired. The about-turn happened with no explanation. In giving its decision in Mogoeng’s case, the JCC made no reference to its earlier decision in relation to Van Zyl. Although the disciplinary processes in both cases are far from over, the finding by the majority in the Van Zyl panel and the contradictory approaches of the two JCC panels raise several alarming questions about the judicial disciplinary system, suggests legal writer Franny Rabkin in a Sunday Times commentary. The first is that they create uncertainty about whether retired judges can be impeached – with implications for the legality of the impeachment of Nkola Motata, who was impeached in March last year, long after he retired. Second, Van Zyl faced complaints related to 10 delayed judgments, one outstanding from as far back as 2012. He had not given the JCC any explanation. On behalf of the majority of the panel, retired Constitutional Court Justice Chris Jafta said this was ‘deeply concerning’. ‘Some of them would have been pending for more than 10 years (and) the litigants’ lives have been adversely affected,’ he said. Yet the logical consequence of Jafta’s reasoning was that, because Van Zyl could not be impeached, the most severe sanction he could face was one that would follow from an investigation into ‘serious but not impeachable’ conduct, such as an apology or a fine. An active judge, on the other hand, could face impeachment for the same conduct.

If Jafta’s reasoning were to stand, the consequences for the same conduct could depend on how far a judge has to go before retirement. Worse, suggests the Sunday Times commentary, a perverse consequence could be that judges would be motivated to drag out their disciplinary processes to avoid the more severe sanction. The decision also seemingly contradicts what the SCA said in a case about Motata – that the fact he had retired was ‘irrelevant’. Yet Jafta said that, as a matter of constitutional law, Van Zyl’s retirement meant he could not be impeached. Jafta said the purpose of impeachment was to remove a judge ‘from office’. But the Constitution also says a judge ‘holds office’ until they ‘are discharged from active service’. ‘The assertion that a judge who has vacated office under section 176 of the Constitution may still be removed from office in terms of section 177 is a constitutional oxymoron. A judge cannot be removed from an office he or she no longer holds,’ said Jafta. The JCC was divided in the Van Zyl decision, three to two. Western Cape Judge President Nolwazi Mabindla-Boqwana dissented from Jafta’s decision, saying the SCA’s Motata judgment was ‘binding precedent’. She was supported by Chief Justice Mandisa Maya. The JCC majority’s answer to Mabindla-Boqwana was that the SCA’s reasoning on this score was not binding precedent because it was ‘obiter dicta’ , but they not ‘ratio decidendi’, notes Rabkin. Mabindla-Boqwana disagreed: ‘It constituted a principle which was considered based on the fact that the court was dealing with a retired judge,’ she said.

Since JCC decisions are exercises of public power, they must, at least, be rational in law. If two panels are going to decide that the Constitution means opposite things, it may be argued that rationality demands that they should at least say why. On Friday the JSC said the Van Zyl decision was ‘presently the subject of an inquiry in terms of section 17 of the JSC Act’ as directed by the JCC’s decision. It ‘has therefore not served before the JSC’. Section 17 deals with inquiries into complaints of ‘serious, non-impeachable’ misconduct, notes the Sunday Times. However, at the end of a section 17 inquiry, a complaint may still be referred to a tribunal, if the inquiry leads in that direction. The JSC is considering the JCC’s decision in respect of Mogoeng.

Full Sunday Times commentary