JUDICIAL SERVICE COMMISSION AMENDMENT BILL
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(As introduced)
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(Minister for Justice and
Constitutional Development)
[B – 2007]
REPUBLIEK VAN SUID AFRIKA
WYSIGINGSWETSONTWERP OP DIE REGTERLIKE DIENSKOMMISSIE
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(Soos ingedien)
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(Minister vir Justisie en Staatkundige
Ontwikkeling)
[W -2007]
BILL
To amend the Judicial Service Commission Act, 1994, so as to make
provision for structures and procedures relating to oversight over judicial
conduct; to make provision for the
establishment and maintenance of a register of judges’ financial
interests; to make provision for the
establishment of Judicial Conduct Tribunals to inquire into and report on
allegations of incapacity, gross incompetence or gross misconduct against
judges; and to provide for matters
connected therewith.
BE
IT ENACTED by the Parliament of the
Insertion of Preamble in Act 9 of 1994
1. The following Preamble is inserted in
the Judicial Service Commission Act, 1994, (hereafter referred to as the
principal Act) after the Long Title:
“PREAMBLE
WHEREAS the
Judicial Service Commission has been established by section 178(1) of the
Constitution of the
AND WEREAS section
178(4) of the Constitution provides that the Judicial Service Commission has
the powers and functions assigned to it in the Constitution and national
legislation;
AND WHEREAS
section 180(b) of the Constitution
provides that national legislation may provide for procedures for dealing with
complaints about judicial officers;
AND WHEREAS
section 177(1) of the Constitution provides that a judge may be removed from
office only if—
(a) the Judicial Service Commission finds
that the judge suffers from an incapacity, is grossly incompetent or is guilty
of gross misconduct; and
(b) the National Assembly calls for that
judge to be removed, by a resolution adopted with a supporting vote of at least
two thirds of its members;
AND WHEREAS
it is necessary to create an appropriate and effective balance between
protecting the independence and dignity of the judiciary when considering the
removal from office of judicial officers, and the principles of openness,
transparency and accountability that permeate the Constitution and that are
equally applicable to judicial institutions and officers;
AND WHEREAS
it is necessary to create a uniform mechanism in terms of which—
·
allegations that any judge is
suffering from an incapacity, is grossly incompetent or is guilty of gross
misconduct could be investigated; and
·
information can be placed before the
Judicial Service Commission in order to enable it to make a finding whether a
judge suffers from an incapacity, is grossly incompetent or is guilty of gross
misconduct,”.
Insertion of heading in Act 9 of 1994
2. The following heading is inserted in
the principal Act after the enactment clause:
"CHAPTER 1
ADMINISTRATIVE
PROVISIONS"
Substitution of section 1 of Act
9 of 1994
3. The following section is substituted
for section 1 of the principal Act:
“Definitions
1. In this Act, unless the context
otherwise indicates—
‘Chairperson’
means, except for purposes of Part I, II and III of Chapter
2, the Chief
Justice;
‘Commission’ means the Judicial
Service Commission established by section [105]
178 of the Constitution;
‘Minister’ means the Cabinet
member responsible for the administration of justice;
‘prescribed’ means as prescribed
in terms of a regulation made under section 35; and
‘this Act’ includes any
regulations made under section 35.”.
Substitution of section 2 of Act
9 of 1994
4. The following section is substituted
for section 2 of the principal Act:
"Acting Chairperson and vacancies
2. [(1) The
members of the Commission designated as such in
terms of section 105 (1) (c), (e), ( f ),
(g), (h) and (i) of the Constitution shall hold office for a term not exceeding five years: Provided that—
(a) the President shall remove any such
member from office at any time if the designator who or which designated such
member, so requests; or
(b) any such member may resign from office by
giving at least one month’s written notice thereof to the chairperson.
(2) A member of the Commission designated as
such in terms of section 105 (1) (e), ( f ), (g), (h) or (i) of the Constitution shall vacate his or her office automatically
if he or she ceases to be qualified to
be so designated.
(3) Subject to section 105 (1) of the
Constitution, any person whose term of
office as a member of the Commission has expired,
may be redesignated.
(4) The Commission shall designate one of the
members holding office in terms of
section 105 (1) (b), (c), (e),
( f ), (g) or (i) of
the Constitution as deputy
chairperson of the Commission, and when the chairperson
is not available, the deputy chairperson shall act as chairperson.]
(1) When the Chairperson is for any
reason unable to serve on
the Commission or perform any function or exercise any power, the Deputy Chief Justice as his or her
alternate, shall act as acting chairperson.
(2) If
neither the Chairperson or acting chairperson is available to preside at a meeting of the Commission, the
members present at the meeting must designate one of the members holding
office in terms of section 178(1)(b), (c),
(e), (f), (g) or (j) of the Constitution as acting
chairperson for the duration
of the absence.
[(5)] (3) A vacancy in the Commission shall—
(a) not affect the validity of the
proceedings or decisions of the Commission; and
(b) be filled in accordance with section [105
(1)] 178(3) of the Constitution, and
any member so designated shall, where applicable, hold office for the unexpired portion of his or her
predecessor’s term of office.".
Substitution of section 3 of Act
9 of 1994
5. The following section is substituted
for section 3 of the principal Act:
"Remuneration and expenses of members
of Commission
3. (1) Any
member of the Commission who is a judge, a member of Parliament or a Premier of
a province may be paid such allowances for travelling and subsistence expenses
incurred by him or her in the performance of his or her functions as a member
of the Commission as the Minister [of Justice]
may determine with the concurrence of the Minister of Finance.
(2) Any member of the Commission who is not—
(a) a judge;
(b) a member of Parliament;
(c) a Premier of a province; or
(d) in the employ of the State and subject
to the laws governing the public service,
may
be paid such remuneration, including allowances for travelling and subsistence
expenses incurred by him or her in the performance of his or her functions as a
member of the Commission, as the Minister [of
Justice] may determine with the concurrence of the Minister of Finance.".
Repeal of section 4 of Act 9 of
1994
6. Section 4 of the principal Act is repealed.
Substitution of section 5 of Act 9 of 1994
7. The following section is
substituted for section 5 of the principal Act:
"Publication of procedure of
Commission
5. The Minister [of Justice shall] must by notice in the Gazette,
make known the particulars of the procedure which the Commission has determined
in terms of section [105 (4)] 178(6) of the Constitution.".
Substitution section 6 of Act 9
of 1994
8. The following section is substituted
for section 6 of the principal Act:
“Annual report
6. (1) The Commission shall within six months after the end of every
year submit to Parliament a report in writing regarding its activities during
that year.
(2) The report referred to in subsection (1)
must include information regarding—
(a) all matters dealt with by the Judicial
Conduct Committee referred to in section
8; and
(b) all matters considered by the Commission
in the course of the application of Chapter 2 of this Act.".
Insertion of
Chapters 2, 3 and 4 in Act 9 of 1994
9. The following Chapters are inserted in the principal
Act after section 6, the existing section 7 becoming section 39:
"CHAPTER 2
OVERSIGHT
OVER JUDICIAL CONDUCT
PART I
Establishment
and objects of Committee
Definitions and interpretation
7. (1) For purposes of this Chapter, unless the context indicates
otherwise—
(a) "active
service" means active service as contemplated in section 1 of the
Judges' Remuneration and Conditions of Service Act, 2001 (Act No. 47 of 2001);
(b) "Chairperson", means the
Chairperson of the Committee;
(c) "Commission" means the Commission, acting without the participation
of the members referred to in section
178(1)(h) and (i) of the
Constitution;
(d) "Committee" means the Judicial
Conduct Committee referred to in
section 8;
(e) "complainant"
means a person who lodged a complaint against
a judge in terms of section 14;
(f) "Head of Court", in relation
to a complaint against a judge of—
(i) the
(ii) the Supreme Court of Appeal, means the President of that
Court; and
(iii) any other court, means the Judge
President of that court;
(g) “Immediate family member” in relation to
a judicial officer refers to the spouse of a judicial officer and include
family members living in the same household with the judicial officer concerned;
(h) "judge" means any person
holding the office of Constitutional Court
judge or judge referred to in section 1 of the Judges' Remuneration and
Conditions of Employment Act, 2001 (Act No. 47 of 2001), as well as any person
holding the office of judge in a court of similar status to a High Court, as
contemplated in section 166 of the Constitution;
(i) "respondent"
means a judge against whom a complaint was lodged in terms of section 14, or who
is the subject of an allegation referred to a Tribunal in terms of this Act; and
(j) "Tribunal" means a Tribunal
appointed in terms of section 20.
(2) In this Chapter any reference to a
complainant or to a respondent
must, unless it is inconsistent with the context, be construed to include a reference to a legal
representative of that complainant or respondent.
Establishment
and composition of Judicial Conduct Committee
8. (1) The
Commission has a Judicial Conduct Committee, comprising the following members—
(a) the Chief Justice, who is the Chairperson
of the Committee;
(b) the Deputy Chief Justice; and
(c) three judges, at least one of whom must
be a woman, designated by the Chief Justice in consultation with the Minister,
for the period determined by the Chief Justice at the time of such designation.
(2) The Chairperson may, either generally or
in a specific case, delegate any
of his or her powers or functions as Chairperson of the Committee to the Deputy Chief
Justice.
(3) When considering a complaint relating to
the conduct of a judge who
is a member of the Committee, the Committee must sit without that member.
(4) The first designations in terms of
subsection (1)(b) must be made within one month of this
section coming into operation.
Meetings
of Committee
9. (1) The
Committee meets at any time and place determined by the Chairperson.
(2) The Committee may determine the procedure
to be followed at its
meetings, but decisions of the Committee must be supported by a majority of its members.
(3) Meetings of the Committee may only be
attended by the members
of the Committee and persons whose presence are required or permitted in terms of this Act,
unless the Committee on account of public interest
and for good cause decides otherwise.
Objects
of Committee
10. (1) The
objects of the Committee are to consider complaints about judges, and when appropriate, to dispose of such
complaints in terms of Part
III of this Chapter.
(2) The Committee must report on its activities to the Commission at least once every six
months.
PART
II
Judicial
conduct
Judge
not to hold other office of profit
11. (1) Save
for services referred to in subsection (2) a judge performing active service may not hold or
perform any other office of profit or receive
in respect of any service any fees, emoluments or other remuneration apart from his or her salary and
any other amount which may be payable to him
or her in his or her capacity as a judge.
(2) (a) The Minister, acting after consultation
with the Chief
Justice, must table in the National Assembly for approval, a list of services-
(i) which are closely connected with the office of a judicial
officer; and
(ii) which may be performed by a judge in active service,
in respect of which a
judge may receive fees, emoluments or remuneration apart from his or
her salary and any other amount which
may be payable to him or her in his or her capacity as a judge.
(b) The list
referred to in paragraph (a)-
(i) must be published in the Gazette;
(ii) may from time to time be amended, which amendments must be approved by Parliament and published in the Gazette.
(3) A judge who has been discharged from
active service may only with the
written consent of the Minister, acting after consultation with the Chief Justice, hold or perform any
other office of profit or receive in respect
of any service any fees, emoluments or other remuneration apart from his or her salary and any other
amount which may be payable to him or her in his or her capacity as a judge.
(4) The Minister acting with the concurrence
of the Chief Justice must, by
notice in the Gazette, issue
guidelines regarding the criteria to
be applied when considering the granting of consent contemplated in subsection (3).
Code
of Judicial Conduct
12. (1) The
Chief Justice acting in consultation with the Minister must compile a Code of Judicial
Conduct, which must be published in the Gazette.
(2) The Minister must table the first Code
under this section in
the National Assembly within 6 months of the commencement of this Act and before the Code is published in the Gazette.
(3) The Code shall serve as the prevailing
standard of judicial
conduct, which judges must adhere to.
(4) The
Code must be reviewed at least once in every three years by the Chief Justice, acting
in consultation with the Minister, and any amendment
thereto must be submitted to Parliament and published in the Gazette.
Register of Judicial Officers’
Interests
13. (1) The Minister, acting in consultation with
the Chief Justice,
must provide for the compilation and maintenance of a Register of Judicial Officers' Interests, in which
must be included all registrable assets or interests,
financial or otherwise, of each judicial officer in active service and their immediate family members as
defined in section 7.
(2) A
judicial officer who has been retired from active service and who has been appointed to perform service for a
specific term in terms
of the applicable legislation, must when requested to do so by the Minister acting in consultation with the
Chief Justice, furnish information on his or
her registrable assets or interests, financial or otherwise, for inclusion in
the Register of Judicial
Officers’ interest.
(3) The Minister, acting in consultation with
the Chief Justice, must make regulations regarding the content and management
of the Register referred to in subsection (1), which regulations must at least
prescribe—
(a) the format of the Register;
(b) the interests of judicial officers and
their immediate family members
that are regarded as registrable interests;
(c) a confidential and a public part of the
Register;
(d) a procedure providing for public access
to the public part of the Register
and for providing and maintaining confidentiality of the confidential part of the Register; and
(e) a procedure for the lodging of a
complaint in terms of section 14(1), of—
(i) failure to register any registrable interest by any judicial officer, including any failure
to register any such interest within
a prescribed time limit;
(ii) registering false or misleading
information; and
(iii) a breach of confidentiality in respect of
the Register.
(4) For the purposes of this section,
"judicial officer" means any
judge or other judicial officer referred to in Chapter 8 of the Constitution.
PART
III
Consideration
of complaints by Committee
Lodging
of complaints
14. (1) Any
person may lodge a complaint about a judge with the Chairperson of the Committee referred to in section 8.
(2) When a complaint is referred to the
Chairperson in terms of
subsection (1), the Chairperson must deal with the complaint in accordance with section 15, 16 or 17, but in the
event of a complaint falling within the parameters
of section 15, the Chairperson may designate a Head of Court to deal with the complaint, unless
the complaint is against the Head of Court.
(3) A complaint must be—
(a) based on one or more of the grounds
referred to in subsection (4); and
(b) lodged by means of an affidavit or
affirmed statement, specifying—
(i) the
nature of the complaint; and
(ii) the
facts on which the complaint is based.
(4) The grounds upon which any complaint
against a judge may be lodged, are
any one or more of the following:—
(a) Incapacity
giving rise to a judge’s inability to perform the functions of judicial office in accordance
with prevailing standards, or gross incompetence, or
gross misconduct, as envisaged in section 177(1)(a) of the Constitution;
(b) Any wilful or grossly negligent breach of
the Code of Judicial Conduct referred to in section
12, including any failure to comply with any regulation referred
to in section 13(1);
(c) Accepting, holding or performing any
office of profit or receiving any fees, emoluments or remuneration in contravention
of section 11;
(d) Any wilful or grossly negligent failure
to comply with any remedial step, contemplated in section 17(8), imposed in terms of this
Act; and
(e) Any other wilful or grossly negligent
conduct, other than conduct contemplated
in paragraph (a) to (d), that is incompatible with or unbecoming
the holding of judicial office, including any conduct that is prejudicial to the
independence, impartiality, dignity, accessibility, efficiency
or effectiveness of the courts.
Lesser
complaints may be summarily dismissed
15. (1) If
the Chairperson or the Head of Court designated in terms of section 14(2) is of the view that the
complaint falls within the parameters
of the grounds set out in subsection (2), he or she must dismiss the complaint.
(2) A complaint must be dismissed if it—
(a) does not fall within the parameters of
any of the grounds set out in section 14(4);
(b) does not
comply substantially with the provisions of section 14(3);
(c) is solely related to the merits of a
judgment or order;
(d) is frivolous or lacking in substance; or
(e) is hypothetical.
(3) If a complaint is dismissed
in terms of subsection (1)
by a Head of Court, that Head of Court must inform the Chairperson in writing of that dismissal and the
reasons therefore.
(4) If a complaint is dismissed
in terms of subsection (1),
the Chairperson must inform the complainant in writing of—
(a) the reasons for the dismissal; and
(b) the right to appeal to the Committee
against that dismissal in terms of subsection (5).
(5) A complainant who is dissatisfied with a
decision to dismiss a complaint
in terms of subsection (1) may, within one month after receiving notice of that decision,
appeal to the Committee in writing against that
decision, specifying the grounds for the appeal.
Committee
may recommend appointment of Tribunal in respect of impeachable complaints
16. (1) If
the Chairperson is satisfied that, in the event of a valid complaint being established, it
is likely to lead to a finding by the Commission that the respondent suffers from an incapacity, is grossly
incompetent or is guilty
of gross misconduct, as envisaged in section 14(4)(a), the Chairperson must
in writing—
(a) inform the respondent of the complaint;
(b) inform the respondent that the Committee
will consider recommending to
the Commission that the complaint should be investigated and reported
on by a Tribunal; and
(c) invite the respondent to respond in
writing to the allegations in question within one month.
(2) If a complaint is referred to the
Committee in terms of subsection (1) or section 17(5)(c)(iii), the Chairperson must determine
a time and a place for the
Committee to meet in order to consider a recommendation envisaged in subsection (1)(b),
and must inform the complainant and the respondent
in writing that he or she may—
(a) submit a written representation for
consideration by the Committee at that meeting; and
(b) with the leave of the Chairperson,
address the Committee at that meeting.
(3) For the purpose of a meeting referred to
in subsection (2), the Committee
may request such further information from the complainant or any other person as it deems fit.
(4) At the meeting referred to in subsection
(2), the Committee must consider
whether the complaint, if established, will prima facie indicate incapacity, gross
incompetence or gross misconduct by the respondent,
whereupon the Committee may—
(a) dismiss the complaint;
(b) refer the complaint to the Chairperson
for an investigation referred to in section 17(2); or
(c) recommend to the Commission that the
complaint should be investigated
by a Tribunal.
(5) The Committee must inform the
complainant, the respondent
and the Commission in writing of any decision envisaged in subsection (4) and the reasons
therefore.
(6) A meeting referred to in subsection (2)
must be attended by at
least three members of the Committee.
Investigation
of serious, non-impeachable complaints by Chairperson or member of Committee
17. (1) If
─
(a) the Chairperson is satisfied that, in the event of a valid
complaint being established, the appropriate
remedial action will be limited to one or more
of the steps envisaged in subsection (8);
or
(b) a complaint is referred to the
Chairperson in terms of subsection (1), section 16(4)(b), or section 18(4)(a)(ii),
the
Chairperson or a member of the Committee designated by the Chairperson must investigate the
complaint in order to determine the merits of the complaint.
(2) Any
investigation contemplated in this section must be conducted in an inquisitorial manner and there is no onus on any
person to prove or to
disprove any fact during such investigation.
(3) For the purpose of an investigation
referred to in subsection
(2), the Chairperson or member concerned—
(a) must invite the respondent to respond in
writing or in any other manner specified, and within a specified period,
to the allegations;
(b) may obtain, in the manner that he or she
deems appropriate, any other information which may be relevant
to the complaint; and
(c) must invite the complainant to comment
on any information so obtained, and on the
response of the respondent, within a specified period.
(4) If, pursuant to the steps referred to in
subsection (3), the Chairperson
or member concerned is satisfied that there is no reasonable likelihood that a formal hearing on
the matter will contribute to determining the merits of the complaint, he or she must, on the strength of
the information obtained
by him or her in terms of subsection (3)—
(a) dismiss the complaint; or
(b) find the respondent guilty of one or more
of the complaints as contemplated in
section 14(4) in respect of which he or she was charged
and make a finding that the respondent has behaved in a manner
which is unbecoming of a judicial officer, and impose any of the remedial steps
referred to in subsection (8) on the respondent.
(5) (a) If, pursuant to the steps referred to in
subsection (3), the Chairperson or
member concerned is of the opinion that a formal hearing
is required in order to determine the merits of the complaint, he or she must determine a time and a place for a
formal hearing and written notice of the
hearing must, within a reasonable period before the date so determined, be given to the respondent and the
complainant.
(b) For purposes of a formal hearing
contemplated in paragraph (a)—
(i) the Chairperson or member concerned has
all the powers of a Tribunal; and
(ii) the provisions of sections 24, 26, 27,
28, 29, 30, 31 and 32 are applicable with the
changes required by the context.
(c) Upon the conclusion of a formal hearing
the Chairperson or member
concerned must record his or her findings of fact, including the cogency and sufficiency of the evidence
and the demeanour and credibility of any
witness, and his or her finding as to the merits of the complaint, and—
(i) dismiss the complaint;
(ii) find the respondent of one or more of
the complaints as contemplated in section 14(4) in respect of which he or
she was charged and make a finding
that the respondent has behaved in a manner which is unbecoming
of a judicial officer, and impose any of the remedial steps referred to in
subsection (7) on the respondent; or
(iii) recommend to the Committee, to recommend
to the Commission that the
complaint should be investigated by a Tribunal.
(6) The Chairperson or member concerned must
in writing inform the Committee,
the complainant and the respondent of—
(a) a dismissal contemplated in subsection
(4)(a) or (5)(c)(i); or
(b) any finding and remedial steps
contemplated in subsection (4)(b) or (5)(c)(ii); or
(c) any
recommendation contemplated in subsection (5)(c)(iii),
and the reasons therefore.
(7) (a) A complainant who is dissatisfied with a
decision to dismiss a
complaint in terms of subsection (4)(a)
or (5)(c)(i) may, within one month after receiving notice of that
decision, appeal to the Committee in writing
against that decision, specifying the grounds for the appeal.
(b) A respondent who is dissatisfied with any
finding or remedial steps
contemplated in subsection (4)(b) or
(5)(c)(ii) may, within one month after receiving notice of that
finding and remedial steps, appeal to the Committee
in writing against that finding or remedial steps or both such finding and remedial steps,
specifying the grounds for the appeal.
(8) Any one or a combination of the following
remedial steps may be
imposed in respect of a respondent:
(a) Apologising to the complainant, in a
manner specified.
(b) A reprimand.
(c) A written
warning.
(d) Subject to subsection (9), appropriate
counselling.
(e) Subject to subsection (9), attendance of
a specific training course.
(f) Subject to subsection (9), any other
appropriate corrective measure.
(9) Any remedy referred to in subsection (8)(d),
(e) or (f) that is
likely to result in expenditure by the State, must be selected from a list of approved remedies or services
compiled from time to time by the Minister in consultation with the Chief Justice.
Consideration
of appeal by Committee
18. (1) The
Committee must consider an appeal referred to in section 15(5) or 17(7) at a meeting determined by the
Chairperson, and the Chairperson
must inform the complainant and the respondent in writing—
(a) of the time and place of the meeting; and
(b) that they may submit written
representations within a specified period for consideration by the
Committee.
(2) (a) A meeting referred to in subsection (1)
must, subject to paragraph (b), be attended by at least three
members of the Committee and
be presided over by the Chairperson, but no member who made any decision or
finding, or imposed any remedial step, that is the subject of the appeal, may participate in the
consideration of the appeal.
(b) If any member of the Committee is for any
reason unable to participate
in the consideration of an appeal in terms of this section and there are not at least three of the other
members available to so participate in the appeal,
the Chairperson may, in consultation with the Chief Justice, appoint any judge as a temporary member of
the Committee for the purpose of the consideration
of such an appeal.
(c) In the event of the absence of the
Chairperson to preside in a specific
appeal, the chairperson must appoint an acting chairperson from amongst the members of the Committee, to
preside in that appeal.
(3) At the meeting referred to in subsection
(1), the Committee must consider—
(a) the reasons for—
(i) the dismissal against which the appeal is brought, as contemplated in section 15(4)(a)
or 17(6)(a); or
(ii) the finding or remedial steps, or the
finding and the remedial steps, as the case may be, against which the appeal is
brought, as
contemplated in section 17(6)(b);
(b) the grounds for the appeal, as
contemplated in section 15(5) or 17(7)(a) or (b), as the case
may be;
(c) any representations submitted in terms
of subsection (1)(b); and
(d) such further written or oral argument, if
any, as may be requested by the
Committee.
(4) After consideration of an appeal in terms
of subsection (3), the Committee
must—
(a) in the case of an appeal against a
dismissal of a complaint as contemplated
in section 15(4)(a)—
(i) confirm the dismissal;
(ii) set aside the dismissal and refer the complaint to the Chairperson for an investigation
in terms of section 17; or
(iii) set aside the dismissal and recommend to the Commission that the complaint should be
investigated by a Tribunal;
(b) in the case of an appeal against a
dismissal of a complaint as contemplated
in section 17(7)(a)—
(i) confirm the dismissal;
(ii) set aside the dismissal, and find the
judge guilty of one or more of the complaints as
contemplated in section 14(4) in respect of which he or she was charged and make
a finding that the judge concerned has behaved in a manner
which is unbecoming of a judicial officer, and impose any of the
remedial steps referred to in section 17(8) on the judge
concerned; or
(iii) set aside the dismissal and recommend to
the Commission that
the complaint should be investigated by a Tribunal; or
(c) in the case of an appeal against a
finding or remedial steps, or a finding and remedial steps as
contemplated in section 17(7)(b)—
(i) set aside the
decision concerned; or
(ii) confirm the
decision or set aside the decision concerned and substitute it with an appropriate
decision, with or without any amendment
of the remedial steps imposed, if applicable; or
(iii) set aside the
decision and recommend to the Commission that the
complaint should be investigated by a Tribunal.
(5) The Committee must in writing inform the
complainant and the judge
concerned of its decision in terms of subsection (4) and the reasons therefore.
PART
IV
Request
to appoint Tribunal and consideration of Tribunal report by Commission
Commission
to request appointment of Tribunal
19. (1) Whenever
it appears to the Commission—
(a) on account of a recommendation by the
Committee in terms of section 16(4)(c) or 18(4)(a)(iii), (b)(iii) or (c)(iii); or
(b) on any other grounds,
that
there are reasonable grounds to suspect that a judge—
(i) may be suffering from an incapacity;
(ii) is grossly incompetent; or
(iii) is guilty of gross misconduct,
as
contemplated in section 177(1)(a) of the Constitution, the Commission must request the Chief Justice to
appoint a Tribunal in terms of section 20.
(2) The Commission must in writing state the
allegations, including any
other relevant information, in respect of which the Tribunal must investigate and report.
(3) The Commission must, unless it is acting
on a recommendation
referred to in section 16(4)(c) or 18(4)(a)(iii), (b)(iii)
or (c)(iii), before
it requests the appointment of a Tribunal, inform the judge concerned, and, if applicable, the complainant,
that it is considering to make that request and invite the judge, and, if applicable, the
complainant, to comment in writing on
the fact that the Commission is considering to so request.
(4) Whenever the Commission requests the
appointment of a Tribunal
in terms of subsection (1), the Commission must forthwith in writing—
(a) inform the President that it has so
requested; and
(b) advise the President as to —
(i) the desirability of suspending the judge who is the subject
of the Tribunal’s investigation
in terms of section 177(3) of the Constitution;
and
(ii) if applicable, any conditions that should be applicable in respect of such suspension.
Commission
to consider report and make findings
20. (1) The
Commission must consider the report of a Tribunal at a meeting determined by the
Chairperson, and the Commission must inform the judge in respect of whom the inquiry was held, and, if
applicable, the complainant,
in writing—
(a) of the time and place of the meeting; and
(b) that he or she may submit written
representations within a specified period for consideration by
the Commission.
(2) At the meeting referred to in subsection
(1) the Commission must
consider—
(a) the report concerned; and
(b) any representations submitted in terms of
subsection (1)(b).
(3) After consideration of a report and any
applicable representations
in terms of subsection (2), the Commission must make a finding as to whether the judge concerned—
(a) is suffering from an incapacity;
(b) is grossly incompetent; or
(c) is guilty of gross misconduct.
(4) If the Commission finds that the judge
concerned is suffering from
an incapacity, is grossly incompetent or is guilty of gross misconduct, the Commission must submit
that finding, together with the reasons
therefor and a copy of the report, including any relevant material, of the Tribunal, to the Speaker of the
National Assembly.
(5) If the Commission, after consideration of
a report and any applicable
representations in terms of subsection (2) finds that the judge concerned—
(a) is not grossly incompetent, but that
there is sufficient cause for the judge to attend a
specific training course, the Commission may make a finding that the judge must attend such a
training course; or
(b) is guilty of a degree of misconduct not
amounting to gross misconduct, the Commission may impose any one or a
combination of the remedial steps
referred to in section 17(8):
Provided
that any remedy imposed in terms of this subsection that is likely to result in expenditure by the
State, must be selected from a list of approved remedies or services compiled from time to time by the
Minister in consultation
with the Chief Justice.
(6) The Commission must in writing inform a
judge in respect of whom a
finding referred to in subsection (4) or (5) is made, and, if applicable, the complainant, of
that finding and the reasons therefore.
CHAPTER
3
JUDICIAL
CONDUCT TRIBUNALS
Part
1
Introductory
provisions
Appointment
of Tribunal
21. (1) The
Chief Justice must appoint a Judicial Conduct Tribunal, whenever requested to do so by the Commission.
(2) The Chief Justice must, after
consultation with the Minister,
designate a place in the Republic as the seat of each Tribunal established in terms of this Act,
but a Tribunal may sit at any place for the purpose of a hearing or of deliberating.
(3) Before appointing any judicial officer to
a Tribunal, the Chief Justice
must consult with the head of the court on which that judicial officer serves.
(4) Upon appointing a Tribunal, the Chief
Justice must give written
notice of the composition, terms of reference, and seat of the Tribunal, and the date by which the Tribunal is to
commence proceedings, to –
(a) the members of the Tribunal
(b) the Minister; and
(c) the respondent.
(5) The Chief Justice─
(a) must delegate the functions assigned to
the Chief Justice in terms of this Part or section 10(2) to the Deputy Chief
Justice, if the Chief Justice─
(i) is the respondent; or –
(ii) is personally implicated in the allegations against a judicial
officer;
and
(b) may delegate any of the functions
assigned to the Chief Justice in terms of this Part or
section 29(2) to the Deputy Chief Justice, in any other case.
Composition
of Tribunal
22. (1) A
Tribunal comprises—–
(a) two
judges, one of whom must be designated by the Chief Justice as the Tribunal President; and
(b) one
person whose name appears on the list maintained in terms of section 23(1).
(2) At least one member of every Tribunal
must be a woman.
(3) If a vacancy arises among the members of
a Tribunal, or if a
member of a Tribunal for any reason becomes unable to continue to serve on the Tribunal, and─
(a) there are at least two members remaining
on the Tribunal, at least one of whom is
a judge, the Tribunal must continue its functions; or
(b) in any other case, -
(i) the Tribunal is dissolved;
(ii) the Chief Justice must appoint a new Tribunal; and
(iii) any evidence gathered by or submitted to the former Tribunal, and any record kept
by the former Tribunal, may be considered by
the new Tribunal.
Non-judicial
members of tribunals
23. (1) The
Executive Secretary must, in the prescribed manner and form, establish and maintain a
list of persons who have been approved by the Chief Justice acting with the concurrence of
the Minister as being suitable to
serve on Tribunals in terms of section 22(1)(b).
(2) The Minister, in consultation with the
Cabinet member responsible
for finance, may by notice in the Gazette prescribe a tariff of allowances to be paid for service as a
member of a Tribunal to a person appointed
in terms of section 22(1)(b).
Tribunal
investigative and administrative support
24. (1) The
President of a Tribunal may request the Minister after consulting the National Director of
Public Prosecutions, to appoint a member
of the National
Prosecuting Authority to collect evidence on behalf of the Tribunal, and to adduce evidence at a
hearing;
(2) The Executive Secretary in the Office of
the Chief Justice must
assign such other employees of the Office to the Tribunal as may be necessary to assist the Tribunal
in the performance of its functions.
Rules
and procedure
25. (1) The
Chief Justice, may make rules regulating any aspect of a Tribunal’s activities.
(2) Rules made under subsection (1)—
(a) are applicable to all Tribunals;
(b) may be amended or repealed at any time;
(c) must be published in the Gazette.
(4) Subject to this Act, a Tribunal has the
power to regulate and protect its
own proceedings.
PART
2
Hearings
of Tribunal
Objects
and nature of Tribunal
26. (1) The
objects of a Tribunal are—
(a) to inquire into allegations of
incapacity, gross incompetence or gross misconduct against a judicial
officer, by—
(i) collecting
evidence;
(ii) conducting a formal hearing;
(iii) making findings of fact; and
(iv) making a determination on the merits of the allegations; and
(b
) to submit a report containing its
findings to the Judicial Service Commission.
(2) A Tribunal conducts its inquiry in an
inquisitorial manner and
there is no onus on any person to prove or to disprove any fact before a Tribunal.
(3) When considering the merits of any
allegations against a judicial
officer, the Tribunal must make its determination on a balance of probabilities.
(4) A Tribunal must keep a record of its
proceedings.
Hearing
to begin and be concluded without unreasonable delay
27. (1) In
the interests of protecting and enhancing the dignity and effectiveness of the courts a Tribunal
must —
(a) as soon as reasonably practicable after
its appointment, determine a date,
time and place for conducting a hearing in respect of the allegations
referred to it; and
(b) conclude the hearing without unreasonable
delay.
(2) Subject to subsection (1)(b), a Tribunal
may adjourn its proceedings at
any time, to any date, time and place.
28. (1) Notice
of a hearing must be served on the respondent within a reasonable period before the date
set for that hearing.
(2) The respondent is entitled to attend the hearing and
to be assisted by a legal representative,
but the Tribunal may begin or continue a hearing,
in whole or in part, in the absence of
the respondent, or the respondent’s
legal representative, or both of them, if the Tribunal is satisfied that the respondent was properly informed of
the hearing.
(3) The respondent is entitled—
(a) to
give and adduce evidence;
(b) to
call witnesses, and to cross-examine any witness;
(c) to have access to any books, documents
or other objects produced in evidence;
and
(e) to make a submission to the Tribunal
before the conclusion of the hearing.
Attendance
at hearing and disclosure of evidence
29. (1) A
hearing of a Tribunal may be attended only by—
(a) the respondent;
(b) the respondent’s legal representative, if one has
been appointed;
(c) any person who lodged a formal complaint
against the respondent, if that
complaint is related to the hearing;
(d) the legal representative of each person contemplated in paragraph (c);
(e) any person subpoenaed in terms of section
11, or called as a witness by
the respondent, each of whom may attend –
(i) with
or without a legal representative; and
(ii) only for the period that person is required by the Tribunal;
(f) any person contemplated in section 5,
if that person’s presence is required
by the Tribunal; and
(g) any other person whose presence the
Tribunal considers to be necessary
or expedient.
(2) Subject to sections 32 and 33, a person
may not disclose to any
other person the contents of a book, document or other object in the possession of a Tribunal or the record of
any evidence given before a Tribunal,
except to the extent that the Tribunal President, in consultation with the Chief Justice, determines otherwise.
Tribunal
may subpoena witnesses
30. A Tribunal may subpoena any person to
appear before it in person
at a hearing and—
(a) to produce any book, document, statement
or object relating to the hearing; and
(b) to answer questions under oath or
affirmation.
Evidence
to be given under oath or affirmation
31. (1) No
person may testify before, or be questioned by, a Tribunal unless the oath or affirmation
that is usually administered or accepted
in a court of law, has been administered to or accepted from that person by the Tribunal or, if evidence is
to be given by such person through an
interpreter, by the Tribunal through the interpreter.
(2) An oath or affirmation administered to or
accepted from a person in
terms of subsection (1) remains binding on that person until the Tribunal has concluded the hearing or
finally excused that person.
(3) A person giving evidence at a hearing of
the tribunal must answer
any relevant question.
(4) A tribunal may order a person giving
evidence to answer any
question, or to produce any article or document, even if it is self- incriminating to do so.
(5) A
self-incriminating answer given or statement made by a person
giving evidence to a Tribunal in terms of this Act is inadmissible as evidence against that person in any
criminal proceedings against that person instituted
in any court, except in criminal proceedings for perjury, or in which that person is tried for an offence
contemplated in section 34(1)(b), and then such
an answer or statement is admissible only to the extent that it is relevant to prove the offence charged.
Evidence
disclosing offence
32. If the Tribunal is of the opinion that
evidence before the Tribunal discloses
the commission of an offence by the respondent, the Tribunal President must notify the National
Director of Public Prosecutions accordingly during or after the hearing and cause a copy of the record or
the relevant part of the record
in question to be submitted to the National Director of Public Prosecutions.
Findings
and report
33. (1) Upon
the conclusion of a hearing, the Tribunal must –
(a) record
its findings of fact, including the cogency and sufficiency of the evidence and the demeanour and
credibility of any witness, and its findings as to the
merits of the allegations in question; and
(b) submit a report to the Judicial Service
Commission or the Magistrates Commission,
as the case may be, containing –
(i) its findings and the reasons for them; and
(ii) a copy of the record of the hearing.
(2) The Tribunal must submit a copy of its
report, and all other
relevant documents, to the Chief Justice for safekeeping.
PART
3
Offences
relating to Tribunals
Offences
34. (1) A
person is guilty of an offence in terms of this Act if the person –
(a) having been subpoenaed in terms of
section 29 to appear before a Tribunal, fails
without reasonable excuse to –
(i) attend a hearing of a Tribunal;
(ii) remain in attendance until excused by the Tribunal; or
(iii) produce any book, document, statement or object relating to
the hearing which he or she has been
subpoenaed to produce;
(b) having taken an oath or affirmation as
a witness─
(i) refuses to answer a question; or
(ii) knowingly provides false information to the Tribunal;
(c) wilfully hinders or obstructs a Tribunal
in the performance of its functions; or
(d) other than as contemplated in section
28(2), or in the performance of a function in terms of this Act, wilfully or
negligently discloses to any other person the
contents of a book, document or other object in the possession of a Tribunal or the record of any
evidence given before a Tribunal.
(2) Any person who is convicted of an offence
in terms of this Act is liable
to a fine or to imprisonment for a period not exceeding five years.
CHAPTER
4
MISCELLANEOUS PROVISIONS
Regulations
35. (1) The
Minister─
(a) must
make the regulations required to be made in terms sections 13 of this Act; and
(b) may make regulations regarding any matter
that may be necessary or expedient
to prescribe regarding─
(i) the finances and financial management
and accountability of the Commission; and
(ii) the administration and functioning of
the Commission or Conduct Committee, the Secretariat of the Commission,
or any
other aspect of this Act.
(2) Any regulation made under this section
must be tabled in the
National Assembly of Parliament before publication thereof in the Gazette.
Finances
and accountability
36. (1) Expenditure
in connection with the administration and functioning
of the Commission must be defrayed from monies appropriated by Parliament for this purpose to the
Department of Justice and Constitutional Development
vote (hereinafter referred to as the Departmental vote) in terms of the Public Finance Management Act , 1999
(Act No. 1 of 1999).
(2) Monies appropriated by Parliament for
this purpose-
(a) constitute earmarked funds on the
Departmental vote; and
(b) may not be used by the Department for any
other purpose, without the approval
of Treasury and the Chief Justice as Chairperson of the Commission.
(3) The Minister must consult with the Chief
Justice on the funds required
for the administration and functioning of the Commission, as part of the budgetary process of
departments of state, in the manner prescribed.
(4) Subject to the Public Finance Management
Act, 1999 (Act No. 1 of 1999),
the Director-General of the Department─
(a) is charged with the responsibility of
accounting for monies received or paid out for or on account of the
administration and functioning of the Commission;
and
(b) must cause the necessary accounting and
other related records to be kept,
which records must be audited by the Auditor-General.
Secretariat
of Commission
37. (1) The
Executive Secretary in the Office of the Chief Justice must assign an appropriate number
of personnel from the staff in the Office of the Chief Justice, one of whom shall be designated as the
Secretary of the Commission,
to provide administrative support to the Commission.
(2) Subject to section 36, the Executive
Secretary, under the supervision,
control and direction of the Chief Justice or any judge designated by the Chief Justice, must—
(a) provide secretarial and administrative
services to the Commission, Committee
and any Tribunal;
(b) cause all records of matters dealt with
by the Commission in terms of this Act to be safeguarded;
(c) maintain the Register of judges'
financial interests referred to in section 13(1);
(d) maintain a register of all complaints
dealt with in terms of this Chapter;
(e) perform such functions as may from time
to time be prescribed; and
(f) generally, perform such secretarial and
administrative tasks related to the work of the Commission, Committee or
Committee, as may from time
to time be directed by the Chief Justice or the judge designated by the Chief Justice.
(4) Other personnel of the Secretariat must,
under the supervision, control and
direction of the Executive Secretary, assist the Executive Secretary in the performance of the functions
referred to in subsection
(3).
Protection of confidential
information
38. (1) No
person, including any member of the Commission, Committee, or Committee, or Secretariat of the Commission, may
disclose any confidential
information or document obtained by that person in the performance of his or her functions
in terms of this Act, except—
(a) to the extent to which it may be
necessary for the proper administration
of any provision of this Act;
(b) to any person who of necessity requires
it for the performance of any function in terms of this Act;
(c) when
required to do so by order of a court of law;
or
(d) with the written permission of the Chief
Justice.
(2) Any person who contravenes a provision of
subsection (1) is guilty of
an offence and liable on conviction to a fine or to imprisonment for a period
not exceeding five years.
(3) Every member of the Commission, the
Committee and every member of the secretariat of the Commission
must—
(a) before assuming office or duty; or
(b) if he or she is holding such office on
the date of the commencement of this section, make
and subscribe to an affirmation
of secrecy in the following form:
"I,
……………………………………………………….solemnly declare:
(a) I
have taken cognizance of the provisions of section 34(1) and (2) of the Judicial Service Commission Act,
1994.
(b) I
understand that I may not disclose any confidential information or document obtained by me in the
performance of my functions in terms of that
Act, except in accordance with the provisions of section 34(1) of the Act.
(c) I am fully aware of the serious consequences which may follow
any breach or contravention of the
above-mentioned provisions.
(Signature)".
(4) Any person who wilfully or negligently in
any manner discloses any
confidential information that came to his or her knowledge by means of a person who conveyed that
information in contravention of subsection
(1) is guilty of an offence and liable on conviction to a fine or to imprisonment not exceeding a
period of five years. “.
Substitution
of long title of Act 9 of 1994
10. The following long title is
hereby substituted for the long title of the principal Act:
"ACT
To regulate
matters incidental to the establishment of the Judicial Service Commission by
the Constitution of the Republic of South Africa, [1993] 1996; to
make provision for structures and procedures relating to oversight over
judicial conduct; to make provision for
the establishment and maintenance of a register of judges’ financial interests;
to make provision for the establishment of Judicial Conduct Tribunals to
inquire into and report on allegations of incapacity, gross incompetence or
gross misconduct against judges; and to provide for matters connected
therewith.".
Transitional provision
11. Notwithstanding
the repeal of section 4 of the principal Act, but subject to the laws governing
the public service and section 37 of the principle Act, the secretary and staff
of the Judicial Service Commission holding office immediately before that
repeal, continue to hold such office.
Short title
12. This Act is called the Judicial Service Commission Amendment
Act, 2007, and comes into operation on a date fixed by the President by Proclamation
in the Gazette.