GENERAL EXPLANATORY NOTE:

[ ] Words in bold type in square brackets indicate omissions from existing enactments.

___________ Words underlined with a solid line indicate insertions in existing enactments.

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JUDICIAL SERVICE COMMISSION ACT

NO. 9 OF 1994

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 in terms of which the Commission must maintain oversight over judicial conduct and ethics; and to provide for matters connected therewith.

CHAPTER 1

ADMINISTRATIVE PROVISIONS

(ss 1 - 6)

Definitions

1. In this Act, unless the context otherwise indicates—

"chairperson" means the Chief Justice; and

"Commission" means the Judicial Service Commission established by section [105] 178 of the Constitution.

Term of office of certain members of Commission, designation of deputy 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)] 178(1)(b), (c), (e), (f), (g) or (j) of the Constitution as deputy chairperson of the Commission, and when the chairperson is not available, the deputy chairperson shall act as chairperson.

(5) 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.

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;

(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.

Secretary and staff of Commission

4. The work incidental to the performance by the Commission of its functions shall be performed by officers of the Department of Justice designated by the Director-General: Justice, in consultation with the Commission, of whom one shall be designated by him or her as secretary of the Commission.

Publication of procedure of Commission

5. The Minister of Justice shall 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.

Annual report

6. 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.

Insertion of new Chapter:

"CHAPTER 2

OVERSIGHT OVER JUDICIAL CONDUCT AND ETHICS

(ss 7 - 24)

Part I
Establishment and objects of Committee

Definitions and interpretation

7. (1) For purposes of this Chapter, unless the context indicates otherwise—

(a) "Chairperson" means the Chairperson of the Committee;

(b) "Committee" means the Judicial Conduct and Ethics Committee referred to in section 8; and

(c) "judge" means any person holding the office of 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.

(2) In this Chapter any reference to a complainant or to a judge against whom a complaint has been lodged must, unless it is inconsistent with the context, be construed to include a reference to a legal representative of that complainant or judge.

Establishment and composition of Judicial Conduct and Ethics Committee

8. The Commission has a committee, called the Judicial Conduct and Ethics Committee, comprising the following members of the Commission—

(a) the Chief Justice, who is the Chairperson;

(b) the President of the Supreme Court of Appeal;

(c) the Judge President referred to in section 178(1)(c) of the Constitution;

(d) two members designated by the Commission from the members referred to in section 178(1)(j) of the Constitution, one of whom must be a woman; and

(e) when considering a matter relating to the conduct of a judge, other than the Judge President, of a specific court, the Judge President of that court.

Meetings of Committee

9. (1) The Committee meets at any time and place determined by the Chairperson, or in the absence of the Chairperson, by the majority of the members.

(2) The majority of the members of the Committee constitutes a quorum at a meeting.

(3) If the Chairperson is absent from a meeting, the members present must elect a Chairperson for that meeting from among themselves.

(4) 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.

(5) Meetings of the Committee take place behind closed doors, unless the Committee on account of public interest/for good cause decides otherwise.

Objects of Committee

10. The objects of the Committee are to—

(a) compile and maintain a code of ethics for judges;

(b) advise judges on ethical and related issues;

(c) consider complaints about judges, and—

(i) when appropriate, to dispose of such complaints in terms of Part III of this Chapter; or

(ii) to make recommendations to the Commission regarding the appointment of Inquiry Tribunals; and

(d) report on its activities to the Commission.

PART II
Judicial conduct

Judge not to hold any other office of profit

11. A judge may not, without the consent of the Minister, accept, 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 amount which may be payable to him or her in his or her capacity as a judge.

Code of ethics, and advice to judges

12. (1) The Committee must compile and adopt a Code of ethics for judges, which—

(a) shall serve as a general guideline to judges regarding judicial conduct; and

(b) must be made available to every judge and published in the Gazette.

(2) The Committee may, for the purpose of subsection (1), adopt any Code existing immediately prior to the commencement of this section.

(3) The Committee must review the Code annually, and must invite all judges and the Commission to submit proposals regarding any amendments to the Code.

(4) A copy of the Code and any amendment thereof must be submitted to Parliament.

(5) The Committee may, whether on its own accord or when requested thereto by any judge, advise judges on ethical or related issues in the manner that it deems appropriate.

PART III
Consideration of complaints about judges by Committee

Lodging of complaints

13. (1) Any person may lodge a complaint about a judge with the Chairperson or a member of the Committee designated by the Chairperson.

(2) A complaint must be lodged by means of an affidavit or affirmed statement, specifying—

(a) the nature of the complaint; and

(b) the facts on which the complaint is based.

Complaint may be summarily dismissed

14. (1) Upon receipt of a complaint lodged in terms of section 13, the Chairperson or the member of the Committee designated by the Chairperson must consider the complaint and if it—

(a) does not comply substantially with the provisions of section 13(2);

(b) is related to the merits of a judgment or order (relating to proceedings to which the complainant is a party);

(c) is frivolous or lacking in substance; or

(d) is hypothetical,

he or she must dismiss the complaint and inform the complainant in writing of—

(i) the reasons for the dismissal; and

(ii) the right to request the Committee to reconsider the dismissal in terms of subsection (2).

(2) A complainant who is dissatisfied with a decision to dismiss a complaint in terms of subsection (1) may, within one month, request the Committee in writing to reconsider that decision, specifying the grounds for the request.

(3) If requested to reconsider a decision in terms of subsection (2), the Committee must consider—

(a) the reasons for the dismissal referred to in subsection (1); and

(b) the grounds for the request referred to in subsection (2),

whereupon the Committee must—

(i) confirm the dismissal of the complaint; or

(ii) direct one of its members to investigate the complaint in terms of section 16,

and inform the complainant in writing of its decision and the reasons therefor.

Committee may recommend appointment of Inquiry Tribunal

15. (1) If a complaint is not dismissed under section 14(1), and the Chairperson or the member concerned is satisfied that, in the event of a valid complaint being established, it may lead to a finding by the Commission that the judge concerned suffers from an incapacity, is grossly incompetent or is guilty of gross misconduct, he or she must in writing—

(a) inform the judge concerned of the complaint;

(b) inform the judge that the Committee will consider recommending to the Commission the appointment of an Inquiry Tribunal in order to investigate and report on the matter; and

(c) invite the judge to respond in writing to the allegations in question within one month.

(2) 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 judge concerned in writing that he or she—

(a) may submit a written representation for consideration by the Committee at that meeting; or

(b) address the Committee at that meeting,

as the Chairperson may determine.

(3) For the purpose of a meeting referred to in subsection (2), the Committee may request such further information from the complainant as it deems fit.

(4) At the meeting referred to in subsection (2) the Committee must consider—

(a) whether the complaint, if established, will prima facie indicate incapacity, gross incompetence or gross misconduct by the judge concerned; and

(b) the response, if any, by the judge concerned to the allegations,

whereupon the Committee may—

(i) dismiss the complaint;

(ii) direct one of its members to conduct an investigation referred to in section 16; or

(iii) recommend to the Commission that the complaint should be investigated by an Inquiry Tribunal.

(5) The Committee must inform the complainant, the judge concerned and the Commission in writing of any decision envisaged in subsection (4) and the reasons therefor.

Investigation by Chairperson or member of Commission

16. (1) If a complaint—

(a) is not dismissed under section 14(1), and the Chairperson or the member concerned 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 (5); or

(b) is referred to a member of the Committee in terms section 14(3) or 15(4) for an investigation,

the Chairperson or the member concerned must investigate the complaint in an informal manner in order to establish whether, on a balance of probabilities, the judge concerned has behaved in a manner which is unbecoming of judicial office.

(2) For the purpose of an investigation referred to in subsection (1) the Chairperson or member concerned—

(a) must invite the judge concerned 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 judge in question, within a specified period.

(3) The Chairperson or member concerned must thereupon—

(a) dismiss the complaint; or

(b) make a finding that the judge concerned has behaved in a manner which is unbecoming of judicial office and submit that finding, together with the reasons therefor and a recommendation on any appropriate remedial steps referred to in subsection (5), to the Committee for consideration in terms of section 17, and inform the complainant and the judge concerned accordingly in writing.

(4) (a) The Chairperson or member concerned must in writing inform the Committee, the complainant and the judge concerned of a dismissal contemplated in subsection (3)(a) and the reasons therefor. The complainant must also be informed of the right to appeal against the dismissal in terms of paragraph (b).

(b) A complainant who is dissatisfied with a decision to dismiss a complaint in terms of subsection (3)(a) may, within one month, appeal to the Commission against that decision, specifying the grounds for the appeal.

(5) The Chairperson or member concerned may recommend any one or a combination of the following remedial steps in respect of a judge:

(a) Apologising to the complainant, in a manner specified by the Committee.

(b) A reprimand.

(c) Appropriate counselling.

(d) Attendance of a specific training course.

Consideration of finding and recommendation by Committee

17. (1) The Chairperson must determine a time and a place for the Committee to meet in order to consider any finding and recommendation submitted to it in terms of section 16(3)(b), and must inform the complainant and the judge concerned in writing that they—

(a) may submit written representations for consideration by the Committee at that meeting; or

(b) address the Committee at that meeting,

as the Chairperson may determine.

(2) At the meeting referred to in subsection (1) the Committee must consider—

(a) the reasons for the finding and the recommendation on appropriate remedial steps to be imposed; and

(b) any representations submitted in terms of subsection (1)(a) and views expressed in terms of subsection (1)(b),

whereupon the Committee must—

(i) set aside the finding and dismiss the complaint; or

(ii) confirm the finding and any remedial steps recommended; or

(iii) confirm the finding but impose any other remedial step or combination of remedial steps referred to in section 16(5).

(3) The Committee must inform the complainant, the judge concerned and the Commission in writing of any decision in terms of subsection (2) and the reasons therefor.

(4) A complainant or judge who is dissatisfied with any decision in terms of subsection (2) may, within one month, appeal to the Commission to reconsider that decision, specifying the grounds for the appeal.

PART IV
Consideration of appeals to Commission, and appointment of Inquiry Tribunals by Commission

Consideration of appeals by Commission

18. (1) The Commission must consider an appeal referred to in section 16(4)(b) or 17(4) at a meeting determined by the Chairperson of the Commission, and the Commission must inform the complainant and the judge concerned 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 Commission.

(2) At the meeting referred to in subsection (1) the Commission must consider—

(a) the reasons for the decision against which the appeal is brought, as contemplated in section 16(4)(a) or 17(3);

(b) the grounds for the appeal, as contemplated in section 16(4)(b) or 17(4); and

(c) any representations submitted in terms of subsection (1)(b).

(3) After consideration of an appeal in terms of subsection (2), the Commission must—

(a) set aside the decision concerned; or

(b) confirm the decision, with or without any amendment of the remedial steps involved, if applicable; or

(c) set aside the decision and appoint an Inquiry Tribunal to investigate the matter de novo.

(4) The Commission must in writing inform the complainant and the judge concerned of its decision in terms of subsection (3) and the reasons therefor.

Appointment of Inquiry Tribunal

19. (1) Whenever it appears to the Commission that there are reasonable grounds to suspect that a judge—

(a) may be suffering from an incapacity;

(b) is grossly incompetent; or

(c) is guilty of gross misconduct,

the Commission must appoint an Inquiry Tribunal in order to investigate the matter and to report to the Commission on its findings emanating from such investigation.

(2) The Commission must in writing state the allegations, including any other relevant information, in respect of which the Inquiry Tribunal must investigate and report.

(3) The Commission must, unless it is acting in terms of section 18(3)(c), before it appoints an Inquiry Tribunal, inform the judge concerned that it is considering the appointment of such a Tribunal and invite the judge to comment in writing on the fact that the Commission is considering such an appointment.

PART V
Composition and functioning of Inquiry Tribunal

Composition of Inquiry Tribunal

20. The Chief Justice must, after consultation with the judges president, appoint not more than three judges as presiding officers of an Inquiry Tribunal, one of whom must be designated as the President of the Tribunal.

Nature of proceedings

21. (1) An Inquiry Tribunal must, in an inquisitorial manner, conduct one or more hearings in order to inquire into, and to determine the merits of, the allegations contemplated in section 19(2).

(2) An Inquiry Tribunal may—

(a) sit at any place in the Republic for the purpose of a hearing or of deliberating;

(b) determine its own procedure;

(c) subpoena any person to appear before it in person and to produce any book, document, statement or object relating to the inquiry; and

(d) in consultation with the Minister—

(i) appoint an independent counsel or an officer in the Department of Justice and Constitutional Development to investigate any matter, adduce evidence at a hearing and cross-examine witnesses;

(ii) appoint an officer in the Department of Justice and Constitutional Development as the registrar of the Inquiry Tribunal.

(3) An Inquiry Tribunal must keep a record of its proceedings.

(4) (a) A complainant or a judge in respect of whom an inquiry is conducted is entitled to be present at a hearing, to be assisted or represented by a legal representative, to give evidence through a legal representative or personally to—

(i) be heard;

(ii) call witnesses;

(iii) cross-examine any witness called at the inquiry; and

(iv) have access to books, documents or other objects produced in evidence.

(b) Any other person appearing before an Inquiry Tribunal may be assisted or represented at such inquiry by a legal representative.

(5) Notwithstanding any other law a person may not disclose to any other person the contents of a book, document or other object in the possession of the Inquiry Tribunal or the record of any evidence given before the Tribunal during a hearing, unless the President of the Tribunal determines otherwise.

(6) If an Inquiry Tribunal is of the opinion that the facts disclose the commission of an offence by the judge concerned, the Tribunal must at any time during or after the inquiry notify the National Director of Public Prosecutions and the Director of Public Prosecutions of the area concerned.

(7) Hearings by an Inquiry Tribunal take place in camera, unless the Tribunal on account of public interest/for good cause decides otherwise.

(8) No person may testify before, or be questioned by, an Inquiry Tribunal unless the oath or affirmation which is usually administered or accepted in a court of law, has been administered to or accepted from such person by the Tribunal or, if evidence is to be given by such person through an interpreter, by the Tribunal through the interpreter.

(9) Any person who—

(a) fails without reasonable excuse to appear before an Inquiry Tribunal after having been duly subpoenaed in terms of subsection (2)(c); or

(b) having been duly subpoenaed to attend a hearing of an Inquiry Tribunal, fails to answer fully and satisfactorily any question lawfully put to him or her, or fails to produce any book, document or object in his or her possession or custody or under his or her control, which he or she has been subpoenaed to produce;

(c) wilfully interrupts the proceedings of an Inquiry Tribunal or who wilfully hinders or obstructs an Inquiry Tribunal in the performance of its functions,

is guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding one year.

Inquiry Tribunal to submit report to Commission

22. An Inquiry Tribunal must as soon as possible submit a report to the Commission, containing the record of any hearing of the Tribunal and its findings in respect of the inquiry.

PART VI
Consideration of Inquiry Tribunal report by Commission

Commission to consider report and make findings

23. (1) The Commission must consider the report of an Inquiry Tribunal at a meeting determined by the Chairperson of the Commission, and the Commission must inform the judge in respect of whom the inquiry was held 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 of the Inquiry 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 16(5).

(6) The Commission must in writing inform a judge in respect of whom a finding referred to in subsection (4) or (5) is made of that finding and the reasons therefor.".

Short title

[7.] 24. This Act shall be called the Judicial Service Commission Act, 1994.