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.