#TheMbenengeMatter Introduction

Reporting on Eastern Cape Courts

JUDGES & JUDGMENTS

By RAY HARTLE

The complaint of sexual harassment against Eastern Cape Judge-President Selby Mbenenge is likely to dominate news about the judiciary this year. Chief Justice Raymond Zondo is due to constitute a judicial tribunal to hear the matter.

But the decisions of the Judicial Service Commission will likely also come under increasing scrutiny, given its refusal last month to recommend that President Cyril Ramaphosa suspend Mbenenge pending the outcome of the tribunal.

We have come a very long way from the initial prompt to me – in about December 2021 – to investigate allegations of impropriety by officials in the Eastern Cape division of the high court. The Office of the Chief Justice has now confirmed having also received that anonymous complaint (see below).

The struggle to get a news report published in the next year is almost entirely forgotten now. It is worth commending the Sunday Times for that first break 14 months later – a front page news story reporting the Judicial Service Commission’s probe of a complaint of sexual harassment against Mbenenge.

The story of the complaint against Mbenenge is now being told and re-told by the country’s news media – with tough questions being asked about the complaint, the process of adjudicating it, and the actors tasked by our country’s Constitution with judging this judge-president.

This blog series pulls together all that has happened around #TheMbenengeMatter, all that is known about the complaint, and about how relevant organs of state have handled the matter, given the interests of both parties to the complaint, and the public’s interest. It will be updated regularly.

JUDGES’ CONDUCT UNDER SCRUTINY

By RAY HARTLE
March 3, 2024

There is fresh attention on the conduct of judges in South Africa and the processes by which they are held accountable, after Western Cape Judge-President John Hlophe became the first judge in the democratic era to be impeached by the National Assembly.

MPs voted overwhelming in February in favour of dismissing Hlophe from the bench. But the problematic, half-hearted approach that the country’s Judicial Service Commission adopted in judging Hlophe’s obscene 2008 behaviour does not bode well for holding other judges accountable.

It is tempting to consider that the ANC government finally found an ethical bone in its body, when it brought to an end the 15 years of Hlophe’s Stalingrad defence against the charge that he improperly tried to influence two of the panel of Constitutional Court judges hearing a case involving former President Jacob Zuma in 2008. However, Hlophe appears to have thrown in his lot with the EFF party. And there are few things the ANC detests more than a former sameloper who turns their back on this once glorious liberation movement.

The decision by the NA to impeach Hlophe was followed shortly afterwards by an impeachment vote against retired Gauteng judge Nkola Motata, who exhibited a damning accumulator of drunken, racist and lying tendencies following his 2007 crashing a vehicle into a homeowner’s garden wall.

If the history shows anything of how the Hlophe and Motata complaints finally came to be presented to the National Assembly, it is that we could not rely on the JSC to perform its Constitutional mandate of holding judges accountable or to judge wayward members of the judiciary. Without the efforts of civil society watchdogs like Freedom Under Law, who litigated valiantly to hold accountable accused judges and the members of the JSC, the cases of the accused judges would never have reached Parliament.

We cannot assume that anything will be different in future, when the JSC is called upon to adjudicate the allegedly errant behaviour of other judges, including the complaint currently before it of Eastern Cape Judge-President Selby Mbenenge.

But the Hlophe and Motata sagas also show that there remain fiercely independent judges on key benches of the judiciary, who issued telling judgments against organs of state; that fierce, independent character of our judiciary must be bolstered if democracy’s ideals are to be pursued.

Yet, as I write this, there is already mounting concern that the JSC favoured Mbenenge in choosing not to recommend his suspension pending a decision by the judicial tribunal which must still be constituted by Chief Justice Raymond Zondo to adjudicate the complaint of sexual harassment against the judge-president,

There is also concern about Mbenenge’s decision to lay charges of crimen injuria and criminal defamation against the woman who lodged the sexual harassment complaint against him.

JUDICIARY APPOINTMENTS & REMOVALS

South Africa’s Constitution stipulates that any appropriately qualified woman or man who is a fit and proper person may be appointed as a judicial officer.

Other than the Constitutional Court, the president must appoint the judges of all other courts based on the advice of the Judicial Service Commission. The president must consult the JSC and the leaders of parties represented in the National Assembly before appointing the chief justice and the deputy chief justice. The president must consult the chief justice and the leaders of parties represented in the National Assembly before appointing other judges of the Constitutional Court. The president must consult the JSC before appointing the president and deputy president of the Supreme Court of Appeal.

The minister of justice may appoint acting judges based on the recommendation of the judge-president of a division. 

There is a three-step process for the removal of a judge: The JSC must find that the judge suffers from an incapacity, is grossly incompetent, or is guilty of gross misconduct; the National Assembly must pass a resolution – by a two-thirds majority – for a judge to be removed; the president must then remove the judge from office. 

Only the president, acting on the advice of the JSC, may suspend a judge who faces a disciplinary process that may lead to removal from office. 

The JSC’s structure and role are also prescribed in legislation. Members are drawn from among the judiciary, members of the National Assembly and of the National Council of Provinces, individuals nominated by the president, the advocates’ and attorneys’ professions, law schools.

A full JSC deliberates on the appointment of judges. A reduced commission which excludes politicians considers any other business, including the receipt of recommendations from the JCC. 

EXPECTATION OF JUDGES & THE JUDICIAL SERVICE COMMISSION

The Code of Judicial Conduct (download here) was introduced in 2012 following South Africa’s ratification under Chief Justice Pius Langa of the international 2006 guideline Bangalore Principles of Judicial Conduct.

The Code affirms that under section 174(8) of the Constitution, judicial officers must take an oath, or affirm, that they “will uphold the Constitution and the human rights entrenched in it, and will administer justice to all persons alike without fear, favour or prejudice, in accordance with the Constitution and the law”.

Article 4 specifically states that, in respect of judicial independence, a judge must (a) “uphold the independence and integrity of the judiciary and the authority of the courts”; (b) “maintain an independence of mind in the performance of judicial duties”; (c) “take all reasonable steps to ensure that no person… interferes with the functioning of the courts”; (d) “not ask for nor accept any special favour or dispensation from the executive or any interest group”.

Note 4(iv) to this section states that “judicial independence is not a private right or a principle for the benefit of judges as individuals. It denotes freedom of conscience for judges and non-interference in the performance of their decision-making. It does not justify judicial misbehaviour…”

Article 5(1) enjoins a judge to “always, and not only in the discharge of official duties, act honourably and in a manner befitting judicial office”. Article 5(2) states that “all activities of a judge must be compatible with the status of judicial office”.

Notes 5(10 & (2) state that “a judge behaves in his or her professional and private life in a manner that enhances public trust in, or respect for, the judiciary and the judicial system”, and “a judge avoids impropriety or the appearance of impropriety” in all their activities.

Article 7 enjoins a judge to avoid association with speech or conduct that is racist, sexist or otherwise manifestly discriminatory, and also to refrain from being biased or prejudiced.

Article 12(3) states that a judge previously in private practice “must not sit in any case in which he or she, or his or her former firm, is or was involved before the judge’s appointment”.

Note 12(ii) critiques a judge from using “the office for the attainment of personal benefit”.

Although South Africa’s judiciary has yet to accept and implement a draft Sexual Harassment Policy, Deputy Chief Justice Mandisa Maya has said that the Code of Conduct is sufficient to prosecute a complaint of sexual harassment against a judge. Maya is the putative Chief Justice when current CJ Raymond Zondo retires from the bench in August, according to an announcement by President Cyril Ramaphosa. She has drafted the harassment policy.

The Judicial Service Commission Act (download here) specifies the grounds upon which a complaint may be laid against a judge. These are:

  • Incapacity giving rise to a judge’s inability to perform the functions of judicial office in accordance with prevailing standards;
  • Gross incompetence
  • Gross misconduct;
  • Any wilful or grossly negligent breach of the Code of Judicial Conduct;
  • Accepting, holding or performing any office of profit or receiving any fees, emoluments or remuneration or allowances;
  • Any wilful or grossly negligent failure to comply with any remedial step;
  • Any other wilful or grossly negligent conduct… including any conduct that is prejudicial to the independence, impartiality, dignity, accessibility, efficiency or effectiveness of the courts.

The JSC Act also spells out the steps that must be taken when the Chief Justice receives a complaint against a judge. The steps that have already been taken in terms of the JSC Act in the complaint against Judge-President Mbenenge include:

  • Referral of the complaint to the Judicial Complaints Committee (JCC), a sub-committee of the JSC;
  • A decision by the JCC to recommend to the Judicial Service Commission that the complaint against Mbenenge be referred to a judicial tribunal;
  • Confirmation by the JSC that the complaint must be referred to a judicial tribuntal;
  • A decision by the JSC that Mbenenge need not be suspended pending the findings of the judicial tribunal, because he had been granted special leave by Chief Justice Raymond Zondo.

What is awaited now is the constitution by Zondo of the judicial tribunal and the tribunal’s proceedings.

#TheMbenengeMatter Introduction

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