According to an article in the Mail & Guardian two weeks ago, Professor Shadrack Gutto of the University of South Africa criticised the Judicial Service Commission (JSC) and implicitly the judiciary for having failed to take effective action to establish procedures to deal with complaints against judges.
It must be pointed out that in 1996, the JSC requested me, as President of the Constitutional Court, to investigate the pros and cons of such a mechanism. In December of that year, I reported that a complaints system should be established, but this should be done only after consultation with the judiciary because sensitive issues of judicial independence were involved.
More than two years later, the Department of Justice submitted the first draft of the complaints legislation to the JSC. A redraft followed in October 1999.
In response, the then Chief Justice, Justice Ismail Mahomed, appointed a committee of senior judges to deal with the issue. The committee drew a detailed memorandum on the relevant principles together with a draft Bill creating an appropriately constituted and empowered Judicial Council and a comprehensive code of judicial ethics.
The council would function as a complaints tribunal and an arbiter of ethics. In April 2000 the committee’s proposals were approved by the Heads of Courts and the JSC and conveyed to the Ministry of Justice.
Until last year no comment or enquiry in relation to these proposals had been made to the judiciary by the Justice Ministry, the department or the Justice Portfolio Committee. During 2004 two draft Bills were referred to the judiciary for comment.
The first is aimed at amending the JSC Act and the second is to establish Judicial Conduct Tribunals for dealing with judicial ethics and complaints mechanisms. The Heads of Courts considered the Bills at their last meeting of the year in October 2004. They have since formulated a detailed response, conveyed to the ministry and the department. The issues are due to be discussed at a meeting between the Heads of Courts and the ministry in April.
Gutto’s criticism is not warranted. Both the JSC and the judiciary have taken time and effective action to institute complaints procedures. The delay in achieving finality is not attributable to them. Gutto also suggests that the judiciary should be subject to review as are other branches of the state. This is inconsistent with the principle of separation of powers and the independence of the judiciary.
For years, the Heads of Courts and the JSC have been pressing for an appropriate institution to be established to provide for education and training for aspirant and serving judges, and this too is the subject of ongoing discussion with the minister and is also on the agenda for the April meeting.
Arthur Chaskalson is Chief Justice of South Africa