Judges from the Free State Bench who solicited specialist legal advice about cases before them from an advocate of that Bar will not be investigated as there is no legal complaint lodged against them, the Mail & Guardian has established.
The Judicial Service Commission secretary, Sello Chiloane, confirmed that no complaint had been lodged with either the commission or the judge president of the Free State division, Thekiso Musi, "in connection with the remarks made by advocate Paul Zietsman SC on October 9".
Zietsman, who is a specialist in insolvency law, was being interviewed in Cape Town earlier this month for a position on the Free State high court Bench.
On his application form, he had included the fact that judges from that court had sought out his opinion on insolvency cases while he was not acting on that Bench.
In his application form, Zietsman had stated that: "Because of the aforesaid special knowledge in the law of insolvency and liquidation, a number of judges of the Free State high court sought my guidance when dealing with insolvency and consumer protection matters."
Chiloane said Zietsman "was not prepared to disclose the names of the judges concerned and therefore we don't know who they are and how many [judges had sought out Zietsman's advice]".
Chiloane added that, as no information had been forthcoming from Zietsman about the identity of the judges, "a complaint can't be lodged against anonymous people".
There was general consternation among commission members when Musi initially pointed out Zietsman's written admission during his Cape Town interview and expressed "surprise" that this was occurring in his division.
Zietsman admitted that this "informal help" had occurred on "a friendly basis" when he was not acting as a judge.
Chief Justice Mogoeng Mogoeng said the practice was "unacceptable".
When Zietsman responded that he didn't think "it should be the norm", Mogoeng said "it shouldn't even be the exception".
Mogoeng chided Zietsman, saying he didn't think his actions were appropriate and wondered whether the perspectives on insolvency law Zietsman had shared would create a scenario that the judges "will agree with you in court" when the advocate appeared before them.
According to Chiloane, Musi, who was appointed to the arms procurement commission chaired by Judge Willie Seriti, "was of the view that this is a matter that can best be dealt with internally" and had delegated acting Free State Judge President Mojalefa Rampai to do so.
Rampai would "discuss it with the judges of the Free State high court with a view to ensuring that the impugned conduct, if it indeed occurred, should never be repeated", said Chiloane.
Zietsman was unsuccessful in his attempt to be appointed to the Free State high court. The position went to Soma Naidoo.