Retired judge Willie Seriti
The Johannesburg high court on Friday dismissed a constitutional challenge to the Judicial Service Commission Act by retired judges Willie Seriti and Hendrick Musi, who presided over the arms deal inquiry.
Seriti and Musi launched the legal challenge to section 7(1)(g) of the act after the commission initiated a misconduct investigation into their handling of the inquiry into corruption in South Africa’s arms acquisition programme.
The commission did so in response to a complaint lodged by non-profit organisations Open Secrets and Shadow World Investigations, which accused Seriti and Musi of failing to adequately investigate the multibillion-rand arms deal.
The complainants ventured that the judges’ actions could amount to criminal conduct, contending that the commission’s final report “materially misled the public”, helping to cover up alleged corruption related to the arms deal.
The inquiry found no evidence of fraud and corruption in the deal but its final report was taken on review and set aside by the high court.
In their application to the high court, the retired judges argued that the provision of the JSC Act was inconsistent with section 176 of the Constitution, which regulates the terms of office and remuneration of judges.
They said the act was flawed in that it broadened the provisions of the Constitution to give the JSC jurisdiction over retired judges.
The high court deemed their case “weak”.
It held that the Constitution was not intended to be the sole source of regulation of the judiciary, as plainly indicated in section 180. It reads: “National legislation may provide for any matter concerning the administration of justice that is not dealt with in the Constitution.”
Section 180 (b) expressly includes in such matters “procedures for dealing with complaints about judicial officers”.
The JSC Act therefore did not contradict the Constitution but extrapolated from its provisions and stood to be read alongside it, as did the Judges’ Remuneration and Conditions of Employment Act 47 of 2001 (JRCS Act).
“The basic flaw in the applicants’ thesis is the notion that a person can only be a judge during the term of active service or term of office,” the court said.
“To reason in this way is to elide the status and identity of a judge with the concept of an ‘office-holder’. Section 176 of the Constitution does not purport to define who is a judge. The tenor of section 176 is to regulate the duration of office, not the standing of judgeship.”
The court said what Seriti and Musi had sought to repudiate was the notion that once appointed a judge, one remained a judge for life and continued to be accountable by this standard. This may not be the case in all jurisdictions but it was the policy position that South Africa had adopted.
“The choice of making a person a judge for life is bound up with the expectations of the character of judgeship and especially the independence that a judge is required to assert in the South African context.”
The wording of the Constitution reflected this choice, the court added.
“The utilisation of the concept of a ‘discharge from active service’ rather than a ‘termination of office’ is significant nomenclature because it points to a continuing judicial identity even when performing no judicial functions.
“The remuneration payable after discharge is a salary, not a pension.”
The court awarded costs against Seriti, who chaired the inquiry, and Musi, who served as a commissioner.
The commission of inquiry was appointed by then president Jacob Zuma in 2011 and sat for four years. Its findings were widely seen as a whitewash and taken on review by Corruption Watch and Right2Know.
The 767-page report was set aside by the Johannesburg high court in 2019, with Judge Dunstan Mlambo writing that it was “inexplicable” that the commission ignored essential information to conclude that there was no evidence of wrongdoing in the deal.