According to the nation’s foundational values of which constitutional supremacy and the Rule of Law are included, it is apparent that the Judiciary is an essential element of South Africa’s constitutional democracy. Furthermore, section 165 of the Constitution establishes the courts as independent and subject only to the Constitution and the law. The courts are obliged to apply the law objectively – without fear, favour or prejudice. Neither persons nor organs of state may interfere with the functioning of the courts. Organs of state have a duty to assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts. Upon the assumption of office, judges or acting judges are required to swear an oath or solemnly affirm that she or he will uphold and protect the Constitution and will administer justice to all persons alike without fear, favour or prejudice, in accordance with the Constitution and the law.
It is against this backdrop that the conduct described above by the different judges must be assessed. Suffice to say, the attempts at influencing other judges outside of legally recognised channels fall far short of the constitutional standard with regard to the proper role and function of courts. So too are the inexplicable attempts to avoid being witnesses at a tribunal to challenge the alleged impropriety. Additionally, this has adverse implications for the proper administration of justice. It is vital that courts are not just impartial but are also perceived to be such. It is important that South Africa’s constitutional democracy be premised on courts with integrity. As such, judges must decide all matters before them with due regard to the oath or solemn affirmation they took, considering only the Constitution and the law.
While it is unsettling that senior figures of the Judiciary have conducted themselves in a manner which falls short of expectations and obligations, it does however present the nation an opportune moment to pay heed to section 180 of the Constitution, which provides that “National Legislation may provide for any matter concerning the administration of justice that is not dealt with in the Constitution including…procedures for dealing with complaints about judicial officers”. To this end the Judicial Services Commission Act establishes a process for the disciplining of judges. The Act establishes a Judicial Conduct Committee, which must receive and consider all complaints against judges. Thereafter, the Judicial Conduct Committee may refer the matter to the Judicial Conduct Tribunal or may decide that it does not constitute an impeachable offence. Justices Nkabinde and Jafta had challenged the constitutional validity of the Judicial Conduct Tribunal – and yesterday’s decision of the Constitutional Court rejected this challenge. As such, this paves the way for the Judicial Conduct Tribunal to finally hear the case against Judge Hlophe.
In general, South African courts enjoy judicial independence and are accepted as impartial. This long-running case, which has pitted the nation’s most senior judges against each other, may have eroded a measure of confidence in the nation’s courts. It is vital that the matter be brought to finality soon.
By Ms Phephelaphi Dube: Director, Centre for Constitutional Rights