Proposed process for disciplining judges may be unconstitutional

Judges have got their knickers in a knot over the Judicial Services Commission Amendment Bill now before the NCOP – so much so that the Judicial Services Commission (“JSC”) made an extensive and detailed submission on the Bill when it was before the National Assembly’s Portfolio Committee on Justice and Constitutional Development last year.

However it seems that the JSC submission never saw the light of day in the NA. The Parliamentary Monitoring Group’s minutes of proceedings in the Committee make no mention of it. Although a delegation of judges and retired judges appeared before the Portfolio Committee to object to aspects of the Bill, the NA passed the Bill with the DA expressing reservations about aspects of it. The Bill was then referred to the NCOP.

In terms of Section 178(5) of the Constitution, the Judicial Service Commission is mandated to advise government on any legislation affecting the judiciary and accordingly the JSC, which is chaired by Chief Justice Pius Langa, put in its submission on the Bill in August last year. As a member of the JSC, I requested a copy of the submission at the JSC’s latest meeting at the beginning of April.

The submission points out a number of problems with the Bill and questions the constitutionality of the proposed Judicial Conduct Committee, claiming that it usurps the functions of the JSC as spelt out in the Constitution, and it is therefore inconsistent with the Constitution. The JSC recommends that the Bill be subject to reconsideration and further consultations with the judiciary. The NCOP Committee has also entained submissions from the judiciary and the judges found their reception by the NCOP much more satisfactory, although there is no indication as to whether their proposed amendments have been accepted.

Much of the comment around the Bill while it has been before the NCOP has to do with whether or not the proceeding of a proposed Tribunal to be appointed by the Judicial Conduct Committee to hear complaints against judges should be held in public. However the JSC submits that the proposed process as a whole may be inconsistent with the Constitution. A copy of the JSC submission is attached.