Johannesburg - The two retired judges who presided over the arms deal commission of inquiry are challenging the law determining them judicial officers even after their retirement.
Retired Supreme Court of Appeal Justice Willie Seriti and ex-Free State Judge President Hendrick Musi have hauled the Judicial Service Commission (JSC), Justice and Correctional Services Minister Ronald Lamola and President Cyril Ramaphosa to the North Gauteng High Court in a bid to evade a misconduct complaint lodged against them.
Open Secrets and Shadow World Investigations, which have lodged misconduct complaints against the two retired judges for the manner in which they handled the arms deal commission of inquiry, are also cited as respondents.
Their report’s findings were later set aside by the North Gauteng High Court in August 2019.
”This application raises the following constitutional issues: Whether the definition of Judge, in section 7(1)(g) of the Judicial Service Commission Act 9 of 1994, is unconstitutional and invalid on the ground that it is irrational and/or vague and/or inconsistent with sections 176 and 177 of the Constitution of the Republic of South Africa, 1996 read with section 1 of the Judges’ Remuneration and Conditions of Employment Act 47 of 2001,” read the judges’ court papers filed earlier this month.
According to the JSC Act, a judge means any Constitutional Court judge or judge referred to in section one of the Judges’ Remuneration and Conditions of Employment Act 47 of 2001.
This includes judges who have been discharged from active service in terms of that JSC Act, as well as any person holding the office of judge in a court of similar status to a high court, as contemplated in section 166 of the Constitution and includes any Constitutional Court judge or judge performing judicial duties in an acting capacity.
The Judges’ Remuneration and Conditions of Employment Act defines a judge as any person holding the office of Chief Justice to high court.
Judges Seriti and Musi argue that the definition of a judge in the Constitution also regulates the terms of office and remuneration of judicial officers and explains that judges other than Constitutional Court justices hold office until they are discharged from active service in terms of an act of Parliament and that their salaries, allowances and benefits may not be reduced.
The country’s supreme law also indicates that a judge may be removed from office only if the JSC finds that the judge suffers from incapacity, is grossly incompetent or is guilty of gross misconduct and the National Assembly calls for that judge to be removed by a resolution adopted with a supporting vote of at least two-thirds of its members.
Thereafter, the president must remove a judge from office upon adoption of a resolution calling for that judge to be removed.
The complaint by Open Secrets and Shadow World Investigations was referred to the Judicial Conduct Committee in May this year and the committee was expected to recommend to the JSC whether the matter should be investigated and reported on by a tribunal.
”I am satisfied that, in the event Shadow World Investigations and Open Secrets’ complaint being established, it is likely to lead to lead to a finding by the JSC that Judge Seriti and Judge Musi are guilty of gross misconduct as envisaged by section 14(4) of the JSC Act,” Deputy Chief Justice Raymond Zondo informed the two organisations in May in his capacity as acting chairperson of the Judicial Conduct Committee.
Political Bureau