Tshwarelo Hunter Mogakane
Pretoria - The Judicial Conduct Committee (JCC) has found retired Constitutional Court Justice Johann Kriegler guilty of breaching the Code of Judicial Conduct by claiming in a newspaper article that Western Cape High Court Judge President John Hlophe was “unfit to be a judge”.
In a ruling on Friday, the JCC ordered Kriegler to retract his remarks.
The JCC ruled against Kriegler following a misconduct complaint made by advocate Vuyani Ngalwana, a member of the Pan African Bar Association of SA (Pabasa).
Ngalwana had asked the JCC to rule on remarks Kriegler had made in several articles on News24, IOL, TimesLive and the Mail & Guardian.
Ngalwana had complained that Kriegler had breached the Code of Judicial Conduct and provisions of the Judicial Service Commission (JSC). “The complaint alleged (Kriegler) has since 2009 persistently attacked JP Hlophe in his utterances … subsequent to a complaint of gross misconduct against JP Hlophe by the Justices of the Constitutional Court,” stated JCC member, acting Justice Dumisani Zondi, who penned the ruling.
Zondi said Ngalwana laid the complaint against Kriegler to “vindicate the integrity, dignity and independence of the judiciary and the judicial system” following the attacks on Hlophe.Kriegler’s argument that Ngalwana laid the complaint because he was a Hlophe supporter was unfounded, Zondi said.
“(Kriegler) argues that it can be inferred that (the complaint) has been brought solely for the purpose of neutralising Hlophe’s detractors (but) his complaint was not motivated by any ulterior motive,” he said.
The ruling noted that it was common cause that advocate Ngalwana had represented Hlophe in cases involving the Judge President before the JSC and in court between 2008 and 2011.
Zondi said Ngalwana had told the JCC that Kriegler’s statements about Hlophe were not only an attack against Hlophe as an individual, “but also the judiciary as a whole and they have further instilled courage, in the form of disobedience, to judges of the Western Cape Division to defy Hlophe’s leadership … and has also prompted ordinary, non-legal persons such as journalists to publicly attack judges”.
“The complainant is seeking the intervention of the JSC to deprecate the respondent’s conduct strongly as such conduct hardly conduces to the protection of the dignity, independence and effectiveness of the judiciary and the judicial system,” Zondi said.
The acting judge added that Ngalwana argued that it was against the Judicial Service Commission (JSC) Act for an active or retired judge to publicly criticise another judge.
In response to Ngalwana’s complaint to the JCC, Kriegler denied ever attacking Hlophe directly. He also argued that he was a retired judge who enjoyed the right to freedom of expression and “robust debate”.
“(The act) does not impose a total prohibition on judges to express themselves freely on any issues. They are allowed to say anything as long as what they say remains within its confines … Additionally, his public comments must necessarily be considered from the position that he is a retired judge. He is not in active service nor will he be called upon to perform judicial duties.
“In this regard, it is alleged the respondent is a public figure and an elder. His views on judicial matters, proceeds the argument, are often solicited by the public because of his expertise. This point must fail,” Zondi ruled.
Zondi also cited international law, stating that there was consensus on the conduct of retired judges, who must behave “in a manner befitting his or her status and that his or her duties must be compatible with his or her status as a retired judge”.
The JCC ruled Kriegler should retract his TimesLive remarks. It, however, dismissed complaints Ngalwana made about other articles published in the other publications.
“The respondent is ordered within 14 days of receipt of this ruling, to retract a statement he made in the TimesLive publication of March 1, 2021, that Hlophe JP is unfit to be a judge. This corrective measure must be in the form of an email to the complainant,” said Zondi.
Contacted for comment, Ngalwana preferred not to comment but stated he was surprised that the JCC ruled the retraction be emailed to him, and not to Hlophe. “I will engage the JCC on it.”
Pretoria News