Supreme Court of Appeal of South Africa– Deciding on an important issue as to the legitimacy of steps taken by the Judicial Service Commission (JSC) pursuant to the complaint lodged by 11 Justices of the Constitutional Court with the first respondent (JSC), the only body empowered to receive and deal with complaints concerning the conduct of judges, the Court by a majority dismissed the appeal and held that the application of new procedure in terms of amendments to the Judicial Service Commission Act 9 of 1994 (JSCA) was sensible, fair and just. In the instant case complaint against judge was lodged for alleged misconduct with the JSC in 2008 which was later set aside by court order. However, the inquiry began de novo in 2011, by which time a new procedure was applicable and provided for the establishment of a Judicial Conduct Committee and a tribunal to deal with complaints against judges.

The appellants had challenged that the retrospective applicability of the new procedure and the constitutionality of Section 24(1) of the JSCA which permitted a prosecutor to be involved in the collection and leading of evidence before the Tribunal. The appellant contended that this was in breach of the doctrine of the separation of powers and threatens judicial independence

Acting Deputy President Navsa observed that when the amendments to the JSCA were before Parliament, the legislature must have been aware that there were pending complaints before the JSC and also there is no transitional provision and no indication in the legislation that it does not apply to pending complaints. It must have been intended to apply to pending complaints since the JSC is a creature of the Constitution, which envisages in Section 180(b) that national legislation may provide for procedures for dealing with complaints about judicial officers. The Court further noted that if it could be shown that applying the provisions of the JSCA would result in the infringement of the substantive rights of a complainant or respondent judge, a court might, in appropriate circumstances, be persuaded to refrain from applying the provisions of the JSCA retrospectively. Moreover as there was no infringement of substantive rights, the JSC was correct in its decision to hold the preliminary inquiry and to constitute the Tribunal in terms of the provisions of the JSCA.

The Court, with regard to the constitutionality of Section 24(1) of the JSCA, held that judicial independence is not threatened by the participation of the prosecutor in the limited role provided for by Section 24(1) of the JSCA. Also there was no breach of the doctrine of separation of powers because the JSCA does not give a prosecutor any adjudicative powers but limits his or her involvement to the collection and leading of evidence. The prosecutor is subject to the powers of the Tribunal and does not participate in the final decision-making, either by the Tribunal or the JSC. [Nkabinde v The Judicial Service Commission (20857/2014) [2016] ZASCA 12, decided on 10.03.2016]

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