South Africa Case Law

Nkabinde and Another v Judicial Service Commission and Others (20857/2014)

Nkabinde and Another v Judicial Service Commission and Others (20857/2014) [2016] ZASCA 12; [2016] 2 All SA 415 (SCA); 2016 (4) SA 1 (SCA)  (10 March 2016)

Court

Supreme Court of Appeal

Case number

20857/2014

Judges

Navsa, Lewis, Leach, Pillay, Swain

The Supreme Court of Appeal held that the amendments to the Judicial Service Commission Act (JSCA) were procedural in nature and did not affect any substantive rights of the appellants. Therefore, the JSC was entitled to apply the new statutory regime to the pending complaint, and the retrospective application was sensible, fair, and just. The requirement that complaints be lodged on affidavit was substantially complied with through subsequent confirmations under oath, and the absence of an initial affidavit did not invalidate the complaint. Section 24(1) of the JSCA, permitting a member of t…

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• Judicial Misconduct
• Separation Of Powers
• Judicial Independence
• Retrospective Application Of Statutes
• Judicial Service Commission Act
• Procedural Fairness

Poswa v President of the Republic of South Africa and Others (2013/30021)

Poswa v President of the Republic of South Africa and Others (2013/30021) [2014] ZAGPJHC 218; 2015 (2) SA 127 (GJ); [2014] 4 All SA 722 (GP) (15 September 2014)

Court

South Gauteng High Court, Johannesburg

Case number

2013/30021

Judges

C.J. Claassen, N.F. Kgomo, H. Mayat

The court held that the JSC was entitled to apply the amended Judicial Service Commission Act's investigation procedures retrospectively to complaints validly lodged before 1 June 2010, even if those complaints were not made under oath or affirmation. The presumption against retrospectivity does not apply to procedural amendments that do not impair vested rights, and the investigation of complaints is a procedural matter. The applicant was afforded procedural fairness, including opportunities to make written and oral submissions, and the JSC was properly constituted when it decided to appoint…

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• Judicial Service Commission Act
• Judicial Misconduct
• Review Of Administrative Action
• Constitutional Right Of Access To Courts
• Procedural Fairness
• Retrospective Application Of Statutes

Motata v Minister of Justice and Constitutional Development and Others (66300/11)

Motata v Minister of Justice and Constitutional Development and Others (66300/11) [2012] ZAGPPHC 196 (7 September 2012)

Court

North Gauteng High Court, Pretoria

Case number

66300/11

Judge

Nepgen

The court held that the Judicial Service Commission's power to investigate complaints of gross misconduct against judges is derived directly from section 177(1) of the Constitution and does not depend on the existence of an approved Code of Judicial Conduct. The absence of such a Code does not deprive the Commission of its constitutional mandate to exercise a value judgment regarding judicial conduct. The special leave granted to the applicant was lawfully exercised under the relevant regulations. The applicant's arguments regarding the principle of legality and retrospective application of s…

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• Judicial Misconduct
• Code Of Judicial Conduct
• Principle Of Legality
• Special Leave
• Retrospective Application

Dumani v Nair and Another (2458/2010)

Dumani v Nair and Another (2458/2010) [2011] ZAECGHC 36 (12 August 2011)

Court

Eastern Cape High Court, Grahamstown

Case number

2458/2010

Judges

D Chetty, J D Pickering

High Court review of magistrates’ disciplinary findings dismissed; the court held the evidence was credible, the reasoning was rational, and no review ground was shown.

• Promotion Of Administrative Justice Act
• Judicial Misconduct
• Disciplinary Proceedings
• Reasonableness Review
• Irrelevant Considerations
• Onus Of Proof

Maruwa v S (A 327/2010)

Maruwa v S (A 327/2010) [2011] ZAGPPHC 131 (29 July 2011)

Court

North Gauteng High Court, Pretoria

Case number

A 327/2010

Judges

Van der Byl, Southwood

The High Court dismissed a magistrate’s appeal against fraud convictions for conducting traffic matters without a prosecutor and recording false court particulars.

• Fraud
• Misrepresentation
• Judicial Misconduct
• Potential Prejudice
• Criminal Procedure Act
• Traffic Offences

Freedom Under Law v Acting Chairperson: Judicial Service Commission and Others (2011 (3) SA 549 (SCA);

Freedom Under Law v Acting Chairperson: Judicial Service Commission and Others (2011 (3) SA 549 (SCA); [2011] 3 All SA 513 (SCA)) [2011] ZASCA 59; 52/2011 (31 March 2011)

Court

Supreme Court of Appeal

Case number

52/2011

Judges

Streicher, Brand, Cachalia, Theron, Seriti

The Supreme Court of Appeal held that Freedom Under Law had standing to bring the application, given its mission and the public interest in judicial integrity. The JSC failed in its constitutional duty by dismissing the complaint against Judge President Hlophe without a proper investigation, specifically by not allowing cross-examination and by applying an inappropriate standard of proof. The procedure adopted was not suitable for the final determination of serious allegations of judicial misconduct. The JSC's decision was unreasonable and unlawful under PAJA and inconsistent with the Constit…

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• Judicial Misconduct
• Standing
• Promotion Of Administrative Justice Act
• Constitutional Duty
• Gross Misconduct
• Review Of Administrative Action

Langa and Others v Hlophe (697/08)

Langa and Others v Hlophe (697/08) [2009] ZASCA 36; [2009] 3 All SA 417 (SCA) ; 2009 (8) BCLR 823 (SCA) (31 March 2009)

Court

Supreme Court of Appeal

Case number

697/08

Judges

Harms, Streicher, Mthiyane, Nugent, Cloete, Ponnan, Mlambo, Snyders, Mhlantla

The Supreme Court of Appeal held that the appellants, in lodging a complaint of judicial misconduct against the respondent and issuing a media release, did not act institutionally as a court but as individual judges. There is no legal rule, constitutional provision, or authority requiring a complainant—whether a judge or otherwise—to afford the accused judge a hearing before filing a complaint with the Judicial Service Commission. The right to be heard applies to judicial or administrative bodies, not to private individuals acting outside their official capacity. The duties of judges to act w…

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• Judicial Misconduct
• Right To Be Heard
• Declaratory Relief
• Judicial Independence