Judicial Service Commission Amendment Act

1. T he following P r e a m b le is inserted in the Judicial Service C o m m i s s i on Act, 1994, (hereafter referred to as the principal A c t ), after the l o ng title: " P R E A M B LE S I N CE the Judicial Service C o m m i s s i on has been established by section 178(1) of" the Constitution of the R e p u b l ic of S o u th Africa, 1 9 9 6; A ND S I N CE section 178(4) of the Constitution p r o v i d es that the Judicial Service C o m m i s s i on has the p o w e rs and functions a s s i g n ed to it in the Constitution and national legislation; A ND S I N CE section 180 of the Constitution p r o v i d es that national legislation m ay provide for any m a t t er c o n c e r n i ng the administration of j u s t i ce that is not dealt with in the Constitution, judicial officers; including p r o c e d u r es for dealing with c o m p l a i n ts about A ND S I N CE section 177(1) of the Constitution p r o v i d es that a j u d ge m ay be r e m o v ed from office only if— Act No. 20, 2008 JUDICIAL SERVICE COMMISSION AMENDMENT ACT, 2008 (a) (b) the Judicial Service C o m m i s s i on incapacity, is grossly i n c o m p e t e nt or is guilty of gross m i s c o n d u c t; and the National A s s e m b ly calls for that j u d ge to be r e m o v e d, by a resolution adopted with a supporting vote of at least two thirds of its m e m b e r s; the j u d ge suffers from an finds that A ND S I N CE section 177(3) of the Constitution provides that the President, on the advice of the Judicial Service C o m m i s s i on m ay suspend a j u d ge w ho is the subject of a p r o c e d u re in t e r ms of section 177(1); A ND S I N CE it is necessary to create an appropriate and effective b a l a n ce b e t w e en protecting the i n d e p e n d e n ce and dignity of the j u d i c i a ry w h en c o n s i d e r i ng c o m p l a i n ts about, and the possible removal from office of, judicial officers, and the overriding principles of o p e n n e s s, transparency and accountability that p e r m e a te the Constitution and that are equally applicable to judicial institutions and officers; A ND S I N CE it is necessary to create p r o c e d u r e s, structures and m e c h a n i s ms in t e r ms of w h i c h— • • c o m p l a i n ts against j u d g es could be lodged and dealt with appropriately: allegations that any j u d ge is suffering from an incapacity, is grossly i n c o m p e t e nt or is guilty of gross m i s c o n d u ct could be investigated; and information can be placed before and Parliament in order to enable these institutions to m a ke a finding w h e t h er a j u d ge suffers is guilty of gross m i s c o n d u c t , ". the Judicial Service C o m m i s s i on i n c o m p e t e nt or incapacity, is grossly from an • Insertion of h e a d i ng in A ct 9 of 1994

2. T he following heading is inserted in the principal Act after the e n a c t m e nt clause: " C H A P T ER 1 A D M I N I S T R A T I VE P R O V I S I O N S ". S u b s t i t u t i on of section 1 of A ct 9 of 1994

3. T he following section is substituted for section 1 of the principal Act: "Definitions

1. In this Act, unless the context otherwise i n d i c a t e s— the Judicial Service C o m m i s s i on established by ' C h a i r p e r s o n' m e a ns the Chief Justice; ' C o m m i s s i o n' m e a ns section [105] 178 of the Constitution; ' c o m p l a i n a n t' m e a ns a p e r s on w ho lodged a c o m p l a i nt against a j u d ge in t e r ms of section 14; ' M i n i s t e r' m e a ns the Cabinet m e m b er responsible for the administration of j u s t i c e; ' p r e s c r i b e d' m e a ns as prescribed section 3 5; ' r e s p o n d e n t' m e a ns a j u d ge against w h om a c o m p l a i nt w as lodged in terms of section 14, or w ho is the subject of an allegation referred to a Tribunal in terms of this Act; 'this A c t' includes the C o de of Judicial C o n d u ct c o n t e m p l a t ed in section 12 and any regulations m a de under section 3 5; and ' T r i b u n a l' m e a ns a Tribunal appointed in terms of section 2 1 . ". in t e r ms of a regulation m a de u n d er Ad No. 20, 2008 JUDICIAL SERVICE COMMISSION S u b s t i t u t i on of s e c t i on 2 of A ct 9 of 1994 AMENDMENT ACT, 2008

4. T he following section is substituted for section 2 of the principal Act: " A c t i ng C h a i r p e r s on a nd v a c a n c i es 2. [(1) T he m e m b e rs of the C o m m i s s i on d e s i g n a t ed as s u ch in t e r ms of s e c t i on 105 (1) (c), (e), (f), (g), (h) a nd (i) of t he C o n s t i t u t i on shall h o ld office for a t e rm not e x c e e d i ng five y e a r s: P r o v i d ed t h a t— (a) the P r e s i d e nt shall r e m o ve a ny s u ch m e m b er f r om office at a ny t i me if t he d e s i g n a t or w ho or w h i ch d e s i g n a t ed s u ch m e m b e r, so r e q u e s t s; or (b) a ny s u ch m e m b er m ay resign f r om office by g i v i ng at least o ne m o n t h 's written notice thereof to the c h a i r p e r s o n. (2) A m e m b er of the C o m m i s s i on d e s i g n a t ed as s u ch in t e r ms of s e c t i on 105 (1) (e), (f), (g), (h) or (i) of t he C o n s t i t u t i on shall v a c a te h is or h er office a u t o m a t i c a l ly if he or s he c e a s es to be qualified to be so d e s i g n a t e d. (3) S u b j e ct to section 105 (1) of the C o n s t i t u t i o n, a ny p e r s on w h o se t e rm of office as a m e m b er of t he C o m m i s s i on h as e x p i r e d, m ay be r e d e s i g n a t e d. in t e r ms of section 105 (1) (b), (4) T he C o m m i s s i on shall d e s i g n a te o ne of t he m e m b e rs h o l d i ng office (g) or (i) of t he C o n s t i t u t i on as d e p u ty c h a i r p e r s on of t he C o m m i s s i o n, a nd w h en t he c h a i r p e r s on is not a v a i l a b l e, t he d e p u ty c h a i r p e r s on shall act as c h a i r p e r s o n .] (e), (c), (f), (1) W h en the Chairperson is for any reason unavailable to serve on the C o m m i s s i on or perform any function or exercise any power, the D e p u ty Chief Justice, as his or her alternate, shall act as chairperson. (2) If neither the C h i ef Justice nor the Deputy Chief Justice is available to preside at a m e e t i ng of the C o m m i s s i o n, the m e m b e rs present at the m e e t i ng must designate one of the m e m b e rs holding office in terms of section 1 7 8 ( l ) ( b) or (c) of the Constitution as acting chairperson for the duration of the a b s e n c e. [(5)] (3) A vacancy in the C o m m i s s i on s h a l l— the validity of (a) filled the p r o c e e d i n gs or decisions of not affect C o m m i s s i o n; and be the Constitution, and any m e m b er so designated shall, w h e re applicable, hold office for the unexpired portion of his or her p r e d e c e s s o r 's term of office.". in a c c o r d a n ce with (1)] 178(3) of section [105 the (b) S u b s t i t u t i on of s e c t i on 3 of A ct 9 of 1 9 94

5. T he following section is substituted for section 3 of the principal Act: " R e m u n e r a t i on a nd e x p e n s es of m e m b e rs of C o m m i s s i on 3. (1) A ny m e m b er of the C o m m i s s i on w ho is [a j u d g e, a m e m b er of P a r l i a m e nt or a P r e m i er of a p r o v i n c e] an office bearer as defined in section 1 of the I n d e p e n d e nt C o m m i s s i on for the R e m u n e r a t i on of Public Office-Bearers Act, 1997 such a l l o w a n c es for travelling and subsistence e x p e n s es incurred by him or her in the p e r f o r m a n ce of his or her functions as a m e m b er of the C o m m i s s i on as (he M i n i s t er [of J u s t i c e] m ay d e t e r m i ne with the c o n c u r r e n ce of the Minister of F i n a n c e. (Act N o. 92 of 1997), m ay be paid (2) A ny m e m b er of the C o m m i s s i on w ho is n o t— (a) (b) (c) [a j u d g e] an office bearer as defined in section 1 of the I n d e p e n d e nt C o m m i s s i on for the R e m u n e r a t i on of Public Office-Bearers Act, 1997; or [a m e m b er of P a r l i a m e n t; a P r e m i er of a p r o v i n c e; or Act No. 20, 2008 JUDICIAL SERVICE COMMISSION AMENDMENT ACT, 2008 (d)] in the e m p l oy of the State and subject to the laws g o v e r n i ng the public service, may be paid such r e m u n e r a t i o n, including a l l o w a n c es for travelling and subsistence e x p e n s es incurred by him or her in the p e r f o r m a n ce of his or her functions as a m e m b er of the C o m m i s s i o n, as the M i n i s t er [of J u s t i c e] may d e t e r m i ne with the c o n c u r r e n ce of the Minister of F i n a n c e . ". R e p e al of s e c t i on 4 of A ct 9 of 1 9 94

6. Section 4 of the principal Act is repealed. S u b s t i t u t i on of section 5 of A ct 9 of 1 9 94

7. T he following section is substituted for section 5 of the principal Act: " P u b l i c a t i on of p r o c e d u re of C o m m i s s i on

5. T he Minister [of J u s t i ce shall] must by notice in the Gazette, m a ke k n o wn the particulars of the p r o c e d u r e, including s u b s e q u e nt a m e n d m e n t s, which the C o m m i s s i on has d e t e r m i n ed in terms of section [105 (4)] 178(6) of the C o n s t i t u t i o n . ". Substitution section 6 of A ct 9 of 1 9 94

8. T he following section is substituted for section 6 of the principal Act: " A n n u al report 6. (1) T he C o m m i s s i on shall within six m o n t hs after the end of every year submit a written report to Parliament [a report in w r i t i ng r e g a r d i ng its activities d u r i ng that y e a r] for tabling. (2) T he report referred to in subsection (1) m u st include information r e g a r d i n g— (a) (b) the activities of the C o m m i s s i on d u r i ng the year in question; all m a t t e rs dealt with by the Judicial C o n d u ct C o m m i t t ee referred to in section 8; all matters relating to, including the degree of c o m p l i a n ce with, the Register of J u d g e s' Registrable Interests referred to in section 13, as reported by the Registrar of J u d g e s' Registrable Interests; and all matters considered by the application of C h a p t e rs 2 and 3 of this Act, including the n u m b er of matters outstanding and the p r o g r e ss in respect thereof.". the C o m m i s s i on the course of in (e) (d) Insertion of C h a p t e rs 2, 3 a nd 4 in A ct 9 of 1994

9. T he following C h a p t e rs are inserted in the principal Act after section 6, the existing section 7 b e c o m i ng section 39: " C H A P T ER 2 O V E R S I G HT O V ER J U D I C I AL C O N D U CT A ND A C C O U N T A B I L I TY OF J U D I C I AL O F F I C E RS P A RT I Establishment and objects of Committee Definitions a nd i n t e r p r e t a t i on 7. (1) F or p u r p o s es of this Chapter, unless the c o n t e xt indicates o t h e r w i s e— I Act No. 20, 2008 JUDICIAL SERVICE COMMISSION AMENDMENT ACT. 2008 (a) (b) (c) (d) (e) " a c t i ve s e r v i c e" m e a ns active service as c o n t e m p l a t ed in section 1 of the J u d g e s' R e m u n e r a t i on and C o n d i t i o ns of S e r v i ce Act, 2001 (Act N o. 47 of 2 0 0 1 ); " C h a i r p e r s o n ", m e a ns the C h a i r p e r s on of the C o m m i t t e e; " C o m m i s s i o n" m e a ns the C o m m i s s i o n, acting without the participa­ tion of the m e m b e rs referred to in section 1 7 8 ( l ) ( h) and (i) of the Constitution; " C o m m i t t e e" m e a ns the Judicial C o n d u ct C o m m i t t ee referred to in section 8; " H e ad of C o u r t ", in relation to a c o m p l a i nt against a j u d g e— (i) (ii) of the Constitutional C o u r t, m e a ns the C h i ef Justice; of the S u p r e me Court of A p p e a l, m e a ns the President of that Court; of any other court, m e a ns the J u d ge President of that court; (iii) (iv) w ho w as performing judicial duties in an acting capacity on the date the c o m p l a i nt arose, m e a ns the H e ad of C o u rt in which such j u d ge acted w h en the c o m p l a i nt arose; or (v) w ho has been discharged from active service, m e a ns the Chief Justice; (f) (g) " i m m e d i a te family m e m b e r" s p o u s e, civil partner or p e r m a n e nt includes d e p e n d e nt children of, and family m e m b e rs s a me h o u s e h o ld with, that j u d g e; and the to a j u d ge refers life partner of that j u d ge and living in the in relation to " j u d g e" m e a ns any Constitutional C o u rt j u d ge or j u d ge referred to in section 1 of the J u d g e s' R e m u n e r a t i on and C o n d i t i o ns of E m p l o y m e nt Act, 2001 (Act N o. 47 of 2 0 0 1 ), which includes a j u d ge w ho has been discharged from active service in t e r ms of that Act, as well as any person h o l d i ng the office of j u d ge in a court of similar status to a High Court, as c o n t e m p l a t ed in section 166 of the Constitution, and, except for the p u r p o s es of section 11, includes any Constitutional C o u rt j u d ge or j u d ge performing judicial duties in an acting capacity. (2) In this C h a p t er any reference to a c o m p l a i n a nt or to a r e s p o n d e nt must, unless it is inconsistent with the context, be c o n s t r u ed to include a reference to a legal representative of that c o m p l a i n a nt or r e s p o n d e n t. E s t a b l i s h m e nt a nd c o m p o s i t i on of J u d i c i al C o n d u ct C o m m i t t ee 8. (1) T he C o m m i s s i on has a Judicial C o n d u ct C o m m i t t e e, c o m p r i s i n g— (a) (b) (c) the Chief Justice, w ho is the C h a i r p e r s on of the C o m m i t t e e; the Deputy Chief Justice; and four j u d g e s, at least t wo of w h om must be w o m e n, designated by the Chief Justice the period d e t e r m i n ed at the time of such designation, p r o v i d ed that such period may not e x c e ed t wo y e a r s. in consultation with the Minister, for (2) A ny j u d ge designated (\)(c) m ay be r e a p p o i n t ed o n ce for a period not e x c e e d i ng two y e a r s, b ut m ay not serve as such a m e m b er for m o re than four years in total. t e r ms of subsection in (3) T he C h a i r p e r s on may, either generally or in a specific case, delegate any of his or her p o w e rs or functions as C h a i r p e r s on of the C o m m i t t ee to the D e p u ty Chief Justice. (4) W h en c o n s i d e r i ng a c o m p l a i nt relating to the c o n d u ct of a j u d ge w ho that the C o m m i t t ee must sit without the C o m m i t t e e, is a m e m b er of m e m b e r. (5) T he first d e s i g n a t i o ns in t e r ms of subsection (\)(c) must be m a de within one m o n th of this section c o m i ng into operation. (6) A ny vacancy which m ay arise in respect of a designation in terms of subsection 1(c) m u st i m m e d i a t e ly be filled for the r e m a i n i ng period of such designation in the m a n n er prescribed in this section. Act No. 20, 2008 JUDICIAL SERVICE COMMISSION AMENDMENT ACT, 2008 M e e t i n gs of C o m m i t t ee 9. (1) T he C o m m i t t ee m e e ts at any time and place d e t e r m i n ed by the C h a i r p e r s o n. (2) (a) T he C o m m i t t ee m ay d e t e r m i ne the p r o c e d u re to be followed at its m e e t i n g s, but decisions of the C o m m i t t ee must be supported by a majority of its m e m b e r s. (b) In the event of an equality of votes being cast by the C o m m i t t ee m e m b e rs present at a m e e t i n g, the person presiding at that m e e t i ng has a d e c i d i ng vote in addition to his or her deliberative vote. (3) M e e t i n gs of the C o m m i t t ee m ay only be attended by the m e m b e rs of the C o m m i t t ee and persons w h o se p r e s e n ce are required or permitted in t e r ms of this Act, unless the C o m m i t t ee on account of public interest and for g o od c a u se d e c i d es o t h e r w i s e. O b j e c ts of C o m m i t t ee 10. (1) T he objects of the C o m m i t t ee are to receive, c o n s i d er and deal with c o m p l a i n ts in t e r ms of Part III of this Chapter. (2) T he C o m m i t t ee must report on its activities to the C o m m i s s i on at least o n ce every six m o n t h s. P A RT II Judicial conduct J u d ge n ot to h o ld o t h er office of profit or receive p a y m e nt for a ny s e r v i ce 11. (1) A j u d ge performing active s e r v i c e— (a) m ay not hold or perform any other office of profit; and (b) m ay not r e c e i ve in respect of any service any fees, e m o l u m e n ts or other r e m u n e r a t i on or a l l o w a n c es apart from his or h er salary and any other a m o u nt w h i ch m ay be p a y a b le to him or her in his or h er capacity as a j u d g e: P r o v i d ed that such a j u d ge may, with the written c o n s e nt of the Minister acting in consultation with the Chief Justice, receive royalties for legal b o o ks written or edited by that j u d g e. (2) A j u d ge w ho has been discharged from active service m ay only with the written c o n s e nt of the Minister, acting after consultation with the Chief Justice, hold or perform any other office of profit or receive in respect of any fees, e m o l u m e n ts or other r e m u n e r a t i on or a l l o w a n c es apart from his or her salary and any o t h er a m o u nt w h i ch m ay be p a y a b le to h im or her in his or her capacity as a j u d g e. (3) (a) Written c o n s e nt as c o n t e m p l a t ed in subsection (2) may only be g i v en if the M i n i s t er is satisfied that the granting of such c o n s e nt will n o t— adversely affect the efficiency and effectiveness of the administration (i) of j u s t i c e, including the u n d e r m i n i ng of any aspect of the administra­ tion of j u s t i c e, especially the civil justice system; (ii) adversely affect the i m a ge or reputation of the administration of j u s t i ce (iii) (iv) in the R e p u b l i c; in any m a n n er u n d e r m i ne the legal framework w h i ch u n d e r p i ns the j u d ge for life c o n c e p t; result in any j u d ge e n g a g i ng in any activity that is in conflict with the vocation of a j u d g e; and (v) b r i ng the j u d i c i a ry into disrepute or h a ve the potential to do so. (b) T he Minister, acting after consultation with the Chief Justice, may, by issue guidelines r e g a r d i ng any other criteria to be in the granting of c o n s e nt c o n t e m p l a t ed notice in the Gazette, applied w h en c o n s i d e r i ng subsection (2). Act No. 20, 2008 JUDICIAL SERVICE COMMISSION AMENDMENT ACT, 2008 (c) Written consent as c o n t e m p l a t ed in subsection (2) m ay be granted on the conditions, if any, that the M i n i s t er d e e ms appropriate. (4) T he Minister m u st c a u se the Registrar of J u d g e s' Registrable Interests referred to in section 13(1) to be informed of all instances w h e re written consent as c o n t e m p l a t ed in subsections (1) and (2) has been granted. (5) T he Minister must, o n ce every in Parliament c o n t a i n i ng particulars, including the o u t c o m e, of every appli­ cation m a de in terms of subsection (1) or (2), including any conditions attached to any application granted, d u r i ng the period covered by the report. twelve m o n t h s, table a report C o de of Judicial C o n d u ct 12. (1) T he Chief Justice, acting in consultation with the Minister, must c o m p i le a C o de of Judicial C o n d u c t, which must be tabled by the Minister in Parliament for approval. (2) T he M i n i s t er m u st in the P a r l i a m e nt within four m o n t hs of the c o m m e n c e m e nt of this Act, provided that if c o n s e n s us could not be achieved as c o n t e m p l a t ed in subsection (1) both versions of the C o de m u st be tabled in Parliament within the said period. first C o de under this section table (3) W h en the C o de or any a m e n d m e nt thereto is tabled in Parliament in (1) or (2), Parliament may, after obtaining and t e r ms of subsection c o n s i d e r i ng public c o m m e nt thereon, a p p r o ve the C o de or such a m e n d­ m e n t— (a) without any c h a n g es thereto", or (b) with such c h a n g es thereto as may be effected by Parliament. (4) T he C o de m u st be r e v i e w ed at least o n ce in every three years by the C h i ef Justice, acting in consultation with the Minister, and the result of such review, including any p r o p o s ed a m e n d m e nt to the C o d e, must be tabled in Parliament, for approval, as c o n t e m p l a t ed in subsection (3). (5) T he C o de shall serve as the prevailing standard of judicial conduct, subsequent the C o de and every j u d g es m u st adhere which a m e n d m e nt must be published in the Gazette. to, and D i s c l o s u re of registrable interests 13. (1) T he Minister, acting in consultation with the Chief Justice, m u st appoint a senior official in the Office of the Chief Justice as the Registrar of J u d g e s' Registrable Interests. (2) T he Registrar m u st open and k e ep a register, called the Register of J u d g e s' Registrable Interests, and m u s t— (a) (b) (c) record in the Register particulars of J u d g e s' registrable interests; a m e nd any entries in the Register w h en necessary; and perform the other duties in c o n n e c t i on with the Register as required in t e r ms of this A c t. (3) E v e ry j u d ge m u st disclose to the Registrar, in the prescribed form, particulars of all his or her registrable interests and those of his or her i m m e d i a te family m e m b e r s. (4) T he first disclosure in terms of subsection (3) must be within 60 d a ys of a date fixed by the President by p r o c l a m a t i o n, and thereafter annually and in such instances as prescribed. (5) T he Minister, acting in consultation with the Chief Justice, m u st m a ke regulations regarding the c o n t e nt and m a n a g e m e nt of the Register referred to in subsection (2), which regulations m u st at least p r e s c r i b e— (a) (b) the format of the Register; the k i n ds of interests of j u d g es and their i m m e d i a te family m e m b e rs that are regarded as registrable interests; Act No. 20, 2008 JUDICIAL SERVICE COMMISSION AMENDMENT ACT, 2008 (c) (d) (e) (f) (g) the m a n n er and the instances in w h i c h, and t he time limits within which, registrable interests m u st be disclosed to the Registrar; a confidential and a public part of the Register and the interests to be recorded in those parts respectively; the recording, in the public part of the register, of all registrable interests derived from the application of section 11; a procedure providing for public access to the public part of the Register and a p r o c e d u re for providing access to, and m a i n t a i n i ng confidentiality of. the confidential part of the Register; and the l o d g i ng of a c o m p l a i nt in t e r ms of section 14(1) by the Registrar, in the event of— (i) (ii) to register any failure j u d g e, registrable including any failure to register any such interest within a prescribed time limit; or disclosure of false or m i s l e a d i ng information by any j u d g e. interest by any (6) T he regulations may d e t e r m i ne different criteria for j u d g es in active service and j u d g es w ho had been discharged from active service or j u d g es in in an acting capacity, subsection in respect of matters referred including (5)(d). to (7) T he Minister must table the first regulations under this section in Parliament, for approval, within four m o n t hs of the c o m m e n c e m e nt of this Act, p r o v i d ed that if c o n s e n s us could not be achieved as c o n t e m p l a t ed in subsection (5) both versions of the regulations m u st be tabled in Parliament within the said period. (8) W h en the regulations or any a m e n d m e nt in Parliament, Parliament may, after obtaining and c o n s i d e r i ng public c o m m e nt thereon, a p p r o ve the regulations or such a m e n d m e n t— (a) w i t h o ut any c h a n g es thereto; or (b) with such c h a n g es thereto as m ay be effected by P a r l i a m e n t. thereto tabled is P A RT III Consideration of complaints by Committee L o d g i ng of c o m p l a i n ts 14. (1) A ny person m ay C h a i r p e r s on of the C o m m i t t e e. lodge a c o m p l a i nt about a j u d ge with the is lodged with (2) W h en a c o m p l a i nt in terms of subsection (1), the C h a i r p e r s on must deal with the c o m p l a i nt in a c c o r d a n ce with section 15, 16 or 17, but in the event of a c o m p l a i nt falling within the p a r a m e t e rs of section 15, the Chairperson m ay designate a H e ad of Court to deal with the complaint, unless the c o m p l a i nt is against the H e ad of Court. the C h a i r p e r s on (3) A c o m p l a i nt must b e— (a) (b) based on one or m o re of the g r o u n ds referred to in subsection (4); and lodged by m e a ns of an affidavit or affirmed statement, s p e c i f y i n g— (i) (ii) the nature of the c o m p l a i n t; and the facts on w h i ch the c o m p l a i nt is based. (4) T he g r o u n ds upon which any c o m p l a i nt against a j u d ge may be lodged, are any one or more of the following: (a) Incapacity g i v i ng rise to a j u d g e 's inability to perform the functions of judicial office in a c c o r d a n ce with prevailing standards, or gross i n c o m p e t e n c e, or gross m i s c o n d u c t, as e n v i s a g ed in section 177(1 )(a) of the Constitution; Act No. 20, 2008 JUDICIAL SERVICE COMMISSION AMENDMENT ACT, 2008 (b) A ny wilful or grossly negligent breach of the C o de of judicial C o n d u ct referred to in section 12, including any failure to c o m p ly with any regulation referred to in section 13(5); (c) A c c e p t i n g, holding or performing any office of profit or r e c e i v i ng any fees, e m o l u m e n ts or r e m u n e r a t i on or a l l o w a n c es in contravention of section 11; (d) A ny wilful or grossly negligent failure to c o m p ly with any remedial step, c o n t e m p l a t ed in section 17(8), i m p o s ed in t e r ms of this Act; and (e) A ny other wilful or grossly negligent conduct, other than conduct c o n t e m p l a t ed in paragraph (a) to (d), that is i n c o m p a t i b le with or u n b e c o m i ng the h o l d i ng of judicial office, i n c l u d i ng any c o n d u ct that is prejudicial to the i n d e p e n d e n c e, impartiality, dignity, accessibility, efficiency or effectiveness of the courts. L e s s er c o m p l a i n ts m ay be s u m m a r i ly d i s m i s s ed 15. (1) ( a) If the Chairperson or the H e ad of C o u rt d e s i g n a t ed in terms of section 14(2) is of the view that the c o m p l a i nt falls within the p a r a m e t e rs of the g r o u n ds set out in subsection (2), he or she must d i s m i ss the c o m p l a i n t. (b) If the H e ad of Court designated in terms of section 14(2) is of the view that the c o m p l a i nt should not be d i s m i s s ed u n d er p a r a g r a ph ( a ). he or she m u st refer the c o m p l a i nt to the C h a i r p e r s on to be dealt with in t e r ms of section 16 or 17. (2) A c o m p l a i nt must be d i s m i s s ed if it— (a) (b) (c) (d) (e) d o es not fall within the p a r a m e t e rs of any of the g r o u n ds set out in section 14(4); d o es not c o m p ly substantially with the p r o v i s i o ns of section 14(3); is solely related to the merits of a j u d g m e nt or order; is frivolous or lacking in substance; or is hypothetical. (3) If a c o m p l a i nt is dismissed in terms of subsection (1) by a H e ad of Court, that H e ad of Court must inform the C h a i r p e r s on in writing of that dismissal and the r e a s o ns therefore. (4) If a c o m p l a i nt is d i s m i s s ed in t e r ms of subsection (1), the Chairperson must inform the c o m p l a i n a nt in writing of— the r e a s o ns for the dismissal; and (a) the right to appeal to the C o m m i t t ee against that dismissal in t e r ms of (b) subsection (5). (5) A c o m p l a i n a nt w ho to dismiss a c o m p l a i nt in t e r ms of subsection (1) may, within o ne m o n th after receiving that notice of that decision, appeal to the C o m m i t t ee decision, specifying the g r o u n ds for the appeal. is dissatisfied with a decision in writing against C o m m i t t ee m ay r e c o m m e nd a p p o i n t m e nt of T r i b u n al in respect of i m p e a c h a b le c o m p l a i n ts lead that, to is satisfied likely it is 16. (1) If the Chairperson c o m p l a i nt being established, C o m m i s s i on that the respondent suffers from an incapacity, i n c o m p e t e nt or is guilty of gross m i s c o n d u c t, as e n v i s a g ed 14(4)(a), the Chairperson m u s t— (a) in the event of a valid the to a finding by is grossly in section refer the c o m p l a i nt to the C o m m i t t ee in order to c o n s i d er w h e t h er it should r e c o m m e nd to the C o m m i s s i on that the c o m p l a i nt should be investigated and reported on by a Tribunal; and in writing, inform the r e s p o n d e nt of the c o m p l a i n t. (b) (2) If a c o m p l a i nt is referred to the C o m m i t t ee in t e r ms of subsection (1) or section 15(1)(b) or section l7(4)(c) or 17(5)(c)(iii), the Chairperson m u st d e t e r m i ne a t i me and a place for the C o m m i t t ee to meet in order to consider the a r e c o m m e n d a t i on e n v i s a g ed c o m p l a i n a nt and the respondent in writing that he or she m a y— in subsection (\)(a), and m u st inform Act No. 20, 2008 JUDICIAL SERVICE COMMISSION AMENDMENT ACT, 2008 (a) submit a written representation for consideration by the C o m m i t t ee at that m e e t i n g; and (b) with the leave of the C h a i r p e r s o n, address the C o m m i t t ee at that m e e t i n g. (3) For the p u r p o se of a m e e t i ng referred the C o m m i t t ee m ay request such further information from the c o m p l a i n a nt or any other person as it d e e ms fit. to in subsection (2), (4) At the m e e t i ng referred to in subsection (2), the C o m m i t t ee must indicate consider w h e t h er the c o m p l a i n t, if established, will prima incapacity, gross i n c o m p e t e n ce or gross m i s c o n d u ct by the respondent, w h e r e u p on the C o m m i t t ee m a y— (a) refer the c o m p l a i nt to the Chairperson for an inquiry referred to in section 17(2); or r e c o m m e nd to the C o m m i s s i on that the c o m p l a i nt should be investi­ gated by a Tribunal. facie (b) (5) T he C o m m i t t ee must inform the c o m p l a i n a n t, the respondent and the C o m m i s s i on in writing of any decision e n v i s a g ed in subsection (4) and the r e a s o ns therefore. (6) A m e e t i ng referred to in subsection (2) m u st be a t t e n d ed by at least three m e m b e rs of the C o m m i t t e e. I n q u i ry into s e r i o u s, n o n - i m p e a c h a b le c o m p l a i n ts by C h a i r p e r s on or m e m b er of C o m m i t t ee 17. ( 1 ) 1 1— (a) (b) the C h a i r p e r s on is satisfied that, in the event of a valid c o m p l a i nt being established, the a p p r o p r i a te remedial action will be limited to one or m o re of the steps e n v i s a g ed in subsection (8); or a c o m p l a i nt is referred to the Chairperson in t e r ms of section 15(1)(b) or section 16(4)(a), or section 18(4)(a)(ii), the C h a i r p e r s on or a m e m b er of the C o m m i t t ee designated by the C h a i r p e r s on m u st inquire into the c o m p l a i nt in order to d e t e r m i ne the merits of the complaint. (2) A ny inquiry c o n t e m p l a t ed in this section m u st be c o n d u c t ed in an inquisitorial m a n n er and there is no o n us on any p e r s on to prove or to disprove any fact during such investigation. (3) F or the p u r p o se of an inquiry referred to in subsection (2), the C h a i r p e r s on or m e m b er c o n c e r n e d— in writing or (a) m u st invite the r e s p o n d e nt to respond in any other m a n n er specified, and within a specified period, to the allegations; (b) m ay obtain, in the m a n n er that he or she d e e ms appropriate, any other information which m ay be relevant to the c o m p l a i n t; and (c) must invite the complainant to comment on any information so obtained, and on the response of the respondent, within a specified period. (4) If, pursuant to the steps referred to in subsection (3), t he C h a i r p e r s on or m e m b er c o n c e r n ed is satisfied that there is no r e a s o n a b le likelihood that a formal h e a r i ng on the matter will contribute to d e t e r m i n i ng the merits of the c o m p l a i n t, he or she must, on the strength of the information obtained by him or her in t e r ms of subsection ( 3 )— (a) (b) d i s m i ss the c o m p l a i n t; find that the c o m p l a i nt has been established and that the r e s p o n d e nt has b e h a v ed in a m a n n er w h i ch is u n b e c o m i ng of a j u d g e, and i m p o se any of the r e s p o n d e n t; or r e c o m m e nd to the C o m m i t t e e, to r e c o m m e nd to the C o m m i s s i on that the c o m p l a i nt should be investigated by a Tribunal. the r e m e d i al steps referred in subsection (8) on (c) to (5) (a) If, pursuant to t he steps referred the Chairperson or m e m b er c o n c e r n ed is of the opinion that a formal hearing is required in order to d e t e r m i ne the merits of the complaint, he or she m u st d e t e r m i ne a t i me and a place for a formal hearing and written notice of the hearing must, within a r e a s o n a b le period before the date so d e t e r m i n e d, be given to the r e s p o n d e nt and the c o m p l a i n a n t. in subsection (3), to (b) F or p u r p o s es of a formal hearing c o n t e m p l a t ed in p a r a g r a ph ( a )— (i) the C h a i r p e r s on or m e m b er c o n c e r n ed has all the p o w e rs of a Tribunal; and Act No. 20, 2008 JUDICIAL SERVICE COMMISSION AMENDMENT ACT. 2008 (ii) the provisions of sections 2 4, 26, 27, 2 8, 2 9. 30, 31 and 32 are applicable with the c h a n g es required by the context. (c) Upon the c o n c l u s i on of a formal h e a r i ng the C h a i r p e r s on or m e m b er c o n c e r n ed must record his or her findings of fact, including the c o g e n cy and the d e m e a n o ur and credibility of any sufficiency of the e v i d e n ce and witness, and his or her finding as to the merits of the c o m p l a i n t, a n d— (i) dismiss the c o m p l a i n t; (ii) find that the c o m p l a i nt has been established and that the r e s p o n d e nt has b e h a v ed in a m a n n er w h i ch is u n b e c o m i ng of a j u d g e, and i m p o se any of the r e s p o n d e n t: or r e c o m m e nd to the C o m m i t t e e, to r e c o m m e nd to the C o m m i s s i on that the c o m p l a i nt should be investigated by a Tribunal. steps referred in subsection the remedial (8) on to (iii) (6) T he C h a i r p e r s on or m e m b er c o n c e r n ed m u st in writing inform the C o m m i t t e e, the c o m p l a i n a nt and the respondent of— (a) (b) a dismissal c o n t e m p l a t ed in subsection (4)(a) or (5)(c)(i); any finding and r e m e d i al steps c o n t e m p l a t ed in subsection (4Kb) or or (5)(c)(ii); or any r e c o m m e n d a t i on c o n t e m p l a t ed in subsection 4 ( c) or (5)(c)(iii), (c) and the r e a s o ns therefor. (7) (a) A c o m p l a i n a nt w ho is dissatisfied with a decision to dismiss a c o m p l a i nt in terms of subsection (4)(a) or (5)(c)(i) may, within one month after receiving notice of that decision, appeal to the C o m m i t t ee in writing against that decision, specifying the g r o u n ds for the appeal. (b) A r e s p o n d e nt w ho is dissatisfied with any finding or r e m e d i al steps c o n t e m p l a t ed in subsection (4)(b) or (5)(c)(ii) may, within one m o n th after receiving notice of that finding and r e m e d i al steps, appeal to the C o m m i t t ee in writing against that finding or remedial steps or both such finding and remedial steps, specifying the g r o u n ds for the appeal. (8) A ny o ne or a c o m b i n a t i on of the following remedial steps may be i m p o s ed in respect of a r e s p o n d e n t: (a) A p o l o g i s i ng to the c o m p l a i n a n t, in a m a n n er specified. (b) A r e p r i m a n d. (c) A written w a r n i n g. (d) A ny form of c o m p e n s a t i o n. (e) (f) (g) Subject to subsection (9), appropriate counselling. Subject to subsection (9). a t t e n d a n ce of a specific training course. Subject to subsection (9), any other appropriate corrective m e a s u r e. (9) T he state shall not be responsible for any expenditure incurred as a result of, or associated with, any r e m e dy referred to in subsection (8)(e), (f) or (g), unless such r e m e dy w as selected from a list of a p p r o v ed r e m e d i es or services c o m p i l ed from time to time by the Minister, after consultation with the Chief Justice, and then only to the extent set out in that list. C o n s i d e r a t i on of appeal by C o m m i t t ee 18. ( 1) T he C o m m i t t ee m u st consider an appeal referred to in section 15(5) or 17(7) at a m e e t i ng d e t e r m i n ed by the C h a i r p e r s on m u st inform the c o m p l a i n a nt and the r e s p o n d e nt in w r i t i n g— (a) (b) of the time and place of the m e e t i n g; and that they m ay submit written representations within a specified period for consideration by the C o m m i t t e e. the C h a i r p e r s o n, and (2) (a) A m e e t i ng referred to in subsection (1) must, subject to p a r a g r a ph (c), be a t t e n d ed by at least three m e m b e rs of the C o m m i t t ee and be presided finding, o v er by the C h a i r p e r s o n, but no m e m b er w ho m a de any decision or or i m p o s ed any remedial step, that is the subject of the appeal, may participate in the consideration of the appeal. (b) In the event of the a b s e n ce of the C h a i r p e r s on to preside in a specific appeal, the Chief Justice m u st appoint an acting chairperson from a m o n g st the m e m b e rs of the C o m m i t t e e, to preside in that appeal. Act No. 20, 2008 JUDICIAL SERVICE COMMISSION AMENDMENT ACT, 2008 (c) If any m e m b er of the C o m m i t t ee is for any reason unable to participate in the consideration of an appeal in terms of this section and there are not at least three of the other m e m b e rs available to so participate in the appeal, the Chief Justice may appoint any j u d ge as a temporary m e m b er of the C o m m i t t ee for the purpose of the consideration of such an appeal. (3) At the m e e t i ng referred to in subsection (1), the C o m m i t t ee must c o n s i d e r— (a) t he reasons for— (i) (ii) the dismissal against w h i ch the appeal is brought, as c o n t e m­ plated in section 15(4)(a) or 17(6)(a); or the finding or r e m e d i al steps, or the finding and the remedial steps, as the case m ay b e, against w h i ch the appeal is b r o u g h t, as c o n t e m p l a t ed in section 17(6)(b); (b) (c) (d) the appeal, as c o n t e m p l a t ed the g r o u n ds for 17(l)(a) or (b), as the c a se m ay b e; any representations s u b m i t t ed in t e r ms of subsection (1)(b): and such further written or oral a r g u m e n t, if any. as m ay be requested by the C o m m i t t e e. in section 15(5) or (4) After consideration of an appeal in terms of subsection (3), the C o m m i t t ee m u s t— (a) (i) (ii) the case of an appeal against a dismissal of a c o m p l a i nt as in c o n t e m p l a t ed in section 1 5 ( 4 ) ( a )— confirm the dismissal; set aside the c o m p l a i nt Chairperson for an inquiry in terms of section 17; or set aside the dismissal and r e c o m m e nd to the C o m m i s s i on that the c o m p l a i nt should be investigated by a Tribunal in t e r ms of section 19; the dismissal refer (iii) and the to (b) the case of an appeal against a dismissal of a c o m p l a i nt as in c o n t e m p l a t ed in section 1 7 ( 7) ( a )— (i) (ii) (iii) is u n b e c o m i ng of a j u d g e, and confirm the d i s m i s s a l; set aside the dismissal, and find that the complaint has been established and that the r e s p o n d e nt has b e h a v ed in a m a n n er which the remedial steps referred to in section 17(8) on the r e s p o n d e n t; or set aside the dismissal and r e c o m m e nd to the C o m m i s s i on that the c o m p l a i nt should be investigated by a Tribunal in t e r ms of section 19; or i m p o se any of (c) in the c a se of an appeal against a finding or remedial steps, or a and r e m e d i al steps as c o n t e m p l a t ed in section 1 7 ( 7 ) ( b )— finding (i) (ii) (iii) set aside the decision c o n c e r n e d; or confirm the decision or set aside the d e c i s i on c o n c e r n ed and substitute it with an a p p r o p r i a te decision, with or without any a m e n d m e nt of the r e m e d i al steps i m p o s e d, if applicable; or set aside the decision and r e c o m m e nd to the C o m m i s s i on that the complaint should be investigated by a Tribunal in t e r ms of section 19. (5) T he C o m m i t t ee m u st in writing inform the c o m p l a i n a nt and r e s p o n d e nt of its decision therefore. in t e r ms of subsection (4) and the P A RT IV the reasons Request to appoint Tribunal and consideration of Tribunal report by Commission C o m m i s s i on to request a p p o i n t m e nt of Tribunal 19. (1) W h e n e v er it appears to the C o m m i s s i o n— (a) (b) on account of a r e c o m m e n d a t i on by the C o m m i t t ee in terms of section 16(4)(b) or 18(4)(a)(iii). (b)(iii) or (c)(iii): or on any other g r o u n d s, that there are r e a s o n a b le g r o u n ds to suspect that a j u d g e— (i) is suffering from an incapacity; Act No. 20, 2008 JUDICIAL SERVICE COMMISSION AMENDMENT ACT, 2008 (ii) (iii) is grossly i n c o m p e t e n t; or is guilty of gross m i s c o n d u c t, as c o n t e m p l a t ed in section 177(1 )(a) of the Constitution, the C o m m i s s i on m u st request the C h i ef Justice to appoint a Tribunal in t e r ms of section 2 1. (2) T he C o m m i s s i on must in writing state the allegations, including any the Tribunal must respect of w h i ch information, in other relevant investigate and report. (3) T he C o m m i s s i on must, unless it is acting on a r e c o m m e n d a t i on referred to in section 16(4)(c) or 18(4)(a)(iii), (b)(iii) or (c)(iii). before it requests the a p p o i n t m e nt of a Tribunal, inform the r e s p o n d e n t, and. if applicable, the c o m p l a i n a n t, that it is c o n s i d e r i ng to m a ke that r e q u e st and invite the respondent, and, if applicable, the c o m p l a i n a n t, to c o m m e nt in writing on the fact that the C o m m i s s i on is c o n s i d e r i ng to so request. (4) W h e n e v er the C o m m i s s i on requests the a p p o i n t m e nt of a Tribunal in t e r ms of subsection (1), the C o m m i s s i on must forthwith in w r i t i n g— (a) (b) inform the President that it has so requested; and advise the P r e s i d e nt as to — (i) (ii) the desirability of s u s p e n d i ng section 177(3) of the Constitution; and if applicable, any conditions respect of such suspension. the r e s p o n d e nt in t e r ms of that should be applicable in C o m m i s s i on to c o n s i d er r e p o rt a nd m a ke findings 2 0. (1) T he C o m m i s s i on m u st consider the report of a Tribunal at a inform m e e t i ng d e t e r m i n ed by the C h a i r p e r s o n, and the C o m m i s s i on must the r e s p o n d e nt and, if applicable, the c o m p l a i n a n t, in w r i t i n g— (a) (b) of the time and place of the m e e t i n g; and that he or she m ay submit written representations within a specified period for consideration by the C o m m i s s i o n. (2) At the m e e t i ng referred to in subsection (1) the C o m m i s s i on m u st c o n s i d e r— (a) (b) the report c o n c e r n e d; and any representations submitted in terms of subsection (\)(b). (3) After consideration of a report and any applicable representations in terms of subsection (2), the C o m m i s s i on must m a ke a finding as to w h e t h er the r e s p o n d e n t— (a) (b) is suffering from an incapacity; is grossly i n c o m p e t e n t; or (c)is guilty of gross m i s c o n d u c t. (4) If the C o m m i s s i on finds that the r e s p o n d e nt is suffering from an the incapacity, is grossly C o m m i s s i on m u st submit that finding, together with the r e a s o ns therefore and a copy of the report, including any relevant material, of the Tribunal, to the S p e a k er of the National A s s e m b l y. i n c o m p e t e nt or is guilty of gross m i s c o n d u c t, (5) If the C o m m i s s i o n, after consideration of a report and any applicable representations in terms of subsection (2) finds that the r e s p o n d e n t— (a) is not grossly i n c o m p e t e n t, but that there is sufficient c a u se for the r e s p o n d e nt to attend a specific training or counselling c o u r se or be subjected to any other appropriate corrective m e a s u r e, the C o m m i s­ sion m ay m a ke a finding that the r e s p o n d e nt must attend such a c o u r se or be subjected to such m e a s u r e; or (b) is guilty of a d e g r ee of m i s c o n d u ct not a m o u n t i ng to gross m i s c o n d u c t, the C o m m i s s i on may, subject to section 17(9), i m p o se any o ne or a c o m b i n a t i on of the r e m e d i al steps referred to in section 17(8) (6) T he C o m m i s s i on m u st in writing inform the r e s p o n d e nt in respect of if w h om a finding referred applicable, the c o m p l a i n a n t, of that finding and the r e a s o ns therefore. in subsection (4) or (5) is m a d e, and, to Act No. 20, 2008 JUDICIAL SERVICE COMMISSION AMENDMENT ACT, 2008 C H A P T ER 3 J U D I C I AL C O N D U CT T R I B U N A LS P a rt 1 Introductory provisions A p p o i n t m e nt of Tribunal 2 1. (1) T he Chief Justice m u st appoint a Judicial C o n d u ct Tribunal, w h e n e v er requested to do so by the C o m m i s s i o n. (2) T he Chief Justice must, after consultation w i th the Minister, d e s i g n a te a place in t he R e p u b l ic as the seat of e a ch Tribunal established in terms of this Act, but a Tribunal m ay sit at any place for the p u r p o se of a hearing or of deliberating. (3) Before a p p o i n t i ng any j u d ge to a Tribunal, the Chief Justice must consult with the head of the court on which that j u d ge serves. (4) U p on appointing a Tribunal, the Chief Justice must g i ve written notice of the c o m p o s i t i o n, terms of reference, and seat of the T r i b u n a l, and the date by w h i ch the Tribunal is to c o m m e n ce p r o c e e d i n g s, t o— (a) (b) (c) (d) the m e m b e rs of the Tribunal the Minister; the r e s p o n d e n t: and the c o m p l a i n a n t. (5) T he Chief J u s t i c e- fa) m u st delegate the functions assigned to the Chief Justice in t e r ms of this Part or section 10(2) to the D e p u ty Chief Justice, if the Chief J u s t i c e— (i) (ii) is the r e s p o n d e n t; o r— is personally implicated in the allegations against a judicial officer; and (b) m ay delegate any of the functions assigned to the Chief Justice in t e r ms of this Part or section 29(2) to the D e p u ty Chief Justice, in any other c a s e. C o m p o s i t i on of Tribunal 2 2. (1) A Tribunal c o m p r i s e s— (a) (b) t wo j u d g e s, one of w h om must be designated by the C h i ef Justice as the Tribunal President; and one person w h o se n a me a p p e a rs on the list m a i n t a i n ed in t e r ms of section 2 3 ( 1 ). (2) At least o ne m e m b er of every Tribunal must be a w o m a n. (3) If a vacancy arises a m o ng the m e m b e rs of a Tribunal, or if a m e m b er of a Tribunal for any reason b e c o m es unable to c o n t i n ue to serve on the Tribunal, a n d— (a) there are at least t wo m e m b e rs r e m a i n i ng on the Tribunal, the Tribunal m u st c o n t i n ue its functions; or in any other c a s e— (b) (i) (ii) (iii) the Tribunal is dissolved; the Chief Justice m u st appoint a new Tribunal; and any e v i d e n ce gathered by or submitted to the former Tribunal, and any record kept by the former Tribunal, m ay be c o n s i d e r ed by t he n ew Tribunal. Act No. 20, 2008 JUDICIAL SERVICE COMMISSION AMENDMENT ACT, 2008 N o n - j u d i c i al m e m b e rs of t r i b u n a ls 2 3. (1) T he E x e c u t i ve Secretary must, in the p r e s c r i b ed m a n n er and form, establish and maintain a list of p e r s o ns w ho are not judicial officers the and w ho h a ve been approved by c o n c u r r e n ce of the Minister, as b e i ng suitable to serve on Tribunals in terms of section 22(1)(b). the Chief Justice, acting with (2) T he Minister, in consultation with the Cabinet m e m b er r e s p o n s i b le for finance, m ay by notice in the Gazette prescribe a tariff of a l l o w a n c es to be paid for service as a m e m b er of a Tribunal to a person appointed in t e r ms of section 22(l)(b). Tribunal investigative a nd a d m i n i s t r a t i ve s u p p o rt 2 4. (1) T he President of a Tribunal may, after c o n s u l t i ng the M i n i s t er and the National Director of Public P r o s e c u t i o n s, appoint a m e m b er of the National P r o s e c u t i ng Authority the Tribunal, and to a d d u ce e v i d e n ce at a hearing; to collect e v i d e n ce on behalf of (2) T he E x e c u t i ve Secretary in the Office of the Chief Justice m u st assign such other e m p l o y e es of the Office to the Tribunal as m ay be necessary to assist the Tribunal in the p e r f o r m a n ce of its functions. R u l es a nd p r o c e d u re 2 5. (1) T he Chief Justice must m a ke rules regulating p r o c e d u r es before a Tribunal. (2) R u l es m a de under subsection ( 1 )— are applicable to all Tribunals; (a) (b) m ay be a m e n d ed or repealed at any time; (c) m u st be tabled in Parliament by the Minister before publication in the Gazette; and (d) m u st be published in the Gazette. (3) T he first rules m a de under this section m u st be m a de within six m o n t hs from the date of the c o m m e n c e m e nt of this section. (4) Subject to this Act, a Tribunal has the p o w er to regulate and protect its o wn p r o c e e d i n g s. P A RT 2 Hearings of Tribunal O b j e c ts a nd n a t u re of Tribunal 2 6. (1) T he objects of a Tribunal a r e— (a) to inquire into allegations of incapacity, gross i n c o m p e t e n ce or gross m i s c o n d u ct against a j u d g e, as c o n t e m p l a t ed in section 177 of the Constitution, b y— collecting e v i d e n c e; (i) (ii) c o n d u c t i ng a formal h e a r i n g; (iii) m a k i ng findings of fact; and (iv) m a k i ng a d e t e r m i n a t i on on the merits of the allegations; and (b) to submit a report c o n t a i n i ng C o m m i s s i o n. its findings to the Judicial Service (2) A Tribunal c o n d u c ts its inquiry in an inquisitorial m a n n er and there is no o n us on any person to prove or to d i s p r o ve any fact before a Tribunal. (3) W h en c o n s i d e r i ng the merits of any allegations against a j u d g e, the Tribunal m u st m a ke its d e t e r m i n a t i on on a balance of probabilities. (4) A Tribunal m u st k e ep a record of its p r o c e e d i n g s. Act No. 20, 2008 JUDICIAL SERVICE COMMISSION AMENDMENT ACT, 2008 H e a r i ng to b e g in a nd be c o n c l u d ed w i t h o ut u n r e a s o n a b le d e l ay 27. (1) In the interests of protecting and e n h a n c i ng the dignity and effectiveness of the j u d i c i a ry and the courts, a Tribunal m u s t— (a) t i me and place for c o n d u c t i ng a hearing as soon as r e a s o n a b ly practicable after its a p p o i n t m e n t, d e t e r m i ne a date, the allegations referred to it; and c o n c l u de the h e a r i ng without u n r e a s o n a b le delay. in respect of (b) (2) Subject to subsection ( l ) ( b ), a Tribunal m ay adjourn its p r o c e e d i n gs at any time, to any date, time and place. I n v o l v e m e nt of j u d i c i al officer w h o se c o n d u ct is s u b j e ct of h e a r i ng 28. (1) N o t i ce of a hearing must be served on the r e s p o n d e nt within a reasonable period before the date set for that hearing. (2) T he r e s p o n d e nt is entitled to attend the hearing and to be assisted by a legal representative, but the Tribunal m ay begin or c o n t i n ue a h e a r i n g, in whole or in part, in the a b s e n ce of the respondent, or the r e s p o n d e n t 's legal representative, or both of the if r e s p o n d e nt w as properly informed of the hearing. the Tribunal is satisfied t h e m, that (a) (b) (c) (e) (3) T he r e s p o n d e nt is e n t i t l e d— to g i ve and a d d u ce e v i d e n c e; to call w i t n e s s e s, and to c r o s s - e x a m i ne any w i t n e s s; to h a ve access to any b o o k s, d o c u m e n ts or other objects p r o d u c ed in e v i d e n c e; and to m a ke a s u b m i s s i on to the Tribunal before the conclusion of the hearing. A t t e n d a n ce at h e a r i ng a nd d i s c l o s u re of e v i d e n ce 29. (1) A h e a r i ng of a Tribunal may be attended only b y— (a) (b) (c) (d) (e) the r e s p o n d e n t; the r e s p o n d e n t 's legal representative, if one has been appointed; any p e r s on w ho lodged a formal c o m p l a i nt against the respondent, if that c o m p l a i nt is related to the hearing; the legal representative of each person c o n t e m p l a t ed in p a r a g r a ph (c); any person s u b p o e n a ed in t e r ms of section 3 0. or called as a witness by the r e s p o n d e n t, e a ch of w h om may a t t e n d— (i) with or w i t h o ut a legal representative; and (ii) only for the period that person is required by the Tribunal; (f) any person c o n t e m p l a t ed in section 2 4 ( 2 ). if that p e r s o n 's p r e s e n ce is required by the Tribunal; and (g) any other person w h o se p r e s e n ce n e c e s s a ry or expedient. the Tribunal c o n s i d e rs to be (2) Subject to sections 32 and 3 3, a person m ay not disclose to any other person the c o n t e n ts of a b o o k, d o c u m e nt or other object in the possession of a Tribunal or the record of any e v i d e n ce given before a Tribunal, except to the extent that the Tribunal President, in consultation with the C h i ef Justice, d e t e r m i n es o t h e r w i s e. (3)(a) N o t w i t h s t a n d i ng subsection (1), the Tribunal President may, if it is in the public interest and for the p u r p o s es of transparency, d e t e r m i ne that all or any part of a h e a r i ng of a Tribunal must be held in public. (b) A d e t e r m i n a t i on c o n t e m p l a t ed in paragraph (a) must be m a de in consultation with the Chief Justice. (c) Subsection (2) d o es not apply is m a de under paragraph (a), but the Tribunal P r e s i d e nt m ay prohibit the publication of any information or d o c u m e nt placed before the Tribunal if that publication is not in the public interest. if a d e t e r m i n a t i on Act No. 20, 2008 JUDICIAL SERVICE COMMISSION AMENDMENT ACT, 2008 T r i b u n al m ay s u b p o e na w i t n e s s es 3 0. A Tribunal m ay s u b p o e na any person to a p p e ar before it in p e r s on at a h e a r i ng a n d— (a) to p r o d u ce any book, d o c u m e n t, statement or object relating to the hearing; and (b) to a n s w er q u e s t i o ns under oath or affirmation. E v i d e n ce to be g i v en u n d er o a th or affirmation 3 1. (1) No p e r s on m ay testify before, or be q u e s t i o n ed by, a Tribunal unless the oath or affirmation that is usually a d m i n i s t e r ed or accepted in a court of law, has been a d m i n i s t e r ed to or accepted from that p e r s on by the Tribunal or, if e v i d e n ce is to be given by such p e r s on through an interpreter, by the Tribunal t h r o u gh the interpreter. (2) An oath or affirmation administered to or accepted from a person in t e r ms of subsection (1) r e m a i ns b i n d i ng on that p e r s on until the Tribunal has c o n c l u d ed the hearing or finally e x c u s ed that person. (3) A p e r s on g i v i ng e v i d e n ce at a h e a r i ng of the tribunal m u st a n s w er any relevant question. (4) A q u e s t i o n, or i n c r i m i n a t i ng to do so. tribunal m ay order a person giving e v i d e n ce to p r o d u ce any article or d o c u m e n t, e v en to a n s w er any is self- if it (5) A self-incriminating a n s w er given or statement m a de by a p e r s on in t e r ms of this A ct is i n a d m i s s i b le as g i v i ng e v i d e n ce to a Tribunal e v i d e n ce against that person instituted in any court, except in criminal p r o c e e d i n gs for perjury, or in w h i ch that p e r s on is tried for an offence c o n t e m p l a t ed in section 34( 1 )(b), and then such an a n s w er or statement is admissible only to the extent that it is relevant to p r o ve the offence charged. in any criminal p r o c e e d i n gs against that p e r s on E v i d e n ce d i s c l o s i ng offence 3 2. If t he Tribunal is of the opinion that e v i d e n ce before the Tribunal discloses the c o m m i s s i on of an offence by the respondent, the Tribunal the National Director of Public P r o s e c u t i o ns President must notify accordingly d u r i ng or after the hearing and c a u se a c o py of the record or the relevant part of the record in question to be s u b m i t t ed to the N a t i o n al Director of" Public P r o s e c u t i o n s. F i n d i n gs a nd r e p o rt 3 3. ( I) U p on the conclusion of a hearing, the Tribunal m u s t— (a) (b) r e c o rd its findings of fact, including the c o g e n cy and sufficiency of the e v i d e n ce and the d e m e a n o ur and credibility of any w i t n e s s, and its as to the merits of the allegations in q u e s t i o n; and findings s u b m it a report to the Judicial Service C o m m i s s i o n, c o n t a i n i n g— (i) (ii) (iii) its findings and the r e a s o ns for t h e m; a copy of the record of the hearing; and all other relevant d o c u m e n t s. (2) T he Tribunal m u st submit a copy of its report, and all other relevant d o c u m e n t s, to the Chief Justice for safekeeping. Act No. 20, 2008 JUDICIAL SERVICE COMMISSION AMENDMENT ACT, 2008 P A RT 3 Offences relating to Tribunals Offences 3 4. (1) A p e r s on is guilty of an offence in terms of this Act if the p e r s o n— (a) h a v i ng been s u b p o e n a ed in t e r ms of section 29 to a p p e ar before a Tribunal, fails without r e a s o n a b le e x c u se t o— attend a h e a r i ng of a Tribunal; remain in attendance until e x c u s ed by the Tribunal; or p r o d u ce any book, d o c u m e n t, statement or object relating to the hearing which he or she has been s u b p o e n a ed to p r o d u c e; (i) (ii) (iii) (b) h a v i ng taken an oath or affirmation as a w i t n e s s— (i) (ii) refuses to a n s w er a question; or k n o w i n g ly p r o v i d es false information to the T r i b u n a l; (c) wilfully h i n d e rs or obstructs a Tribunal in the p e r f o r m a n ce of its (d) functions; or other than as c o n t e m p l a t ed in section 29(2), or in the p e r f o r m a n ce of a function in terms of this Act, wilfully or negligently discloses to any other p e r s on the contents of a b o o k, d o c u m e nt or other object in the possession of a Tribunal or the record of any e v i d e n ce g i v en before a Tribunal. (2) A ny p e r s on w ho is c o n v i c t ed of an offence in t e r ms of this A ct is liable to a fine or to i m p r i s o n m e nt for a period not e x c e e d i ng five years. C H A P T ER 4 M I S C E L L A N E O US P R O V I S I O NS R e g u l a t i o ns 3 5. ( l ) T he M i n i s t e r— (a) m u st m a ke the regulations required to be m a de in t e r ms sections 13 of this A c t; and (b) m ay m a ke regulations regarding any matter that m ay be necessary or e x p e d i e nt to prescribe r e g a r d i n g— (i) (ii) (iii) the Registrar of financial m a n a g e m e nt and accountability of J u d g es the finances and the C o m m i s s i on a nd Office of Registrable Interests; the m a n n er in w h i ch a j u d ge m ay apply for written c o n s e nt of the Minister as c o n t e m p l a t ed in section 1 1 ( 1) and (2); and the administration and the C o m m i s s i on or C o n d u ct C o m m i t t e e, the Secretariat of the C o m m i s s i o n, or any other aspect of this Act. functioning of (2) A ny regulation m a de under this section must be tabled in P a r l i a m e nt before publication thereof in the Gazette. F i n a n c es a nd a c c o u n t a b i l i ty 36. (1) E x p e n d i t u re in c o n n e c t i on with the administration and function­ ing of the C o m m i s s i on must be defrayed from m o n i es appropriated by P a r l i a m e nt for this purpose to the D e p a r t m e nt of Justice and Constitutional D e v e l o p m e nt vote (hereinafter referred to as the D e p a r t m e n t al vote) in terms of the Public F i n a n ce M a n a g e m e nt Act, 1999 (Act N o. 1 of 1999). (2) M o n i es appropriated by P a r l i a m e nt for this p u r p o s e— (a) constitute e a r m a r k ed funds on the D e p a r t m e n t al vote; and Act No. 20, 2008 JUDICIAL SERVICE COMMISSION AMENDMENT ACT, 2008 (b) m ay not be used by t he D e p a r t m e nt for any other p u r p o s e, without the approval of Treasury and the Chief Justice as C h a i r p e r s on of the C o m m i s s i o n. (3) T he Minister must consult with funds required for the administration and functioning of the C o m m i s s i o n, as part of the budgetary process of d e p a r t m e n ts of state, in the m a n n er prescribed. (4) Subject to the Public F i n a n ce M a n a g e m e nt Act, 1999 (Act N o. 1 of the Chief Justice on the 1999), the Director-General of the D e p a r t m e n t— (a) is charged with the responsibility of a c c o u n t i ng for m o n i es received or paid out for or on account of the administration and functioning of the C o m m i s s i o n; and (b) m u st c a u se the necessary a c c o u n t i ng and other related r e c o r ds to he kept, which records must be audited by the A u d i t o r - G e n e r a l. Secretariat of C o m m i s s i on 3 7. (1) T he E x e c u t i ve Secretary in the Office of the Chief Justice must assign an a p p r o p r i a te n u m b er of personnel, one of w h om must be d e s i g n a t ed as the Secretary of the C o m m i s s i o n, from the staff in the Office of the C h i ef Justice to provide administrative support to the C o m m i s s i o n. (2) Subject to section 36, the Secretary of the C o m m i s s i o n, u n d er the supervision, control and direction of the E x e c u t i ve Secretary, m u s t— (a) p r o v i de secretarial and administrative services to the C o m m i s s i o n, the C o m m i t t ee and any Tribunal; c a u se all records of matters dealt with by the C o m m i s s i on in terms of this Act to be safeguarded; (b) (c) maintain a register of all c o m p l a i n ts dealt with in t e r ms of C h a p t er 2; perform such functions as m ay from time to time be prescribed; and (d) generally, perform such secretarial and administrative tasks related to (e) the w o rk of the C o m m i s s i o n, C o m m i t t ee or any Tribunal, as may from time to time be directed by the Chief Justice. (3) Subject to section 36, the Registrar of J u d g e s' Registrable Interests, under the supervision, control and direction of the Chief Justice, m u s t— (a) maintain the Register of J u d g e s' Registrable Interests; (b) c a u se all records of matters dealt in relation to the Register in terms of this A ct to be safeguarded; perform such functions as m ay from time to time be prescribed; and generally, perform such secretarial and administrative tasks related to m a i n t e n a n ce of the Register, as may from time to time be directed by the Chief Justice. (c) (d) P r o t e c t i on of confidential i n f o r m a t i on 3 8. (1) No p e r s o n, including any m e m b er of the C o m m i s s i o n, C o m m i t­ tee, or any Tribunal, or Secretariat of the C o m m i s s i o n, or Registrar or his or confidential her staff, m ay disclose any confidential d o c u m e nt obtained by that person in the performance of his or her functions in t e r ms of this Act, e x c e p t— information or (a) (b) to the extent to which it m ay be necessary for the p r o p er administra­ tion of any provision of this Act; to any person w ho of necessity requires it for the p e r f o r m a n ce of any function in t e r ms of this Act; (c) w h en required to do so by order of a court of law; or (d) with the written permission of the Chief Justice. Act No. 20, 2008 JUDICIAL SERVICE COMMISSION AMENDMENT ACT, 2008 (2) A ny person w ho c o n t r a v e n es a provision of subsection (1) is guilty of an offence and liable on conviction to a fine or to i m p r i s o n m e nt for a period not e x c e e d i ng five years. (3) E v e ry m e m b er of the C o m m i s s i o n, the C o m m i t t e e, any Tribunal and the every m e m b er of the secretariat of the C o m m i s s i on and Office of Registrar must, in the prescribed m a n n e r— before a s s u m i ng office or duty; or (a) if he or she is h o l d i ng such office on the date of the c o m m e n c e m e nt of (b) this section, m a ke and subscribe to an affirmation of secrecy in the following form: " I, (a) (b) (c) s o l e m n ly d e c l a r e: I h a ve t a k en c o g n i z a n ce of the provisions of s e c t i on 3 8 ( 1) a nd (2) of t he J u d i c i al S e r v i ce C o m m i s s i on Act, 1994. I u n d e r s t a nd t h at I m ay not disclose a ny confidential i n f o r m a t i on or d o c u m e nt o b t a i n ed by me in the p e r f o r m a n ce of my f u n c t i o ns in t e r ms of t h at A c t, e x c e pt in a c c o r d a n ce w i th t he p r o v i s i o ns of s e c t i on 3 8 ( 1) of t he A c t. I am fully a w a re of the s e r i o us c o n s e q u e n c es w h i ch m ay follow a ny b r e a ch or c o n t r a v e n t i on of t he a b o v e - m e n t i o n ed p r o v i s i o n s. ( S i g n a t u r e ) ". (4) A ny person w ho wilfully or negligently in any m a n n er d i s c l o s es any confidential information that c a me to his or her k n o w l e d ge by m e a ns of a person w ho c o n v e y ed that information in contravention of subsection (1) is guilty of an offence and liable on conviction to a fine or to i m p r i s o n m e nt not e x c e e d i ng a period of live y e a r s . ". S u b s t i t u t i on of l o ng title of A ct 9 of 1 9 94

10. T he following l o ng title is substituted for the long title of the principal Act: " A CT To r e g u l a te m a t t e rs incidental to the e s t a b l i s h m e nt of t he J u d i c i al S e r v i ce C o m m i s s i on by the C o n s t i t u t i on of t he R e p u b l ic of S o u th A f r i c a, [ 1 9 9 3] 1 9 9 6; to e s t a b l i sh t he Judicial C o n d u ct C o m m i t t ee to r e c e i ve a nd deal with c o m p l a i n ts a b o ut j u d g e s; to p r o v i de for a C o de of J u d i c i al C o n d u ct w h i ch s e r v es as the prevailing s t a n d a rd of j u d i c i al c o n d u ct w h i ch j u d g es m u st a d h e re to; to p r o v i de for the e s t a b l i s h m e nt a nd m a i n t e n a n ce of a register of j u d g e s' registrable to p r o v i de for p r o c e d u r es f or d e a l i ng with c o m p l a i n ts a b o ut j u d g e s; to p r o v i de f or t he e s t a b l i s h m e nt of J u d i c i al C o n d u ct T r i b u n a ls to i n q u i re i n to a nd r e p o rt on a l l e g a t i o ns of incapacity, g r o ss i n c o m p e t e n ce or g r o ss m i s c o n d u ct a g a i n st j u d g e s; a nd to p r o v i de for m a t t e rs c o n n e c t ed t h e r e w i t h . ". interests; S h o rt title

11. This Act is called the Judicial Service C o m m i s s i on A m e n d m e nt A c t, 2 0 0 8, and c o m es into operation on a date fixed by the President by Proclamation in the Gazette.