Pretoria - Retired Supreme Court of Appeal Justice Willie Seriti and ex-Free State Judge President Hendrick Musi – who earlier presided over the arms deal – could face the music in a misconduct complaint.
This was lodged against them after their constitutional challenge to the Judicial Service Commission Act was dismissed.
The pair turned to a full Bench (three judges) sitting in the Gauteng High Court, Johannesburg, in a bid to evade a misconduct complaint lodged against them by Open Secrets and Shadow World Investigations. This is for the manner in which they handled the arms deal commission of inquiry as commissioners.
The two face an investigation for “incapacity, gross incompetence and misconduct”, for alleged “failure to adequately investigate the arms deal”.
They challenged the law determining them judicial officers even after their retirement. They argued that a person can only be a judge during the term of active service or term of office. As they are both no longer in active service, they said, the commission has no jurisdiction over them.
The Gauteng High Court, Pretoria in 2019 set aside the Seriti Commission’s final report into the arms deal. This was after the court had concluded that the commission had failed to conduct a full, fair and meaningful investigation into the deal. That decision was never challenged.
However, Open Secrets and Shadow World Investigations lodged a complaint with the commission about the conduct of the two judges, who had both retired by the time of the review application.
The commission decided to institute proceedings in terms of its disciplinary powers, and said in terms of the act, it held jurisdiction over the two judges. But judges Seriti and Musi argued that as they are no longer active judges, they do not fall under the commission’s jurisdiction.
The two judges subsequently challenged the sections of the Judicial Service Commission Act which defines a “judge” to include a judge who has been discharged from active service.
The essence of their argument was that the effect of the Constitution is to circumscribe the concept of a “judge” as an incumbent during a prescribed term of judicial office. Once “discharged”, the person who was a judge ceases to be one, they argued.
They added that despite the courtesy title of judge, with which by custom they continue to be addressed, they are no longer office-holders and thus no longer judges as defined by the act.
Deputy Judge President Ronald Sutherland, however, said this argument is wrong.
“The basic flaw in the applicants’ thesis is the notion that a person can only be a judge during the term of active service or term of office. To reason in this way is to elide the status and identity of a judge with the concept of an ‘office-holder’,” he said.
Judge Sutherland pointed out that the remuneration payable after discharge is a salary, not a pension.
“Moreover, further service after such discharge is possible, either compulsorily or voluntarily, subject to various conditions. Only resignation severs the relationship with the judiciary.”
In turning down the application, Judge Sutherland said: “Nothing whatsoever in this judgment concerns itself with the nature of or merits or demerits of the complaints against the applicants, nor with any consideration about whether the Judicial Service Commission’s powers are or can be efficacious in relation to the applicants.”
Judge Sutherland ordered judges Seriti and Musi to pay the costs in this failed application. In this regard he said the pair were driven by their reputation in launching this constitutional challenge and they tried to prevent any inquiry at all that might result in a blemish.
He also commented that the foundations of the challenge to the jurisdiction of the Judicial Service Commission were weak, thus they had to foot the bill for the parties that opposed the application.