Decision of the Judicial Conduct Committee against Judge Anton Van Zyl a setback of judicial responsibility

Recently, the Judicial Conduct Committee (JCC) determined, by majority decision, that complaints against the retired judge from the Superior Court of Kwazulu-Natal, Anton Van Zyl, could not be sent to a court of judicial conduct. This means that the judge cannot be accused, but will face an investigation, after which a variety of minor sanctions could be imposed, such as an apology, a written warning, compensation, advice or assistance in a training course.

Complaints are related to delays in the delivery of judgments. Although some of the judgments in question seem to have been delivered after the complaints were filed, it seems that several judgments are still pending and the delays have been long, with an outstanding since 2012.

The JCC decision has been described, with good reasons, as a “surprising decision.” Delays are much longer than any litigator should expect for your case to decide. What are the possible consequences for the judge in this type of situation?

Complaints against judges initially appear to the President of the JCC: the president of the Supreme Court or the vice president of the Supreme Court. If the president considers that the complaint is serious enough so that, if demonstrated, he could comply with one of the reasons of political trial, he must be sent to the full JCC. Then, the JCC determines whether it requests that the Judicial Service Commission (JSC) convert a court to determine serious complaints that can lead to the political trial, or whether to send the complaint to the President to carry out an investigation that could impose the sanctions of less described above.

In this case, the “surprising” result arose because Judge Van Zyl had retired when the complaints were presented, and the JCC did not agree on whether a retired judge could be eliminated from the position. The majority: the former judge of the Constitutional Court Chris Jafta, with the former judges of the Supreme Court of Appeals (SCA), Halima Saldulker and Jeremiah Shongwe, attending, determined that the constitutional provisions related to the political trial of a judge were only applicable to a judge who still has a judicial position and has not been discharged from active duty. As Judge Van Zyl withdrew from active duty, the complaint could not be sent to a court of judicial conduct, which could have recommended his removal of the position.

For the minority: then the judge of SCA and now the president of the Judge of the Western Cape, Nolwazi Mabindla -Bqwana, with the then Deputy Director Mandisa Maya Justice concurring, did not agree. The minority emphasized that the majority decision was incompatible with an important recent jurisprudence. A concurrent opinion separated from Judge Saldulker offers rejoicing to several of the points raised by the minority.

It is beyond the scope of this article to deepen the finest details of JCC’s decision. But some general comments can be made.

First, as the minority opinion stands out, the opinion that the provisions of political trial are not applicable to the retired judges is inconsistent with the previous decisions of the courts, in particular the freedom under the Judicial Service Commission of Law V, a sentence of the SCA related to the accusation of former Judge Nkola Motata and the SERIT Judicial Service Commission. In both cases, the courts accepted that a retired judge could be eliminated from office. JCC’s decision includes the debate on whether these judgments are strictly binding on the JCC as a technical issue of law, but in any case, the judgments are at least one persuasive authority that has reported the understanding of other judges and lawyers who can eliminate an office judge once they have retired. JCC’s majority decision is fundamentally moved away from what had been considered the established law on this issue.

Second, the majority decision is inconsistent with its own practice. The JCC recently sent a complaint by former judge John Hlophe against President Justice Retired Mogoeng Mogoeng to a court. The panel in that case was composed of three of the same judges: the Mayan judges, who coincided with the dissent in Van Zyl, and Shongwe and Saldulker, who agreed with the majority. Although the complaint was filed while Judge Mogoeng was still in office, the reference decision of the JCC was transmitted after his retirement.

In another case, Judge Jafta issued a JCC appeal judgment, coinciding with Judges Saldulker and Shongwe, defending a complaint against the retired Constitutional Court and the former president of Judge Johann Kriegler’s law. The JCC in this case expressly rejected an argument that the Code of Judicial Conduct was not applicable to a retired judge. Although Kriegler’s case can be distinguished from Van Zyl, since the complaint has not been determined that it is serious enough for possible political trial, it seems anomalous that the retired judges are, in the reasoning of the majority of Van Zyl, totally bound by the legislative provisions.

Third, the majority decision does not explain how the judges continue to receive a salary proportional to retireing active service, instead of a traditional pension. It is difficult to reconcile with the understanding of the majority of the state of a judge who withdraws from active duty.

Fourth, the decision would constitute a blow to the responsibility of the judges if the retirement of active duty can provide a shield against the consequences for serious misconduct. Van Zyl matter is a good illustration of this, since the sanctions that could be imposed seem completely inappropriate as an response to a surprising failure to fulfill a basic judicial function, that is, giving judgments in a reasonable time.

Fifth, the decision raises several serious concerns about the process to handle complaints against the judges, highlighting several issues raised in a 2022 report for freedom under law. These include a significant lack of transparency and inappropriate public reports. The decision was pronounced in July 2024, but only came to light after the consultations of civil society organizations and serious delays in the process. Complaints were filed in 2022 and 2023.

In addition, the lack of consistency with other decisions of JCC and judicial judgments is very problematic. Such an inconsistency is incompatible with the certainty requirement inherent in the rule of law, and it could even be said to threaten judicial independence. The security of the possession of the judges can be undermined if the standards of responsibility do not apply consistently and predictable. In addition, the decision throws the process that has already been completed on the basis that retired judges can be withdrawn from the position, in question.

What happens now? There is no appeal process within the JCC at this stage of the procedures, and although the president could send the complaints to the JCC with the recommendation that a court is established, it is unlikely that the JCC would revert its decision Van Zyl by accepting to establish a court. The bets are so high, and the implications of the majority decision of JCC are so serious, that it may be necessary for the courts to decide this issue, issuing a trial that will unequivocally link to the JCC and solve the problem. Such clarity is necessary to avoid the processes of judicial responsibility, which has proven to be so consistently problematic, to be higher.