JSC Act is unconstitutional, say arms deal commission judges

Retired judges Willie Seriti and Hendrick Musi have challenged the constitutionality of the Judicial Service Commission Act, saying it allows judicial misconduct complaints against retired judges.

Seriti, a former justice of the Supreme Court of Appeal, and Musi, the former judge president of the Free State, face a complaint of misconduct for their handling of the arms deal inquiry. The judicial commission of inquiry, chaired by Seriti, had exonerated all involved.  

In a founding affidavit, Seriti said the constitution defined a judge as someone “holding office until he or she is discharged from active service”, while the act included in its definition of a judge those who had been discharged from active service.

“This is patently unconstitutional,” he said. “We are aggrieved that we have to be put through a complaint process when we have long retired.”

The commission’s findings were set aside by the Pretoria high court in 2019 after it found that the commission failed to comply with its mandate to investigate the allegations.

The complaint was then laid by NGOs Open Secrets and Shadow World Investigations, which was referred to the Judicial Conduct Committee (JCC) by its acting chairperson, deputy chief justice Raymond Zondo, in May.

Zondo said that having heard only the version of the two NGOs, he was satisfied that if the complaint was established, “it is likely to lead to a finding ... of gross misconduct”. 

The JCC was scheduled to meet on Friday to discuss the complaint, but it was postponed because of the judges’ court application.

It was a “blatant absurdity” to submit a retired judge to an impeachment process as “the very object of impeachment is to remove an incumbent from exercising a power or performing a function of a public office”, Seriti said in the affidavit.

“We served our terms as judges and retired after reaching the age of 70. [Musi] is now 75, and yet we are being harassed by having to face the complaint, which was not even brought against us while we were in active service,” Seriti said.

Seriti said he and Musi did not oppose the court case to set aside their findings because they had relied on the presidency and the justice ministry to do so. The presidency withdrew its opposition after the two judges had already filed their notice to abide, he said.

“Accordingly, we did not have an opportunity to place our views before the court. As a result, the court decided the application on the basis that it was not opposed. The court relied wholly on the version presented by the applicants,” Seriti said.

There was nothing they could do “but to live with the outcome”, said Seriti. They had since been advised to look into reopening the matter since the high court judgment was now being used to lay complaints of misconduct against them, he added.

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