OPINION: Judicial Conduct Committee ruling against Judge Anton van Zyl a setback for judicial accountability

Recently, the Judicial Conduct Committee (JCC) found, by majority decision, that complaints against retired KwaZulu-Natal High Court Judge Anton van Zyl could not be referred to a Judicial Conduct Tribunal. This means that the judge cannot be impeached, but will rather face an inquiry, following which a range of lesser sanctions – such as an apology, a written warning, compensation, counselling, or attendance at a training course, could be imposed.

The complaints relate to delays in delivering judgments. Although some of the judgments in question seem to have been delivered after the complaints were lodged, it appears that several judgments remain outstanding, and the delays have been long, with one outstanding since 2012.

The JCC’s decision has been described, with good reason, as a "startling ruling". The delays are far longer than any litigant should be expected to wait to have their case decided. What, then, are the potential consequences for the judge in this type of situation?

Complaints against judges are initially lodged with the chairperson of the JCC, the chief justice or the deputy chief justice. If the chairperson takes the view that the complaint is sufficiently serious that it might, if proved, meet one of the grounds for impeachment, it must be referred to the full JCC. The JCC then determines whether to request that the Judicial Service Commission (JSC) convene a tribunal to determine serious complaints which may lead to impeachment, or whether to refer the complaint back to the chairperson to conduct an inquiry that could impose the lesser sanctions described above.

In this instance, the "startling" outcome arose because Judge Van Zyl had retired when the complaints were lodged, and the JCC disagreed over whether a retired judge could be removed from office. The majority - former Constitutional Court Judge Chris Jafta, with former Supreme Court of Appeal (SCA) judges Halima Saldulker and Jeremiah Shongwe concurring, found that the constitutional provisions relating to the impeachment of a judge were only applicable to a judge who still holds judicial office and has not been discharged from active service. As Judge Van Zyl has retired from active service, the complaint could not be referred to a Judicial Conduct Tribunal, which could have recommended his removal from office.

For the minority, then SCA judge and now Western Cape Judge President Nolwazi Mabindla-Boqwana, with then Deputy Chief Justice Mandisa Maya concurring, disagreed. The minority emphasised that the majority decision was incompatible with important recent case law. A separate concurring opinion by Judge Saldulker offers rejoinders to several of the points raised by the minority.

It is beyond the scope of this article to delve into the finer details of the JCC decision. But some general comments can be made.

First, as the minority opinion highlights, the view that impeachment provisions are not applicable to retired judges is inconsistent with previous decisions by the courts, in particular Freedom Under Law v Judicial Service Commission, a judgment of the SCA relating to the impeachment of former Judge Nkola Motata, and Seriti v Judicial Service Commission. In both cases, the courts accepted that a retired judge could be removed from office. The JCC decision includes debate as to whether these judgments are strictly binding on the JCC as a technical matter of law, but either way, the judgments are at the very least a persuasive authority that has informed the understanding of other judges and lawyers that it is possible to remove a judge from office once they have retired. The JCC majority decision departs fundamentally from what had been considered settled law on this issue.

Second, the majority decision is inconsistent with its own practice. The JCC recently referred a complaint by former Judge John Hlophe against retired Chief Justice Mogoeng Mogoeng to a tribunal. The panel in that case comprised three of the same judges - judges Maya, who concurred with the dissent in Van Zyl, and Shongwe and Saldulker, who concurred with the majority. Although the complaint was lodged while Justice Mogoeng was still in office, the JCC’s referral decision was handed down after his retirement.

In another case, Judge Jafta delivered a JCC appeal judgment, concurred in by judges Saldulker and Shongwe, upholding a complaint against retired Constitutional Court and former Freedom Under Law chair, Judge Johann Kriegler. The JCC in this case expressly rejected an argument that the Code of Judicial Conduct was not applicable to a retired judge. Although the Kriegler case may be distinguished from Van Zyl, in that the complaint had not been determined to be serious enough for possible impeachment, it does seem anomalous that retired judges are, on the Van Zyl majority’s reasoning, fully bound by the legislative provisions.

Third, the majority decision does not explain how judges continue to be paid a proportional salary upon retirement from active service, as opposed to a traditional pension. This is difficult to reconcile with the majority’s understanding of the status of a judge who retires from active service.  

Fourth, the decision would constitute a blow to the accountability of judges if retirement from active service can provide a shield against consequences for gross misconduct. The Van Zyl matter is a good illustration of this, in that the sanctions which could be imposed seem entirely inadequate as a response to a startling failure to fulfil a basic judicial function, i.e. giving judgments within a reasonable time. 

Fifth, the decision raises several serious concerns about the process for handling complaints against judges, highlighting several issues raised in a 2022 report by Freedom Under Law. These include a significant lack of transparency and inadequate public reporting. The decision was delivered in July 2024 but only came to light following enquiries by civil society organisations and serious delays in the process. The complaints were lodged in 2022 and 2023.

Furthermore, the lack of consistency with other JCC decisions and court judgments is highly problematic. Such inconsistency is incompatible with the requirement of certainty inherent in the rule of law, and could even be said to threaten judicial independence. Judges’ security of tenure may be undermined if accountability standards are not consistently and predictably enforced. Additionally, the decision throws the process which has already been concluded on the basis that retired judges can be removed from office, into question.

What happens now? There is no appeal process within the JCC at this stage of proceedings, and although the chairperson could refer the complaints back to the JCC with the recommendation that a tribunal be established, the JCC would be unlikely to reverse its Van Zyl decision by agreeing to establish a tribunal. The stakes are so high, and the implications of the JCC majority decision so serious, that it may be necessary for the courts to decide this issue, by delivering a judgment that would unambiguously bind the JCC and settle the issue. Such clarity is necessary to prevent the processes of judicial accountability, which has proved to be so consistently problematic, from being further hamstrung.