- - - - - - - - - - - - J u d g e s ' Forum - - - - - - - - - - - ­
Impeaching the judges ­
South Africa's copybook
Adolph Landman
Judge of the Labour Court
a resolution adopted with a supporting vote of
A hallmark of our judicial system is the emphasis that it places on the
independence of the judiciary, especially judges of the High Court, from
the legislative and executive arms of government.
when the resolution is adopted (section 177(2).
at least two thirds of its members (section
177(1)). The President must remove the judge
The President on advice of the JSC may sus­
pend a judge who is the subject ofan investiga­
tion (section 177(3)). It would seem that these
M
ahomed CJ explains in 'The Role of the
lishjudge has been impeached the last century.
provisions also apply to the removal of an act­
Judiciary in a Constitutional State" 1998
The House of Commons, however, debated in
ingjudge.
SAIJ 111 at 112 that: "Whatjudicial independ­
1906 the impeachment of Grantham J but the
ence means in principle is simply the right and
motion was withdrawn.
The Supreme Court Act of 1959 has not
speciftcally been amended but it is clear that
the duty of judges to perform the function of
At the time of union of the four colonies,
the Constitution enjoys priority and it has
judicial adjudication, through an application of
section 101 of the South Africa Act of 1909
impliedly repealed section 10(7) to the extent
their own integrity and the law, without any
provided for the impeachment of a judge by
that it conflicts with the Constitution.
actual or perc~ived, direct or indirect interfer­
an address of both Houses of Parliament. It
ence from or dependence on any other person
seems that the same result could have been
eight of the members will be eminent judges
or institution". The independence of the judici­
achieved by passing an Act. (See the observa­
and lawyers. The remainder will be Members
ary is underscored by conferring on a judge
tions in G W Keeton The British Common­
wealth - The Development of its Laws and
ofParliament and the National Council ofProv­
tenure during good behaviour. Judges who de­
Lifetime tenure and
impeachment
Constitution 264 on this aspect.)
The Supreme Court Act 59 of 1959 was
subsequently enacted. The powers ofimpeach­
ment were relocated to this Act (section 10(7)).
viate from the norm are liable to impeachment.
The JSC consists of 23 persons. At least
inces. The JSC must form a quorum and it takes
its decision by way of a simple majority (sec­
tion 178(6). Gross misconduct probably means
the same or something more than misbehav­
iour. W R Anson The Law and Custom of the
Constitutional developments in English con­
The Supreme Court Act also conferred on
Constitution 214 suggests that: "Misbehaviour
stitutionallaw led to English and Irish judges
acting judges the same protection as was ac­
appears to mean misconduct in the pertorm­
enjoying a right to office during good behav­
corded to permanently appointed judges and
ance of official duties, refusal or neglect to at­
iour. This principle was formulated expressly
provided that acting judges could only be re­
tend to them, or, it would seem, conviction for
in the Act of Settlement, 1700. The principle
moved from office in the same way. No
such an offence as would make the convicted
of tenure during good behaviour was first in­
change was made to the tenure or the proce­
person unfit to hold public office". (See also
troduced to South Africa by letters patent in
dure for removing judges when the Union
the views of Prof John C Harrison in his ad­
the Cape Colony, 'The First Charter of Jus­
became a Republic in 1961. (See HR Hahlo
dress to the Subcommittee On the Constitution,
tice," of 24 August 1827. (See H R Hahlo and
and E Kahn The New Constitution 32.)
Committee on the Judiciary ofthe United States
E Kahn in G W Keeton The British Common­
wealth - The Development of its Laws and
Africa of 1993 (the Interim Constitution) pro­
The USA Constitution provides for the im­
vided that ajudge may only be removed from
peachment of judges for "treason, bribery, or
office by the President on the grounds of mis­
other high crimes and misdemeanours". Some
behaviour, incapacity or incompetence estab­
23 Federal judges have been indicted in the
lished by the Judicial Service Commission (the
USA (as well as several presidents) but only
The Constitution of the Republic of South
(www.house.gov/judiciaryI22395.htm).)
Constitution vol5 (South Africa) 205.)
Inherent in tenure on good behaviour is the
power ofthe political authorities to dismiss and
remove a judge from office on the grounds of
misbehaviour. English law provided the ma­
JSC) and upon receipt of an address from both
seven have been impeached and removed from
chinery for removing a misbehaving judge. A
the National Assembly and the Senate pray­
office. However, it seems that there is a move
judge could be impeached upon the address of
ing for the judge's removal (section 104(4)).
afoot in the USA to attempt to impeach federal
both Houses of Parliament. This process was
The wording, but probably not the sub­
judges who are described as judicial activists and
designed as much to protect the judiciary from
stance, was altered when the Constitution of
the Crown as it was for Parliament to exercise
the Republic of South Africa of 1996 was en­
A South African judge would probably
control over deviant judges. The first judge to
acted. The current constitutional position is that
be liable for impeachment if the judge breaks
be impeached before Parliament was Mr Jus­
a judge may only be removed from office if ­
the oath of office "to be faithful to the Repub­
whose rulings are regarded as controversial.
tice Fox of the Court of Common Pleas in Ire­
(a) the JSC finds that the judge suffers from an
lic of South Africa ... uphold and protect the
land. (See R E Megarry Miscella-ny-at-Law
incapacity, is grossly incompetent or is guilty
Constitution and human rights entrenched in
15.) The impeachment of Fox J was followed
of gross misconduct, and - (b) the National
it... and administer justice to all persons alike
by a handful of other impeachments. No Eng-
Assembly calls for the judge to be removed by
without fear, favour or prejudice, in accordance
Advocate First Term 2000
43
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with the Constitution and the law". (See item 6
either not established or there was no evidence
No South African judge has been dis­
of the 2nd Schedule to the Constitution.)
to support them. The report, however, men­
missed in the 20th century. If there were, in
It is theoretically possible for the decision
tioned that as regards the charge of physical
the past, grounds for impeachment of any
of the JSC to be taken on review to the High
disability there was evidence that the judge "did
judge, none have become public knowledge,
Court. Moreover if Parliament adopts a reso­
for a time in consequence of illness suffer from
which probably points to their absence or the
lution recommending the removal of a judge
weakness to such an extent as to render it diffi­
deployment of extra-parliamentary pressure.
this resolution, if unprocedural, could prob­
cult to peIform the duties required from a judge
One of the ways of holding the judiciary in
ably be challenged in the High Court.
"(RobeIts at 361, Ellison Kahn 1958 SAil 428
check is by the ri ght, within limits, to comment
and G Randall Bench and Bar 9-10).
publicly on the PIOCeedingS in the comts which
A judges who suffers from mental inca­
pacity could be impeached. A judge in this
The second judge was John Gilbert Kot:ze,
condition would most likely be unable to for­
a judge and later Chief Justice of the Zuid­
sions which are supported by reasons. Some­
mulate the intention to resign. However, this
Afrikaansche Republiek, who was dismissed
time the criticisms and comment have been
indignity is usually spared ajudge by the ex­
by President Paul Kruger on 16 February 1898.
excessive and these utterances have been dis­
pedient of appointing a curator who resigns
A long wrangle between the Volksraad and the
approved of by leaders of the judiciary and the
on behalf of the judge.
Bench, which was heavily influenced by deci­
Constitutional Court. Given the level of public
South Africa's copybook
invariably take place in public, and on deci­
sions ofthe Supreme Court ofthe United States,
vigilance and the strains between the judiciary
ensued about the right of the judges to test re­
and the segments of civil society in the post­
In the 19th century one judge could be con­
publican legislation against its constitution, the
1994 development of our country, it may be
sidered to have been impeached, at a pinch, if
Grondwet.
reasonably inferred that there have been no
the term is used liberally to include a delegated
The Volksraad was dismayed with this
power to dismiss. Another was probably con­
approach. Law 1 of 1897 was passed which
sidered a candidate for this treatment. Hendrik
stated that the judiciary did not have, and never
Cloete J, the Recorder of Natal, was suspended
had, the competency to arrogate itself a testing
grounds to initiate any impeachment proceed­
ings of any South African judge.
Constructive removal
from office in 1853 but reinstated by the
Labour law recognises the reality that
Privy Council in 1854. (See Peter Spiller
an employee may be compelled to re­
''A South African judge would probably be
A History of the District and Supreme
sign or agree to the mutual termination
liable for impeachment if the judge breaks
Courts of Natal 1846-191025-26.) An
ofthe employment relationship because
the oath of office ... "
inquiry seems to have been held about
the employer has made it intolerable for
the affairs of Benedictus de Korte J of
the employee to continue serving the
employer (see section 186(e) of the Labour
the Transvaal High Court but nothing seems
right. It also empowered the president to put to
to have come of it. (See AA Roberts A Southb
the judges the question, inter alia, whether they
Relations Act 66 of 1995). This is known as
African Legal Bibliography 355 .)
renounced their claim to a testing right. The
constructive dismissal. It is possible that pres­
Judge J C Fitzpatrick Uudge in British
President was charged with the duty ofdismiss­
sure could be placed on a judge (and has cer­
Kaffraria, ECD and CPD), father of Sir Percy
ing any judge who gave a negative answer or
tainly been placed on a few English judges) to
Fitzpatrick of"Jock ofthe Bushveld" fame, was
an insufficient answer or no answer. The judges
resign from office. Mahomed CJ correctly asks
described by FW Reitz (Chief Justice and later
provided an answer which was linked to legis­
the question "Are judges adequately protected
President of the Orange Free State) as an hon­
lative amendments. The answer was regarded
against victimization by the state or reprisals
by disgruntled litigants?" (1998 SAil 111 at
est and good humoured Irishman with little
as satisfactory but a further controversy arose.
knowledge of the law, a cheerful disposition
Paul Kruger regarded a communication on the
113). Victimisation could lead to a judge re­
and definitely not a teetotaller ("afskaffer").
subject by Kotze CJ as a renunciation of his
signing, with attendant lack of a pension.
(See FW Reitz Outobiografie 1978 at 23.)
undertaking and dismissed him.
Judge Fitzpatrick was probably consid­
The Chief Justice complained that the had
Discipline: short of impeachment
ered a possible candidate for impeachment in
been appointed as a judge for life and that, if
Mahomed Cl in the same article raises the ques­
1878. He was charged by Jacobus Sauer (later
he had committed misconduct of office, he
tion whether impeachment is a sufficient prac­
a minister of the cabinet) and A F S Maasdorp
should be charged before a specially consti­
tical and enforceable remedy to protect the
(later Sir Maasdorp, Chief Justice of the Or­
tuted court. This did not meet with favour and
public against an incompetent judge and how
ange River Colony, JP of the CPD and Judge
the Chief Justice departed from the Republic.
the public is to be protected against judges
of Appeal) in Parliament with being intoxi­
Happily he was soon able to resume a distin­
whose conduct does not justify impeachment
cated on the Bench ("bo sy teewater"). The
guished judicial career ending in his appoint­
but which is objectionable (at 114). Section 180
judge was in fact charged with neglect of and
ment to the Appellate Division of the Supreme
of the Constitution permits national legislation
absence from duty, insobriety, physical dis­
Court of the Union of South Africa. (For an
tp provide for procedures for dealing with com­
ability and mental incapacity.(See A A Roberts
account of the controversy see G W Keeton
plaints about judicial officers. Proposals for the
A South African Legal Bibliography 360.) A
The British Commonwealth - The Develop­
disciplining of judges were drafted and circu­
parliamentary select committee under Uping­
ment ofits Laws and Constitution 109 and JG
Kotze Memoirs and Reminiscences Vol2 and
especially the introduction by BA Tindall .)
last year. They would require discrete discus­
ton, attorney-general, after hearing evidence
reported to the house that the charges were
44
lated by the Ministry of Justice in November
sion which will not be attempted here.
m
First Term 2000 Advocate