The Independence of South African Judges: A Constitutional and Legislative Perspective

Judicial independence is fundamental to democracy. It is in that context that this paper considers whether the existing constitutional and legislative mechanisms provide sufficient judicial independence to South African judges. In so doing, the paper focuses on impartiality, judicial appointments and security of tenure. It also discusses the sensitive matter of complaints and disciplinary proceedings against judges and their removal from office. The issue of the remuneration of judges is also explored. In discussing the challenges facing judicial independence some incidents that have appeared to compromise such independence are highlighted. These include the controversial appointments of Advocate Mpshe as an acting judge in the North West Province in 2010 and Judge Heath as the Head of the Special Investigative Unit (SIU) in 2011. The never-ending controversy surrounding the Cape Judge President John Hlophe and his alleged attempts to improperly influence two Constitutional Court judges in a case involving President Jacob Zuma is also highlighted. Another issue that has brought judicial independence into sharp focus is the June 2015 visit to South Africa of Sudan's President Omar al-Bashir, who was on a warrant of arrest from the International Criminal Court (ICC) for genocide and war crimes in the Darfur region of Sudan. A decision by the North Gauteng High Court on his presence in South Africa and the attacks on the judiciary made by various government officials as a result are discussed. Several conclusions are drawn but in the main, it is generally concluded that the constitutional and legislative framework adopted by South Africa sufficiently insulates judges from improper influence. However, there have been several notable challenges that particularly relate to judicial appointments and how the JSC has handled certain matters. Irresponsible and uninformed political statements by politicians and unwarranted political attacks on the judiciary by government are also a source of great concern. These challenges could and should be construed as threats to judicial independence, and need to be comprehensively and properly addressed.

undue influence; and secondly, at an institutional level -the ability of the judiciary to control the administration and appointment of court staff.
Considering whether judicial protection is sufficient in the South African context is the task of this article. In making that determination, we begin from the premise that judicial independence entails the ability of a judge to make a decision without undue influence and interference from internal and external forces. 6 Moreover, the judge must have security of tenure and financial security in order to guard against bribery and related interference and corrupt conduct. 7 Furthermore, the judiciary must manage its own administrative functions and activities. In essence, a judiciary that does not have individual or personal and institutional or functional independence falls short of the core requirements of judicial independence. Constitution. This section prescribes that organs of state -through legislative and other measures -must assist and protect the courts in order to ensure their independence, impartiality, dignity, accessibility and effectiveness. This is of course supported by and in the context of sections 165(2) and 165 (3), which also pertain to judicial authority and state that the courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice; and that no person or state organ may interfere with the functioning of the courts. These sections are especially relevant considering the criticism of the judiciary by government, which is discussed later in the paper. 6 In terms of s 165(3) of the Constitution. 7 The terms of office and remuneration of judges are provided for under s 176 of the Constitution. The debate about the personal independence of judges is especially relevant, given recent and current assertions that judicial independence has been compromised on several occasions. Indeed the debate is no longer academic -it has moved prominently into the public and political domains. In addressing the important question of independence, in this paper an analysis is made of the impartiality of judges, their appointment, security of tenure, complaints and disciplinary proceedings, the removal of judges, and their remuneration. Some challenges to judicial independence in South Africa -largely relating to impartiality and bias -are identified and discussed, and some conclusions are presented.

Impartiality
Impartiality is generally understood to refer to the state of mind/attitude of a judge or tribunal relative to the issue and parties in a particular case. 9 Central to the concept of impartiality is the absence of bias, whether actual or perceived. The opposite of impartiality, therefore, is bias. The question that arises then is how bias is determined.
In S v Collier, 10 where the accused insisted on being tried by a black magistrate and the presiding white magistrate refused to recuse himself, it was held on appeal that: Equally, the apparent prejudice argument must not be taken too far; it must relate directly to the issue at hand in such a manner that it could prevent the decisionmaker from reaching a fair decision ... the mere fact that a decision-maker is a member of the SPCA does not necessarily disqualify him from adjudicating upon a matter involving alleged cruelty to animals. By the same token, the mere fact that the presiding officer is white does not necessarily disqualify him from adjudicating upon a matter involving a non-white accused. The converse is equally true … 11 In essence, the court was seeking an objective determinant for bias which goes beyond frivolous issues. What must be determined is the objective state of mind or attitude that an adjudicator has towards a particular matter. However, it is equally important that a balance is struck between recusal on the grounds of bias and a judge's obligation to dispense justice. For example, the courts have observed that: Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to 9 Valente v The Queen 1985 2 SCR 673 674.
suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour. 12 In developing the test for bias, the Constitutional Court held in President of the Republic of South Africa v South African Rugby Football Union 13 that: … the correct approach to recusal is objective and the onus of establishing it rests upon the applicant. The question is whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the judge has not or will not bring an impartial mind to bear on the adjudication of the case, that is, a mind open to the persuasion by the evidence and submissions of counsel. Central to the assessment of reasonable apprehension is that the reasonableness of the apprehension must be assessed in light of the oath of office taken by the judges to administer justice without fear or favour, and their ability to carry out that oath by reason of their training and experience. 14 Thus, from the above considerations, the test to determine bias can be summarised as follows: a) there must be a reasonable apprehension, b) the reasonable apprehension ought to be held by an objective and well informed person, c) the apprehension must be that the judge will not be impartial in adjudicating the matter, and d) this apprehension must be made in the light of the oath of office taken by the judges. 15 The presumption is that a judge is impartial in his/her adjudicative responsibility -hence, the person who alleges the bias must prove it in terms of established jurisprudence. The objective test is exacting on the person who wishes to prove it. Actual bias, or the suspicion thereof, impugns negatively on the administration of justice and may affect public confidence in the justice system. Thus, litigants should not be allowed to question it unnecessarily.

Judicial appointments
Historically, judges were drawn from the senior ranks of the bar. Constitution. Secondly, only ten members of the JSC participated, when on the JSC's own interpretation of section 178(1)(k), the JSC should have been composed of 13 members. And, thirdly, the decisions of the JSC were not supported by a majority of the members, as required by section 178(6) of the Constitution. It was held that the evidence in respect of the complaint did not justify a finding that the judge president was guilty of gross misconduct, and that the matter was accordingly finalised. It was further held that the evidence in support of the counter-complaint did not support a finding that the Constitutional Court justices were guilty of gross misconduct, and that the matter was accordingly finalised. The court also found that none of the judges against whom complaints had been lodged was guilty of gross misconduct. With distinction should be made between being nominated to implement an independent task and being appointed to act in accord with the dictates of the executive. 22 It is also important to note that democratic processes dictate that the: ... executive participates in the appointment of judges as they represent the electorate who have a vested interest in the appointment of judges ... The drafters of the Constitution sought to ensure that persons from diverse political, social and cultural backgrounds, representing varying interest groups, would participate in the deliberations of the JSC. 23 Furthermore, it should be noted that "checks and balances" allow for the intrusion of one arm of government into another, to ensure that there isn't an over concentration under section 175 (6), the appointments of all judges must be made on the advice of the JSC.
Section 174(1) of the Constitution states that any appropriately qualified woman or man -who is a fit and proper person -can be appointed as a judicial officer. This is qualified by section 174 (2), which stipulates that the judiciary should broadly reflect the racial and gender composition of South Africa. Although the courts have yet to pronounce on the meaning of this section, it has been suggested that it was included in the Constitution to correct imbalances in the composition of the judiciary. 26 In expressing the importance of diversity in the judiciary, the JSC has stated that, without it, the court would be unlikely to be able to do justice to all the citizens of the country -and that it would not be competent to do justice if it could not relate fully to the experience of all who seek its protection. 27 As a result of section 174 (2) On the face of it, section 174(2) appears to be achieving its purpose in ensuring that the judiciary broadly reflects the gender and racial composition of South Africa.
However, despite the seemingly benevolent intentions of the provision and the progress that has been made, section 174 (2)  appropriately qualified is considered too little. 31 The question that still remains is whether section 174(2) seeks an appropriate demographic representation of the judiciary, or whether it is only a guide in the appointment process. In an attempt to elucidate on how this section ought to be interpreted, the former constitutional court judge, Justice Kriegler, has submitted that: The constitutional mandate instructs the Judicial Service Commission in section 174(1) to appoint people that are appropriately qualified. That's a precondition.
That's a mandatory requirement. And then subsection (2), as a rider to that, says: and in doing that, have regard to the racial and gender balance on the Bench. And it's for obvious reasons that the Constitution, while mentioning the transformational criterion in subsection (2), demands in subsection (1) as the primary and essential requirement that appointees be appropriately qualified. Now these two essential factors, the one absolute and the other discretionary, have been turned on their heads. 32 It is clear from this statement that Justice Kriegler's favoured interpretation is that section 174 (2) is merely a guide, and not a prerequisite for appointment. Justice Kriegler's interpretation is narrow. Black people and women are previously disadvantaged; it stands to reason that section 174(2) cannot be read in isolation of section 9(2) of the Constitution and the Employment Equity Act, 33 which seek to address the imbalances of the past through affirmative action measures. Therefore section 174(2) embraces the principle of substantive equality, which can be described as equality of outcome, as it requires a consideration of the actual social and economic conditions of groups and individuals in order to determine if the Constitution's commitment to equality is being upheld. The Constitutional Court has described the notion of substantive equality to mean: This substantive notion of equality recognises that besides uneven race, class and gender attributes of our society, there are other levels and forms of social differentiation and systematic under-privilege, which still persist. The Constitution enjoins us to dismantle them and to prevent the creation of new patterns of disadvantage. 34 31 Steward 2012 http://www.politicsweb.co.za/news-and-analysis/jeremy-gauntlett-race-andjudicial-appointments. 32 Kriegler "Can Judicial Independence Survive Transformation?". Accordingly, section 174(2) ought to be viewed as a measure seeking "remedial or restitutionary equality" 35 within the judiciary, and enjoins the JSC in the appointment process of judges. It is therefore submitted that from this perspective, section 174 (1) ought to be read together with section 174(2). While section 174(1) of the Constitution requires that candidates for appointment are appropriately qualified and fit and proper, section 174(2) seeks to ensure that previously disadvantaged persons are given the opportunity if they are adequately qualified and are fit and proper. Moreover, it is submitted that the existence of a judiciary that is broadly reflective of the gender and racial composition of society bodes well for public confidence in it.
In the case of Judicial Service Commission v Cape Bar Council, 36 the court had to deal with two substantive issues. The first was whether the JSC was properly constituted (the president of the SCA and his deputy were absent) when it interviewed candidates for vacancies in the Western Cape High Court and, if not, whether that resulted in the invalidity of the decisions taken at the meeting. The second issue was whether, in the circumstances, the decision of the JSC not to recommend any of the candidates to fill the two remaining vacancies was irrational and therefore unconstitutional. Regarding the first issue, in reaching its conclusion the court was bound by its previous pronouncement in Acting Chairperson: Judicial Service Commission v Premier of the Western Cape Province, 37 where it had held that the JSC cannot take valid decisions in matters that relate to a court in a particular province without the presence of the premier. The court considered that the position could be no different with matters relating to the absence of the President of the SCA or his deputy. 38  judicial appointment, it follows that -as a matter of general principle -it is obliged to give reasons for its decision not to do so. The court further held that: ... where the undisputed facts gave rise to a prima facie inference that the decision not to recommend any of the suitable candidates was irrational, the failure by the JSC to adhere to its general duty to give reasons inevitably leads to confirmation of that prima facie inference. 40 There are two very important pronouncements made by the court in this case, which related to the operation of the JSC. The first is that the JSC ought to be properly constituted when it makes decisions, and that the composition of the JSC shall be determined by the purpose for which it has convened. Secondly, the JSC ought to act rationally and lawfully. Rationality encompasses giving reasons to an unsuccessful candidate. This is because the: ... JSC is under a constitutional obligation not to act in an irrational and arbitrary manner; the importance of reasons is that they assist to rationalise the exercise of power and decision making and provide the aggrieved party an opportunity to rebut the defence of the decision maker. 41 The manner in which judges are appointed is crucial to the independence of the judiciary. 42 Ideally, by stipulating clear procedures to be followed in their appointment the Constitution ensures that appointments are made in a transparent manner and for the correct reasons. The process also seeks to ensure that judges who are appointed are people of ability, and who are fit and proper. 43 Moreover, the appointment processes also ensure that the constitutional imperatives of transformation are taken into account. 44 The Constitution, through the JSC, therefore ensures that judges aren't appointed arbitrarily for inappropriate reasons. This is particularly important in a constitutional democracy such as South Africa, as judges are the guardians of the providing that a judge of the Constitutional Court is to be discharged from active service either on reaching the age of 70 or after completing a 12-year term of office on the Constitutional Court -whichever occurs first. 52 Furthermore, the Act also provides that the president may discharge a judge from active service on the 46 Tabane 2014 http://www.news24.com/Archives/City-Press/Moseneke-calls-for-review-of-presidential-powers-20150429. 47 Tabane 2014 http://www.news24.com/Archives/City-Press/Moseneke-calls-for-review-of-presidential-powers-20150429. 48 Tabane 2014 http://www.news24.com/Archives/City-Press/Moseneke-calls-for-review-of-presidential-powers-20150429. 49 Section 176(1) of the Constitution. Regarding the issue of whether or not section 176(1) authorises a differentiation of terms of office of judges of the Constitutional Court, it was held that non-renewability is the bedrock of security of tenure, and a protective mechanism against judicial favour in passing judgment. Amongst other things, the importance of non-renewability is that it fosters public confidence in the judiciary as a whole -as judges can function without fear that their terms will not be renewed or inducement to seek to secure renewal. 64 The court also held that singling out the Chief Justice amongst the members of the

Complaints, disciplinary proceedings and the removal of judges
Complaints and disciplinary proceedings against judges and procedures for their removal from office are intrinsically interrelated and sensitive issues. Their sensitivity stems from the general view that any complaints, disciplinary action and removal of judges ought to be dealt with in terms of a clear legislative framework. What gives rise to this view is the desire to insulate any such proceedings from abuse or manipulation -political or otherwise. It is therefore important to ensure that clear, The complaints' procedure against judges is governed by the Judicial Services Commission Act. 68 The preamble of the Act spells out the purpose of the Act as inter alia to ... provide procedures for dealing with complaints about judges; to provide for the establishment of a Judicial Conduct Tribunal to inquire into and report allegations of incapacity; gross incompetence or gross misconduct against judges; and to provide for matters connected therewith.
Section 14(1) of the Act provides that any person may lodge a complaint against a judge, and that the grounds for this are incapacity giving rise to a judge's inability to fulfil his duties in accordance with prevailing standards. According to section 14, gross incompetence or gross misconduct, as envisaged in section 177(1)(a) of the Constitution, includes but is not limited to: ... any wilful or grossly negligent breach of the Code of Judicial Conduct [and] any wilful or grossly negligent conduct … that is incompatible with or unbecoming of the holding of judicial office, including any conduct that is prejudicial to the independence, impartiality, dignity, accessibility, efficiency or effectiveness of the courts. 69 The Act also recognises the existence of "lesser complaints." 70 Section 15(2) of the Act stipulates that a complaint that does not fall within the parameters of any of the listed grounds and which is solely related to the merits of a judgement or order or is frivolous or hypothetical may be dismissed.
Section 17(2) of the Act states that an inquiry into serious but non-impeachable complaints should be conducted in an inquisitorial manner and there is no onus on any person to prove or disprove any fact during such an investigation. Section 17(3)(a) requires that the respondent in the matter ought to be invited to respond to the allegations in writing or in any other manner specified, within a specified period.
Subsequently, the complainant must have the opportunity to comment on the response of the respondent within a specified period of time. 71 If it is found that there is no reasonable likelihood that a formal hearing on the matter will contribute to 68 Judicial Services Commission Act 9 of 1994. determining the merits of the complaint, the complaint must be dismissed, or it must be found that the complaint has been established and that the respondent has behaved in a manner unbecoming of a judge, and remedial steps are to be imposed. 72 Under section 17(4)(c), it may also be recommended to the JSC that the complaint should be investigated by a tribunal. Conversely, if it is found that a formal hearing is required in order to determine the merits of the complaint, this must be done within a reasonable time. 73 Upon conclusion of the formal hearing, the complaint must either be dismissed or it must be: ... found that the complainant has established that the respondent has behaved in an unbecoming manner for a judge and impose remedial relief referred to in terms of the Act or recommend to the Committee to recommend to the Commission that the complaint should be investigated by a Tribunal. 74 Section 17(8)(a)-(g) of the Act contemplates that one step or a combination of remedial steps may be imposed in respect of the respondent, including apologising to the complainant in a specified manner, a reprimand, a written warning, compensation, appropriate counselling, and attendance of a specified training course.
Impeachable complaints about judges are conducted in terms of section 16(1) of the Act, and sections 21 to 34 deal with the establishment of the Judicial Conduct Tribunal, whose objectives are to collect evidence, conduct a formal hearing, make findings of fact, make a determination on the merits of the allegations, and submit a report on its findings to the JSC. 75 Section 26(2) directs the tribunal to conduct its enquiry in an inquisitorial manner -with no onus on any person to prove or disprove any fact before a Tribunal. 76 It is also important to note that when considering the merits of allegations against a judge, the Tribunal must make its determinations on a balance of possibilities, 77 and must keep a record of its proceedings. 78 Section 2(1) states that the tribunal must be appointed by the Chief Justice whenever requested to do so by two judges -one of whom must be designated by the Chief Justice as the Tribunal President, and one other person who is not a judicial officer. Furthermore, at least one member of every tribunal must be a woman. 79 The circumstances and procedure for the removal of a judge from office are unequivocally spelt out under section 177 of the Constitution, which provides that a judge may be removed from office only if the JSC finds that the judge suffers from an incapacity, is grossly incompetent, or is guilty of gross misconduct, and if the National Assembly calls for that judge to be removed by a resolution adopted with a supporting vote of at least two thirds of its members. 80 Thereafter, the president must remove the judge concerned from office. 81 In effect then, the body tasked with making a finding that a judge is guilty of incapacity, gross incompetence or gross negligence, is the Judicial Conduct Tribunal.
It is submitted that the Judicial Services Commission Act creates a clear legislative framework that ought to be followed in matters pertaining to complaints, disciplinary procedures, and the removal of judges. As stated above, a judge can be removed from office by the president only after a two-thirds majority resolution adopted by the National Assembly. 82 In other words, until such a resolution is adopted by the National Assembly a judge may not be removed from office -despite an adverse finding by the tribunal. It is to be noted that the establishment of the tribunal by the Act closes a lacuna, as the task of disciplining judges previously lay with the JSC, without any clear procedures established about how complaints ought to be dealt with. It is submitted that the possible reasons for the onerous two-thirds majority vote in the National Assembly are, firstly, adherence to the principle of security of tenure which is premised on the principle that a judge's tenure is secure and may be removed only in exceptional circumstances. Secondly, this is consistent with the principle of checks and balances which ensure that the power to remove judges does not solely rest with the judiciary. 79 Section 22(2) of the Constitution. 80 Section 177(1)(b) of the Constitution. 81 Section 177(2) of the Constitution. 82 Section 177(1)(b) of the Constitution.
The importance of this is that it removes the over-concentration of power in the judiciary regarding the removal of judges.

The remuneration of judges
It is important that judges be well remunerated, because if this does not happen, they may become susceptible to illicit financial inducements from parties who may want to influence them in a particular manner. Thus, ensuring that judges are well remunerated seeks to protect them from corrupt behaviour. A well-paid judge may find it easier to confidently resist corrupt inducements. 83 Secondly, in order to attract the best candidates to the judiciary, it is imperative that they be remunerated competitively. Although the salaries, allowances and benefits of judges and acting judges are governed by the Judges Remuneration and Conditions of Employment Act, 84 in terms of the Constitution, salaries, allowances and benefits of judges cannot be reduced. 85 This is to guard against the possibility of any government attempts to influence or put pressure on judges through salary reductions.
Ultimately, the President determines the annual salary of judges, but parliament has the right to debate and reject the terms of the President's proclamation. 86 It is also interesting to note that, once discharged from active service, a judge is entitled to a life-time salary, which is adjusted in terms of the Judges Remuneration and Conditions of Employment Act. 87 This depends on the judge's manner of discharge and period of service. Moreover, in addition to the lifetime salary, a gratuity is also received on retirement. 88

Challenges
Although it could be said that constitutionally and legislatively speaking, judicial independence seems to be fairly protected in South Africa, some incidents have The best (or worst) example of a challenge to judicial independence in South Africa is perhaps what we shall refer to as the "Hlophe saga", although the scope of this paper precludes a detailed account of this saga. This has been a vexed and controversial issue which continues to cast a dark shadow over the independence of the judiciary Zuma to discuss matters, after "repeated and unfounded criticism" of the judiciary, given that the criticism "has the potential to delegitimise the courts".

Conclusion
This paper sought to explore whether or not -or the extent to which -judges in South Africa are independent. An analysis of the constitutional and legislative measures which seek to insulate judges from improper influence was undertaken. We draw the following conclusions. Firstly, in terms of South African jurisprudence, the presumption is that a judge is impartial. Should there be any suspicion or allegation of bias, the burden of proof falls on the party alleging the bias to prove it. Secondly, the Constitution establishes mechanisms for the appointment of judicial officers and stipulates clear procedures to be followed in this process. The JSC plays an important oversight role in ensuring that judges are appointed in terms of the objective criteria stipulated by the Constitution. Thirdly, the legislative framework adopted to ensure the security of tenure of judges provides that a judge's term of office is predetermined and non-renewable. Fourthly, the legislative framework adopted in terms of complaints, disciplinary proceedings and the removal of judges is elaborate. It also establishes a Judicial Conduct Tribunal whose responsibility is to deal with such 100 John 2015 http://mg.co.za/article/2015-07-08-chief-justice-hammers-gratuitous-criticism; SABC and News24 2015 http://www.sabc.co.za/news/a/6e0aaa804913771db139b970b5a2a8d2/Zumaand-Mogoeng-meeting-%E2%80%9Cextremely-significant%E2%80%9D-20151207; Reuters Africa 2015 http://af.reuters.com/article/topNews/idAFKCN0PJ11A20150709. 840 complaints. The legislative framework also distinguishes between impeachable complaints and serious but non-impeachable complaints, and further deals with the removal of judges. Fifthly, the legislative framework relating to the remuneration of judges is agreeable to the general principle that judges ought to be well paid and that their salaries may not be reduced. This is with the view that this would remove the likelihood of improper financial inducements or pressure having an effect on the decisions of judges.
It may therefore be concluded that, generally speaking, the constitutional and legislative framework adopted by South Africa sufficiently insulates judges from improper influence. However, there have been several notable challenges in practice.
These relate particularly to judicial appointments and how the JSC has handled certain matters; the ongoing Hlophe saga referred to above is an important example of this.
Irresponsible and uninformed political statements by politicians and unwarranted political attacks on the judiciary by government -highlighted by the recent al-Bashir saga discussed above -are also a source of great concern. These challenges could and should be construed as threats to judicial independence, and need to be comprehensively and properly addressed.