Freedom Under Law v The Acting Chairperson: Judicial Service Commission and Others

In March 2008, the Constitutional Court heard arguments in four matters regarding the prosecution of Mr Jacob Zuma and Thint (Pty) Ltd on corruption charges. Before judgment was handed down, Judge President Hlophe visited two Constitutional Court judges (Nkabinde J and Jafta AJ) separately in their chambers and had discussions with them about the pending Zuma cases. These judges subsequently reported the visits to other Constitutional Court judges, who then lodged a complaint with the Judicial Service Commission (JSC) alleging that Judge Hlophe had improperly attempted to influence the Constitutional Court's pending judgment. Judge Hlophe filed a counter-complaint accusing the Constitutional Court judges of misconduct by making their complaint public before affording him a hearing. The JSC initially decided in July 2008 to hold a formal enquiry with oral evidence. However, after its composition changed in 2009 following the election of President Zuma, the reconstituted JSC decided to commence de novo with a preliminary investigation by a sub-committee conducting interviews behind closed doors. Following these interviews, the JSC dismissed both the complaint and counter-complaint in August 2009. Freedom Under Law, a not-for-profit company whose mission includes strengthening judicial independence, then applied to the High Court to review and set aside the JSC's decisions. The High Court found that Freedom Under Law had standing but dismissed the application on the merits.

• Whether Freedom Under Law had standing to bring the review application
• Whether the JSC was entitled to reverse its earlier decision to hold a formal enquiry and instead conduct a preliminary investigation
• Whether the JSC's decision to dismiss the complaint against Judge Hlophe without holding a formal enquiry with cross-examination was lawful and rational
• Whether the JSC's decision to dismiss the counter-complaint was lawful
• Whether cross-examination was required to resolve the material disputes of fact between the parties
• Whether the JSC abdicated its constitutional duty under section 165(4) to protect the independence and integrity of the courts

The Supreme Court of Appeal: (1) Granted leave to appeal with costs including costs of three counsel; (2) Refused leave to cross-appeal with costs including costs of three counsel; (3) Upheld the appeal with costs including costs of three counsel; (4) Set aside the High Court order and replaced it with an order reviewing and setting aside the JSC's decision of 15 August 2009 that the evidence did not justify a finding that Judge Hlophe was guilty of gross misconduct and that the matter be treated as finalized; (5) Ordered the first and second respondents (JSC) on the one hand and the sixteenth respondent (Judge Hlophe) on the other hand to pay the applicant's costs jointly and severally.

The binding legal principles established by this judgment are: (1) A body or organization whose mission includes protecting judicial independence has standing to challenge decisions of the JSC that allegedly fail to properly investigate complaints of judicial misconduct threatening the independence of the courts; (2) Where the JSC has determined that allegations of judicial misconduct, if established, would prima facie constitute gross misconduct potentially justifying removal from office, and where there are material disputes of fact between the complainant's and accused judge's versions, the JSC has a constitutional duty under section 165(4) to properly investigate those allegations; (3) Where serious allegations of judicial misconduct depend on contested factual disputes that cannot be resolved on the papers, cross-examination is required to test the evidence before the complaint can be finally determined; (4) A decision by the JSC to dismiss a complaint of gross judicial misconduct without affording the parties an opportunity to test conflicting versions through cross-examination, on the basis that the accused judge's version cannot be rejected without such testing, constitutes an abdication of the JSC's constitutional duty and is both unlawful and unreasonable administrative action; (5) The appropriate standard of proof in judicial disciplinary proceedings is the balance of probabilities applicable at the conclusion of a proper enquiry, not proof beyond reasonable doubt; (6) Evidence about what was allegedly said during meetings between judges cannot rationally be deemed "immaterial" to the question of whether there was an attempt to improperly influence a judgment when such evidence forms the very basis for the inference of improper influence.

The court made several non-binding observations: (1) In dealing with the JSC's argument that cross-examination would serve no purpose because Judge Hlophe would persist in his denials, the court observed that courts frequently have to decide between conflicting versions where neither party concedes, and the possibility that cross-examination might not resolve the dispute does not justify avoiding it altogether; (2) The court noted that it would assume without deciding that the parties should have been afforded a hearing before the JSC reversed its earlier decision to hold a formal enquiry, but found this point academic since the affected parties accepted the decision and participated in the interviews; (3) The court commented on the factors advanced by the JSC as supporting Judge Hlophe's version (such as lack of follow-up, only approaching two of eleven judges, etc.) without determining whether these would be persuasive after a full enquiry; (4) The court expressed appreciation for the assistance of the amicus curiae (Professor Kader Asmal) but declined to make a costs order in his favor given that all parties were well represented; (5) The court observed that it cannot be in the interests of the judiciary, legal system, country or public to "sweep the allegation under the carpet" because of denial, expense, or delay; (6) The court noted that judges of the Constitutional Court were entitled to act in what they considered the public interest and were not required to litigate personally, being appropriately inhibited by judicial reserve from involvement in public controversy.

This case is significant in South African law for several reasons: (1) It affirms a broad approach to standing in matters involving constitutional rights and judicial independence, particularly for public interest organizations; (2) It clarifies the constitutional duty of the JSC under section 165(4) to properly investigate allegations of judicial misconduct that threaten the independence and integrity of the courts; (3) It establishes that where there are material disputes of fact in complaints of gross judicial misconduct, cross-examination is required and the matter cannot be dismissed merely because the accused judge's version cannot be rejected without testing; (4) It confirms that the appropriate standard of proof in judicial disciplinary proceedings is the balance of probabilities, not proof beyond reasonable doubt; (5) It demonstrates that procedural shortcuts that make dismissal of serious misconduct allegations inevitable are unlawful; (6) The case addresses the difficult intersection of judicial independence, accountability, and the political context surrounding high-profile cases; (7) It reinforces that allegations of attempts to influence judicial decisions in pending cases are sufficiently serious to warrant full investigation where prima facie evidence exists.