RIGHT now, we South Africans seem to be loving our judges. Chief Justice Mogoeng Mogoeng was like a rock star on the day of the Nkandla judgment. We celebrated when the Constitutional Court found against bullying corporate avarice in the Please Call Me case.
But it was not always so. Remember the days of "counter-revolutionary" judges and the days when our leaders were trying to rewrite history by suggesting the separation of powers was a compromise made at Codesa and was essentially anti-democratic?
The popularity pendulum can swing back and forth, and judges must weather the storm. What really matters is not popularity, it is confidence. Just think what would happen should our finance minister actually be charged and go to trial. If this materialises, nothing is going to be more important than for South Africans to have confidence in the judiciary; to know, with no shadow of doubt, that our judges are beyond reproach.
Judges are not elected. They are appointed for life. Yet in our constitutional democracy they are able to tell our elected leaders that they have acted unlawfully and to set aside their decisions and actions. They can tell our big corporates to open their books. They can and must make decisions that many people will hate, if that is what the law requires.
This does not mean that judges are not accountable. They are. They have to give judgments that include reasons for their decisions, reasons we can (and do) pick apart and criticise. Their hearings are held in the open. There are appeals during which other judges can correct their mistakes.
But, so important is their role as the referees of democracy that the constitution pegs their salaries, guarantees their independence, makes their appointment a gruelling and very public process and makes it damn near-impossible to remove them.
But, not totally impossible. Part of what insulates judges from influence and pressure is the public’s knowledge that if a judge were to go wayward, there are processes in place to deal with it — processes that work.
Judicial accountability is intrinsically bound up with judicial independence. This is why I am so passionate about judicial accountability and why I get so upset when it is judges themselves who undermine it.
Enter Constitutional Court justices Bess Nkabinde and Chris Jafta. And now also High Court in Pretoria Judge Nkola Motata. Over the past three years, cases of potentially impeachable conduct — allegations that, if true, would warrant impeachment and that have, therefore, been referred to judicial conduct tribunals — have been piling up but not resolved.
Why? Partly because Jafta and Nkabinde have since 2013 pursued an inexplicable and seemingly hopeless court case, challenging the lawfulness of a tribunal they were called to testify at, and the constitutionality of the Judicial Service Commission (JSC) Act. I say inexplicable because, being only witnesses and not the accused judge, the two had no obvious interest in their very zealous pursuit of their case. I say seemingly hopeless because 10 judges heard their arguments and not a single one agreed.
While this case was ongoing, the JSC decided no tribunals could go ahead. It did not want to risk utilising a procedure that would later be found unconstitutional.
Last week, the Constitutional Court finished with that case, clearing the way for the system to start working again. Then the very same day another court challenge was launched, by yet another judge. In some ways, Motata’s challenge is worse: he is challenging almost every aspect of the judicial complaints procedure.
Tribunals — the subject of Jafta and Nkabinde’s challenge — are just one of several structures provided for under the JSC Act. But Motata even challenges the constitutionality of the Judicial Conduct Committee (JCC), the first port of call for every complaint.
The JCC and the JSC are going to have to decide how Motata’s challenge will affect their work. But if they adopt the same thinking as before, even the JCC could now be hamstrung.
We can and do disagree about individual cases when judges are accused of misconduct. But it is not about individuals. It’s about judicial accountability and judicial independence, something we all should care about.
• Rabkin is law and constitution writer