The CJ and the four judges: Whose conduct is irregular

Correspondent | Friday August 28, 2015 15:35

 

In response, the judges, through a letter dated 12th August 2015, wrote to the CJ saying “we are alarmed that a matter as internal as housing allowance, whose continued receipt at the instance of the Administration of Justice (AoJ) was never raised with us at any point, has become a criminal matter that you have referred to the police for investigation.”

It is on record that the Secretary to the JSC, Michael Motlhabi, has issued a statement published, inter alia, in Mmegi’s online edition of 14th August 2015 stating that “... the decision to refer the issue of wrongful payment and receipt of housing allowance for an independent investigation was that of the JSC as a whole, taken unanimously in good faith after a lengthy and searching debate. It was not, as suggested, a decision taken by the CJ alone...”

Reportedly, 12 judges have petitioned the JSC to start impeachment proceedings against the CJ, threatening to refer the matter to His Excellency the President if the JSC fails to act. The four judges are reported to have threatened to sue the CJ for defamation and to report him for criminal defamation. In this article, we consider whether the JSC had the mandate and reason to report the matter to the Police for investigations; and whether the CJ can be impeached in these circumstances. Firstly, whether the JSC had the mandate and reason to report the matter to the Police for investigations? Ordinarily, any person, both natural and juristic, is competent to report a suspected crime or offence to the police or any law enforcement agency for investigation. Therefore, the JSC is competent to have reported the matter to the Police. But, did it have a reason to report the matter as it did?

This is no ordinary matter. It is a matter which can lead to the removal from office of the said judges. Therefore, the CJ and the JSC have a duty to avoid any action which may be prejudicial to the judges or the state should impeachment proceedings be instituted. If indeed, after according the judges an internal hearing, the CJ or JSC believe the judges are no longer fit and proper to continue as judges they can advise the President who would decide whether to commence removal proceedings in terms of section 97 of the Constitution.   

Secondly, whether the CJ can be impeached in these circumstances? As a judge of the High Court (HC), the CJ, in terms of section 97(2) of the Constitution, “…may be removed from office only for inability to perform the functions of his office … or for misbehaviour and shall not be so removed except in accordance with the provisions of this section.”

It seems to me that in terms of section 97 supra a judge of the HC can only be removed for personal inability or misbehaviour. If I am right, it necessarily follows that to the extent the JSC has confirmed that the CJ was acting on its behalf, he cannot be held to be personally guilty of inability or misbehaviour as contemplated by section 97.

Such inability or misbehaviour, if any, would be for the JSC as a collective and not the CJ as an individual.   Assuming the CJ acted personally: would his conduct amount to inability or misbehaviour? For us to answer this question we need to enquire on the procedural and substantive propriety of his conduct. We start with procedural propriety. The four judges have stated that the matter is internal and they have not been accorded the right to a hearing to respond.

Our courts have held in numerous judgments that a person has the right to meet charges and to be heared (audi alterum partem) before any adverse decision or action is taken against him or her. If it is true that the judges were not accorded a hearing by their employer before the matter was referred to the police, it is incontrovertible that the CJ erred by tabling the matter at the JSC before an internal hearing since his action would be tainted with procedural impropriety as has been held in such cases as Phirinyane v Spie Batognolles 1995 BLR 1 (IC).

The question is: can referral of a matter to the Police for a criminal investigation be regarded as giving the judges the right to meet charges and to be heared? In my view, it cannot since it amounts to an adverse decision. In the context of labour relations, what is reasonably contemplated by our law as the right to meet charges and to be heared is an internal hearing by the employer.  In my view, if the CJ acted personally and his action was motivated by malice and irrelevant considerations, he would be guilty of misbehaviour within the meaning of section 97. But, he did not act personally; he acted on the JSC’s behalf. Also, on the facts before us, there is no evidence that his conduct was motivated by malice and irrelevant considerations. The other question is: would it be any different if the four judges’ conduct is indeed substantively wrong? Before we answer this question we consider whether their action is substantively wrong. The judges are quoted as saying “we do hereby confirm to you that unbeknown to us, and without our consent, such allowance was paid to us. We are, as a matter of fact, willing to pay back the aforesaid amounts.” This should be held as true until the contrary is proven during an internal hearing.

An internal hearing would also be best suited to enquire on the judges’ claim that “it is a matter of record that some of the colleagues you are now accusing alerted the AoJ of this lapse and no action was taken”. It is the judges’ contestation that a police investigation is unnecessary because “…there is nothing for the police to investigate because, whether or not the housing allowance was paid to us, is a matter in which the AoJ can easily confirm with the payroll section and an arrangement can be made with the affected judges to pay back the agreed amounts”.

Now, back to the question whether it would be any different if the four judges’ conduct is substantively wrong?

If I am right that the CJ or JSC’s conduct is tainted with procedural impropriety it would not make a difference because our courts in such cases as Masimolole v The Attorney General and Another [1997] BLR 142 (CA) have held that for administrative action to be fair and lawful it has to be both procedurally and substantively fair.

*Ndulamo Anthony Morima is a political analyst and Managing Director at Mosireletsi Legal Services