It is the view of the league that Justice Tshosa has been constructively dismissed from judgeship. The Presidency had become odious and or intolerable and made things difficult for the learned Judge that he had no choice but to resign from judgeship. We opine that it is most probable that Justice Tshosa's resignation was not truly voluntary; it is in effect termination of his employment. By appointing a tribunal to investigate Judge Tshosa, the presidency was trying to effect a constructive discharge. The President dislikes alcohol and the fact that Judge Tshosa was facing drunken driving and related charges might have influenced his decision. The President had appointed a tribunal in terms of Section 97(3) of the Constitution following Justice Tshosa's conviction at the Magistrate Court.
The appointment of the tribunal comes at a time when Justice Tshosa has appealed both the conviction and sentence at the High Court. The press release announcing the appointment of the tribunal indicates that its appointment follows Justice Tshosa's conviction. A number of problems arise in respect of this approach. Firstly and most importantly it undermines the rule of law and due process by seemingly setting up two panel structures to deal with the matter. It is readily acknowledged that Section 97(3) empowers the President to appoint the tribunal to enquire into the conduct of the Judge.
