Seriti and Another v Judicial Services Commission and Others
Case: Legoabe Willie Seriti and Another v The Judicial Services Commission and Others (32193/2021)
Court: High Court of South Africa, Gauteng Local Division, Johannesburg
Date of hearing: 14 March 2023
Status: Judgment handed down on 14 April 2023
Last updated: 14 April 2023
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Case overview: Open Secrets and Shadow World Investigations, non-profit organisations seeking to fight corruption and promote accountability, are the Fourth and Fifth Respondents in a constitutional challenge brought by retired judges Seriti and Musi (the Applicants). The Applicants are challenging the constitutionality of the definition of “judge” in section 7(1)(g) of the Judicial Service Commission Act 9 of 1994 (“JSC Act”). Open Secrets and Shadow World Investigations are represented by Power & Associates.
Open Secrets and Shadow World Investigations view the constitutional challenge as an attempt by the Applicants to put an end to the proceedings which are currently before the Judicial Service Commission (“JSC”) and its organ the Judicial Conduct Committee. Those proceedings, brought by Open Secrets and Shadow World Investigations, concern the conduct of the Applicants while presiding over the Commission of Inquiry into the Arms Deal at a time when they were sitting Judges.
In the constitutional challenge, the Applicants argue that the JSC Act impermissibly broadens the meaning of “judge”. They argue that the definition is unconstitutional and invalid in that it is inconsistent with sections 176 and 177 of the Constitution, read with section 1 of the Judges Remuneration and Conditions of Service Act 4 of 2021. They further contend that because they have retired from active service, they cannot be held accountable by the JSC for their conduct while they were still in active service.
The JSC, Open Secrets, and Shadow World Investigations have opposed the application. The JSC argues that this application is an attempt to absolve the Applicants, being judges discharged from active service, from their constitutional obligation of accountability. The JSC further argue that this case implicates core safeguards to the independence of the judiciary. Open Secrets and Shadow World Investigations argue that the Applicants have failed to show that the definition of “judge” is inconsistent with the Constitution and argue that the order which the Applicants seek would undermine the achievement of the constitutional imperative of accountability and erode the integrity of the judiciary.
The matter was heard in Court 11A (Gauteng Local Division, Johannesburg) on 14 March 2023 before a full bench comprising Sutherland DJP, Wepener J and Molahlehi J. On 14 April 2023, a unanimous judgment, penned by Sutherland DJP, dismissed the application, with costs, and declared that section 7(1)(g) of the JSC Act is not inconsistent with the Constitution.
Advocate Geoff Budlender SC is on brief in this matter and Power & Associates is supported by Gilfillan Du Plessis, as correspondent attorneys.
Court papers:
- Founding Affidavit (30 June 2021) (9mb)
- OS and SWI Answering Affidavit (5 November 2021) (2mb)
- Replying Affidavit to OS and SWI (23 November 2021) (560kb)
- JSC Answering Affidavit (8 February 2022) (1mb)
- Replying Affidavit to JSC (30 March 22) (684kb)
- Applicants Heads of Argument (4 July 2022) (4mb)
- OS and SWI Heads of Argument (14 July 2022) (218kb)
- JSC Heads of Argument (31 August 2022) (320kb)
- JSC Supplementary Heads of Argument (24 February 2023) (278kb)
- Applicants Supplementary Heads of Argument (7 March 2023) (411kb)
- Full Caselines Bundle (59mb)
Judgment:
- Judgment (14 April 2023) (4mb)
Attorneys:
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- [Article] News24, Arms Deal Inquiry: Why two retired judges are challenging the constitutionality of the JSC Act (14 March 2023)
- EWN, Court asked to hit Seriti, Musi with costs order in their challenge of JSC Act (14 March 2023)
