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A TURNING POINT IN THE JUDICIARY OF SOUTH AFRICA
JUDGEMENT: SERITI AND ANOTHER V JSC AND OTHERS
The South Gauteng High Court confirms that Judges must be held accountable for their conduct while in active service, even after their retirement. It is an important victory for accountability and the integrity of the Judiciary.
The Court held that ‘the foundations of the challenge to the jurisdiction of the JSC [by the Judges] are weak’, and further confirmed that ‘the interest that drives the applicants is their reputation and a decision to endeavor to prevent any enquiry at all that might result in a blemish’. READ MORE ON THIS CASE
RETIRED JUDGES AND THE JSC
CONSTITUTION – Judge – Jurisdiction of JSC – Retired judges – Definition of “judge” in JSC Act – Not inconsistent with Constitution – Making a person a judge for life is bound up with the expectations of the character of judgeship and especially the independence that a judge is required to assert in the South African context – Judicial Service Commission Act 9 of 1994, s 7(1)(g) – Constitution, s 176.
Seriti v Judicial Service Commission [2023] 32193-2021 (GJ) at [14]-[28]
Facts: The findings of the Seriti Commission of enquiry into the arms deal were taken on review and set aside by the High Court. The conduct of Judge Seriti and Judge Musi (applicants) on the commission were criticised. After Open Secrets and Shadow World lodged complaints with the Judicial Service Commission (JSC) it decided to institute proceedings in terms of its disciplinary apparatus.
Application: Challenging the constitutionality of section 7(1)(g) of the Judicial Service Commission Act 9 of 1994 (JSC Act) which defines a “judge” to include a judge who has been discharged from active service.
Discussion: That the JSC, in terms of this definition of a judge, claims jurisdiction over the two applicants who are retired judges; whether the provision is unconstitutional by reason of its alleged inconsistency with the provisions of the Constitution; the contentions by the applicants on section 176 of the Constitution on the terms of office of judges; that they contend that section 176 exhaustively circumscribes the concept of a “judge” and once “discharged” the person who was a judge thereupon ceases to be one; and the relevant law about judges and the JSC.
Findings: The basic flaw in the applicants’ thesis is the notion that a person can only be a judge during the term of active service or term of office. Section 176 of the Constitution does not purport to define who is a judge. The tenor of section 176 is to regulate the duration of office, not the standing of judgeship. The choice of making a person a judge for life is bound up with the expectations of the character of judgeship and especially the independence that a judge is required to assert in the South African context.
Order: The application is dismissed with costs. It is declared that section 7(1)(g) of the JSC Act is not inconsistent with the Constitution.
SUTHERLAND DJP (WEPENER J and MOLAHLEHI J concurring) READ MORE ON THIS CASE
YOUR PROPERTY RIGHTS IN SOUTH AFRICA
WE HELP STOP UNLAWFUL FORECLOSURE, LEGAL ACTION AND SALE IN EXECUTION
Sale in execution has never been the ideal solution to liquidate an asset to recover the debt and protect the proceeds and investment made in your property.
We provide lawful assistance through advice, guidance and Court appearance that will help you keep your property.
The earlier we work with you in this process, the less costly it will be.
We Help Homeowners to keep their Property and rebuild their credit
PRIVATE PROPERTY RIGHTS –
Private property rights must always be respected. No government, Court, or Bank has the right to dispossess people of their property.
In rare cases where the government must obtain private property in order to provide for improved services or infrastructure, a just and equitable market related compensation must be paid to the legal property owners.
SEIZURE OF PROPERTY OBTAINED FROM UNLAWFUL OR CRIMINAL ACTIVITY
A key component of achieving true justice in corruption related matters is ensuring that individuals and corporations do not profit from their unlawful activities. South African law provides for the seizure of proceeds of unlawful or criminal activity.
In the judgment of Bobroff and Another v National Director of Public Prosecutions, the Supreme Court of Appeal (“SCA”) had to decide whether the Pretoria High Court had jurisdiction to grant a forfeiture order in terms of the Prevention of Organised Crime Act, 1998 (“POCA”) in respect of property situated outside of South Africa and belonging to persons who were resident in a foreign jurisdiction.
The SCA held that POCA allowed the High Court to grant a forfeiture order in respect of the proceeds of crime irrespective of where it may be held.
There has been a number of orders granted in terms of POCA in cases involving high profile individuals in an attempt to stop corrupt individuals and companies from profiting from unlawful activities.
This article provides an overview of the seizure of property obtained from unlawful or criminal activity.