Judicial Service Commission Amendment Act

Link to law: http://www.gov.za/documents/judicial-service-commission-amendment-act
Published: 2008-10-27

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Judicial Service Commission Amendment Act 20 of 2008


Government Gazette
REPUBLIC OF SOUTH AFRICA

Vol. 520 Cape Town 27 October 2008 No. 31540
THE PRESIDENCY No. 1142 27 October 2008
It is hereby notified that the President has assented to the following Act, which is hereby published for general information:–
No. 20 of 2008: Judicial Service CommissionAmendment Act, 2008.

ACT To a m e n d the Judicial Service C o m m i s s i o n Act , 1994 , so as to establ ish the Judicial Conduct Commit t ee to receive and deal wi th compla int s a b o u t j u d g e s ; to provide for a C o d e of Judicial Conduc t which serves as the prevai l ing s tandard of judic ial conduct which j u d g e s m u s t adhere to ; to provide for the establ i shment and maintenance of a register of j u d g e s ' registrable interests; to provide for procedures for deal ing with compla int s about j u d g e s ; to prov ide for the establ i shment of Judicial Conduct Tribunals to inquire into and report o n al legations of incapacity, gross incompetence or gross mi sconduc t against j u d g e s ; and to provide for matters connected therewith.
BE IT E N A C T E D by the Par l iament of the Republ ic of South Africa, as fo l lows:— Insertion of Preamble in Act 9 of 1994
1. The following Preamble is inserted in the Judicial Service Commiss ion Act , 1994, (hereafter referred to as the principal Ac t ) , after the long title:
" P R E A M B L E
S I N C E the Judicial Service Commiss ion has been establ ished by section 178(1) of" the Consti tut ion of the Republ ic of South Africa, 1996;
A N D S I N C E section 178(4) of the Const i tut ion provides that the Judicial Service Commiss ion has the powers and functions ass igned to it in the Const i tut ion and national legislation;
A N D S I N C E section 180 of the Const i tut ion provides that national legislation may provide for any mat ter concern ing the administrat ion of jus t ice that is not dealt with in the Const i tut ion, including procedures for deal ing with compla in ts about judicial officers;
A N D S I N C E section 177(1) of the Const i tut ion provides that a j u d g e m a y be removed from office only if—
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(a) the Judicial Service Commiss ion finds that the j u d g e suffers from an incapacity, is grossly incompetent or is guilty of gross misconduct ; and
(b) the Nat ional Assembly calls for that j udge to be removed , by a resolution adopted with a supporting vote of at least two thirds of its members ;
A N D S I N C E section 177(3) of the Consti tut ion provides that the President, on the advice of the Judicial Service Commiss ion may suspend a j u d g e w h o is the subject of a procedure in te rms of section 177(1);
A N D S I N C E it is necessary to create an appropriate and effective balance between protect ing the independence and dignity of the judiciary when consider ing complaints about, and the possible removal from office of, judicial officers, and the overriding principles of openness , t ransparency and accountabil i ty that permeate the Consti tut ion and that are equal ly applicable to judicial institutions and officers;
A N D S I N C E it is necessary to create procedures , structures and mechan i sms in terms of w h i c h —
• compla in ts against judges could be lodged and dealt with appropriately: • al legations that any judge is suffering from an incapacity, is grossly incompetent
or is guilty of gross misconduct could be investigated; and • information can be placed before the Judicial Service Commiss ion and
Parl iament in order to enable these institutions to make a finding whether a judge suffers from an incapacity, is grossly incompetent or is guilty of gross misconduc t , " .
Insertion of head ing in Act 9 of 1994
2. The fol lowing heading is inserted in the principal Act after the enac tment c lause:
" C H A P T E R 1
A D M I N I S T R A T I V E P R O V I S I O N S " .
Subst i tut ion of section 1 of Act 9 of 1994
3 . The following section is substituted for section 1 of the principal Act:
"Definitions
1. In this Act, unless the context otherwise ind ica tes— 'Chai rperson ' means the Chief Just ice; ' C o m m i s s i o n ' means the Judicial Service Commiss ion established by section [105] 178 of the Const i tut ion; ' compla inan t ' means a person w h o lodged a complaint against a j udge in te rms of section 14; 'Minis te r ' means the Cabinet m e m b e r responsible for the administrat ion of jus t ice ; 'p rescr ibed ' means as prescribed in terms of a regulation made under section 35; ' r espondent ' means a j u d g e against whom a complaint was lodged in terms of section 14, or who is the subject of an allegation referred to a Tribunal in terms of this Act; ' this Ac t ' includes the Code of Judicial Conduct contempla ted in section 12 and any regulat ions made under section 35 ; and 'Tr ibuna l ' means a Tribunal appointed in terms of section 2 1 . " .
A d No. 20, 2008 JUDICIAL SERVICE COMMISSION
AMENDMENT ACT, 2008 Subst i tut ion of sect ion 2 of Act 9 of 1994
4. The following section is substituted for section 2 of the principal Act :
"Act ing Chairperson and vacancies
2. [(1) The m e m b e r s of the C o m m i s s i o n des ignated as such in terms of sect ion 105 (1) (c), (e), (f), (g), (h) and (i) of the Const i tut ion shall ho ld office for a term not exceeding five years : Provided t h a t — (a) the Pres ident shall remove any such m e m b e r from office at any
t ime if the des ignator w h o or which des ignated such member , so requests; or
(b) any such m e m b e r m a y resign from office by g iv ing at least one m o n t h ' s written notice thereof to the chairperson.
(2) A m e m b e r of the Commiss ion designated as such in t erms of sect ion 105 (1) (e), (f), (g), (h) or (i) of the Const i tut ion shal l vacate his or her office automatical ly if he or she ceases to be qualified to be so des ignated.
(3) Subject to section 105 (1) of the Const i tut ion, any person whose term of office as a m e m b e r of the Commiss ion has expired, m a y be redesignated.
(4) T h e Commiss ion shall des ignate one of the m e m b e r s hold ing office in t erms of section 105 (1) (b), (c), (e), (f), (g) or (i) of the Const i tut ion as deputy chairperson of the C o m m i s s i o n , a n d when the cha irperson is not avai lable , the deputy chairperson shall act as chairperson. ]
(1) When the Chairperson is for any reason unavailable to serve on the Commiss ion or perform any function or exercise any power, the Deputy Chief Justice, as his or her alternate, shall act as chairperson.
(2) If neither the Chief Justice nor the Deputy Chief Justice is available to preside at a meet ing of the Commiss ion , the member s present at the meet ing must designate one of the members holding office in terms of section 178( l ) (b) or (c) of the Consti tut ion as acting chairperson for the durat ion of the absence.
[(5)] (3) A vacancy in the Commiss ion sha l l— (a) not affect the validity of the proceedings or decis ions of the
Commiss ion ; and (b) be filled in accordance with section [105 (1)] 178(3) of the
Const i tut ion, and any member so designated shall , where applicable, hold office for the unexpired portion of his or her p redecessor ' s term of office.".
Subst i tut ion of sect ion 3 of Act 9 of 1994
5. The following section is substituted for section 3 of the principal Act :
"Remunerat ion and expenses of m e m b e r s of C o m m i s s i o n
3 . (1) Any member of the Commiss ion who is [a j u d g e , a m e m b e r of Par l iament or a Premier of a province] an office bearer as defined in section 1 of the Independent Commiss ion for the Remunera t ion of Public Office-Bearers Act, 1997 (Act No . 92 of 1997), may be paid such a l lowances for travelling and subsistence expenses incurred by him or her in the performance of his or her functions as a member of the Commiss ion as (he Minis ter [of Just ice] may determine with the concurrence of the Minis ter of F inance .
(2) Any m e m b e r of the Commiss ion w h o is n o t — (a) [a j u d g e ] an office bearer as defined in section 1 of the Independent
Commiss ion for the Remunera t ion of Public Office-Bearers Act, 1997; or
(b) [a m e m b e r of Par l iament; (c) a Premier of a province; or
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(d)] in the employ of the State and subject to the laws governing the public service,
may be paid such remunera t ion , including a l lowances for travell ing and subsis tence expenses incurred by him or her in the performance of his or her functions as a member of the Commiss ion , as the Minis ter [of Just ice] may de termine with the concurrence of the Minister of F i n a n c e . " .
Repeal of sect ion 4 of Act 9 of 1994
6. Section 4 of the principal Act is repealed.
Subst i tut ion of section 5 of Act 9 of 1994
7. The following section is substi tuted for section 5 of the principal Act:
"Publicat ion of procedure of Commiss ion
5. T h e Minis ter [of Just ice shall] must by notice in the Gazette, make known the part iculars of the procedure , including subsequent amendments , which the Commiss ion has de termined in terms of section [105 (4)] 178(6) of the Cons t i tu t ion ." .
Substitution section 6 of Ac t 9 of 1994
8. The fol lowing section is substituted for section 6 of the principal Act:
"Annual report
6. (1) The Commiss ion shall within six months after the end of every year submit a written report to Par l iament [a report in writ ing regarding its activities dur ing that year] for tabling.
(2) The report referred to in subsection (1) mus t include information r ega rd ing— (a) the activities of the Commiss ion dur ing the year in quest ion; (b) all mat ters dealt with by the Judicial Conduct Commi t t ee referred to in
section 8; (e) all matters relating to, including the degree of compl iance with, the
Register of J u d g e s ' Registrable Interests referred to in section 13, as reported by the Registrar of J u d g e s ' Registrable Interests; and
(d) all matters considered by the Commiss ion in the course of the application of Chapters 2 and 3 of this Act, including the number of matters outs tanding and the progress in respect thereof.".
Insertion of Chapters 2 , 3 and 4 in Act 9 of 1994
9. The following Chapters are inserted in the principal Act after section 6, the existing section 7 becoming section 39:
" C H A P T E R 2
O V E R S I G H T O V E R J U D I C I A L C O N D U C T A N D A C C O U N T A B I L I T Y O F J U D I C I A L O F F I C E R S
P A R T I
Establishment and objects of Committee
Definitions a n d interpretat ion
7. (1) For purposes of this Chapter, unless the context indicates o the rwise— I
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(a) "ac t ive se rv ice" means active service as contempla ted in section 1 of the J u d g e s ' Remunera t ion and Condi t ions of Service Act , 2001 (Act N o . 47 of 2001) ;
(b) " C h a i r p e r s o n " , means the Chairperson of the Commi t t ee ; (c) " C o m m i s s i o n " means the Commiss ion , acting without the participa­
tion of the members referred to in section 178( l ) (h) and (i) of the Consti tut ion;
(d) " C o m m i t t e e " means the Judicial Conduct Commi t t ee referred to in section 8;
(e) " H e a d of C o u r t " , in relation to a complaint against a j u d g e — (i) of the Const i tut ional Court , means the Chief Just ice;
(ii) of the Supreme Court of Appeal , means the President of that Court ;
(iii) of any other court , means the Judge President of that court; (iv) w h o was performing judicial dut ies in an act ing capacity on the
date the compla in t arose, means the Head of Cour t in which such judge acted when the complaint arose; or
(v) who has been discharged from active service, means the Chief Justice;
(f) " immed ia t e family m e m b e r " in relation to a j u d g e refers to the spouse, civil partner or permanent life partner of that j udge and includes dependent chi ldren of, and family m e m b e r s living in the same household with, that j u d g e ; and
(g) " j u d g e " means any Consti tut ional Court j udge or j u d g e referred to in section 1 of the Judges ' Remunera t ion and Condi t ions of E m p l o y m e n t Act , 2001 (Act No . 47 of 2001) , which includes a j u d g e w h o has been discharged from active service in terms of that Act , as well as any person holding the office of j u d g e in a court of s imilar status to a High Court , as contemplated in section 166 of the Const i tut ion, and, except for the purposes of section 11, includes any Consti tut ional Court j udge or j u d g e performing judicial duties in an act ing capacity.
(2) In this Chapter any reference to a compla inan t or to a respondent must , unless it is inconsistent with the context, be const rued to include a reference to a legal representat ive of that compla inant or respondent .
Establ i shment and compos i t ion of Judicial C o n d u c t Commit t ee
8. (1) The Commiss ion has a Judicial Conduct Commi t t ee , compr i s ing— (a) the Chief Just ice, w h o is the Chairperson of the Commi t t ee ; (b) the Deputy Chief Just ice; and (c) four judges , at least two of w h o m must be w o m e n , designated by the
Chief Justice in consultat ion with the Minister, for the period determined at the t ime of such designat ion, provided that such period may not exceed two years .
(2) Any judge designated in terms of subsection (\)(c) may be reappointed once for a period not exceeding two years , but may not serve as such a m e m b e r for more than four years in total.
(3) The Chairperson may, either general ly or in a specific case, delegate any of his or her powers or functions as Chai rperson of the Commi t tee to the Deputy Chief Justice.
(4) When consider ing a complaint relat ing to the conduct of a j u d g e w h o is a m e m b e r of the Commi t t ee , the Commi t t ee must sit without that member .
(5) The first designat ions in terms of subsect ion (\)(c) must be m a d e within one month of this section coming into operat ion.
(6) A n y vacancy which may arise in respect of a designat ion in terms of subsection 1(c) must immedia te ly be filled for the remain ing period of such designat ion in the manner prescribed in this section.
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M e e t i n g s of Commit t ee
9. (1) The Commi t t ee meets at any t ime and place determined by the Chai rperson.
(2) (a) The Commi t t ee may determine the procedure to be followed at its mee t ings , but decis ions of the Commi t t ee must be supported by a majority of its m e m b e r s .
(b) In the event of an equali ty of votes being cast by the Commi t t ee member s present at a meet ing, the person presiding at that meet ing has a dec id ing vote in addit ion to his or her deliberat ive vote.
(3) Meet ings of the Commi t t ee may only be at tended by the member s of the Commi t t ee and persons whose presence are required or permit ted in terms of this Act , unless the Commi t t ee on account of public interest and for good cause decides otherwise .
Objects of Commit t ee
10. (1) The objects of the Commi t t ee are to receive, consider and deal with compla in ts in terms of Part III of this Chapter.
(2) The Commi t t ee must report on its activities to the Commiss ion at least once every six months .
P A R T II
Judicial conduct
J u d g e not to ho ld other office of profit or receive p a y m e n t for any service
11. (1) A j u d g e performing active se rv ice— (a) may not hold or perform any other office of profit; and (b) may not receive in respect of any service any fees, emoluments or
other remunera t ion or a l lowances apart from his or her salary and any other amoun t which may be payable to him or her in his or her capacity as a j u d g e :
Provided that such a j u d g e may, with the written consent of the Minis ter acting in consul tat ion with the Chief Justice, receive royalt ies for legal books writ ten or edi ted by that judge .
(2) A j u d g e w h o has been discharged from active service may only with the written consent of the Minister, acting after consul tat ion with the Chief Just ice, hold or perform any other office of profit or receive in respect of any fees, emolumen t s or other remunera t ion or a l lowances apart from his or her salary and any other amount which may be payable to him or her in his or her capaci ty as a j udge .
(3) (a) Writ ten consent as contemplated in subsection (2) may only be given if the Minis ter is satisfied that the granting of such consent will no t— (i) adversely affect the efficiency and effectiveness of the administrat ion
of jus t ice , including the undermining of any aspect of the adminis t ra­ tion of jus t ice , especially the civil just ice system;
(ii) adversely affect the image or reputation of the administrat ion of jus t ice in the Republ ic ;
(iii) in any manne r undermine the legal f ramework which underpins the j u d g e for life concept ;
(iv) result in any j u d g e engaging in any activity that is in conflict with the vocat ion of a j u d g e ; and
(v) br ing the judic iary into disrepute or have the potential to do so. (b) The Minister , acting after consultat ion with the Chief Just ice, may, by
notice in the Gazette, issue guidel ines regarding any other criteria to be applied when consider ing the granting of consent contempla ted in subsect ion (2).
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(c) Written consent as contemplated in subsection (2) may be granted on the condi t ions , if any, that the Minis ter deems appropriate .
(4) The Minis ter must cause the Registrar of Judges ' Registrable Interests referred to in section 13(1) to be informed of all instances where written consent as contemplated in subsect ions (1) and (2) has been granted.
(5) The Minis ter must , once every twelve months , table a report in Parl iament conta ining part iculars , including the ou tcome, of every appli­ cation made in terms of subsection (1) or (2), including any condi t ions at tached to any applicat ion granted, dur ing the period covered by the report.
C o d e of Judicial Conduc t
12. (1) T h e Chief Justice, acting in consultat ion with the Minister , must compi le a Code of Judicial Conduct , which must be tabled by the Minister in Par l iament for approval .
(2) The Minis ter must table the first Code under this section in Par l iament within four months of the c o m m e n c e m e n t of this Act , provided that if consensus could not be achieved as contempla ted in subsect ion (1) both versions of the Code must be tabled in Parl iament within the said period.
(3) W h e n the Code or any amendment thereto is tabled in Par l iament in terms of subsection (1) or (2), Par l iament may, after obtaining and consider ing public commen t thereon, approve the Code or such amend­ m e n t — (a) without any changes thereto", or (b) with such changes thereto as may be effected by Parl iament .
(4) The C o d e mus t be reviewed at least once in every three years by the Chief Just ice, act ing in consultat ion with the Minister, and the result of such review, including any proposed amendment to the Code , must be tabled in Parl iament , for approval , as contemplated in subsection (3).
(5) The Code shall serve as the prevail ing standard of judicial conduct , which j u d g e s must adhere to, and the Code and every subsequent amendmen t must be published in the Gazette.
Disclosure of registrable interests
13. (1) The Minister, acting in consultation with the Chief Justice, must appoint a senior official in the Office of the Chief Justice as the Registrar of Judges ' Registrable Interests.
(2) The Registrar must open and keep a register, called the Register of Judges ' Registrable Interests, and m u s t — (a) record in the Register part iculars of Judges ' registrable interests; (b) amend any entries in the Regis ter when necessary; and (c) perform the other duties in connect ion with the Register as required in
terms of this Act . (3) Every j u d g e mus t disclose to the Registrar, in the prescr ibed form,
part iculars of all his or her registrable interests and those of his or her immedia te family members .
(4) The first disclosure in terms of subsection (3) must be within 60 days of a date fixed by the President by proclamat ion, and thereafter annually and in such instances as prescribed.
(5) The Minister, act ing in consultat ion with the Chief Justice, must m a k e regulat ions regarding the content and management of the Register referred to in subsection (2), which regulat ions must at least p rescr ibe— (a) the format of the Register ; (b) the kinds of interests of j udges and their immedia te family member s
that are regarded as registrable interests;
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(c) the manner and the instances in which, and the t ime limits within which, registrable interests mus t be disclosed to the Registrar;
(d) a confidential and a public part of the Regis ter and the interests to be recorded in those parts respectively;
(e) the recording, in the public part of the register, of all registrable interests derived from the application of section 11;
(f) a procedure providing for public access to the public part of the Regis ter and a procedure for providing access to, and maintaining confidentiality of. the confidential part of the Register; and
(g) the lodging of a compla in t in terms of section 14(1) by the Registrar, in the event of—
(i) failure to register any registrable interest by any judge , including any failure to register any such interest within a prescribed time limit; or
(ii) disclosure of false or mis leading information by any judge . (6) The regulat ions may de te rmine different criteria for j u d g e s in active
service and judges w h o had been discharged from active service or judges in an acting capacity, including in respect of matters referred to in subsection (5)(d).
(7) The Minister must table the first regulations under this section in Par l iament , for approval , within four mon ths of the commencemen t of this Act, provided that if consensus could not be achieved as contemplated in subsect ion (5) both versions of the regulat ions must be tabled in Par l iament within the said period.
(8) W h e n the regulat ions or any amendmen t thereto is tabled in Par l iament , Parl iament may, after obtaining and consider ing public c o m m e n t thereon, approve the regulat ions or such a m e n d m e n t — (a) wi thout any changes thereto; or (b) with such changes thereto as may be effected by Par l iament .
PART III
Consideration of complaints by Committee
Lodg ing of compla ints
14. (1) Any person may lodge a complaint about a j u d g e with the Chairperson of the Commi t t ee .
(2) When a complaint is lodged with the Chairperson in terms of subsection (1), the Chairperson must deal with the complaint in accordance with section 15, 16 or 17, but in the event of a complaint falling within the parameters of section 15, the Chairperson may designate a Head of Court to deal with the complaint , unless the complaint is against the Head of Court .
(3) A complaint must b e — (a) based on one or more of the grounds referred to in subsection (4); and (b) lodged by means of an affidavit or affirmed statement, speci fy ing—
(i) the nature of the complain t ; and (ii) the facts on which the complaint is based.
(4) The grounds upon which any complaint against a j u d g e may be lodged, are any one or more of the fol lowing: (a) Incapacity giving rise to a j u d g e ' s inability to perform the functions of
judicial office in accordance with prevail ing standards, or gross incompetence , or gross misconduct , as envisaged in section 177(1 )(a) of the Const i tut ion;
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(b) Any wilful or grossly negligent breach of the Code of judicial Conduct referred to in section 12, including any failure to comply with any regulat ion referred to in section 13(5);
(c) Accept ing , holding or performing any office of profit or receiving any fees, emolumen t s or remunerat ion or a l lowances in contravent ion of section 11;
(d) Any wilful or grossly negligent failure to comply with any remedial step, contemplated in section 17(8), imposed in terms of this Act; and
(e) A n y other wilful or grossly negligent conduct , other than conduct contemplated in paragraph (a) to (d), that is incompat ib le with or unbecoming the holding of judicial office, including any conduct that is prejudicial to the independence , impartiality, dignity, accessibility, efficiency or effectiveness of the courts .
Lesser compla ints may be summar i ly d ismissed
15. (1) (a) If the Chairperson or the Head of Court des ignated in terms of section 14(2) is of the view that the complaint falls within the parameters of the g rounds set out in subsection (2), he or she must d ismiss the compla in t .
(b) If the Head of Court designated in terms of section 14(2) is of the view that the compla in t should not be dismissed under paragraph (a) . he or she must refer the complaint to the Chairperson to be deal t with in terms of section 16 or 17.
(2) A complaint must be d ismissed if i t— (a) does not fall within the parameters of any of the grounds set out in
section 14(4); (b) does not comply substantially with the provis ions of section 14(3); (c) is solely related to the meri ts of a j udgmen t or order; (d) is frivolous or lacking in substance; or (e) is hypothet ical .
(3) If a complaint is dismissed in terms of subsect ion (1) by a Head of Court , that Head of Court must inform the Chairperson in writ ing of that dismissal and the reasons therefore.
(4) If a compla in t is d ismissed in terms of subsection (1), the Chairperson must inform the compla inant in writ ing of— (a) the reasons for the dismissal ; and (b) the right to appeal to the Commi t t ee against that dismissal in terms of
subsect ion (5). (5) A compla inant w h o is dissatisfied with a decision to dismiss a
compla in t in terms of subsection (1) may, within one month after receiving notice of that decision, appeal to the Commi t tee in wri t ing against that decision, specifying the grounds for the appeal .
C o m m i t t e e may r e c o m m e n d appo intment of Tribunal in respect of impeachab le compla ints
16. (1) If the Chairperson is satisfied that, in the event of a valid compla in t being established, it is likely to lead to a finding by the Commis s ion that the respondent suffers from an incapacity, is grossly incompetent or is guilty of gross misconduct , as envisaged in section 14(4)(a), the Chairperson m u s t — (a) refer the complaint to the Commi t t ee in order to consider whether it
should r ecommend to the Commiss ion that the compla in t should be investigated and reported on by a Tribunal ; and
(b) in writ ing, inform the respondent of the complaint . (2) If a complaint is referred to the Commi t tee in terms of subsect ion (1)
or section 15(1)(b) or section l7(4)(c) or 17(5)(c)(iii), the Chairperson must de termine a t ime and a place for the Commi t tee to meet in order to consider a recommenda t ion envisaged in subsection (\)(a), and must inform the compla inan t and the respondent in writ ing that he or she m a y —
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(a) submit a writ ten representat ion for considerat ion by the Commi t t ee at that meet ing; and
(b) with the leave of the Chairperson, address the Commi t tee at that meet ing.
(3) For the purpose of a meet ing referred to in subsect ion (2), the Commi t t ee may request such further information from the compla inant or any other person as it d e e m s fit.
(4) At the meet ing referred to in subsection (2), the C o m m i t t e e must consider whether the complaint , if established, will prima facie indicate incapacity, gross incompetence or gross misconduct by the respondent , whereupon the Commi t t ee m a y — (a) refer the compla in t to the Chairperson for an inquiry referred to in
section 17(2); or (b) r ecommend to the Commiss ion that the complaint should be investi­
gated by a Tribunal . (5) The Commi t t ee must inform the complainant , the respondent and the
Commiss ion in wri t ing of any decision envisaged in subsect ion (4) and the reasons therefore.
(6) A meet ing referred to in subsection (2) must be a t tended by at least three members of the Commi t t ee .
Inquiry into ser ious , non- impeachable compla ints by Chairperson or m e m b e r of Commit t ee
17. ( 1 ) 1 1 — (a) the Chairperson is satisfied that, in the event of a valid complaint being
established, the appropria te remedial action will be l imited to one or more of the steps envisaged in subsection (8); or
(b) a complaint is referred to the Chairperson in terms of section 15(1)(b) or section 16(4)(a), or section 18(4)(a)(ii), the Chairperson or a m e m b e r of the Commi t t ee designated by the Chairperson must inquire into the compla in t in order to determine the merits of the complaint .
(2) Any inquiry contempla ted in this section mus t be conducted in an inquisitorial manner and there is no onus on any person to prove or to disprove any fact during such investigation.
(3) For the purpose of an inquiry referred to in subsect ion (2), the Chairperson or member conce rned—
(a) mus t invite the respondent to respond in wri t ing or in any other manner specified, and within a specified period, to the al legations;
(b) may obtain, in the manner that he or she deems appropriate , any other information which may be relevant to the complain t ; and
(c) must invite the complainant to comment on any information so obtained, and on the response of the respondent, within a specified period.
(4) If, pursuant to the steps referred to in subsection (3), the Chairperson or member concerned is satisfied that there is no reasonable l ikel ihood that a formal hear ing on the matter will contribute to de termining the merits of the complaint , he or she must , on the strength of the information obtained by him or her in te rms of subsection ( 3 ) — (a) d ismiss the complain t ; (b) find that the compla in t has been established and that the respondent
has behaved in a manne r which is unbecoming of a j udge , and impose any of the remedial steps referred to in subsect ion (8) on the respondent ; or
(c) r ecommend to the Commi t t ee , to recommend to the Commiss ion that the compla in t should be investigated by a Tribunal .
(5) (a) If, pursuant to the steps referred to in subsection (3), the Chairperson or m e m b e r concerned is of the opinion that a formal hearing is required in order to de termine the meri ts of the complaint , he or she must de termine a t ime and a place for a formal hearing and writ ten notice of the hearing must, within a reasonable period before the date so determined, be given to the respondent and the complainant .
(b) For purposes of a formal hearing contemplated in paragraph ( a ) — (i) the Chairperson or m e m b e r concerned has all the powers of a Tribunal ;
and
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(ii) the provis ions of sections 24 , 26, 27, 28 , 29 . 30, 31 and 32 are appl icable with the changes required by the context .
(c) Upon the conclusion of a formal hear ing the Chairperson or member concerned must record his or her findings of fact, including the cogency and sufficiency of the evidence and the demeanour and credibility of any witness , and his or her finding as to the meri ts of the complaint , an d — (i) dismiss the complaint ;
(ii) find that the compla in t has been established and that the respondent has behaved in a manner which is unbecoming of a judge , and impose any of the remedial steps referred to in subsection (8) on the respondent : or
(iii) r ecommend to the Commi t t ee , to r e c o m m e n d to the Commiss ion that the complaint should be invest igated by a Tribunal .
(6) The Chairperson or member concerned must in writ ing inform the Commi t t ee , the compla inant and the respondent of— (a) a dismissal contemplated in subsect ion (4)(a) or (5)(c)(i); or (b) any finding and remedial steps contemplated in subsection (4Kb) or
(5)(c)(ii); or (c) any recommendat ion contemplated in subsection 4(c) or (5)(c)(iii), and the reasons therefor.
(7) (a) A compla inant w h o is dissatisfied with a decision to dismiss a compla in t in terms of subsection (4)(a) or (5)(c)(i) may, within one month after receiving notice of that decision, appeal to the Commi t t ee in writing against that decision, specifying the grounds for the appeal .
(b) A respondent w h o is dissatisfied with any finding or remedial steps contempla ted in subsection (4)(b) or (5)(c)(ii) may, within one month after receiving notice of that finding and remedial steps, appeal to the Commi t t ee in wri t ing against that finding or remedial steps or both such finding and remedial steps, specifying the grounds for the appeal .
(8) Any one or a combinat ion of the fol lowing remedial steps may be imposed in respect of a respondent : (a) Apologis ing to the complainant , in a manner specified. (b) A repr imand. (c) A written warning. (d) Any form of compensa t ion . (e) Subject to subsection (9), appropriate counsel l ing. (f) Subject to subsection (9). a t tendance of a specific training course. (g) Subject to subsect ion (9), any other appropriate correct ive measure .
(9) The state shall not be responsible for any expendi ture incurred as a result of, or associated with, any remedy referred to in subsection (8)(e), (f) or (g), unless such remedy was selected from a list of approved remedies or services compi led from t ime to t ime by the Minister, after consultat ion with the Chief Just ice, and then only to the extent set out in that list.
Considerat ion of appeal by C o m m i t t e e
18. (1 ) The Commi t tee mus t consider an appeal referred to in section 15(5) or 17(7) at a meet ing de termined by the Chairperson, and the Chairperson must inform the compla inant and the respondent in wr i t i ng— (a) of the t ime and place of the mee t ing ; and (b) that they may submit writ ten representat ions within a specified period
for considerat ion by the Commi t t ee . (2) (a) A meet ing referred to in subsect ion (1) must, subject to paragraph
(c), be a t tended by at least three member s of the Commi t tee and be presided over by the Chairperson, but no m e m b e r w h o made any decision or finding, or imposed any remedial step, that is the subject of the appeal , may participate in the considerat ion of the appeal .
(b) In the event of the absence of the Chairperson to preside in a specific appeal , the Chief Just ice must appoint an acting chairperson from amongs t the member s of the Commi t t ee , to preside in that appeal .
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(c) If any member of the Commit tee is for any reason unable to participate in the consideration of an appeal in terms of this section and there are not at least three of the other members available to so participate in the appeal, the Chief Justice may appoint any judge as a temporary member of the Commit tee for the purpose of the consideration of such an appeal.
(3) At the meet ing referred to in subsect ion (1), the Commi t t ee must cons ide r— (a) the reasons for—
(i) the dismissal against which the appeal is brought , as contem­ plated in section 15(4)(a) or 17(6)(a); or
(ii) the finding or remedial steps, or the finding and the remedial steps, as the case may be , against which the appeal is brought , as contemplated in section 17(6)(b);
(b) the grounds for the appeal , as contempla ted in section 15(5) or 17(l)(a) or (b), as the case m a y be ;
(c) any representat ions submit ted in terms of subsect ion (1)(b): and (d) such further written or oral a rgument , if any. as may be requested by
the Commi t t ee . (4) After considerat ion of an appeal in terms of subsection (3), the
Commi t t ee m u s t — (a) in the case of an appeal against a dismissal of a compla in t as
contempla ted in section 15(4)(a)— (i) confirm the dismissal ;
(ii) set aside the dismissal and refer the complaint to the Chairperson for an inquiry in terms of section 17; or
(iii) set aside the dismissal and r e c o m m e n d to the Commiss ion that the compla in t should be investigated by a Tribunal in terms of section 19;
(b) in the case of an appeal against a dismissal of a complaint as contemplated in section 17(7 ) (a)—
(i) confirm the dismissal ; (ii) set aside the dismissal , and find that the complaint has been
established and that the respondent has behaved in a manner which is unbecoming of a j udge , and impose any of the remedial steps referred to in section 17(8) on the respondent ; or
(iii) set aside the dismissal and r ecommend to the Commiss ion that the compla in t should be investigated by a Tribunal in terms of section 19; or
(c) in the case of an appeal against a finding or remedial steps, or a finding and remedial steps as contempla ted in section 17(7) (b)—
(i) set aside the decision concerned; or (ii) confirm the decision or set aside the decis ion concerned and
substitute it with an appropria te decis ion, with or without any amendment of the remedial steps imposed, if appl icable; or
(iii) set aside the decision and recommend to the Commiss ion that the complaint should be investigated by a Tribunal in te rms of section 19.
(5) The Commit tee must in wri t ing inform the compla inant and the respondent of its decision in terms of subsection (4) and the reasons therefore.
P A R T IV
Request to appoint Tribunal and consideration of Tribunal report by Commission
C o m m i s s i o n to request a ppo i n tm ent of Tribunal
19. (1) Whenever it appears to the C o m m i s s i o n — (a) on account of a r ecommenda t ion by the Commi t t ee in terms of section
16(4)(b) or 18(4)(a)(iii). (b)(iii) or (c)(iii): or (b) on any other grounds , that there are reasonable grounds to suspect that
a j u d g e — (i) is suffering from an incapacity;
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(ii) is grossly incompetent ; or (iii) is guilty of gross misconduct ,
as contempla ted in section 177(1 )(a) of the Const i tut ion, the Commiss ion must request the Chief Just ice to appoint a Tribunal in terms of section 2 1 .
(2) The Commis s ion must in writ ing state the al legations, including any other relevant information, in respect of which the Tribunal must investigate and report .
(3) The Commiss ion must, unless it is acting on a r ecommenda t ion referred to in section 16(4)(c) or 18(4)(a)(iii), (b)(iii) or (c)(iii). before it requests the appoin tment of a Tribunal , inform the respondent , and. if applicable, the compla inant , that it is consider ing to make that request and invite the respondent , and, if applicable, the complainant , to commen t in writ ing on the fact that the Commiss ion is consider ing to so request .
(4) Wheneve r the Commiss ion requests the appointment of a Tribunal in terms of subsection (1), the Commiss ion must forthwith in wr i t ing— (a) inform the President that it has so requested; and (b) advise the Pres ident as to —
(i) the desirabili ty of suspending the respondent in terms of section 177(3) of the Const i tut ion; and
(ii) if applicable, any condi t ions that should be appl icable in respect of such suspension.
C o m m i s s i o n to cons ider report and m a k e findings
20 . (1) The Commiss ion mus t consider the report of a Tribunal at a meet ing determined by the Chairperson, and the Commiss ion must inform the respondent and, if applicable, the complainant , in wr i t ing— (a) of the t ime and place of the meet ing; and (b) that he or she may submit writ ten representat ions within a specified
period for considerat ion by the Commiss ion . (2) At the meet ing referred to in subsection (1) the Commis s ion must
cons ide r— (a) the report concerned; and (b) any representat ions submit ted in terms of subsect ion (\)(b).
(3) After considerat ion of a report and any appl icable representat ions in terms of subsection (2), the Commiss ion must m a k e a finding as to whether the responden t— (a) is suffering from an incapacity; (b) is grossly incompetent ; or (c)is guilty of gross misconduct .
(4) If the Commis s ion finds that the respondent is suffering from an incapacity, is grossly incompetent or is guilty of gross misconduct , the Commiss ion must submit that finding, together with the reasons therefore and a copy of the report, including any relevant material , of the Tribunal , to the Speaker of the National Assembly .
(5) If the Commiss ion , after considerat ion of a report and any appl icable representat ions in terms of subsection (2) finds that the r e sponden t— (a) is not grossly incompetent , but that there is sufficient cause for the
respondent to at tend a specific training or counsel l ing course or be subjected to any other appropriate correct ive measure , the C o m m i s ­ sion may m a k e a finding that the respondent must attend such a course or be subjected to such measure ; or
(b) is guilty of a degree of misconduct not amount ing to gross misconduct , the Commiss ion may, subject to section 17(9), impose any one or a combina t ion of the remedial steps referred to in section 17(8)
(6) The Commiss ion mus t in writ ing inform the respondent in respect of w h o m a finding referred to in subsection (4) or (5) is made , and, if applicable, the compla inant , of that finding and the reasons therefore.
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C H A P T E R 3
J U D I C I A L C O N D U C T T R I B U N A L S
Part 1
Introductory provisions
Appoin tment of Tribunal
2 1 . (1) The Chief Justice must appoint a Judicial Conduct Tribunal , whenever requested to do so by the Commiss ion .
(2) The Chief Justice must, after consultat ion wi th the Minister, des ignate a place in the Republ ic as the seat of each Tribunal established in terms of this Act , but a Tribunal may sit at any place for the purpose of a hearing or of del iberat ing.
(3) Before appoint ing any judge to a Tribunal , the Chief Just ice must consult with the head of the court on which that j u d g e serves.
(4) Upon appoint ing a Tribunal , the Chief Just ice must give written notice of the composi t ion, terms of reference, and seat of the Tribunal , and the date by which the Tribunal is to c o m m e n c e proceedings , t o — (a) the m e m b e r s of the Tribunal (b) the Minister; (c) the respondent : and (d) the complainant .
(5) The Chief J u s t i c e - fa) must delegate the functions assigned to the Chief Justice in terms of
this Part or section 10(2) to the Deputy Chief Just ice, if the Chief Jus t i ce—
(i) is the respondent ; o r— (ii) is personally implicated in the al legations against a judicial
officer; and (b) may delegate any of the functions assigned to the Chief Justice in
terms of this Part or section 29(2) to the Deputy Chief Just ice, in any other case .
Compos i t ion of Tribunal
22 . (1) A Tribunal c o m p r i s e s — (a) two judges , one of whom must be designated by the Chief Just ice as
the Tribunal President; and (b) one person whose name appears on the list mainta ined in terms of
section 23(1) . (2) At least one member of every Tribunal must be a w o m a n . (3) If a vacancy arises among the members of a Tribunal , or if a member
of a Tribunal for any reason becomes unable to cont inue to serve on the Tribunal , a n d — (a) there are at least two members remaining on the Tribunal , the Tribunal
must cont inue its functions; or (b) in any other c a s e —
(i) the Tribunal is dissolved; (ii) the Chief Justice must appoint a new Tribunal; and
(iii) any evidence gathered by or submitted to the former Tribunal , and any record kept by the former Tribunal , m a y be cons idered by the new Tribunal .
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Non-judic ia l m e m b e r s of tr ibunals
2 3 . (1) T h e Execut ive Secretary must, in the prescr ibed manner and form, establish and maintain a list of persons w h o are not judicial officers and w h o have been approved by the Chief Justice, acting with the concurrence of the Minister, as being suitable to serve on Tribunals in terms of section 22(1)(b) .
(2) The Minister, in consultat ion with the Cabinet m e m b e r responsible for finance, may by notice in the Gazette prescribe a tariff of a l lowances to be paid for service as a member of a Tribunal to a person appointed in terms of section 22(l)(b).
Tribunal invest igative and administrat ive support
24 . (1) The President of a Tribunal may, after consul t ing the Minis ter and the National Director of Publ ic Prosecut ions , appoint a m e m b e r of the Nat ional Prosecut ing Authori ty to collect evidence on behalf of the Tribunal , and to adduce evidence at a hearing;
(2) The Execut ive Secretary in the Office of the Chief Just ice mus t assign such other employees of the Office to the Tribunal as may be necessary to assist the Tribunal in the performance of its functions.
Rules and procedure
25. (1) The Chief Just ice must make rules regulat ing procedures before a Tribunal .
(2) Rules m a d e under subsection ( 1 ) — (a) are appl icable to all Tr ibunals ; (b) may be amended or repealed at any time; (c) must be tabled in Par l iament by the Minis ter before publication in the
Gazette; and (d) must be publ ished in the Gazette.
(3) The first rules made under this section must be m a d e within six months from the date of the c o m m e n c e m e n t of this section.
(4) Subject to this Act , a Tribunal has the power to regulate and protect its o w n proceedings .
P A R T 2
Hearings of Tribunal
Objects and nature of Tribunal
26 . (1) The objects of a Tribunal a r e — (a) to inquire into al legations of incapacity, gross incompetence or gross
misconduct against a judge , as contempla ted in section 177 of the Const i tut ion, b y —
(i) collecting evidence; (ii) conduct ing a formal hear ing;
(iii) making findings of fact; and (iv) making a determinat ion on the merits of the al legat ions; and
(b) to submit a report containing its findings to the Judicial Service Commiss ion .
(2) A Tribunal conducts its inquiry in an inquisitorial manner and there is no onus on any person to prove or to disprove any fact before a Tribunal .
(3) W h e n consider ing the meri ts of any al legations against a j udge , the Tribunal must make its determinat ion on a balance of probabil i t ies.
(4) A Tribunal must keep a record of its proceedings .
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Hear ing to beg in and be conc luded without unreasonable delay
27. (1) In the interests of protect ing and enhancing the dignity and effectiveness of the judiciary and the courts , a Tribunal m u s t — (a) as soon as reasonably pract icable after its appointment , de termine a
date, t ime and place for conduct ing a hearing in respect of the al legations referred to it; and
(b) conc lude the hear ing without unreasonable delay. (2) Subject to subsection ( l ) ( b ) , a Tribunal may adjourn its proceedings
at any t ime, to any date, t ime and place.
Involvement of judic ial officer whose conduct is subject of hear ing
28. (1) Not ice of a hearing must be served on the respondent within a reasonable period before the date set for that hear ing.
(2) The respondent is entitled to attend the hearing and to be assisted by a legal representat ive, but the Tribunal may begin or cont inue a hear ing, in whole or in part, in the absence of the respondent , or the r e sponden t ' s legal representat ive, or both of them, if the Tribunal is satisfied that the respondent was properly informed of the hearing.
(3) The respondent is en t i t led— (a) to give and adduce evidence; (b) to call wi tnesses , and to c ross-examine any witness ; (c) to have access to any books , document s or other objects produced in
ev idence; and (e) to make a submiss ion to the Tribunal before the conclusion of the
hearing.
Attendance at hear ing and disc losure of ev idence
29. (1) A hear ing of a Tribunal may be attended only b y — (a) the respondent ; (b) the respondent ' s legal representat ive, if one has been appointed; (c) any person w h o lodged a formal complaint against the respondent , if
that compla in t is related to the hearing; (d) the legal representat ive of each person contemplated in paragraph (c); (e) any person subpoenaed in te rms of section 30. or called as a witness by
the respondent , each of w h o m may a t tend— (i) with or wi thout a legal representat ive; and
(ii) only for the period that person is required by the Tribunal; (f) any person contempla ted in section 24(2) . if that p e r s o n ' s presence is
required by the Tribunal ; and (g) any other person whose presence the Tribunal considers to be
necessary or expedient . (2) Subject to sect ions 32 and 33 , a person may not disclose to any other
person the contents of a book, documen t or other object in the possession of a Tribunal or the record of any evidence given before a Tribunal , except to the extent that the Tribunal President , in consul tat ion with the Chief Just ice, de termines otherwise .
(3)(a) Notwi ths tand ing subsection (1), the Tribunal President may, if it is in the public interest and for the purposes of transparency, de termine that all or any part of a hear ing of a Tribunal must be held in public.
(b) A determinat ion contempla ted in paragraph (a) must be made in consultat ion with the Chief Justice.
(c) Subsect ion (2) does not apply if a determinat ion is made under paragraph (a), but the Tribunal Pres ident may prohibit the publication of any information or documen t placed before the Tribunal if that publication is not in the public interest.
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Tribunal m a y subpoena witnesses
30 . A Tribunal may subpoena any person to appear before it in person at a hear ing a n d — (a) to p roduce any book, document , s ta tement or object relat ing to the
hear ing; and
(b) to answer quest ions under oath or affirmation.
Evidence to be g iven under oath or affirmation
3 1 . (1) N o person may testify before, or be quest ioned by, a Tribunal unless the oath or affirmation that is usually adminis tered or accepted in a court of law, has been adminis tered to or accepted from that person by the Tribunal or, if evidence is to be given by such person through an interpreter, by the Tribunal through the interpreter.
(2) An oath or affirmation adminis tered to or accepted from a person in terms of subsect ion (1) remains b inding on that person until the Tribunal has concluded the hearing or finally excused that person.
(3) A person giving evidence at a hear ing of the tribunal mus t answer any relevant quest ion.
(4) A tribunal may order a person giving evidence to answer any quest ion, or to produce any article or document , even if it is self- incr iminat ing to do so.
(5) A self- incriminating answer given or statement m a d e by a person giving ev idence to a Tribunal in terms of this Act is inadmiss ible as ev idence against that person in any criminal proceedings against that person instituted in any court , except in criminal proceedings for perjury, or in which that person is tried for an offence contempla ted in section 34( 1 )(b), and then such an answer or s tatement is admissible only to the extent that it is relevant to prove the offence charged.
Evidence disc los ing offence
32 . If the Tribunal is of the opinion that evidence before the Tribunal discloses the commiss ion of an offence by the respondent , the Tribunal President must notify the National Director of Publ ic Prosecut ions accordingly dur ing or after the hearing and cause a copy of the record or the relevant part of the record in quest ion to be submit ted to the Nat ional Director of" Publ ic Prosecut ions .
Findings and report
3 3 . ( I ) Upon the conclusion of a hearing, the Tribunal m u s t — (a) record its findings of fact, including the cogency and sufficiency of the
ev idence and the demeanour and credibili ty of any wi tness , and its findings as to the meri ts of the al legations in quest ion; and
(b) submi t a report to the Judicial Service Commiss ion , con t a in ing— (i) its findings and the reasons for them;
(ii) a copy of the record of the hearing; and (iii) all other relevant documents .
(2) T h e Tribunal mus t submit a copy of its report , and all other relevant document s , to the Chief Justice for safekeeping.
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PART 3
Offences relating to Tribunals
Offences
34 . (1) A person is guilty of an offence in terms of this Act if the pe r son— (a) having been subpoenaed in terms of section 29 to appear before a
Tribunal , fails without reasonable excuse t o — (i) attend a hear ing of a Tribunal;
(ii) remain in a t tendance until excused by the Tribunal ; or (iii) produce any book, document , s tatement or object relat ing to
the hearing which he or she has been subpoenaed to produce ; (b) having taken an oath or affirmation as a w i t n e s s —
(i) refuses to answer a quest ion; or (ii) knowingly provides false information to the Tr ibunal ;
(c) wilfully hinders or obstructs a Tribunal in the performance of its functions; or
(d) other than as contemplated in section 29(2) , or in the per formance of a function in terms of this Act , wilfully or negligently discloses to any other person the contents of a book, document or other object in the possession of a Tribunal or the record of any evidence given before a Tribunal .
(2) Any person w h o is convic ted of an offence in terms of this Act is liable to a fine or to impr i sonment for a per iod not exceeding five years .
C H A P T E R 4
M I S C E L L A N E O U S P R O V I S I O N S
Regulat ions
35. ( l ) T h e Min i s te r— (a) must make the regulat ions required to be m a d e in terms sections 13 of
this Act ; and (b) may make regulat ions regarding any matter that may be necessary or
expedient to prescr ibe r ega rd ing— (i) the finances and financial management and accountabi l i ty of
the Commiss ion and Office of the Registrar of Judges Registrable Interests;
(ii) the manner in which a j u d g e may apply for written consent of the Minis ter as contemplated in section 1 1 ( 1 ) and (2); and
(iii) the administrat ion and functioning of the Commiss ion or Conduct Commit tee , the Secretariat of the Commiss ion , or any other aspect of this Act .
(2) Any regulat ion made under this section must be tabled in Par l iament before publicat ion thereof in the Gazette.
Finances and accountabi l i ty
36. (1) Expendi ture in connect ion with the administrat ion and function­ ing of the Commiss ion must be defrayed from monies appropriated by Par l iament for this purpose to the Depar tment of Just ice and Consti tut ional Deve lopment vote (hereinafter referred to as the Depar tmenta l vote) in terms of the Public Finance M a n a g e m e n t Act , 1999 (Act N o . 1 of 1999).
(2) Monies appropriated by Par l iament for this p u r p o s e — (a) consti tute earmarked funds on the Depar tmenta l vote; and
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(b) may not be used by the Depar tment for any other purpose , without the approval of Treasury and the Chief Justice as Chai rperson of the Commiss ion .
(3) The Minis ter must consult with the Chief Justice on the funds required for the administrat ion and functioning of the Commiss ion , as part of the budgetary process of depar tments of state, in the manner prescribed.
(4) Subject to the Public F inance Managemen t Act , 1999 (Act N o . 1 of 1999), the Director-General of the Depa r tmen t— (a) is charged with the responsibil i ty of account ing for monies received or
paid out for or on account of the administrat ion and functioning of the Commiss ion ; and
(b) mus t cause the necessary account ing and other related records to he kept, which records must be audited by the Audi tor-General .
Secretariat of Commiss ion
3 7 . (1) The Execut ive Secretary in the Office of the Chief Justice must assign an appropria te number of personnel , one of w h o m must be designated as the Secretary of the Commiss ion , from the staff in the Office of the Chief Justice to provide adminis trat ive support to the Commiss ion .
(2) Subject to section 36, the Secretary of the Commiss ion , under the supervision, control and direction of the Execut ive Secretary, m u s t — (a) p rovide secretarial and administrat ive services to the Commiss ion , the
Commi t t ee and any Tribunal; (b) cause all records of matters dealt with by the Commiss ion in terms of
this Act to be safeguarded; (c) maintain a register of all compla in ts dealt with in terms of Chapter 2; (d) perform such functions as may from time to t ime be prescribed; and (e) generally, perform such secretarial and administrat ive tasks related to
the work of the Commiss ion , Commi t t ee or any Tribunal , as may from t ime to t ime be directed by the Chief Justice.
(3) Subject to section 36, the Registrar of Judges ' Registrable Interests , under the supervision, control and direction of the Chief Justice, m u s t — (a) maintain the Register of J u d g e s ' Registrable Interests; (b) cause all records of matters dealt in relation to the Regis ter in terms of
this Ac t to be safeguarded; (c) perform such functions as may from t ime to t ime be prescribed; and (d) generally, perform such secretarial and administrat ive tasks related to
maintenance of the Register, as may from t ime to t ime be directed by the Chief Justice.
Protect ion of confidential informat ion
3 8 . (1) N o person, including any m e m b e r of the Commiss ion , Commi t ­ tee, or any Tribunal , or Secretariat of the Commiss ion , or Registrar or his or her staff, may disclose any confidential information or confidential document obtained by that person in the performance of his or her functions in terms of this Act , excep t— (a) to the extent to which it may be necessary for the proper adminis t ra­
tion of any provision of this Act; (b) to any person w h o of necessi ty requires it for the performance of any
function in terms of this Act; (c) when required to do so by order of a court of law; or (d) with the writ ten permission of the Chief Just ice.
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(2) Any person who contravenes a provision of subsect ion (1) is guilty of an offence and liable on convict ion to a fine or to imprisonment for a period not exceeding five years .
(3) Every m e m b e r of the Commiss ion , the Commit tee , any Tribunal and every m e m b e r of the secretariat of the Commiss ion and Office of the Registrar must , in the prescribed m a n n e r — (a) before assuming office or duty; or (b) if he or she is holding such office on the date of the c o m m e n c e m e n t of
this section, m a k e and subscribe to an affirmation of secrecy in the fol lowing form:
"I , so lemnly declare: (a) I have taken cognizance of the provisions of sect ion 38(1) and (2)
of the Judicial Service Commiss ion Act, 1994. (b) I u n d e r s t a n d that I may not disclose any confidential informat ion
or d o c u m e n t obta ined by m e in the performance of m y funct ions in t erms of that Act , except in accordance with the provis ions of sect ion 38(1) of the Act .
(c) I a m fully aware of the serious consequences wh ich m a y fol low any breach or contravent ion of the above-ment ioned provis ions . (S ignature)" .
(4) Any person w h o wilfully or negligently in any manner disc loses any confidential information that c ame to his or her knowledge by means of a person w h o conveyed that information in contravention of subsect ion (1) is guilty of an offence and liable on convict ion to a fine or to impr i sonment not exceeding a period of live yea r s . " .
Subst i tut ion of long title of Act 9 of 1994
10. The following long title is substituted for the long title of the principal Act :
" A C T
To regulate matters incidental to the es tabl i shment of the Judic ia l Service C o m m i s s i o n by the Const i tut ion of the Republ ic of South Africa , [1993] 1996; to establ ish the Judicial Conduct C o m m i t t e e to receive and deal with compla ints about j u d g e s ; to provide for a C o d e of Judicial C o n d u c t which serves as the prevai l ing s tandard of judic ia l conduct which j u d g e s must adhere to; to provide for the es tabl i shment and maintenance of a register of j u d g e s ' registrable interests; to provide for procedures for deal ing with compla ints about j u d g e s ; to provide for the es tabl i shment of Judicial Conduct Tribunals to inquire into and report on al legations of incapacity, gross incompetence or gross mi sconduc t against j u d g e s ; and to provide for matters connec ted therewith ." .
Short title
11. This Act is called the Judicial Service Commiss ion Amendmen t Act , 2008 , and comes into operat ion on a date fixed by the President by Proclamation in the Gazette.