Judge let off the hook despite conflict of interest

The Judicial Conduct Committee says the law needs reforming

The Judicial Conduct Committee has set aside a finding of misconduct against a judge but says the law that compelled them to do so must be changed. Illustration: Lisa Nelson

A judicial panel has set aside a misconduct finding against Judge Selemeng Mokose for not recusing herself from a case in which she had a conflict of interest.
The law says a judge’s breach of the judicial code is misconduct only if it is wilful or grossly negligent.
The panel criticised the law, saying it lets judges break the code with impunity, and called on the Chief Justice and the justice minister to address it.

Three senior judges have called for legislative reform after flagging a legal loophole that lets judges facing misconduct complaints off the hook.

Judges Dunstan Mlambo, Chris Jafta and Nolwazi Mabindla-Boqwana, sitting as the Judicial Conduct Committee (JCC), said in a judgment last week that “as enforcers of the law, judges cannot be law-breakers”.

The Judicial Service Commission Act dictates that any non-impeachable ethical transgressions of the Code of Judicial Conduct have to be proved to be either grossly negligent or wilful. This means that a simple breach of the code, even a negligent one, does not amount to misconduct.

This “untenable legal position” needed attention from the Chief Justice and the Minister of Justice, the judges said. They said if this was not rectified, public confidence in the courts would be eroded.

“The idea that judges may culpably breach the code with impunity is antithetical to not only the object of the code, but also to the constitutional value of accountability.”

The matter before the JCC was an appeal brought by Gauteng High Court Judge Selemeng Mokose, who was found guilty of misconduct for not recusing herself from a case in which she had a conflict of interest.

In the appeal, Mokose argued that it had not been proven that she had wilfully breached the code, or that such breach was grossly negligent.

Before she became a judge, Mokose chaired the Upper Houghton Body Corporate from 2008 to 2016, and owns properties there through a trust.

In 2021, Mokose presided over a case involving the body corporate of another estate and Lunesh Singh, who had previously been sued by the Upper Houghton Body Corporate. Mokose ruled in favour of the body corporate.

Singh appealed this in the Supreme Court of Appeal (SCA), raising the fact that Mokose should have recused herself. He also filed a complaint with the JCC.

Judge Margie Victor was designated to hold an inquiry. She found Mokose guilty of misconduct. Mokose was reprimanded.

Mokose should have recused herself even though Singh had not requested it. Alarm bells should have sounded, Victor said.

The SCA overturned Mokose’s ruling, saying it must be considered afresh by another judge. The court agreed with Victor that Mokose should have recused herself.

The JCC said the SCA’s ruling meant Mokose could no longer challenge Victor’s decision that she should have recused herself.

But the JCC agreed with Mokose that there were no facts to show that the breach was wilful or grossly negligent.

The JCC found in her favour, ruling that “on the law as it currently stands, the appeal ought to succeed”.

Although the judges found the law lacking, they set aside Victor’s decision.

“Deeply worrying”

Mbekezeli Benjamin, research and advocacy officer at Judges Matter, told GroundUp the loophole was “deeply worrying” and underscored the urgency of Judges Matter’s call for a full review of the Act.

He said it was “deeply unsettling to contemplate a situation where a judge may have inadvertently breached the ethical code – including serious breaches – and yet escape all scrutiny.”

He said the JCC should have given more weight to the fact that even on appeal, Mokose denied that she should have recused herself, a signal that “she saw nothing wrong in presiding in such a case, even when a five-judge SCA judgment had confirmed that she should have recused herself”.

That fact called for more than a simple dismissal on the technical point of the interpretation of “wilful” and “grossly negligent” and a stronger sanction was possibly needed, he said.

“But the bottom line is that there should be guardrails in the Act (like a conflict-check) to prevent such breaches from happening in future, and measures to effectively deal with such a breach once it has happened,” Benjamin said.

“Urgent legislative reform is therefore needed. Otherwise, this seriously risks eroding public confidence in the independence and integrity of the judiciary, and the rule of law.”

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