Open Secrets and Shadow World Investigations welcomes the judgment delivered by the South Gauteng High Court which confirms that judges must be held accountable for their conduct while in active service, even after their retirement.
The Commission of Inquiry into allegations of fraud, corruption, impropriety or irregularity in the Strategic Defence Procurement Packages (SDPP) otherwise known as the Seriti Commission was tasked with investigating whether there were any irregularities or corruption in the award of the Arms Deal contracts. Moreover, the commission was tasked with assessing whether the Deal was rational and whether the economic benefits that were due to flow from the deal materialised.
Chaired by Judge Willie Seriti, the Commission was criticised for lack of impartiality, failing to hold those accused of corruption accountable by ignoring key evidence, failing to subpoena those accused like Jacob Zuma and not giving witnesses access to documents. In response three ‘critic witnesses, Andrew Feinstein, Paul Holden (Shadow World Investigations) and Open Secrets’ director, Hennie Van Vuuren, announced that they were withdrawing all participation from the Commission in protest of the way it was conducting itself.
The Seriti Commission’s final report was full of inaccuracies, contradictions and logical inconsistencies. Consequently, civil society groups R2K & Corruption Watch also viewed the Commission’s final findings as a whitewash and in October 2016, filed an application at the North Gauteng High Court to set aside the findings of the Commission.
In 2019, Corruption Watch and R2K received notice, that all opposition to the application by the Presidency and government departments was being withdrawn. This means that CW and R2K’s application would not be challenged and that it would, as a matter of course, be granted a default judgment which was delivered on 19 August 2019. Despite the application being unopposed, Judges Seriti and Musi applied for the judgment to be set aside on appeal. The application for leave to appeal was dismissed by the High Court and the subsequent application for leave to appeal to the Supreme Court Appeal was also dismissed.
Open Secrets and Shadow World Investigations have since laid a complaint with the Chief Justice as the Chair of the Judicial Conduct Committee (JSC). The complaint asks the Chief Justice to refer Judge Willie Seriti and Judge Hendrick Musi to the JSC’s disciplinary processes because of their failure to investigate the Arms Deal during the life of the Seriti Commission. The complaint also asks the JSC to consider whether certain actions by Judges Seriti and Musi may constitute criminal misconduct and, if so, to refer these matters to the NPA for further action.
In June 2021, Judges Seriti and Musi brought an application in order to declare the definition of Judge as contained in the Judicial Services Commission Act, 1994 (“JSC Act”) unconstitutional insofar as it allows retired judges to be held accountable for their conduct while in active service. Judges Seriti and Musi now seek to avoid accountability for their actions during the Commission.
The application was heard on 14 March 2023 in the South Gauteng High Court at Johannesburg where arguments were made by all the parties (Judges Seriti and Musi, Open Secrets and SWI and the JSC). The Court handed down a judgment on 14 April 2023 where it dismissed the application. The Court held that it is not unconstitutional for the definition of judge in the JSC Act to include judges discharged from active service. The Court also dismissed the argument by Judges Seriti and Musi that costs should not be awarded against them should the application fail because they made the application “in the public interest”. The Court unequivocally identified that the judges were acting for their own interest so as to avoid “blemishes” to their reputation.
The judgment and the conclusion of the proceedings now allows Open Secrets and SWI to resume the process it instituted within JSC and ultimately bring Judges Seriti and Musi to account before their peers.