Authored By: Shante Rademeyer
IIE Varsity College
Abstract
The constitutional and legislative framework that governs the impeachment of judges in South Africa is examined. A particular focus is on the criteria of incapacity, gross incompetence and gross misconduct.1 Outlined in section 177 of the Constitution of the Republic of South Africa, the procedures prescribed by the Judicial Service Commission Act are critically analysed, highlighting the role of the Judicial Conduct Tribunal and Parliament in ensuring judicial accountability.2 The process is constitutionally robust.3 By utilising previous cases, this article aims to demonstrate the application of these legal standards in practice. Important questions about integrity, judicial independence, and public confidence in the judiciary are augmented by recent developments.4 This article contributes to the discourse on balancing judicial accountability and judicial autonomy in South Africa’s constitutional democracy through analytical doctrinal research.
Introduction
South Africa officially became a democracy in 1994, sparking an entirely new constitutional dispensation.5 The new constitutional dispensation generated criteria for the appointment of judges; however, it also generated criteria for the removal of judges.6 This mechanism is to ensure the judiciary is held accountable.7
The general criteria for appointment as a judge are governed by section 174 of the Constitution.8 Section 174(1) states that an appropriately qualified man or woman who is a South African citizen, has obtained the necessary qualification, which is the LLB, and, most importantly, is a “fit and proper” person can be appointed as a judicial officer.9 There is an ethical standard that must be maintained by judges to remain a “fit and proper” person.10 All these prerequisites are necessary to ensure that the public retains trust and confidence in the judiciary.11 Judges must ensure they are adhering to the rules of conduct both in the courtroom and out.12
When becoming a judge, adhering to high ethical standards and codes of conduct is imperative.13 Judges are expected to be competent, remain independent and maintain impartiality.14 There must be fairness and integrity in all their decisions and dealings.15 While upholding the principles of the Constitution, they are entitled to act without fear, favour, or prejudice during the promotion of justice.16 Compliance with these ethical standards is of paramount importance.17
Recently, there have been several threats to judicial legitimacy within the Republic.18 Over the past 10 years, there have been several judges who have been under the accountability process, resulting in their impeachment.19 This article will discuss the matters around the impeachment of Justices John Hlophe and Nkola Motata.
Research Methodology
Doctrinal research with elements of analytical research is the chosen methodology for this article.20 By analysing and interpreting existing legal materials like statutes, case law, and regulations, this type of methodology mainly focuses on the “black letter law”.21 This is generally used in a manner to understand and explain the underlying legal doctrines, principles, and rules within a specific area of law.22 Fundamentally, the critical analysis of text is relied upon to identify potential areas for legal development, ambiguities and inconsistencies.23
The main area of law discussed will be administrative and constitutional law. Judicial independence and judicial accountability will be examined through the appointments of the judiciary, but mainly through their removal. Primary issues experienced by the Judicial Service Commission (JSC) will be dissected.24 A quantitative analysis of legal material supporting the discussion around the removal of judges was how the research was conducted.25 Specific legal rules will be identified, the meaning of those rules and the underlying principles, plus the decision-making under those rules, will all be identified.26
Legal Framework
As mentioned above, the appointment of Judicial Officers is governed by section 174 of the Constitution.27 Furthermore, section 177 governs the removal of Judicial Officers.28 This section of the Constitution outlines the removal of a judge due to incapacity, gross incompetence or gross misconduct.29 Moreover, it states that by a resolution adopted with a supporting vote of at least two-thirds of its members, the National Assembly can call for the removal of a judge.30 Once there is an adoption of a resolution that calls for a judge to be removed, the President must remove that judge from office.31 Based on the advice of the Judicial Service Commission, the President may suspend a judge who is the subject of a procedure of removal.32
The Judicial Service Commission Act details the grounds upon which a complaint may be lodged against a judicial officer.33 Section 14(4) indicates that those grounds include the standard envisaged in section 177 of the Constitution, which are gross misconduct, gross incompetence and incapacity, emphasising a judge’s inability to carry out the functions of judicial office according to existing standards.34
This Act further establishes the Judicial Conduct Committee (JCC) and the Judicial Complaint Tribunal (JCT).35 Sections 21 to 34 of the Act deal with the establishment of the Judicial Conduct Tribunal, which has the following objectives: gather evidence, hold a formal hearing, make findings of fact, decide whether the allegations are meritorious, and report its findings to the JSC.36 A formal claim of misconduct or violation of the Code of Judicial Conduct against a judge is known as a judicial complaint.37 Section 16(1) of the Act governs impeachable complaints about judges, whereas section 26(2) instructs the tribunal to carry out its investigation in an inquisitorial fashion, meaning that no one has the burden of proving or disproving any fact in front of the tribunal.38 Both Committees aid the JSC in its function.39
Section 17(2) of the JSC Act states that an inquiry into serious but non-impeachable complaints should be conducted in an inquisitorial manner, and there is no onus on any person to prove or disprove any fact during such an investigation.40 Section 17(3)(a) requires that the respondent in the matter ought to be invited to respond to the allegations in writing or any other manner specified, within a specified period.41 Subsequently, the complainant must have the opportunity to comment on the response of the respondent within a specified period.42 The complaint must either be dismissed if it is determined that there is no reasonable chance that a formal hearing on the matter will help determine its merits, or it must be determined that the complaint has been proven and that the respondent has acted in an unworthy manner for a judge, in which case corrective action must be taken.43
Judicial Interpretation
Judge President Mandlakayise Hlophe:
This is the first section 177 impeachment case in South Africa.44 According to an investigation, in a case involving former President Jacob Zuma, John Hlophe, the chief judge in the Western Cape province, attempted to sway justices at the nation’s highest court.45 In 2008, he asked two Justices if they would side with Mr Zuma in a case involving corruption.46 Mr Hlophe consistently denied the allegation. Due to lengthy appeals and investigations, there was a significant delay between the alleged offence and his impeachment.47 Mr Hlope was impeached on February 21st 2024, despite the accusations arising in 2008.48
Accordingly, the President removed Judge President Mandlakayise Hlophe according to the provisions of section 177(1)(b) of the Constitution.49 His conduct resulted in a constitutional breach due to the improper attempt at influencing two Justices of the Constitutional Court to violate their oaths.50 Mr Hkope’s behaviour threatened and seriously interfered with the dignity, impartiality and independence of the Constitutional Court. Furthermore, his conduct undermined public confidence in the judicial system.51
Justice Nkola John Motata:
Mr Motata was impeached for racial outbursts and disorderly conduct related to a drunk driving accident in 2007.52 Before the incident, Mr Motata, who is now retired, served as a High Court judge in the province of Gauteng. He denied the allegations against him.53
Mr Motata was found guilty of gross misconduct after a drunk driving conviction in 2009.54 He was removed according to the provision of section 177(1)(b), highlighting that a removal of a judge can occur by a resolution adopted through a vote of no less than two-thirds of the National Assembly, obliging the President to remove a judge from office.55
Critical Analysis
For judges to effectively carry out their duties without the worry of being arbitrarily removed, judicial independence, which emphasises the judiciary’s separation from other branches of government, is necessary.56 On the other side, judicial accountability highlights the judiciary’s public duty and guarantees that they will be held accountable if they fail to meet the judicial standard.57 Therefore, if a proper balance is not achieved, a conflict between these values may result, such as an accountability procedure that jeopardises judges’ tenure security and jeopardises judicial independence or a judiciary that is “too independent” and cannot be held accountable.58
Removal from office is considered the ultimate form of accountability, and the Judicial Service Commission (JSC) is responsible for the appointment and accountability process of judges.59 In both the Hlope and Motata cases, the judges were removed from office due to gross misconduct.60 In both instances, the JSC launched investigations which resulted in the impeachment of the judges.61
The biggest flaw in the current framework is the enormous amount of litigation.62 Hlophe’s case has been marked by ongoing litigation, as the process has nearly spanned over two decades.63 But what is particularly harmful is that it has been shown that every stage of the conduct procedures that followed Hlophe’s case was met with litigation.64 It is the numerous complicated levels of decision-making in the process which have left the opportunity for court review wide open for complainants.65 Even if the litigation takes place on unfounded grounds, what the complainants desire is achieved: delay and frustration of the impeachment process.66
The JSC is also responsible for delaying the litigation process in numerous instances.67 It is interesting to note that the JSC took an excessive amount of time to suspend Mr Hlophe from office, 14 years after the complaint was filed and nearly a year after the JSC approved the finding of serious misconduct.68 The main benefit of suspending a judge is that it prevents them from sitting in office and carrying out their judicial duties.69 According to Section 19(4) of the JSC Amendment Act, the JSC is required to advise the President on whether suspending the respondent is desirable when a JCT is asked to investigate a complaint.70
The protracted Hlophe case has had numerous negative repercussions for the South African judiciary.71 It has damaged the judiciary’s reputation and eroded public trust in it. Additionally, it has been observed that this issue damaged the legitimacy of the courts that were established in South Africa after apartheid.72 The impeachment of Hlophe and Motata could soon make South African history, but it remains true that the JSC’s accountability procedure needs to be reformed to fulfil its function.73
Recent Developments
There is an ongoing case where Judge President Selby Mbenenge faces an investigation of misconduct.74 A sexual harassment complaint was alleged by a court secretary, encouraging an investigation.75 The Judicial Conduct Tribunal has adjourned after intermittently hearing evidence since January 2025.76 Parties will be given deadlines to submit written arguments, and before the panel starts deliberating, it may also hear oral arguments.77 Mbenenge may be impeached if he is found guilty of serious misconduct and if the Judicial Services Commission upholds the decision.78
Suggestions
Reconsidering the procedure for discipline.79 It is advised that this be accomplished by streamlining procedures, making sure the JCC consistently produces reports on time, and setting time limits on the amount of time that can elapse between the various processes, that is, between the JCC’s recommendation and the JSC’s request for a JCT.80 Secondly, a requirement that the JSC give thorough and open justifications for their decisions regarding the Tribunal’s recommendations to make sure that decisions are being made logically fosters a respectful and cooperative culture among both JSC members and members of the judiciary.81 Finally, close the gap in legislation by establishing efficient procedures for holding judges accountable in circumstances that do not result in their removal but have a detrimental effect on public trust in the court.82
Reference(S):
Primary sources
Statute
Constitution of the Republic of South Africa 1996.
Judicial Service Commission Act 9 of 1994.
Case law
Hlophe v Judicial Service Commission and Others (43482/2021) [2022] ZAGPJHC 276; [2022] 3 All SA 87 (GJ); [2022] HIPR 194 (GJ) (5 May 2022).
Motata v Minister of Justice and Correctional Services and Another (52010/2016) [2016] ZAGPPHC 1063; [2017] 1 All SA 924 (GP) (30 December 2016).
Secondary sources
Journal Article
Lunga Siyo and JC Mubangizi, ‘The Independence of South African judges: A constitutional and legislative perspective’ [2015] PELJ 817.
Magda Slabbert, ‘The requirement of being a “fit and proper” person for the legal profession’ [2011] PELJ 209.
Thesis and papers
Maujean G, ‘Analysis of the impact the Judicial Service Commission has on judicial legitimacy in South Africa through the appointment and accountability processes’ (Master’s Thesis, University of Cape Town 2024).
Genevieve Maujean, ‘Too much process and too little accountability: The reality of judicial accountability in South Africa’ (Essay, University of Cape Town 2023).
Websites and blogs
George Seruwagi, ‘A guide to becoming a judge in South Africa’ (Gawie Le Roux, 30 October 2023) < https://www.gawieleroux.co.za/blog/guide-becoming-judge-south-africa > accessed 23 July 2025.
Jerome Hall Library, ‘Legal Dissertation: Research and Writing Guide’ website at <https://law.indiana.libguides.com/dissertationguide> accessed 22 July 2025.
Vincent Magwenya, ‘ President Ramaphosa affirms removal of Judges Hlope and Motata’ (The Presidency Republic of South Africa, 6 March 2024) < https://www.thepresidency.gov.za/president-ramaphosa-affirms-removal-judges-hlophe-and motata > accessed 23 July 2025.
1 Constitution of the Republic of South Africa 1996, s177(1).
2Ibid.
3Ibid.
4 Genevieve Maujean, ‘Analysis of the impact the Judicial Service Commission has on judicial legitimacy in South Africa through the appointment and accountability processes’ (Master’s Thesis, University of Cape Town 2024).
5Ibid.
6Ibid.
7Ibid.
8 Constitution of the Republic of South Africa 1996, s174.
9Ibid.
10 Magda Slabbert, ‘The requirement of being a “fit and proper” person for the legal profession’ [2011] PELJ 209.
11 Ibid.
12 Ibid.
13 George Seruwagi ‘A guide to becoming a judge in South Africa’ (Gawie Le Roux, 30 October 2023) < https://www.gawieleroux.co.za/blog/guide-becoming-judge-south-africa > accessed 23 July 2025.
14 Ibid.
15 Ibid.
16 Ibid.
17 Ibid.
18 Genevieve Maujean, ‘Analysis of the impact the Judicial Service Commission has on judicial legitimacy in South Africa through the appointment and accountability processes’ (Master’s Thesis, University of Cape Town 2024).
19 Ibid.
20 Jerome Hall Library ‘Legal Dissertation: Research and Writing Guide’ website at
<https://law.indiana.libguides.com/dissertationguide> accessed 22 July 2025.
21 Ibid.
22 Ibid.
23 Ibid.
24 Ibid.
25 Ibid.
26 Ibid.
27 Constitution of the Republic of South Africa 1996, s174.
28 Constitution of the Republic of South Africa 1996, s177.
29 Ibid.
30 Ibid.
31 Ibid.
32 Ibid.
33 Judicial Service Commission Act 9 of 1994, s14.
34 Ibid.
35 Lunga Siyo and JC Mubangizi, ‘The Independence of South African judges: A constitutional and legislative perspective’ [2015] PELJ 817.
36 Ibid.
37 Ibid.
38 Ibid.
39 Ibid.
40 Ibid.
41 Ibid.
42 Ibid.
43 Ibid.
44 Genevieve Maujean, ‘Analysis of the impact the Judicial Service Commission has on judicial legitimacy in South Africa through the appointment and accountability processes’ (Master’s Thesis, University of Cape Town 2024).
45 Vincent Magwenya, ‘ President Ramaphosa affirms removal of Judges Hlope and Motata’ (The Presidency Republic of South Africa, 6 March 2024) < https://www.thepresidency.gov.za/president-ramaphosa-affirms removal-judges-hlophe-and-motata > accessed 23 July 2025.
46 Ibid.
47 Ibid.
48 Ibid.
49 Ibid.
50 Ibid.
51 Ibid.
52 Ibid.
53 Ibid.
54 Ibid.
55 Ibid.
56 Genevieve Maujean, ‘Analysis of the impact the Judicial Service Commission has on judicial legitimacy in South Africa through the appointment and accountability processes’ (Master’s Thesis, University of Cape Town 2024).
57 Ibid.
58 Ibid.
59 Ibid.
60 Ibid.
61 Ibid.
62 Ibid.
63 Ibid.
64 Ibid.
65 Ibid.
66 Ibid.
67 Ibid.
68 Ibid.
69 Ibid.
70 Ibid.
71 Ibid.
72 Ibid.
73 Ibid.
74 Tania Broughton, ‘Judge Mbenenge inquiry: Evidence leader accused of “malicious” cross-examination’ (GroundUp, 10 July 2025) < https://groundup.org.za/article/mbenenge-inquiry-judge-president-accuses evidence-leader-of-malicious-cross-examination/ >
75 Ibid.
76 Ibid.
77 Ibid.
78 Ibid.
79 Genevieve Maujean, ‘Too much process and too little accountability: The reality of judicial accountability in South Africa’ (Essay, University of Cape Town 2023).
80 Ibid.
81 Ibid.
82 Ibid.
Conclusion
Therefore, it may be said that, overall, South Africa’s legislative and constitutional system adequately shields judges against improper influence.83 There have been several noteworthy obstacles, nevertheless.84 The Hlope and Motata matter is a significant illustration of how the JSC has handled specific issues, and these are especially related to judicial removals.85 These issues need to be thoroughly and appropriately addressed since they may and should be seen as threats to judicial independence.86
83 Lunga Siyo and JC Mubangizi, ‘The Independence of South African judges: A constitutional and legislative perspective’ [2015] PELJ 817.
84 Ibid.
85 Ibid.
86 Ibid.
