But Justice Seriti’s appointment raises eyebrows for a different reason. 

The judiciary has again been much in the news of late.

One of the heads of our country’s high courts (Judge President Selby Mbenenge) was found to have committed gross misconduct and now faces potential impeachment.

The Constitutional Court’s long-awaited judgment in the so-called Phala Phala case was finally delivered, with potentially significant political repercussions, but also highlighting concerns about the functioning of the courts in light of the lengthy delay from the hearing of the case to the delivery of judgment.

As is often the case where significant, high-profile events dominate attention, other developments can easily escape public notice, when they ought to receive proper attention.

One such example occurred as public attention was focused on Mbenenge and the Phala-Phala judgment, from a source that will seem obscure to everyone but the closest watchers of the judiciary, the roll for the coming court term at the Supreme Court of Appeal (SCA).

The roll revealed that retired Justice Willie Seriti will be sitting as an acting justice on the court for its May term. It is unusual, though not unprecedented, for a retired judge to return to serve as an acting judge. Indeed, the SCA has made regular use of several of its retired justices to deal with a profusion of reconsideration applications under section 17(2)(f) of the Superior Courts Act.

But Justice Seriti’s appointment raises eyebrows for a different reason.

Seriti was appointed to the SCA in 2010. Shortly thereafter, he was appointed to chair a commission of inquiry into the arms deal. The commission’s report essentially found no evidence of wrongdoing in the arms deal.

The conduct of the commission’s proceedings was controversial and attracted much criticism, and the findings of the report were ultimately set aside by the high court.

Thereafter, civil society organisations Open Secrets and Shadow World Investigations lodged a complaint against Justice Seriti and another of the commissioners, retired judge Hendrik Musi, with the Judicial Service Commission (JSC). The complaint alleged that the judges had failed to conduct a proper investigation.

Judges Seriti and Musi attempted to avoid the JSC process and instituted court proceedings challenging the legislative provision that made the JSC’s disciplinary process applicable to retired judges (both having retired by this stage). This argument was resoundingly rejected by the high court.

However, the Judicial Conduct Committee (JCC) subsequently dismissed the complaint against the two judges. The JCC was unanimous in finding that, on the evidence before it, it was not possible to make a finding of prima facie gross incompetence or gross misconduct, warranting referral to a judicial conduct tribunal, which could have led to the judges’ impeachment.

The minority decision by the now Western Cape Judge President, Judge Mabindla-Boqwana, would have ordered an inquiry under the JSC Act, which could have led to the judges being visited with sanctions short of impeachment (such as a reprimand or a warning).

However, the majority of the JCC (the now – Deputy President of the SCA, Justice Dumisani Zondi, with now Chief Justice Mandisa concurring), held that the complaint should be dismissed as being solely related to the merits of a judgment or order, and thus fell outside the scope of the JSC Act relating to complaints against judges.

And there the complaint against Justice Seriti ended. With the complaint having been dismissed, why the concern about him being invited back to act on the SCA?

Whilst it is true that the JCC declined to uphold the complaint, it did so on the grounds that the subject matter of the complaint fell outside the remit of the judicial complaints procedure.

In other words, a technical point of law that in no way constitutes an endorsement of Justice Seriti’s actions as chairperson of the arms deal commission.

And it is worth recalling that the arms deal commission’s report was set aside on the basis that the commission failed to admit relevant evidence, failed to interrogate people alleged to be involved in corruption, and failed to interrogate critical witnesses amounted to failure to carry out the investigation required by its terms of reference.

As the high court put it, “it is clear that the Commission failed to enquire fully and comprehensively into the issues which it was required to investigate on the basis of its terms of reference.”

Even if one accepts that, as per the JCC majority’s decision, the conduct of the judges (including Justice Seriti) who sat on the commission falls outside the scope of the JSC’s complaints mechanisms, the findings must raise serious concern about the judges responsible for them.

All of this shows what a curious decision it was for the leadership of the SCA to have invited Justice Seriti back to act as a judge of the court, despite all of these serious question marks against him in the shape of scathing criticism and adverse judicial findings regarding the performance of the commission of inquiry which he chaired.

The SCA is the second highest court in the country and in many instances, its judgment will be the final judicial word on a dispute. It can do little for public confidence in the judiciary, which is already increasingly precarious, to have a judge involved in such a concerning failure to carry out the proper functions of a commission of inquiry, invited to serve as an acting judge of such an important court.

In terms of the Constitution, the Minister of Justice would have made the appointment of Justice Seriti after consulting the senior judge of the SCA (most likely its President, Justice Mahube Molemela).

The process by which acting judges are appointed has long been a cause for concern, particularly over the absence of criteria according to which the appointments are made, and the extent to which the power to make appointments is concentrated in one of two individuals, unlike the broader input the JSC process brings to appointing permanent judges. The acting appointment of Justice Seriti highlights the ongoing need for the process of appointing acting judges to be reformed.