“Because it does not have a code of conduct for its own commissioners, it can also not always say you cannot ask this kind of question or that question without prior warning. Of course, a lot of those things are common sense and decency,” Watt-Pringle said.
He said the process of enforcing decorum and imposing sanctions on the conduct of commissioners was also made difficult by the fact that they were not in the same categories, as some were automatically entitled to sit on the commission due to their positions in the judiciary, including chief justice and president of the Supreme Court of Appeal.
He pointed out that the GCB would act by approaching President Cyril Ramphosa with an alternative recommendation of who to appoint as replacement at the JSC if it were to act.
The Black Lawyers Association (BLA), while welcoming the nomination of SCA president Mandisa Maya for the chief justice post by the JSC, condemned the behavior of certain commissioners towards other candidates during interviews.
BLA president Bayethe Maswazi said the implicated commissioners had “forgotten that they ought to be a reflection of the best that South Africa and South Africans can be”.
Maswazi said the association was recommending the formulation of the code of conduct and its incorporation into the Judicial Services Commission Act, 1994 as amended.
"The discipline of the members of the JSC ought not to be left to other bodies and the formulation of the guidelines for the proceedings of the JSC including parameters within which certain questions may be posed to candidates, with due respect and deference to the independence of the individual commissioners,” Maswazi said.
Constitutional law expert Dr Llewellyn Curlewis said the JSC commissioners would have to craft a code of conduct that was in line with the Act, and consistent with the code of conduct of their constituencies, including the judiciary, parliament and the legal profession.
"They would create it themselves as a regulation and it would have to incorporate much of what is contained in the codes of conduct for all the professions represented," Curlewis said.
The Law Society of SA also urged the JSC to put proper procedures in place as it is empowered to avoid a repetition of perceived behaviour and lack of direction in the future. The LSSA said it is delighted that the JSC has recommended Justice Maya to the President as its preferred candidate.
'JSC let down by lack of code of conduct for commissioners'
Procedural loophole prevents action being taken against unbecoming behaviour, say legal organisations
The absence of a code of conduct for commissioners serving on the Judicial Service Commission (JSC) means that the body cannot act on any misconduct during the proceedings.
This is according to several civic and legal profession bodies who spoke to Sowetan on Wednesday in the wake of a fierce public debate on how some JSC commissioners conducted themselves during the recent interviews of the four senior judges vying for the position of chief justice.
Several commissioners, including Adv Dali Mpofu SC, have been accused by some of denigrating some of the candidates including Gauteng judge president Dunstan Mlambo.
The Council for the Advancement of the South African Constitution (CASAC) said the calls for the JSC to take action against Mpofu and other commissioners would not be possible due to the existing procedural loophole.
Casac executive director Lawson Naidoo said there was currently no practical way for the JSC to hold its commissioners to account as there was no written code that governed their behaviour.
“The JSC cannot do anything about the conduct of commissioners. But in relation to legal practitioners, the GCB (General Council of the Bar) could act because it is their nominees who go to the JSC,” Naidoo said.
GCB chairperson, Adv Craig Watt-Pringle, said that the JSC had no mechanism to discipline or remove any of its commissioners who came on the basis of recommendation by different constituencies.
“Because it does not have a code of conduct for its own commissioners, it can also not always say you cannot ask this kind of question or that question without prior warning. Of course, a lot of those things are common sense and decency,” Watt-Pringle said.
He said the process of enforcing decorum and imposing sanctions on the conduct of commissioners was also made difficult by the fact that they were not in the same categories, as some were automatically entitled to sit on the commission due to their positions in the judiciary, including chief justice and president of the Supreme Court of Appeal.
He pointed out that the GCB would act by approaching President Cyril Ramphosa with an alternative recommendation of who to appoint as replacement at the JSC if it were to act.
The Black Lawyers Association (BLA), while welcoming the nomination of SCA president Mandisa Maya for the chief justice post by the JSC, condemned the behavior of certain commissioners towards other candidates during interviews.
BLA president Bayethe Maswazi said the implicated commissioners had “forgotten that they ought to be a reflection of the best that South Africa and South Africans can be”.
Maswazi said the association was recommending the formulation of the code of conduct and its incorporation into the Judicial Services Commission Act, 1994 as amended.
"The discipline of the members of the JSC ought not to be left to other bodies and the formulation of the guidelines for the proceedings of the JSC including parameters within which certain questions may be posed to candidates, with due respect and deference to the independence of the individual commissioners,” Maswazi said.
Constitutional law expert Dr Llewellyn Curlewis said the JSC commissioners would have to craft a code of conduct that was in line with the Act, and consistent with the code of conduct of their constituencies, including the judiciary, parliament and the legal profession.
"They would create it themselves as a regulation and it would have to incorporate much of what is contained in the codes of conduct for all the professions represented," Curlewis said.
The Law Society of SA also urged the JSC to put proper procedures in place as it is empowered to avoid a repetition of perceived behaviour and lack of direction in the future. The LSSA said it is delighted that the JSC has recommended Justice Maya to the President as its preferred candidate.