Arms deal commission judges challenge constitutionality of JSC Act

Two retired judges, who presided over the Arms Deal Inquiry, have approached the North Gauteng High Court in Pretoria to challenge the constitutionality of the Judicial Service Commission Act.

Judges Willie Seriti and Hendrick Musi face an investigation for “incapacity, gross incompetence or gross misconduct”.

Seriti was appointed to head the four-year long inquiry into allegations of corruption and fraud in the arms procurement deal in 1999, and Musi was commissioner. The inquiry found no evidence of corruption in the multibillion-rand deal.

The inquiry’s findings that corruption in the arms deal was “wild allegations with no factual basis” were later overturned by the High Court, News24 previously reported.

The court application was launched just as the Judicial Conduct Committee (JCC) prepares to hear the complaint.

On Friday, the JCC met to hear the complaint lodged by NPOs Open Secrets and Shadow World Investigations. However, the hearing had to be postponed because of the application.

The judges are seeking an order “declaring the definition of [a] ‘judge’ in the Judicial Service Commission Act unconstitutional to the extent that it includes a judge who has been discharged from active service in terms of the JSC Act”.

In a founding affidavit, Seriti said: “We served our terms as judges and retired after reaching the age of 70. The second applicant [Musi] is now 75, and yet we are being harassed by having to face the complaint, which was not even brought against us while we were in active service.”

News24 previously reported that in a letter to Open Secrets and Shadow World Investigations, acting JCC chairperson and Deputy Chief Justice Raymond Zondo affirmed the seriousness of the organisations’ complaint that the judges failed to investigate the arms deal properly.

He said should the complaint be established, “it is likely to lead to a finding by the Judicial Service Commission that Judge Seriti and Judge Musi are guilty of gross misconduct as envisaged in Section 14[4[ of the JSC Act.”

However, Seriti and Musi said they were aggrieved to be put through a complaint process after retiring.

“Our contention is that the definition of a judge which includes a retired judge, discharged from public service, is irrational and is inconsistent with Section 177 of the Constitution.”The judges added:There is a blatant absurdity to submit a judge who has been discharged from active service through an impeachment process. The very object of impeachment is to remove an incumbent from exercising a power or performing a function of a public office.

However in a statement on Friday, Shadow World Investigations and Open Secret said they would seek to intervene in the case.

“We believe that the application brought by Judge Seriti and Judge Musi is without merit, and we will oppose it vigorously. We believe that the application lodged by Judge Seriti and Judge Musi is an attempt to delay the proceedings of the JCC so that their indefensible misconduct remains unpunished for as long as possible.

“The organisations added:We believe that their submission is incorrect. The consequence of the arguments made by Judge Seriti and Judge Musi is a system where retired judges cannot be held accountable for previous acts of misconduct or gross negligence committed whilst they were active Judges. Judges could, as a result, conduct themselves with impunity, safe in the knowledge that they could simply retire if their misconduct was challenged

“It is our view that judges Seriti and Musi played a pivotal role in denying Arms Deal justice through their failure to conduct the investigation they were supposed to. They now seek to avoid accountability for their misconduct, arguing that retired judges must be forever immune from the consequences of their actions.”