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The DA has asked the Minister of Justice by way of a Parliamentary question what date the President will proclaim for the commencement of the Judicial Service Amendment Act, 2008, which the President signed into law in December of that year. The question is relevant to the dispute between the Judge President of the Western Cape and the Constitutional Court judges which is to be considered by the JSC on 15th August because MPs were advised earlier this year that the President would be asked to proclaim a date in August; and also because the Amendment Act changes the way in which complaints against judges are handled.

A Judicial Conduct Committee consisting only of judges will deal with complaints as of the commencement. It will be composed of the Chief Justice, Deputy Chief Justice and four judges designated by the Chief Justice in consultation with the Minister.

In cases where there are reasonable grounds to suspect incapacity, gross incompetence or gross misconduct as contemplated in the Constitution's impeachment provision, s 177,or whenever the Judicial Conduct Committee recommends it, the JSC must request the Chief Justice to appoint a tribunal.

Tribunals - consisting of two judges and one other person - make findings of fact and determinations on the merits of allegations, on a balance of probabilities. They report to the JSC, which makes its finding on the basis of the report and any written representations from the parties involved. A finding of incapacity, gross incompetence or gross misconduct is sent to parliament, which takes the final decision.

A number of provisions relating to tribunals are of interest against the background of the matter currently before the JSC:

The role played by the influenza virus during JSC hearings on 7th and 8th April this year, and which led to a South Gauteng judgment ruling that proceedings on those days had to be reheard, would not arise: the Act stipulates that hearings may begin or continue, in whole or in part, in the absence of the respondent if he was properly informed. (It is also an offence to fail to attend without a reasonable excuse, if a subpoena has been issued.)
Tribunal hearings are conducted behind closed doors, except that a Tribunal President may (in consultation with the Chief Justice) open proceedings in the public interest and for the purposes of transparency.