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Freedom Under Law v Judicial Service Commission and Another (550/2022) [2023] ZASCA 103


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Freedom Under Law v Judicial Service Commission and Another (550/2022) [2023] ZASCA 103

Legal gavel

23rd June 2023


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Click here to read the judgment on Saflii

1]        As Lord Phillips observed in Re Chief Justice of Gibraltar:


‘A summary of the standard of behaviour to be expected from a judge was given by Gonthier J when delivering the judgment of the Supreme Court of Canada in Therrien v Canada (Ministry of Justice) and another [2001] 2 SCR 3:

“The public will therefore demand virtually irreproachable conduct from anyone performing a judicial function. It will at least demand that they give the appearance of that kind of conduct. They must be and must give the appearance of being an example of impartiality, independence and integrity. What is demanded of them is something far above what is demanded of their fellow citizens.”


While the highest standards are expected of a judge, failure to meet those standards will not of itself be enough to justify removal of a judge. So important is judicial independence that removal of a judge can only be justified where the shortcomings of the judge are so serious as to destroy confidence in the judge’s ability properly to perform the judicial function. As Gonthier J put it at paragraph 147 of the same case:

“. . . before making a recommendation that a judge be removed, the question to be asked is whether the conduct for which he or she is blamed is so manifestly and totally contrary to the impartiality, integrity and independence of the judiciary that the confidence of individuals appearing before the judge, of the public in its justice system, would be undermined, rendering the judge incapable of performing the duties of his office.”’[2]

That is the issue that confronts us in this appeal – namely, whether the conduct encountered here is of such a kind as to render the second respondent, Judge Nkola John Motata, incapable of performing the duties of his office.


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