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When a judge confronts perceived irregularities in settled litigation, how far may the judge go without crossing the line into professional misconduct? This article examines a recent ruling of the Judicial Conduct Committee ("JCC"), concerning an appeal lodged in terms of the Judicial Service Commission Act, which shed guidance on good-faithed decisions made by a judicial official, but which ultimately constitute judicial error and overreach, amount to wilful or grossly negligent misconduct and sanctionable consequences under the Judicial Service Commission Act.
Background and procedural history
This matter stemmed from a formal complaint lodged by De Broglio Attorneys Inc. against Fisher J of the Gauteng Division of the High Court arising from two civil matters -Taylor v Road Accident Fund and Mathonsi v Road Accident Fund - which were heard together by Fischer J. Although the plaintiffs and the RAF had reached a settlement, Fisher J questioned the propriety of these settlements, declined to make them orders, and delivered a judgment declaring the settlements void ab initio. She also made adverse findings against De Broglio Attorneys and certain experts, and referred them to professional bodies, without first affording them an opportunity to respond.
On appeal, the Supreme Court of Appeal in Road Accident Fund v Taylor and Other Matters upheld the appeal and set aside Fischer J's judgment, holding that she lacked authority to interrogate the merits of the settlement agreements reached with the RAF and had violated the audi alteram partem principle by making adverse findings against De Broglio Attorneys without admissible evidence or giving them a fair opportunity to be heard.
Based on the SCA's ruling, De Broglio Attorneys thereafter lodged a complaint with the Judicial Conduct Committee ("JCC") claiming that Fischer J had exceeded her judicial mandate by reopening settled matters, dealing with issues not before her, and introducing extraneous policy concerns such as the RAF's fiscal position and the public interest into private civil disputes. They further alleged that Fisher J failed to adhere to the constitutional principle that judges must decide only the cases and issues properly before them.
Judge President Mlambo (as he then was) initially dismissed the complaint on the grounds that the complaint related solely to the merits of the Fisher J's judgment and order. De Broglio Attorneys then appealed to the JCC Appeal Committee who upheld the appeal as they found a prima facie case and referred it for inquiry under section 17 of the Judicial Service Commission Act. Shongwe JA, designated to conduct the inquiry, concluded that Fischer J had breached Articles 9 and 16 of the Code of Judicial Conduct, by making adverse findings and referrals to the Legal Practice Council without a prior hearing. Shongwe nevertheless simultaneously held that Fisher J's, conduct was neither wilful nor grossly negligent, and imposed a written reprimand.
Fischer J appealed against this ruling arguing that since wilfulness or gross negligence is a necessary element of section 14(4)(e) of the Judicial Service Commission Act, the finding of a breach of the Code coupled with a concession that her conduct was neither wilful nor grossly negligent, was contradictory and unlawful. The complaint should have been dismissed as required by section 15(2)(a) of the Judicial Service Commission Act, if there were no findings of wilful or gross negligence.
Decision and reasoning
The appeal issue for determination turned on the proper construction of section 14(4)(e) of the Judicial Service Commission Act and whether the uncontested finding - that the conduct was not wilful or grossly negligent - precluded a conclusion that misconduct had been established. The applicable framework required proof that the judge engaged in conduct contrary to the Code, that such conduct was wilful or grossly negligent, and that it was incompatible with judicial office or prejudicial to the independence, impartiality, dignity, accessibility, efficiency or effectiveness of the courts.
The Appeal Committee held that Shongwe JA's approach was internally inconsistent. Having found that Fischer J's conduct was neither wilful nor grossly negligent, it was not open to him to conclude that a complaint in terms of section 14(4)(e) had been established or to impose a reprimand.
The Appeal Committee held that is trite that a judge may not raise and determine issues not placed before the court by the parties, however well-intentioned the judge may be, including out of concern for the public fiscus. Nonetheless, when Fischer J questioned the settlement agreements concluded between the parties, she did so in the course and scope of her judicial functions and could not be faulted merely for raising concerns. However, the difficulty arose in the manner in which she went further to make findings of fraud and corruption against De Broglio Attorneys and its experts without substantiating evidence, and in referring them to their respective professional bodies without affording them an opportunity to be heard. In so doing, she denied them their right to a fair hearing under the audi alteram partem principle as required by the Code.
The Appeal Committee nevertheless held that Fisher J's conduct did not amount to wilful or gross misconduct as this is a "very high threshold which the legislature intentionally crafted into the provision to avoid situations where judges are silenced even in the face of unethical conduct in their courts".
The Appeal Committee further noted that judges raising concerns when something is wrong or amiss in a case before their court promotes public trust as it speaks to transparency and the ability of judges to openly discuss their concerns showing fairness therein. Accordingly, the Appeal Committee upheld the appeal and found that Fisher J's conduct was not wilful or grossly negligent as contemplated under section 14(4)(e) of the Act. Shongwe JA's ruling was set aside and replaced with one which dismissed the complaint against Fisher J.
This decision confirms several important legal principles governing judicial conduct and civil case management. Firstly, section 14(4)(e) imposes a stringent threshold. To transform judicial error – however serious – into sanctionable misconduct, the complainant must prove wilfulness or gross negligence in addition to incompatibility with judicial office or prejudice to the courts' integrity. Absent such proof, disciplinary sanction is impermissible.
Secondly, appellate correction is not equivalent to disciplinary liability. The setting aside of a judgment for legal error, including overstepping the merits of settlements, does not automatically translate into misconduct. Distinguishing judicial error from wilful or grossly negligent wrongdoing protects the independence and decisional courage essential to the judicial role.
Lastly, judicial vigilance must be balanced with restraint. While judges may raise concerns about matters before them – and should do so where fairness or legality appears at risk – they must respect constitutional and precedential limits on their power, especially regarding consensual settlements and issues not fully placed before the court.
Together, these principles reinforce that accountability and independence are complementary: judges must afford fair hearings and stay within jurisdictional bounds, yet they should not be sanctioned for good-faith errors made in the course of adjudication.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
