Retired Judges Willie Seriti and Hendrick Musi will today argue before the Gauteng High Court (Pretoria) that the definition of who is a judge must be amended to exclude retired judges; one consequence of which would be that retired judges could not be subject to investigation by the Judicial Conduct Committee (JCC).

The matter relates to the committee’s probe into their performance in the Commission of Inquiry into Allegations of Fraud, Corruption, Impropriety or Irregularity in the Strategic Defence Procurement Packages – otherwise known as the Seriti Commission.

As previously reported, the commission was set up to investigate irregularities in the multibillion-rand procurement of arms by the South African government in 1999, known as the Arms Deal.

Despite the overwhelming evidence of corruption, the retired judges in 2015 found no irregularities in the Arms Deal procurement process. This despite the fact that Schabir Shaik and Tony Yengeni, were convicted of corruption related to the deal.

A Daily Maverick analysis labels the commission a wasted opportunity to hold those responsible, including former President Jacob Zuma, accountable for the corrupt Arms Deal. Nearly R140m was spent on the commission to unpack the controversial deal and, without doubt, it was a ‘monumental failure’.

In 2016, following court action initiated by Corruption Watch and Right2Know, the findings of the commission were set aside by the court.

It concluded that the commission failed to look into and consider thousands of pages of evidence from other investigations.

In his judgment, Judge Dunstan Mlambo said ‘the commission failed to inquire fully into the matters it had to investigate. The questions posed to the witnesses were hardly the questions of an evidence leader seeking to determine the truth’.

Open Secrets and Shadow World Investigations wrote to the Judicial Conduct Commission in August 2020 to have both judges investigated for possible misconduct during their time leading the commission.

Then acting chairperson Judge Raymond Zondo found that the complaint warranted investigation. But instead of cooperating with the JCC, the duo argue that because they are retired judges, the JCC has no power to investigate their conduct.

Essentially, it is their view that the current definition of a ‘judge’ – as contained in the Judicial Service Commission Act – is unconstitutional as it includes retired judges.

The DM notes that judges, both active and retired, are rewarded handsomely for their service. Even beyond their time on the Bench, judges accrue income from the state.

For many South Africans, their job pays them only for their time in service. But this is different for judges – retired judges are often called to help us solve the many complex crises we face in the country.

The DM notes that their fundamental failure to do their jobs at the commission, as confirmed by our courts, leaves unanswered many questions about their conduct. These include:

* Why did they ignore key evidence of bribery, corruption and fraud in the commission?

* Why did they deny key witnesses the opportunity to give testimony at the commission?

* How did they expect South Africans to accept their finding that there was no trace of corruption in the Arms Deal?

Full Daily Maverick analysis