B Mabandla on Announcement by Justice Squires

15 November 2006

I am in the process of establishing the facts, with the Chief Justice Langa
and the Judge President Tshabalala, around the announcement by Honourable
Justice Squires, with regard to the Shaik case.

Any issues raised about any alleged impropriety by the Supreme Court of
Appeal (SCA) judges, is one that I cannot comment on. Issues relating to the
impropriety of judges are the preserve of the Judicial Services Commission
(JSC). The Constitution, particularly, provides that if the alleged impropriety
of a judge is of a serious nature, which may warrant removal, it provides for a
particular procedure to deal with the matter.

The JSC must hold an inquiry and if it finds that such a judge suffers from
incapacity or gross incompetence or is guilty of gross misconduct, then it must
send such finding to Parliament. If Parliament supports such finding with a
two- thirds majority the judge may be removed. Therefore, if any person has a
complaint of serious impropriety to raise against any of the SCA judges, these
are the procedures to be followed and they must lodge their complaints with the
JSC.

On the other hand, if any person takes issue with any aspect of the
judgement itself, then the appropriate cause of action to follow is to make use
of whatever remedies are provided in law. Depending on the remedy chosen such a
person will have to approach either the SCA or the Constitutional Court.

And therefore, the question whether there will be an inquiry instituted by
the Minister does not and cannot arise.

It is also worth pointing out that the SCA is a court of appeal of final
instance on non-constitutional matters. Therefore, when it hears an appeal it
decides the matter afresh on the basis of the record. The SCA makes its own
findings of fact and credibility in respect of such appeal. Such court of
appeal is obviously guided by the views of the court of trial court, although
they are not bound thereby. Therefore, in their findings, they can either agree
or differ with those made by the court of first instance. In any case, once the
court of appeal has given its judgement, the judgement of the court of the
first instance has no binding legal effect.

The rule of law demands of all of us, even if we feel aggrieved by any
pronouncement of the court, to uphold and promote the legitimacy and confidence
in our courts, by dealing with such disputes rationally, on the basis of the
facts and in accordance with the processes and procedures provided in law. In
the new democratic dispensation there has been an evolving and growing
confidence in the judiciary from our people. We should all continuously strive
to promote and build on this evolving positive response of our people.

Enquiries:
Zolile Nqayi
Tel: (021) 467 1714
Cell: 082 898 6483
E-mail: znqayi@justice.gov.za

Issued by: Department of Justice and Constitutional Development
15 November 2006