“Startling ruling” lets Judge Anton van Zyl escape impeachment for late judgments
The Judicial Conduct Committee has ruled that the retired judge, who is the main offender for late judgements, cannot be referred for impeachment
Retired KZN Judge Anton van Zyl will not face impeachment proceedings, but he will face an inquiry which can issue him with a warning or a fine. Illustration: Lisa Nelson
Retired KZN Judge Anton van Zyl will not face impeachment proceedings, even though he still has a judgment outstanding from 2012.
- He has for many years held the “national record” for the highest number and longest duration of delayed judgments, but continues to earn his judge’s salary for life.
- In what has been described as a “startling” ruling, the Judicial Conduct Committee ruled that because he retired in 2021 it has no authority to initiate impeachment proceedings.
- The ruling was handed down in July 2024. But it has only now come to light following requests for updates on the matter from Judges Matter.
KwaZulu-Natal Judge Anton van Zyl retired in December 2021 with a long list of unwritten judgments, one dating back to 2012. He was repeatedly listed as a main offender in the judiciary’s reserved judgment list. But now he is mostly off the hook.
This after a Judicial Conduct Committee (JCC), by majority, ruled that because he is no longer in active service, it has no authority to initiate a process of possible impeachment, and there is no point in referring his conduct to a Judicial Conduct Tribunal to determine whether he was incompetent, incapacitated or guilty of gross misconduct.
He still has several outstanding judgments, and he refused to cooperate with the JCC, which was considering complaints from an unhappy litigant and from KZN Judge President Thoba Poyo-Dlwati.
The ruling now means he will receive all the perks of being a judge, including a salary for life.
The JCC ruling was handed down in July 2024. But it has only now come to light following requests for updates on the matter from Judges Matter.
Instead of referring the matter to a tribunal, the JCC directed that it be dealt with “urgently” in terms of Section 17 (3) of the Judicial Services Commission Act, which deals with “serious but non impeachable complaints”.
A finding of guilt under this section, only provides for penalties, including a written warning, an apology, compensation or “appropriate counselling”.
Yet six months later, this referral has still not been finalised. Approached for comment, JSC spokesperson advocate Sesi Baloyi said: “There has not been a formal inquiry but the matter is being attended [to]. The acting [JCC] chairperson has directed that letters be sent to the parties for written submissions in terms of the Act.”
A “startling” ruling
Judges Matter researcher Mbekezeli Benjamin said the ruling was “startling” and broke with clear precedent from the Supreme Court of Appeal and the High Court which have confirmed that retired judges may be impeached.
“But what’s worrying is that the ruling severely weakens accountability for judges. It effectively means that a judge may choose not do to their work of writing judgments for a decade, and simply wait until their retirement date before they sail off into the sunset with a full judges’ salary for the rest of their lives.
“This is not fair on the public, whose lives are reliant on these judgments. We hope the Judicial Conduct Appeal Committee will reconsider this ruling.”
The JCC panel who heard the complaints against Van Zyl lodged in 2023 consisted of judges Chris Jafta, Halima Saldulker, Nolwazi Mabindla-Boqwana, Jeremiah Shongwe and (then) Deputy Chief Justice Mandisa Maya.
The first complaint was from a litigant, Kathy Barnard, who said Van Zyl heard her case relating to a property dispute on 3 September 2020 and reserved judgment. It had, at the time of the lodging of the complaint, not been handed down and she was “unable to make decisions about her property”.
Judge President Poyo-Dlwati laid a complaint over Van Zyl’s failure to hand down eight reserved judgments, one dating back to December 2012, within the three month time-frame imposed by the Judicial Code of Conduct.
Judge Jafta (with Saldulker and Shongwe concurring), for the JCC majority, said, “On the undisputed allegations on record, those judgments were still outstanding when these complaints were considered by this committee. What is deeply concerning is the fact that Judge van Zyl did not furnish a response to serious allegations raised against him, even after this committee had directed that the complaints be served again on him and invited him to respond.”
However, they said, the JSC Act required the committee to consider whether a complaint would, if established, show incapacity or gross incompetence or gross misconduct and, if the test were met, it may recommend that the complaint be investigated by a Tribunal which could consider impeachment.
“Such an investigation may only be undertaken if the ultimate purpose is to remove a judge from office,” Jafta said.
The question, he said, was whether a judge who had retired could still be removed from office.
He said a retired judge continued to hold the status of a judge. But that did not mean that the judge continued to hold office. That meant that the process for the removal of a judge, as contemplated in the Constitution, could not be initiated where the judge had already vacated judicial office.
He said the allegations were deeply concerning and it was “extremely troubling that Judge van Zyl had failed to furnish any explanation”.
Litigants’ lives had been affected by the delays and “the resolution has become urgent”, Judge Jafta said, remitting the complaints for an urgent inquiry in terms of Section 17.
But Judge Mabindla-Boqwana, with Judge Maya concurring, said the majority ruling went against precedent set by the Supreme Court of Appeal in the matter of “drunk driving” judge Nkola Motata, who had been subjected to a tribunal after he retired after it was found that he still held judicial office.
Until such time that the SCA corrected this position, all lower courts and quasi adjudicative bodies such as the JCC, must treat the Constitution as applying to retired judges in the same way as judges in active service.
This view was bolstered by the fact that once retired, a judge continued to be paid a “salary” as opposed to a “pension”, and could serve in commissions, institutions or bodies in his or her capacity as a judge.
Further, the JSC Act applied to all judges and its constitutionality had not been placed in question.
Judge Mabindla-Boqwana said in February 2024, when the ruling of the committee was pending, Judge President Poyo-Dlwati had informed them that Judge van Zyl had delivered five of his outstanding judgments that month. But there were still three outstanding, including the one from 2012. This made no difference, she said.
“The peculiar facts of this case, including the delay of more than ten years in handing down judgments, with absolutely no explanation proffered is not only an indication of tardiness but also dereliction of duty. This goes beyond the usual case of a judge occasionally having reserved judgment arising, for example, from a heavy workload.
“For many years, Judge van Zyl showed no appreciation of the negative impact that the delay had on the affected litigants and the seriousness of the complaints against him. He ignored not only the attempts by the Judge President and the litigants, but the committee’s request for him to file a response,” she said.
This could amount to gross misconduct and she would have proposed that the JCC recommend the establishment of a tribunal.
Mbekezeli said further that it was also worrying that, despite Judge van Zyl choosing not to participate in the proceedings, the complaint had taken nearly two years since it was filed in July 2023.
“There needs to be urgent reforms to properly capacitate the JCC to be more efficient. The Minister of Justice now needs to move speedily to amend the JSC Act to allow more retired judges to be members of the JCC, as clearly the current six (which includes the Chief Justice) is just not enough to handle the volume and complexity of complaints.”
Support independent journalism
Donate using Payfast
Next: New plant discovered in Stellenbosch
Previous: Lottery secretary resigns after pocketing R6-million while on suspension
© 2025 GroundUp. This article is licensed under a Creative Commons Attribution-NoDerivatives 4.0 International License.
You may republish this article, so long as you credit the authors and GroundUp, and do not change the text. Please include a link back to the original article.
We put an invisible pixel in the article so that we can count traffic to republishers. All analytics tools are solely on our servers. We do not give our logs to any third party. Logs are deleted after two weeks. We do not use any IP address identifying information except to count regional traffic. We are solely interested in counting hits, not tracking users. If you republish, please do not delete the invisible pixel.