| (a) | the Chairperson is satisfied that, in the event of a valid complaint being established, the appropriate remedial action will be limited to one or more of the steps envisaged in subsection (8); or |
| (b) | a complaint is referred to the Chairperson in terms of section 15(1)(b) or section 16(4)(a), or section 18(4)(a)(ii), the Chairperson or a member of the Committee designated by the Chairperson must inquire into the complaint in order to determine the merits of the complaint. |
| (2) | Any inquiry contemplated in this section must be conducted in an inquisitorial manner and there is no onus on any person to prove or to disprove any fact during such investigation. |
| (3) | For the purpose of an inquiry referred to in subsection (2), the Chairperson or member concerned— |
| (a) | must invite the respondent to respond in writing or in any other manner specified, and within a specified period, to the allegations; |
| (b) | may obtain, in the manner that he or she deems appropriate, any other information which may be relevant to the complaint; and |
| (c) | must invite the complainant to comment on any information so obtained, and on the response of the respondent, within a specified period. |
| (4) | If, pursuant to the steps referred to in subsection (3), the Chairperson or member concerned is satisfied that there is no reasonable likelihood that a formal hearing on the matter will contribute to determining the merits of the complaint, he or she must, on the strength of the information obtained by him or her in terms of subsection (3)— |
| (a) | dismiss the complaint; |
| (b) | find that the complaint has been established and that the respondent has behaved in a manner which is unbecoming of a judge, and impose any of the remedial steps referred to in subsection (8) on the respondent; or |
| (c) | recommend to the Committee, to recommend to the Commission that the complaint should be investigated by a Tribunal. |
(5)
| (a) | If, pursuant to the steps referred to in subsection (3), the Chairperson or member concerned is of the opinion that a formal hearing is required in order to determine the merits of the complaint, he or she must determine a time and a place for a formal hearing and written notice of the hearing must, within a reasonable period before the date so determined, be given to the respondent and the complainant. |
| (b) | For purposes of a formal hearing contemplated in paragraph (a)— |
| (i) | the Chairperson or member concerned has all the powers of a Tribunal; and |
| (c) | Upon the conclusion of a formal hearing the Chairperson or member concerned must record his or her findings of fact, including the cogency and sufficiency of the evidence and the demeanour and credibility of any witness, and his or her finding as to the merits of the complaint, and— |
| (i) | dismiss the complaint; |
| (ii) | find that the complaint has been established and that the respondent has behaved in a manner which is unbecoming of a judge, and impose any of the remedial steps referred to in subsection (8) on the respondent: or |
| (iii) | recommend to the Committee, to recommend to the Commission that the complaint should be investigated by a Tribunal. |
| (6) | The Chairperson or member concerned must in writing inform the Committee, the complainant and the respondent of— |
| (a) | a dismissal contemplated in subsection (4)(a) or (5)(c)(i); or |
| (b) | any finding and remedial steps contemplated in subsection (4Kb) or (5)(c)(ii); or |
| (c) | any recommendation contemplated in subsection 4(c) or (5)(c)(iii), and the reasons therefor. |
| (a) | A complainant who is dissatisfied with a decision to dismiss a complaint in terms of subsection (4)(a) or (5)(c)(i) may, within one month after receiving notice of that decision, appeal to the Committee in writing against that decision, specifying the grounds for the appeal. |
| (b) | A respondent who is dissatisfied with any finding or remedial steps contemplated in subsection (4)(b) or (5)(c)(ii) may, within one month after receiving notice of that finding and remedial steps, appeal to the Committee in writing against that finding or remedial steps or both such finding and remedial steps, specifying the grounds for the appeal. |
| (8) | Any one or a combination of the following remedial steps may be imposed in respect of a respondent: |
| (a) | Apologising to the complainant, in a manner specified. |
| (d) | Any form of compensation. |
| (e) | Subject to subsection (9), appropriate counselling. |
| (f) | Subject to subsection (9), attendance of a specific training course. |
| (g) | Subject to subsection (9), any other appropriate corrective measure. |
| (9) | The state shall not be responsible for any expenditure incurred as a result of, or associated with, any remedy referred to in subsection (8)(e), (f) or (g), unless such remedy was selected from a list of approved remedies or services compiled from time to time by the Minister, after consultation with the Chief Justice, and then only to the extent set out in that list. |
[Section 17 inserted by section 9 of Act No. 20 of 2008]
