Parliamentary Monitoring Group, Judicial Submissions on Draft Regulations for Judicial Service Commission Act, January 26 2012

Date of Meeting: 

 26 Jan 2012

Chairperson: 

 Mr J Sibanyoni (ANC); Mr A Matila (ANC; Gauteng)

Summary: 

The judiciary was against the Draft Regulations for sitting judges, retired judges and acting judges who contended that if the Regulations were to pass constitutional muster, the mischief had to be proven and the laws put in place to correct such mischief had to be rational and connected to a legitimate purpose. The law should go no further than the legitimate purpose for which it was meant.

The point was made that currently there were no identified corruption cases against members of the judiciary and this could not be the mischief that the legislature sought to correct. The judiciary could not conceive of a justification for their spouses and relatives having to declare their assets. The Committee was informed that there was every prospect of a successful constitutional challenge on the Draft Regulations as they were irrational, served no legitimate government purpose and they went beyond any legitimate purpose that one might speculate on. 

On the subject of acting judges, the judiciary contended that the disclosure of assets by acting judges was a completely different case as they were entitled to have income from other sources given the fact that they were drawn from the ranks of advocates and attorneys. The question was posed if the assets of acting judges and their spouses would have to be declared as well. Such disclosure would be open to the competitors of such an acting judge and the question was would they do all of this just because they acted for a month or two.

The Committee was alerted to the dangers of the possible stalling of the administration of justice should acting judges be subjected to the Draft Regulations as they were, because few, if any, would choose to serve. It was not clear to the judiciary why retired judges would be subject to the Draft Regulations and be required to disclose their assets as they had already served their duty to the state and they could not possibly corrupt anybody. The judiciary suggested the following for sitting judges: a broad outline of their assets could be disclosed, but not the finer detail. In other words, a judge could disclose that they had shares but not how many, in what value etc. There could be a broad disclosure that was open to public scrutiny.

The finer detail could be open only to the Chief Justice and the head of the court. In the proposal from the judiciary, provision was made for members of the public to apply to the Chief Justice and justify why they should have access to the records. The judge would weigh in on the application, the applicant would have to use the information only for the purpose that the information was sought, and the applicant would have to sign a confidentiality agreement, with penalties.  

The Committee pointed out that the Draft Regulations were there to address corruption in government. More information on international best practice was sought by the Committee. One of the Co-Chairpersons said that there were many issues that had to be addressed within the judiciary such as transformation and he said that one often found that there was a disparity between what judges earned when sitting and the vast assets, trusts and property they ended up with when they retired. The Committee asked why judges had to be treated differently from the other arms of government. The Committee wanted public participation in the discussions on the Draft Regulations. 

Minutes: 

Proposals with Regard to the Draft Regulations on Sections 11 and 13 of the Judicial Service Amendment Act of 2008

Judge Robert Nugent of the Supreme Court of Appeal said that it was important for the legislature to identify the mischief that had to be overcome. If this was not done then one was likely to produce legislation that was not coherent or rational and was arbitrary. This was particularly pertinent in this case as the proposed Regulations were an intrusion upon the privacy of judges and their families. If this was to pass constitutional muster then the mischief had to be proven, and the laws put in place to correct such mischief had to be rational and connected to a legitimate purpose. The law should go no further than the legitimate purpose for which it was meant. The judiciary had never been told what the problem was.

The reason behind the Draft Regulations could be to curb judges from taking money on the side and being involved in commercial interests that were incompatible with their judicial functions. It was possible that such things may have occurred but in 35 years on the bench there was only one case that he knew of. There was no identified major problem that was occurring at the moment in this regard. There may be a case to be made for some sort of disclosure. Was it really suggested in the Bill that the partners of judges had to declare all their possessions.

A judge's spouse would ask what the purpose of the disclosure would be; who would have access to the records; why the Registrar would have access and also to whom could they disclose this information? How could this be justified? The judges could see no justification for the disclosure of assets belonging to their spouses. If judges were going to hide illegal activity by putting ill gotten assets in their wife's names what would stop them from putting the assets in the name of their relatives? There was every prospect of a successful constitutional challenge on the Draft Regulations as they were irrational, they served no legitimate government purpose and they went beyond the legitimate purpose that one might speculate on. 

Judges had to disclose their interests and this was open to the public. The disclosure of assets by acting judges was a completely different case as they were entitled to have income from other sources given the fact that they were drawn from the ranks of the advocate and attorney professions. Would they and their spouse's assets have to be declared as well? Such disclosure would be open to the competitors of such an acting judge and the question was would they be prepared to do all of this just because they acted for a month or two?

If this was what was going to be expected of an acting judge, then there was no way that an attorney or advocate would subject themselves to this. Retired judges have done their duties and fulfilled their obligations to the state. The disclosure of their assets as well as those of their spouses would be irrelevant. There was this misconception that retired judges were still subject to direction from the state, this was not correct. Once judges had done their duty, that was that. Retired judges still had to carry themselves in a manner that would not bring the judiciary into disrepute.

However retired judges often earned extra income from serving on the judiciary of neighbouring states or sitting on university councils etc. Should they now not be allowed to do this? Obviously not. For sitting judges this was a different matter altogether, the judiciary was of the view that a broad outline of their assets could be disclosed but not the fine detail. In other words a judge could disclose that they had shares but not how many, in what value etc.

One could have a broad disclosure that was open to public scrutiny. The finer detail could be open only to the Chief Justice and the head of the court. In the proposal, provision was made for members of the public to apply to the Chief Justice and justify why they should have access to the records. The judge would weigh in on the application, the applicant would have to use the information for the purpose that the information was sought and they would have to sign a confidentially agreement with penalties.  

There was one provision under Section 11 that illustrated the arbitrary nature of the Draft Regulations and this was the provision that stated that judges may write textbooks but only with the consent of the Minister. A judge writing a legal textbook was legitimate, this contributed to the legal profession. On what basis could the Minister of Justice refuse to grant permission, other than an arbitrary one?

The provision also said that the Minister ‘may or may not grant permission', it was either the one or the other, such a provision demonstrated that it was not designed for a legitimate purpose but for the Minister to have control for no justifiable reason. There was no reason why everything had to go through the Minister who had to grant permission before anything could be done. In conclusion, judges knew how to behave professionally; they knew how to conduct themselves ethically and did not have to be told. The Code of Good Conduct was there as guidance and one would find that the more detail one has, the more loopholes and anomalies one would end up with. 

Discussion 

Mr J Jeffery (ANC) said that the process had to be opened up to public participation. The elephant in the room was corruption and this was one of the mischiefs that the Draft Regulations wanted to correct. Public perception was also important as there was need for a judiciary that was above reproach. Since 1994 public office bearers have had these sort of disclosure requirements including Members of Parliament (MPs) and the Executive. There was a lot of validity in the points raised by Judge Nugent. 

Prof G Ndabandaba (ANC) asked what the position in other international jurisdictions was. 

Ms D Ranto (ANC; Eastern Cape) said that it seemed the judges had scant confidence in the court registrar because there was still the requirement that a person seeking the information had to justify their need for it. Was this the first time that judges were required to disclose their assets? 

Mr K van der Merwe (IFP) said that judges fell in a different category where corruption was concerned. What examples were there where judges have been found guilty of corruption and sent to prison as a result overt corruption in the last 100 years?  

Mr Matila said that in his experience there were serious problems with the judiciary. For example, one had white magistrates not wanting black magistrates to sit on civil cases, transformation was another issue as well. There were 100 magistrates suspended last year and with judges not much was known especially where corruption was concerned. There were a lot of judges who with their small salaries ended up with massively sized farms and various valuable assets and one did not know from where they got these.

Some judges were rewarded as a result of apartheid; there were also a lot who owned trusts, what was in these trusts? What was this fear that the judges had and why should one arm of government not be subjected to the same rules and requirements? Why should there be a difference between cabinet, the legislature and the judiciary. Why should retired judges be treated differently because they continued to earn a salary after retirement? 

Mr N Koornhof (COPE) said that for the record retired politicians did not have to declare any interests. The submissions of the judiciary should be heard and it might not be appropriate for the Committee to engage at this stage. 

Judge Nugent said that he agreed that the judiciary was on the same page as the other arms of government. Mr Jeffery had identified what the problem was: corruption. This could now be dealt with, firstly the Draft Regulations were for the judiciary, not magistrates. It was not correct to compare two different arms of government and say ‘What's good for the goose, is good for the gander'.

The judiciary was behind government in the fight against corruption and if there were any judges who were corrupt they had to be disposed of immediately. He was not aware of what the position was in other countries but in America judges may be required to disclose their interests.

The other misconception was that judges did not have a salary for life, the trade off was that judges earned round about the same salary after retirement as when they started. In addition, if a judge left a day early before their 20 years was up, then they would get nothing as they did not have an accumulated pension. It was simplistic to just say that they earned a salary for life. It was more complicated than that and one should be more sympathetic to what judges gave up.   

Judge Bernard Ngoepe, Judge President of Gauteng Provincial Division, said that he wished to address the Committee on the issue of acting judges. The point was that if the Draft Regulations were accepted as is, then the administration of justice would be hampered. At any given time in his court there were 22 acting posts available. In a three week period there could be 66 acting judges serving three weeks each. Would all of them have to disclose their interests?

Acting judges were not appointed as a favour to them, they did a favour to the state and they were a necessity to run the courts. How many of them would want to act if they were required to undergo such a process. It was no understatement to say that one would end up with very few acting judges because of the Draft Regulations. More thought should be given before these impediments were enforced especially on the big divisions. 

Judge Gerald Friedman, a retired judge, said that he was speaking on behalf of retired judges. What had come out of the meeting was that the Draft Regulations were there to curb corruption. As a retired judge, he would ask what possible reason could there be for wanting him to make a disclosure of his interests when he could not possibly corrupt anyone, given that he had been retired for 13 years. He was not aware of retired judges being involved in corrupt activities.

If a retired judge was corrupt whilst they had been sitting then this was history once their term of office had ended. Why must a retired judge disclose their interests to anybody? This was not a question of fear but a question of what justification there was for the disclosure requirement. If one was combating corruption then there was no reason why a retired judge should disclose their assets, to say that MPs did this, was not a reason at all. Retired judges did remunerative work outside of normal judicial functions and at no stage at all had they brought the good name of the judiciary into disrepute when dong this work.

Why do the heads of court and the Registrar have the right to look at the records of retired judges as well as their family members and spouses? At this stage one could not draw a distinction from the Regulations and the law under which they were made. The laws should be amended and the Regulations should be aligned with the amendments.   

Judge Craig Howie added that he aligned himself with the prior comments of his colleagues. Just as in a contract, one could not obtain someone else's agreement to the terms of that contract, one could not expect the spouses of judges to agree to the terms of the legislation. Even if the information was relevant, the legislation sought to achieve what was not competent in law. Furthermore, there was a disconnect between the requirement of the law and the status of retired judges. Where judges issued a judgment that went against the evidence, there was still an appeal court. An investigation into their financial affairs would not take one far at all. 

Mr Jeffery said that he could see the problem where acting judges were concerned, how would one ensure that there was a mechanism in place to curb acting judges from giving particular decisions in a particular way? Perhaps acting judges could disclose to the relevant head of court or Chief Justice in the event that there was a complaint against them. 

Mr L Landers (ANC) said that Judge Nugent was correct to say that one could not force spouses or their life partners to declare their interests and this had happened in the past with a particular MP. He put the scenario to the judges that one might find a judge who had made a ruling that benefited a particular person or company which would then reward the judge upon retirement. 

Mr van der Merwe said that a judge could not force their spouse or family member to make disclosures. The Department of Justice and Constitutional Development (DoJ&CD) asked how many judges had been convicted of corruption over the last 100 years. 

Mr Jeffery answered Mr van der Merwe's question and said there were none. There were problems with magistrates and even though this did not deal with them there was always the possibility. Information about other countries would be useful at this stage. There had to be more public participation on the Draft Regulations because they were in place to address the perceived perception of corruption and wrong conduct. 

Mr Matila said that it was important to involve public participation and there could be public hearings on the Code as there was general agreement on this. The Committee had to report by 24 February 2012. 

Judge Nugent answered Mr van der Merwe's question, stating that there had never been any judges accused of corruption, let alone convicted. The Committee should know that corruption in the judiciary was very difficult because no one judge could ever make a decision by themselves. One would have to corrupt a judge sitting in first instance, the matter went to the appeal court and two of the three judges would have to be corrupted, then, if it went to a full bench, three of the five judges would have to be bribed. At the end of the road, one would have had to have corrupted a lot of judges. The Committee had to carefully look at the proposals made by the judiciary.    

Judge Friedman responded to the scenario posed by Mr Landers, saying it was such a remote possibility and it did not justify a blanket provision that applied to all retired judges. 

Judge Ngoepe said that there was a already a complaints mechanism for acting judges where the judiciary and the advocate and attorney professions had struck an agreement that once an acting judge was no longer acting, the profession took the disciplinary action which would also mean being struck off the roll where necessary. 

The Chairperson thanked the judiciary and said that what had come out of the meeting was very constructive. The Code and the Draft Regulations were urgent and the Committee would attend to them as quickly as possible. 

Meeting adjourned.

Source: www.pmg.org.za

Click here to sign up to receive our free daily headline email newsletter