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JUSTICE AND CONSTITUTIONAL AFFAIRS PORTFOLIO COMMITTEE
5 March 2002
JUDICIAL OFFICERS AMENDMENT BILL: SUMMARY OF SUBMISSIONS
Chairperson: Adv. J H De Lange (ANC)
Summary of Submissions on the Judicial Officers Amendment Bill
Judicial Officers Amendment Bill - Working Draft
Judicial Officers Amendment Bill [B72-2001]
Satchwell v President (2001) judgement
Systems of Judicial Oversight
Code of Conduct for South African Judges
Procedure for Complaints about Judges
(email email@example.com about documents)
The Committee considered the Department's summary of submissions for the Judicial Officers Amendment Bill.
Clauses 17-28 of the Judicial Officers Amendment Bill [B72-2001] and submissions 5.3.8-6.7 of the Judicial Officers Amendment Bill : Summary of Unresolved Matters [JUD OFF 51] were discussed. Only those matters that received the most attention will now be named.
The following matters arose from the discussion on clause 17:
- the section 26 procedure regulating the investigation and hearing was reformulated;
- the prima facie commission of an offence under section 26(6);
- the elaborate statement of the deliberative powers of the Council under section 27;
- the binding force of the recommendations made by the Council;
The confusion with the powers of the Magistrates Commission regarding the appointment of magistrates under Clause 22 was discussed.
Intelligence Commission request
The Chair informed members that the Intelligence Commission had requested a full briefing on the progress the Committee has made thus far on the Interception and Monitoring Bill. The Commission had been informed that the Committee did not yet have anything substantial to report, but would willingly do so once notable progress has been made. Despite this, Dr Cwele, head of the Intelligence Commission, had proceeded to instruct the Director General that a department representative would have to brief the Intelligence Commission.
Mr M Mzizi (IFP) asked if the Intelligence Commission had requested the briefing because it had not been invited to address the Committee.
The Chair assured Mr Mzizi that the Intelligence Commission had indeed been invited, but had informed this committee that "it did not attend meetings", and that this committee would therefore have to brief it. The initial intention was to accommodate them at a later stage in the proceedings, the Intelligence Commission having an important role to play in the Committee's initiatives. He explained that the Department was not sure of the subject matter of the proposed briefing, as the Committee had not yet submitted a progress report to the Department on that very matter.
Judicial Officers Amendment Bill: Summary of submissions
Clauses 4(d) and 11 - 13: Amendments pertaining to benefits accruing to spouses of judges
The Chair noted that Mr Basset, a department drafter, had been previously requested to reformulate this provision. He instructed Mr De Lange, the drafter of the Department present at this meeting, to consult with Mr Basset on this issue.
Submission 4.1 of the Summary of Submissions:
The Chair stated that the Bill "had to make it absolutely clear" that a judge would only be entitled to receive a single pension. He added that the Bill would also have to establish the manner in which this aspect could be comprehensively defined, and gave the example of the mandatory signing of a departmental form in which the beneficiary of the funds would be named. The Bill currently provided that the person to whom the judge in question was married at the time would be deemed to be the judge's spouse. This would occur unless the proposed form had been signed, in which case it would specifically spell out the spouse concerned.
Mr J Jeffery (ANC) inquired whether polygamous marriages would be covered by the provision.
The Chair responded that the Bill was not concerned with the manner in which the pension would be divided. The limitation would serve the purpose of ensuring that the department did not receive multiple claims for a single pension.
Mr De Lange, the drafter, said that the Department fully agreed with the sentiments of the Chair. He referred the Committee to footnote 2 on page 4 of the Summary of Unresolved Matters and suggested inserting the definition of "partner".
The Chair added that a definition of "spouse" would also have to be included in the same section.
Mr De Lange contended that the danger with the proposal lay in the fact that should the provision be too flexible, the partner of the judge would receive the judge's full salary for the rest of his/her natural life.
Mr Mzizi said that as a Christian man, he strongly felt that persons would have to be legally married in order to be regarded as spouses.
The Chair replied that although he understood the recommendation by Mr Mzizi, he could not agree with it. He explained that the Constitution did not allow discrimination, and courts would rule in that regard. As a result, the concern would not be whether persons were legally married. Rather the courts would have to determine whether a legal partner relationship existed. He noted that South Africa did not recognize homosexual marriages and that they did not have the power to override that.
Mr Mzizi recommended that all homosexual partners read the book of Genesis.
Mr Swart (ACDP) echoed the Christian sentiments. However, he confirmed that the law clearly impacted on the regulation of such relationships, and this would have to be the concern of the Committee, regardless of any moral sentiments.
The Chair pointed out that the Bill would have to avoid encouraging fraudulent acts as well as disregarding genuine spouses. Thus although he respected the moral issue, the legal issues would have to provide for such situations.
Mr Swart asked the Committee to consider setting up a parallel system with the Department of Home Affairs in order to regulate domestic relations.
The Chair explained that this would only be possible if judges were part of the civil service. He went on to recommend that the principle had to be clearly stated with regards to magistrates.
Mr Solomon (ANC) asked if it was up to the Committee to decide how a judge divided his pension.
The Chair explained that they were attempting to create a regime that would avoid all disputes. This would provide certainty and would avoid dragging the department through costly litigation.
Mr Solomon (ANC) felt that going this deep into the issue would open the department to litigation. In his opinion, leaving the details up to the partners would limit litigation.
The Chair stated that marriage certificates had the advantage of resolving the matter. However, in situations where couples did not have such certificates, it would be difficult to prove the existence of the relationship. Thus this system created the opportunity to regulate such relationships. He added that if the law of our land were to change at a later stage, these provisions would fall away. However, the present regulations would serve to limit immediate problems.
Mr Jeffery (ANC) explained that S12 of the Remuneration Act provided for some form of registration as a partner. He said that this presumably set up criteria and stated that the Director General would also have to be assisted.
The Chair proposed that the Bill should allow the registration of multiple spouses or partners. Now that the drafter had got a sense of the ideas proposed, he would need to shape them into something fruitful. He added that he was glad not to be carrying that burden.
Mr De Lange noted that the fact that judge's salaries were entrenched could possibly assist in that regard. The Chair agreed.
Submission 4.2: The drafter explained that Judge J Hugo's submission meant that formal 'divorces' would be required. Thus a procedure would have to be set up to end partnership relationships.
The Chair said that the suggestion would be fine as it would simply be a de-registration issue. He called for a complete procedure in order to avoid difficulties.
Mr De Lange noted that the Act would only be concerned with the de-registration of partners registered in terms of this Act.
Mr Jeffery (ANC) asked the Committee not to complicate that matter.
The Chair agreed, although noting that the issues dealt with in the Act would have to be spelt out.
Mr Mzizi wanted to know how partners would refer to themselves i.e. married or unmarried, as this would have to be spelt out from the onset.
The Chair explained that they were trying to deal with the equality clause, and building some security for same sex relationships in that regard. He said that although the lack of a marriage certificate would be the biggest complication, the Bill would attempt not to leave room for fraud or opportunism.
Mr Jeffery (ANC) wanted to know what acts would constitute the existence of a relationship i.e. sex. He also wanted to know whether the Act dealt with the issue of support.
The Chair said he was dissatisfied with the definition of "partner" given in the Act. This is because not all marriage relationships were lasting.
Mr Swart (ACDP) proposed building objective criteria into the Act in order to determine the permanence of a relationship.
Submission 4.4 - 4.6: The Chair referred to the submission by Judge C Jafta, Acting Judge President in Umtata. He stated that there would have to be a mechanism allowing one to dispute the permanence of a relationship. He felt that a verifying mechanism would be essential.
Mr De Lange referred to it as a "safety belt" and the Chair agreed.
The Chair stated that although it would be possible to look to the definition of "partner" provided in the Domestic Violence Act, he was not sure of the usefulness. In this regard, intention would have to play a large role.
The Chair referred to the Judge's proposal of the Marriage Act permitting same sex marriages and said that the Home Affairs Department had made the same submission. Although he thanked the judge for the good advice, he stated that the Committee was not yet facing that situation.
Mr Mzizi asked the Committee to avoid opening the floodgates.
The Chair explained that this would be where S36 of the Constitution, the limitations clause, would come in.
The Chair moved on to the final proposal by Judge Jafta. He and Mr Mzizi were amused by the fact that the judge was now extending his argument to the children concerned.
Submission 4.8: The Chair stated that the department would deal with the submission by Magistrate D van der Merwe, National Secretary JOASA.
Submission 4.8: Both the Chair and the drafter could not find the relevance in this submission.
The Chair added that although the submission could be an issue, it was not the issue currently being addressed.
As the Committee had dealt with all the comments on the amendments pertaining to the benefits accruing to spouses of judges, the Chair asked Mr De Lange to redraft the whole section with the following principles:
- one judge, one pension
- define "partner" and "spouse"
- create regime for regulation
- create a verification process
He added that the same principles would have to be captured for magistrates as well.
Mr De Lange suggested using an all-encompassing definition for "partner" and "spouse".
The Chair stated that there was that possibility as long as separate definitions were also given.
Clauses 14 -16
Clauses 14 and 15 have been removed from the Bill. Mr De Lange explained that Clause 16 was an amendment to the Remuneration Act.
The Chair asked whether that had not already been passed. The clause sounded like a rationalization clause, and he thought all such clauses had been dealt with in the last Act.
Mr De Lange admitted that he was caught off guard and that he would need to look further into the matter. He noted that S15 of the new Act was quite different.
Clause 17 New Chapter 5 (in Judge's Remuneration Act) pertaining to a complaints mechanism in respect of judges
The Chair explained that this was a major issue and referred to Judge Chaskalson's submission that dealt with the original Bill drafted by the judges and as well as the copy of the extract from that Bill. The Chair explained that the Committee would have to read Clause 17 carefully as it had never dealt with a complaints mechanism before.
The Chair stressed the fact that he was not being derogatory when he asked the Committee to bear in mind that the judges had drafted the Bill dealing with themselves. As a result Parliament would have to make necessary amendments, bearing in mind the views of the judges.
Three documents had been handed out dealing with the complaints mechanism set out in the Bill. Systems of Judicial Oversight was the report of a research project conducted by visiting Harvard University students, in which a comparative analysis was made, including all the relevant Acts of the various jurisdictions. The Chief Justice of the Supreme Court of Appeal and the President of the Constitutional Court had written the second document dealing with Code of Conduct for South African Judges. Procedure for Complaints about Judges was in the form of a memo based on research on the topic.
Mr Jeffery (ANC) asked whether international studies had been carried out.
The Chair noted the research documents handed out, one produced by a judge, and the other by Committee researchers after investigating twelve countries. The Committee should realize that older systems were more conservative. The new trend was that some component of lay persons was allowed. He said that the studies would help the Committee to strike the correct balance in their system. From his experience of sitting on the Judicial Service Commission, many complaints were received. Nevertheless, a number of them would be real, and as a result it would be necessary to create a mechanism providing credibility in the eyes of individuals. At the same time, he said that the Committee would have to avoid dragging judges through public cases. Thus the correct balance would have to be struck between openness/transparency and legitimacy/integrity of the bench.
Mr Mzizi wanted to know whether the Committee would labour under the assumption that judges were untouchable.
The Chair said that it would be the task of the Committee to ensure that this would not be the case. However, they would have to be careful not to harm the integrity of the bench. He gave the example of the Thirion case in Canada where a judge was impeached for impugning the honesty of a suburb. He reiterated that his view was that no one was untouchable.
Mr Mzizi told the Committee that when he was an interpreter, he would hear generalizations by judges first hand. His only recourse was not to interpret such statements.
The Chair hoped that this initiative would begin moulding judges into more responsible citizens (with their big salaries)!
Submission 5.1: The Chair agreed with Judge M Steenkamp, Judge President in Kimberly,
that the involvement of the Judicial Service Commission had to be removed in this regard.
Submission 5.2: The Chair told the Committee not to take any notice of that submission because judges were already earning very high salaries.
Submission 5.3: The Chair noted that comments by the Chief Justice on behalf of the Heads of Court would be dealt with point by point after the tea break.
The Chair began with the definitions within the complaints mechanism. He noted that the "council" was separate i.e. not part of the JSC. In this regard he felt that the Committee would have to discuss whether it should be separate, and if so, in terms of which Act it would be separate. He also noted that the Council was disciplinary. Thus he did not know why it was referred to as "Judicial". He asked for the definition of "judge" to be explained.
Mr De Lange referred the Committee to S1 of the Bill.
The Chair was worried that Constitutional Court judges had been left out. He said that the definition would have to be tightened.
The Chair failed to see the amendment to S19.
Mr De Lange said that he could not either.
The Chair added that he had never seen the word "hereby" in an Act.
Mr De Lange explained that it used to be the norm. Nevertheless, it had no significance in this case.
The Chair referred to S20, the functions of the Council. He wanted to know why there was reference to the Constitution.
Mr De Lange responded that S178 (b) of the Constitution gave the Council its power. Thus specific reference was made in order to link with Constitutional authority.
The Chair mentioned a technical issue. He suggested that S 20 (a) of the Bill should rather stipulate "investigate and consider", and not the other way round.
Mr De Lange stated that he did not have a preference.
The Chair asked for clarification regarding S 20 ( c ).
Mr De Lange explained that it was the impeachment procedure stipulating that the finding of the JSC was required.
The Chair understood. He moved on to S20 (d) and suggested creating a mechanism for its operation. He added that he did not like S20 (e), and explained that an annual report to Parliament would be preferable because accountability towards the Commission would be ridiculous. He went on to say that he did not want the recommendations to concern the "effective administration" of the Council, but rather to refer to the "conduct of the judges".
The Chair added that a mechanism would not be needed for S20 (e).
Section 21 Composition of the Council
The Chair needed clarification of the fact that although the structure was separate, this provision would put it within the ambit of the JSC. He referred to the remark made by Judge Chaskalson and stated that it would have to be included. He added that S 21 (b) seemed to be irrelevant. As far as S21 (c ) was concerned, he said that the chosen judge from the SCA would be better designated by the Chief Justice in consultation with the President of the SCA. He suggested leaving the option to change S 21 (d) to either 1 or 2 judges, depending on how they would ultimately deal with S 21 ( c ).
The Chair emphasized that he was very much in favour of creating lay participation in the Council structures. This would be the case even though the judges would be in majority. He pointed out that :
The structures operated only with Judges
Most activities were carried out behind closed doors
As a result, he felt that it would be very important to create legitimacy. He added that the trend internationally was to include some degree of lay participation, as was the case in the JSC. He therefore told Mr De Lange to add to the clause 2 persons appointed by the President, which of at least 1 had to be a woman.
Mr Solomon (ANC) wanted to know whether the Judicial Council had to comprise of currently practicing judges. He suggested including retired judges.
The Chair stated that he did not think they were prohibited. He moved on to terms of office and expressed reservation with the 3year term. He explained that the Council would mainly be administrative, probably sitting as a Council only twice in its lifetime.
Mr De Lange explained that from a practical point of view, including retired judges at this stage would make it difficult as far as representation would be concerned.
Section 22 Terms of office and filling of vacancies
Mr De Lange suggested that that the three year-appointment would give room for rotation.
The Chair said that that the Council had a few tasks:
- advise judges
- receive and investigate complaints
- sit as a disciplinary court (the main job)
He said that as far as sitting as a court, which would probably be frequently, a two-year appointment would not be sensible. This is because on would be able to appoint a bench when it was called for. He felt that one had to bear these aspects in mind and suggested that the tasks of the Council should be captured in the final legislation. He added that the Council could be created as embodying two structures, namely sitting as a court and advising/processing. He said that the two had to be distinguished.
Mr De Lange suggested revisiting S20 to add the purposes of the body, namely a Judicial Tribunal and a Judicial Council. The Chair agreed.
He went on to say that the Council as a whole would probably sit for a period, and he highlighted the recent problems in the Magistrates Commission. He asked whether there was a possibility of including alternatives that would assist the CJ in cases where he sat alone.
Section 23 Meetings of the Council
The Chair asked if the Act included a clause requiring them to act out their procedures because it would be necessary to allow the Council to determine its procedures. He added that publications would be worth while.
Mr De Lange stated that he was perplexed with the "good cause" requirement suggested by Judge Chakselson in response to S 23 (4).
Mr Swart (ACDP) explained that "public interest" was more lenient, "good cause" requiring a higher threshold.
Mr De Lange said that S 23 (4) reversed the ordinary procedure that would be to open the door unless a good cause not to open the door could be given.
The Chair said that the JSC had the similar provision.
Mr Swart (ACDP) said that one had to make a distinction between administrative and judicial functions. In this regard, the doors would be open only when sitting as a court.
Mr De Lange responded that the suggestion could be problematic because all the hearings would be disciplinary.
Mr Swart (ACDP) understood the reservations expressed. However, he referred to the Foxcroft decision and emphasized that the public would like to be informed. He asked whether there existed a subsequent impeachment process.
Mr De Lange said that his question was difficult. Nevertheless, the Act still needed to be worked on.
The Chair explained that the only advantage was that the Constitution allowed the JSC to determine its own procedures. This therefore impacted upon the balance that had to be struck. With this in mind, he emphasized that decisions would nevertheless have to be public. In addition, reasons would have to be given. He ended by saying that the Committee needed to further discuss the different types of proceedings.
The Chair noted that magistrates had a separate disciplinary system within the Magistrates Commission (MC). He suggested that it could be worth the while of the Committee to look at the regulations of the MC. He said that the Committee would have to think further on that issue as more attention was required. He highlighted the fact that international trend was to open up the process in the later stages. Publishing of the decisions would also be compulsory. He suggested that the Committee would have to look more in that direction.
Section 23 Complaints about judges
The Chair felt that the S24 (1) would have to be broken down into sub-chapters, for instance advise (and its process), complaints (and their process) and so on. He found S24 (2) (a) to be wrong and stated that all complaints had to be lodged with the Council.
Mr De Lange said that the Department was trying to avoid flooding of complaints. He suggested also approaching the Judge President.
The Chair responded that no criteria had been given to the JP.
Mr De Lange explained that the criteria could be found in S25 (1) (a) to (e).
The Chair said that each JP would have different criteria. He said that uniform criteria had to be applied and as a result the Council would have to deal with those matters.
Mr De Lange explained that S25 resolved the problem. He stated that S25 (1) (a) to (e) was the 'de minimibus non curat lex', meaning our law is not concerned with trivialities.
The Chair said that in terms of S25 (1), the Council would also have to be informed of the matter. He stated that one had to build into the system the fact that on the first level the Council would have to be involved, and that one could not simply filter matters out of the process.
The Chair said that he was not sure of the meaning of S25 (3). He thought that the logical next step would be to determine the trial date. In his opinion S25 (3) gave the opportunity for a replying affidavit. The problem therefore would be the fact that the lay person would not be assisted. He asked for the meaning of S25 (4).
Mr De Lange explained that S25 (3) gave one the opportunity to reconsider a formal complaint. S25 (4) meant to some decision that the functionary would have to take in leading to preliminary investigations.
The Chair asked Mr De Lange to explain S25 (4) (d).
Mr De Lange said that the provision was difficult to define because it seemed to refer to some sort of apology letter.
The Chair stipulated that the Act would have to spell the matter out.
Mr De Lange explained the typical scenario. A judge would arrive to court late (sufficiently serious to the administration of justice). The whole matter was fairly toothless because it was left to the JSC.
The Chair emphasized the fact that it would not be good enough. He wanted the Act to clearly stipulate the results, such as public reprimand or apology. He said that in the case of S25 (4) (a) and (b), reasons would have to be given. In addition, S25 (4) would have to say 'taken no action and refer the matter to the Council'. He wanted an explanation of S25 (5).
Mr De Lange explained that subsection 2 and subsection 5 would be applicable in the context. However, the relevance of subsection 1 was difficult to determine. He added that S25 (2) (b) referred to investigations.
The Chair could not see the relevance of it. Thus he wanted confirmation with regards to its inclusion.
Mr De Lange said that S24 (1) (b) referred to facts that would be too comprehensive.
The Chair directed him to temporarily include both options. He noted that as far as S25 (1) (e) was concerned, the word 'hypothetical' did not bear the same meaning as the word 'moot'. He suggested that both words would be required and that in this regard an additional subsection would have to be included. He wanted to know what would happen in the case of S25 (1) (b). He suggested allowing referral to the other court concerned instead of simply dismissing the matter.
Mr Mzizi wanted to know what the 'administration of justice' referred to. This is because he could not see the connection between these complaints and the administration of justice. Rather the connection was with the conduct of judicial services.
The Chair reiterated the same complaint. He asked Mr De Lange to explain what S25 (2) (a) meant.
Mr De Lange said that the judge would be invited to respond and in this case would therefore be given the discretion not to respond.
The Chair wanted to know how the discretion could be granted in cases where the complaint would not be dismissed.
Mr De Lange responded that the Department envisaged the situation where the JP made referrals to the Council because in these cases there would be no need for preliminary investigations.
The Chair stated that S25 (1) ( c ) would have to provide "only" related, and that the "must" would have to remain in the imperative. He referred to the words 'form and complaints' in S24 (4) ( c ) and said that they would have to be moved to the margin in the next line. He ended by referring to the comment by Judge Chakselson and stated that the comment was similar to the point he had raised (requiring the furnishing of reasons).
Mr De Lange responded that it was probably oversight on the part of the Department.
The Chair explained that reasons for dismissal could be grounds for review. As a result one required a complaints record.
The Chair reconvened proceedings, and directed members' attention to the proposed Clause 17 of the Bill dealing with the present Sections 18-30 of the Judges Remuneration and Conditions of Employment Act 88 of 1989 as found in the Working Draft of the Judicial Officers Amendment Bill.
Clause 17 : Insertion of Chapter 5 in Act 88 of 1989
The Chair contended that the title of this section is a misnomer, as the precise meaning of "investigative powers" here is not clear. Mr De Lange, a drafter from the Department of Justice and Constitutional Affairs (the Department), was instructed to ensure that when the Judicial Council (the Council) decides to "dismiss the complaint" under Subsection 1(a), full reasons have to be furnished for such decision, and the complainant has to be informed of these. Also, to which "(a) and (b) "does the reference to "paragraph (a) and (b)" in Subsection 3(b) refer?
Mr De Lange informed the Chair that he is attempting to clarify this issue.
The Chair questioned the use of the term "inquiry" in this Section, as it also contains a reference to "investigation". This seems to create a distinction between the two terms, and it is suggested that the word "also" be inserted to resolve this matter. This has to be clarified.
Secondly, Subsection 3 is "completely mixed up" as the Bill has to distinguish between, firstly, the investigation to be conducted, and the procedure and regulation of this has to be clearly spelt out and secondly, the inquiry that follows, to be referred to as the "tribunal".
Mr M Mzizi (IFP) suggested that the "committee" referred to Subsection 3(a) is the same council referred to in Section 26, as they both share two common members. Thus the precise nature of the advise that these two members of the council will provide to the council itself is not clear.
The Chair informed the honourable member that this is precisely why he referred to this Section as "completely mixed up". This provision should be reformulated to provide for:
- the establishment of a committee of not less than two people; or
- an inquiry, together with the subpoena's and other evidentiary requirements; or
- an investigation, with the same evidentiary requirements as above.
This "is a much better breakdown", because the proposed Subsection 3(a) allows the Council to dismiss the complaint, but does not state the consequent procedure to be followed or steps to be taken. Subsection 2 then provides for an "investigation" and Subsection 3 also refers to an "inquiry". This Section simply did not make sense.
Furthermore, the Chair was not certain whether the word "inquiry" should be replaced by "hearing", and instructed Mr De Lange to state "inquiry/hearing" until a decision is made.
Mr De Lange informed the Chair that the original version, on page 3 of Chapter 5 of the Judicial Officers Amendment Bill : Complaints Mechanism [JUD OFF 63], makes considerably more sense, even though it may not be wholly adequate. In fact, this was one of the complaints raised by Justice Arthur Chaskalson.
The Chair stated that the original version is much better, as it contains separate headings for the inquiry and investigation. The procedure is as follows: the Council receives the complaint in terms of Sections 25(4) and (5), and can decide to dismiss it. If it does not dismiss the complaint, it may order an investigation and, if the matter is still unresolved, the Council may then hold a hearing. In all these steps the procedure has to be spelt out exactly. In other words, the Council could:
(a) dismiss the complaint; or
(b) (i) refer the matter to a committee of not less than two members of the Council for advise; or
(ii) immediately order an investigation; or
(iii) immediately order a hearing.
(c) (i) the precise nature and form of the advise given, as well as the procedure to be followed,
has to be spelt out exactly;
(ii) the investigation procedure and steps taken have to be spelt out clearly;
(iii) the hearing procedure and steps to be taken have to be spelt out exactly.
The Chair then turned the attention of the committee to page 10 of the Summary of Submissions in respect of Judicial Officers Amendment Bill [JUDOFF 56], dealing with Section 26.
The Chair said that he failed to understand this submission, as the procedure can only be obligatory since both an investigation and a hearing have been conducted. This submission could perhaps be premised on the fact that the Section only allows the judge to be represented, but not the complainant.
Mr De Lange that this is incorrect, as Subsection 2(b) on page 4 of JUDOFF 63 provides that the complainant may also have legal representation at these proceedings.
The Chair contended that it would not be wholly impossible to provide for an informal process here once all the facts have been established, such as a mediation process. Mr De Lange is requested to inform this committee of this possibility, once he has surveyed the comparative material on this matter, and whether there is a numerus clausus here.
Mr De Lange informed the Chair that he is not aware of any such closed list in this regard.
The Chair realised that this might not be an option, as Subsection 3 on page 10 of JUDOFF 51 provides that the Council "may also" establish the committee, investigation and inquiry. This seems to confirm the point made by the above submission that the process is not obligatory.
Furthermore, Subsection 6 does not make sense, because if (in terms of that subsection) the "facts disclose the commission of an offence", it is not entirely clear why an inquiry then has to be conducted if prima facie evidence of the commission of an offence has already been established.
Mr De Lange replied that the disciplinary measures provided by the Bill do not necessarily depend on the fact that the judge in question has been found guilty of the commission of an offence.
The Chair suggested that the matter should not be referred to the National Director of Public Prosecutions (NDPP) as provided in Subsection 6 of the Bill, but rather the Council itself should be allowed to suspend the errant judge.
Mr De Lange agreed, but questioned whether in fact, and in law, a judge could be suspended.
The Chair illustrated his point via the following example: if a judge were caught in a compromising position with a minor, this would surely be prima facie evidence of the commission of an offence, statutory rape at the least. Surely such a judicial officer should not be kept on the bench.
Mr De Lange inquired as to the source of the authority to suspend a judge.
The Chair reminded Mr De Lange that Section 21 of the Bill provides that the chairperson of the Council is the Chief Justice of the Supreme Court of Appeal, which means that the decisions made by the Council have significant weight and authority. The decision to suspend a judge could also be brought before Parliament for ratification. Clearly, it is not every offence that would warrant such a drastic and severe sanction, and in this regard the Council should be granted a discretionary power to suspend the judge until the matter is fully resolved. Furthermore, Subsection 6 does provide that the Council "must" notify the NDPP, who would in turn decide on the appropriate sanction to be imposed on the derelict judge.
Mr De Lange informed the Chair that "must" in that Subsection only refers to the duty of the Council to "notify" the NDPP.
The Chair suggested that this provision be amended to reflect that the "Council may hold an inquiry", and thus the "must" is removed.
Mr De Lange informed the Chair that authority for the suspension of a judge is to be found in Section 177(3) of the Constitution of South Africa Act 108 of 1996 (the Constitution).
The Chair then called for a similar provision to be added in this Subsection, together with the recommendations from the Judicial Services Commission as provided in Section 177. The problem here has been that the Judicial Services Commission has always defined its role in such disciplinary proceedings as narrowly as possible. Thus these powers of the Judicial Services Commission have to be expressly written into the Bill, and the Judicial Services Commission Act has to be amended accordingly.
Mr De Lange replied that it was not necessary to amend that Act, as the revised powers of the Judicial Services Commission could be included in this Bill.
The Chair agreed, and instructed Mr De Lange to include a provision to the effect of "notify and hand over all the information", and this would resolve the previous tension with notifying the NDPP.
Mr De Lange contended that such an amendment would not be possible when dealing with an offence here, as the judges would be able to rely on their special privileges to avoid liability.
The Chair stated that a provision would then have to be inserted to the effect of "refer to the National Director of Public Prosecutions", and the inquiry issue should then be omitted.
Mr S Swart (ACDP) requested clarity on the person or body responsible for actually effecting the impeachment, once this decision has been approved.
The Chair replied that in the case of a serious offence, such as the compromising position referred to in the earlier example, it has to be determined whether that particular judge is fit and proper to serve on the bench. The matter would then have to be referred back to the Judicial Services Commission, who would then formulate a recommendation to suspend the judge or not, and the final decision will be made. Here no inquiry would be held, as there is the prima facie evidence of the commission of an offence. This scenario should be inserted as Part (d) in the breakdown offered in the discussion on Section 26(1)-(3) on page 10 of JUDOFF 51.
Thus this Bill has to grant a power to the Judicial Services Commission to suspend a judge, pending the results of a hearing.
Mr Swart inquired how the Judicial Services Commission would meet to discuss an urgent matter.
The Chair informed the honourable member that each member is sent a circular with the particulars of the matter to be deliberated, as was the recent case with the issue of the possible extension of Judge Heever's tenure by an additional year.
The Chair then turned to consider Section 27 on page 11 of the Bill.
Section 27 : Deliberative powers of Council
The Chair stated that the full spectrum of powers granted to the Council under Subsection 2 have to be clearly elaborated. These powers should include, but are not limited to, issuing a caution, reprimanding, ordering of reeducation or counseling of he errant judge. Comparative models have to be consulted here, together with the possibility of issuing fines, as it is clear that a "whole host of powers" are needed here.
Furthermore, Subsection 2(c) is too wide, and has to be amended accordingly to spell out every conceivable possibility in this regard, and it should not merely be left to the Council to spell out such "steps". Thus, the revised format of this Section consists of the following two parts: firstly, the specific deliberative powers granted to the Council, and secondly the steps and procedure that then have to be followed based on the decision taken. The decision has to be made public, especially the hearings.
Mr Mzizi inquired whether the recommendation by the Council to dismissal the judge has to be effected via an Act of Parliament.
The Chair informed the honourable member that Section 177 of the Constitution provides that only the Judicial Services Commission may recommend the impeachment of a South African judge, and the Council would be responsible for all the deliberations and recommendations that occur before the actual impeachment. The recommendations made by the Council would be presented to Parliament, who would then make the final decision based on these recommendations. This structure then successfully divorces the power from the decision, and the latter has to be made public.
Advocate M Masutha (ANC) inquired whether the recommendations of the Council have any binding force, and whether they effectively compel Parliament to impeach the judge or not.
The Chair stated that this is "a good point" as it relates directly to the effectiveness of the enforcement mechanism proposed by the Bill. This issue will be revisited at a later stage.
Mr G Magwanishe (ANC) stated that he is not happy with the use of "reeducation" as a sanction here, because it sends the wrong message that "reeducation" or an education process may be equated with a form of punishment. It is suggested that "counseling" would be a better option.
The Chair assured Mr Magwanishe that Mr De Lange would find suitable terms for such sanctions.
Mr De Lange informed the absence of any reference to findings of guilt or misconduct in Section 27 is rather conspicuous. The result of such omission is that is very difficult to ascertain whether a complaint has in fact been established, and it has to be questioned whether this formulation sufficiently captures the enforcement mechanism.
The Chair responded that the comparative research would have to be consulted to address this issue.
Mr De Lange stated that Section 177(1)(a) of the Constitution refers to "gross misconduct" in this regard.
Mr Swart agreed, and the phrase "that a complaint has been established" in Section 7(1) and (2) does not mean that the complaint has been proven, but merely means that the "complaint has been established" on an evidentiary basis alone.
The Chair stated that this is a "very interesting" issue, as it brings into question the important matter of the test to used to decide "that a complaint has been established".
Mr Swart contended that the test for internal disciplinary procedures is a balance of probabilities test.
The Chair agreed, but expressed some reservations as to whether it would prevail. The Chief Justice will not protect a "scoundrel" who brings the name of the entire South African judiciary into disrepute. Mr De Lange is requested to examine comparative views on this issue, and to report to this committee on his findings. In this regard the research report done by Harvard students entitled "Systems of Judicial Oversight" [JUDOFF 61] is very useful, and members are encouraged to go through this document when considering this issue.
Mr Swart noted that JUDOFF 61 was compiled in August 1999, and inquired whether the information it contains is up to date.
The Chair replied that the broad issues remain unaltered, and the research indicates the number of countries that have adopted such a system.
Section 28 : Publication of findings of, and reports by, Council
The Chair stated that this is an important Section, because the publication of findings occurs in several provisions of the Bill. Another important concern is the absence of the requirement of disclosure of reasons for the findings referred to. Mr De Lange is requested to reshape this Section to accommodate these important concerns.
Furthermore, Subsection 1 is framed very widely, but does not include the provision of reasons here either, and this has to be elaborated. The use of the term "may" at the beginning of Subsection 2 marks a problem here, as this process should be more open, and the Council should thus be compelled to make the findings public.
The Chair then considered the submissions on page 10 of JUDOFF 56 relating to Section 27.
The Chair noted that this submission raises a "valid point", and Mr De Lange is requested to revisit this issue.
Mr De Lange said he would consider it, but it does not seem necessary to effect any changes to the provision.
The Chair stated that no reasons have been furnished in support of this submission.
Mr De Lange informed the Chair that the original version of Section 27(3) as contained in page 4 of JUDOFF 63 states "as soon as possible". It is suggested that the latter is preferred.
The Chair requested Mr De Lange to insert "as soon as possible" together with "within 21 days", because the administrative body will not be convening as often as this.
Mr De Lange suggested that the inclusion of "forthwith" would even convey the Chair's intention here. The Chair agreed.
Section 29 : Judge not to hold any other office of profit
Mr De Lange informed the Chair that this matter has already been dealt with.
The Chair recognised this, but said this provision has to be harmonised with Section 2(6) of the Judges Remuneration and Conditions of Employment Act 88 of 1989.
Mr De Lange agreed to effect this amendment.
Section 30 : Administrative support to Council
Mr De Lange contended that the use of the phrase "as and when the need arises" is rather "suspect".
The Chair informed Mr De Lange that he had consulted Mr Simon Jiyane, Deputy Director General of the Court Business Unit, on this issue. He stated that the Department is presently looking into the establishment of a separate Section for this structure. It is thus suggested this phrase be deleted from Section 30.
Mr De Lange stated that he is not in favour of the retention of the word "seconded" in Section 30, as it suggests that the work done is temporary in nature.
The Chair agreed, and inquired as to the steps to be taken once the enforcement mechanism process has run its course.
Mr De Lange replied that the process would resume, but this time around the Council would initiate proceedings and forward recommendations to the Judicial Service Commission.
The Chair requested both Mr De Lange and the members to consider this issue further.
The Chair then considered the "General Comments" beginning on page 10 of JUDOFF 56.
The Chair informed members that this issue had been considered already, and the decision had been taken to fix the percentage at 40%, and not at 80% as suggested in this submission. This call for at least 80% is a problem, and the current wording of the Bill is sound as it creates a balance here. Sympathy must be felt for Judge Pillay, but to agree to "at least 80%" as submitted would create infinite problems. This issue will be considered further.
The Chair requested Mr De Lange to clarify this submission.
Mr De Lange stated that he is not sure to which Act this submission refers, but reference is usually made to the oath in terms of Section 2 of the Constitution. Yet the Constitution cannot be amended to address this concern.
The Chair noted this concern, and said that is would be referred to the Section of the Department that deals with constitutional matters. Mr A McKenzie, Chief Financial Officer of the Department, will be questioned on this at a later stage.
Mr De Lange informed the committee that this concern is obsolete as it was dealt with last year. The Chair called for this submission to be ignored.
The Chair called for this submission to be ignored.
The Chair stated that Professor Loots "does not understand how things work", because the Magistrates Commission does not make appointments here. Mr De Lange agreed.
The Chair stated that a Judicial Matters Section has to be introduced to deal with the appointment of acting judicial officers.
Mr De Lange informed the Chair that this is currently being done.
The Chair again expressed dismay at the insistence on the role of the Magistrates Commission in appointing judicial officers in an acting capacity in these submissions.
Mr De Lange informed the Chair that the current definition of "magistrate" in the Magistrates Act of 1993 is being amended to include "acting magistrates".
The Chair asked whether any departmental representative could brief this committee on the scope, powers and progress of the Magistrates Commission.
Mr De Lange suggested that the DDG might be best suited here.
The Chair inquired as to who exactly would agree to allow these acting appointees to sign the contracts referred to in the submission, and whether these officials have the requisite authority to allow the signing. Mr De Lange is requested to consult Mr V Pikoli, the Director General (DG), on the requisite authority here. A repeat of the unsavoury incident with Judge Zulu cannot be repeated, and for this reason all attempts have to be made to ensure such procedural irregularities do not occur again.
The Chair called for this submission to be ignored.
Clause 21 : Amendment of Section 1 of Act 90 of 1993, as amended by Section 8 of Act 35 of 1996
The Chair stated that the definition of "salary" would fall away once the amendment to the salary mechanism in the Judges Remuneration and Conditions of Employment Act 88 of 1989 is effected. If that amendment is not retained, then the rewording of this definition will be considered.
Clause 22 : Substitution of section 10 of Act 90 of 1993
The Chair informed members that this amendment is wrong, and that this committee would "never pass such a clause" because it effectively means that the Magistrates Commission will be making all the appointments, and this cannot be allowed. The function of the Magistrates Commission is limited to sifting through the applicants to determine who is competent to fill the position, but they are not authorised to actually make those appointments.
The proposed inclusion of "after consultation with" implies that the Magistrates Commission, indeed the magistrates themselves, would then be deciding which applicants are to be appointed in terms of the "fit and proper" standard, and would also actually effect such appointments. This cannot be allowed, as the magistrates cannot be allowed to reshape the judiciary themselves in this way. It is thus not at all clear how the proposed amendment was arrived at, as Minister Maduna himself has expressly disagreed with the enactment of such a provision.
Clause 23 : Amendment of section 12 of Act 90 of 1993, as amended by section 4 of Act 18 of 1996, section 8 of Act 35 of 1996, section 19 of Act 104 of 1996 and section 35 of Act 47 of 1997
Mr De Lange stated that this provision will be reformulated along with the proposed Clause 21.
Clause 24 : Amendment of section 1 of Act 92 of 1997 and Clause 25 : Amendment of section 8 of Act 92 of 1997
The Chair stated that the same would have to be done with these two clauses.
Clause 26 : Amendment of Schedule 5 to Act 1 of 1999
The Chair requested Mr De Lange to clarify the precise meaning of this clause.
Mr De Lange replied that this provision seeks to enforce the same consequences under the Revenue Fund for magistrates as currently apply to judges.
The Chair agreed with the proposed amendment.
Clause 27 : Transitional provisions
Mr De Lange noted that this is merely a "catch-all" provision, in which it is ensured that magistrates may not lose any benefits owed to them under the previous provisions.
The Chair questioned if the Department really wants such a clause to be included in this Bill.
Mr De Lange responded that such a clause is included as a matter of standard procedure.
The Chair contended that this clause is very similar to section 176(3) of the Constitution, the only difference is that this provision may now be amended via a simple majority, whereas section 176(3) requires a two-thirds majority for amendment. The result is that the Bill now contains a "can't do anything less" clause regarding the salary and remuneration of magistrates.
Mr De Lange informed the Chair that this "can't do anything less" clause only applies to this definition of "salary" in the Bill.
The Chair stated that if Clause 21 falls away, so too would this clause, and for this reason Clauses 26 and 27 have to be reconsidered, as both may need to be deleted.
Clause 28 : Short title and commencement
The Chair questioned whether this Bill should not be named the Judicial Matters Amendment Bill.
Mr De Lange stated that the reason for the proposed title is that this Bill deals with the office and conditions of employment and salaries etc.
The Chair suggested that the term "fixed date" in Clause 28 is problematic, and Mr De Lange has to check whether it is in fact needed. It should perhaps be retained as the complaints mechanism might take a while to get off the ground.
There were no further questions or comments and the Chair adjourned the meeting.