Code of Judicial Conduct & Regulations on Judges' Disclosure of Registrable Interests: public hearings

Meeting report

Centre for Constitutional Rights (CCR) submission
Adv Nicola de Havilland, CCR Director, said the main mission of the Centre for Constitutional Rights was to uphold the Constitution. What was foundational to upholding the Constitution was an independent judiciary.  The CCR welcomed the Code insofar as they would promote the individual and institutional independence of the judiciary. Commentary on the Code was premature at this stage as their author, the Chief Justice of the Constitutional Court had to draft them in consultation with the Minister of Justice and Constitutional Development (DOJ & CD). The Judicial Service Commission Act imposed a duty upon Parliament to consider the two versions of the Code from the Minister and Chief Justice in the event of there not being a consensus. The CCR understood that there was a draft of the Code that was originally submitted by the heads of courts and endorsed by the Chief Justice. The CCR had not seen this document but it had been led to believe that there were differences concerning the Code. The Code and Regulations referred to retired judges, this was the group that had been removed from judicial office. If there were differences on the issue of discharged judges between the Regulations and the Code then the two had to be finalised in conjunction to avoid conflict. The Code brought clarity and a legally enforceable framework in respect of standards of judicial behavior. There were a number of typographical drafting errors that had to be corrected and the CCR had mentioned them in the submission.

Mr Sibanyoni (Co-Chairperson) interjected and said that the state law advisors had admitted that there were a few errors that would be corrected in the document tabled before Parliament.

Adv de Havilland continued that even though Paragraph 2 in the Code stated that “Judges not on active service are bound by the rules insofar as applicable”, it was not always clear from the context when that category were bound or when they were not. It should be made clear when judges would be bound and not be a matter of discretion. An example of this was contained in paragraph 16(4) and Notes (c) and (d). Since this category of retired judges was relieved of any obligation to perform a judicial function, it was not understood on what basis any appointment of this category could affect the independence of the judiciary or the separation of powers. It was also not clear what income would be deemed to be ‘incompatible with judicial office’ since all activities in terms of paragraph 16(c) had to be compatible with judicial office. The CCR proposed the following amendment “A retired judge does not accept any appointments that is likely to affect or seen to affect the status of the judiciary. All other judges discharged from active service did not accept any appointments that were likely to affect or seem to affect the independence of the judiciary or which could undermine the separation of powers or the status of the judiciary and certainly did not accept any income incompatible with judicial office.” The CCR proposed the following amendment in light of Note 16(b) and (c): “Retired judges should be excluded since the legal justification was to avoid compromising the individual independence of the judge, specifically the perception of independence.” The blanket constraint on retired judges as defined was not understood. The rationale behind the definition of public and private companies was also not easily understood. Retired judges would no longer perform any judicial functions. It was submitted that the perceived independence sought to be protected, should relate only to past judicial functions involving private/public companies and individuals.
           
Discussion
Mr Sibanyoni (Chairperson) asked if the CCR was in support of the Code.

Adv de Havilland replied that the CCR supported the Code as they would also bring long awaited clarity.

Mr N Koornhof (COPE) commented that the presentation was silent on Note 16(a) where it stated that a judge may take a private brief to be an arbitrator in a private matter. Did the CCR consider this to be appropriate? Was it wise for retired judges to act as arbitrators?

Ms D Smuts (DA) said that Parliament had to approve the Code with or without its amendments. If there was a difference of opinion between the Minister of Justice and the Chief Justice then Parliament was suppose to receive two documents from both sides. This was the first time that it had been mentioned that there was a difference of opinion between the Minister and the Chief Justice.  This put Parliament in a difficult position, could CCR shed more light on the matter?

Adv de Havilland replied that certain retired judges who were also drafters of the Code was supposed to address the Committee because there were differences. It was on the basis of this information that CCR had the opinion that there were differences. CCR did not have sight of the document and did not know what was contained in it. As of last week CCR had been told that there was a different draft document to the one tabled before Parliament today. The Committee was entitled to request clarity from the Minister on the issue. Arbitrators were an invaluable tool that was supported by the CCR. Arbitration could unclog the backlog of cases in the courts.

Mr Koornhof said that there were concerns that a retired judge’s decision could be reviewed if there was no clause between the parties in arbitration that the decision would be accepted as final and not taken up on review, this could be a problem.

Adv de Havilland replied that judges throughout their careers subjected themselves to a review process via the appeal system; this was a healthy process of the judicial system. Adv Hoffman pointed out in his submission that an arbitration decision could be taken up on review to another arbitrator who would also be a retired judge.

Mr Matila (Chairperson) said that the Institute for Accountability in Southern Africa (IASA) should stick to presenting only on the Code and not the matter on Judge Hlope as this appeared extensively in the submission.

Institute for Accountability in Southern Africa submission
Adv Paul Hoffman, IASA Director, said the reason a code of conduct had been formulated was because the mischief it sought to address was judicial misconduct. A comprehensive and well thought out code that bound judges would fill the current gap that existed. A code of conduct would mean that judicial misconduct would no longer be a source of embarrassment. The reason a summary of the initial disciplinary proceedings against Judge President Hlope had been made available to the Committee was because it provided a good example of the kinds of mischief that judges got up to. Judges fulfilled a very important role in a constitutional democracy. It was important to put together a code so that judges were under no misapprehension as to what they were allowed to do or not do. The summary provided a peek into over 500 pages of the initial proceedings against Judge Hlope. It was well known that the DA and Freedom Front were involved in litigation concerning the dispute between the Constitutional Court judges and Judge Hlope. This matter was still sub judice. The Committee had to ensure that the Code was clear, concise and had no grey areas.

There had to be clarity on the issue of the differences between the Chief Justice and the Minister. Both their versions of the Code had to come before Parliament. One might find a challenge on the Code by judges at a later stage because both versions of the Code from the Minister and Chief Justice were not put before Parliament. The Chief Justice was the head of the judiciary, the Minister was the head of an executive body and in this instance, the legislature would serve as a tie breaker. 

Ms Smuts interrupted and asked if there was a concrete point being put on the table by the IASA. The Committee did not need instruction on the doctrine of separation of powers or remarks on why the Code had to exist. The Committee also did not need a description of misconduct by judges and it was not appropriate to cite such cases. It was not agreeable to sight the DA in such matters, was there a crisp comment on any particular provision of the Code?

Mr Matila (Co-Chairperson) said that this was exactly why he had instructed Adv Hoffman to stick to the Code only and not the matter of Judge Hlope.

Adv Hoffman said that he was content to proceed to matters of substance as he was not in control of what the DA did or did not do.

Mr Matila (Co-Chairperson) said that if Adv Hoffman proceeded in this matter the Committee might cut him short.

Adv Hoffman proceeded to point 9 of the written submission and said that it related to Note 10(b) of the Code. Note 10(b) did not go far enough and the following wording should be added at the end: “Nor should any judge no seized with a case initiate discussions with or volunteer unsolicited views on the issues in the case to the presiding judge.” The IASA accepted that judges should not be members of political parties, as it was currently drafted in the Code. It would not be fair to have serving judges who were not members of a political party to sit alongside judges who were members of a political party. Judges who were members of political parties would have to recuse themselves often and this would compound the problem of case backlogs. It was hoped that President Zuma in his 8 January speech when he was talking about cadre deployment in all spheres of government, he was not referring to the judiciary. Cadre deployment in this instance was illegal in any case as it fell foul of Section 165 of the Constitution.

Parties in arbitration should agree that the decision of the retired judge adjudicating would be final and binding or if any of the parties to arbitration were dissatisfied with a decision, it should go to an appeal panel of arbitrators. It was important that the Committee should regard retired judges as a national treasure.

Discussion
Mr Matila (Co-Chairperson) commented that both submissions had not commented on the fact that the other two arms of the government already had Code of Conduct.

Mr L Landers (ANC) said that the IASA submission stated that there was no prospect of a conflict of interest arising in relation to the disclosure of registrable interests belonging to retired judges. Would the IASA be of the same opinion if a retired judge had adjudicated in a particular matter and post tenure received a “pecuniary reward of sorts” from the winning party?

Adv Hoffman replied in the negative.

Mr Landers said that IASA went on to state that judges should not be “punished” in their retirement years, was the IASA saying that the legislature was punishing judges by requiring them to disclose their registrable interests during their retirement years?

Adv Hoffman replied in the negative.

Mr Landers said that the Committee agreed with IASA that judges should be treated as a national treasure.

Mr Matila (Co-Chairperson) said that Mr Landers should tread carefully as he was now delving into issues relating to the Regulations.

Mr Landers accepted the ruling of the Chairperson but lamented the fact that the submissions had included the Regulations which had not been tabled before Parliament. This was a rare scenario in Parliament’s history.

Mr Sibanyoni (Co-Chairperson) said that the Constitution allowed all persons to have the right to association. Would it not be depriving the judges of their right to association, especially given that in foreign jurisdictions judges were allowed to be part of political parties but not to participate in them?

Adv Hoffman referred to Section 165(2) of the Constitution and said that this was the basis upon which judges were appointed. This meant that a judge had to be impartial. One had to remember that any right could be limited in a reasonable manner in an open and democratic society. Judges could still vote and the legislature certainly would not be depriving them of their civic rights. Once the Code came into effect a person who wanted to be a judge should know that their right to be part of a political party or secret organisation would be taken away as they would be answerable only to the Constitution and not to a political party.

Mr Matila (Co-Chairperson) said that it was a problem that some Committee Members had only received the Code yesterday.

Mr V Raamano, Committee Secretary, replied that there were only two Members who had not received the Code; the Chairperson and the Honourable Landers were not present during the first meeting when they were distributed and all other Members had received them.

Mr Sibanyoni said that when the Committee met for the first time not all Members were present. It was only that one meeting that was held in 2010. The Regulations were kept in abeyance indefinitely.

Mr Jacob Skosana, DoJ&CD Chief Director: Policy Development Unit, added that the Minister was happy with the Code; there was no second copy of the Code. The Code before the Committee had been drafted by the Chief Justice at a conference held by the judges in July 2009. The Code was there to regulate conduct and not to create law. The law was very clear on matters relating to functions performed by judges post tenure.

Adv de Havilland was relieved to hear from the Department that the Code before the Committee was the Code agreed upon by the Chief Justice and the Minister.

Mr Sibanyoni (Chairperson) said that the Code would render the judiciary to be accountable without affecting their independence.

Meeting adjourned.