Code of Judicial Conduct: Department response to submissions

Meeting report

Opening Remarks by Chairperson
The Chairperson noted the briefing from the Justice Department was held on 18 January 2011 and public hearings were held on 19 January 2011. He asked the Department of Justice to give its response on the submissions of 19 January 2011 and stated that the doors were never closed to anybody who wanted to make additional submissions.

Department of Justice (DOJ) edit of Code of Judicial Conduct
Mr Jacob Skosana, Chief Director: Policy Development Unit, Department of Justice, presented an edited version of the draft Code of Judicial Conduct (which had originally been compiled by the judiciary). He underlined the processes that had been undertaken by the Department since the last meeting on it. The Department had looked at the technical aspects of the Code immediately after the briefing and whether the language usage and style were consistent with the Act. The emphasis of the edit had been on the technical style of the Code. The Department have not tampered with the policy issues of the Code, and he would indicate the changes to the original document.

None of the three submissions heard at the public hearings of 19 January 2011 suggested a major shift from the Code. Since the public hearings there were two additional submissions received on the 24 January 2011 from Idasa and the Law Society of South-Africa. The Department had not yet had time to reflect on the 24 January submissions. The Department was in a process of developing a comprehensive response document to all the submissions received.

Mr Skosana continued by going through all the technical changes made by the Department (see edited document). He said the Department tried to bring a form of harmony in terms of streamlining language. The Preamble had not been touched but changes had been made for it to read in a style consistent with legislation and the style and practice of Parliament. Only some changes to the language aspect of the Preamble had been made.

The Department included Definitions and explanations on page 3. The second aspect that had been dealt with technically had to do with Application. The Code as tabled did not deal with its application but understood application as part of interpretation. The initial Code had about eight or ten sentences starting with: “A judge shall not...” The Department amended the technical style of writing by mentioning this phrase once, instead of many times. The initial heading under 3 was “Interpretation” but this section also dealt with Objects of the Code and the prevailing standards of the Code of Judges. Therefore, the heading had been changed to “Objects and Interpretation” as it also included objects. In some instances words had been changed to reflect the language of the Judicial Service Commission Act. For example, “Judge that had left the service” was changed to “Judge who had been discharged from active service”. The Department had chosen to stick to the language of the Act because it already had a defined context of understanding.

New terminologies brought interpretation challenges and so technical amendments were guided by the terminology in the Act and also to make sure that the reading made sense. Some of the commentators in the submissions indicated those grammatical errors. The only aspect still to be dealt with was the formatting of the document so that it could be consistent with other legislative instruments. The Department was guided by the submissions and the legislation in making the technical amendments. The edited Code was still to be submitted to the State Law Advisors for their views on it.

The second aspect, which was not part of the edited version, had to do with political affiliation. All submissions received thus far were of the view that Judges should not be politically affiliated. The Department therefore requested further guidance from the Committee on this.

Mr Skosana indicated that the style of drafting consisted of a rule and a note. The note was intended to amplify the rule in terms of interpretation, but there were some instances where the information in the note was so fundamental and key to the issue that it basically formed a rule. The note did not necessary interpret but brought a new dimension that needed to be prohibited by a rule itself. Mr Skosana noted the Idasa submission made note of this. The Department would indicate to Parliament which of the notes were sufficiently fundamental to constitute an independent rule and which ones could remain tools for interpretation.

Mr Skosana said he had been able to track down the first source document of rules drafted by the task team of Judges when the rules were initially drafted in the year 2000. He had already shared the document with the this Committee’s Co-Chairpersons and it could be made available to all members of the Committee as well. Those rules were published in the South African Law Journal of 2000. The only changes were that some of the rules were excluded from the latter version which remained part of the initial guidelines as suggested. Some of the rules were “very critical” and dealt with issues like the reception of gifts and how judges should be sensitive to issues such as sexism, racism and social contexts. There were also rules stipulating how judges should make public statements and Parliament might find some of the issues of importance. Another rule stated that it was the duty of Judges to explain the court processes regarding etiquette. The Department could assist Parliament by looking at those rules that might be of importance for Parliament to include. The document was well researched and benchmarked extensively against the Code of Conducts in countries such as the United States of America, Canada and Australia.

One of the aspects which the Department needed to reflect on in conjunction with the Office of the Chief Justice had to do with the administration process of the Code. Every law passed by Parliament should have the assurance that the resources would be available for its implementation and ensure that there were enough people at grassroots level to foster its implementation. The budget and comprehensive implementation plan should be worked out on how the Chief Justice should take control of the Code because it would not be directly administered by the DOJ, but by the Chief Justice. The infrastructure, budget and reports would be coming from the Office of the Chief Justice in ensuring the independence of the Judiciary. The role of the Minister would be to make sure that there were sufficient legislative measures and programmes in place to assist the Office of the Chief Justice to drive the process. 

Discussion
Ms D Smuts (DA) said Mr Skosana indicated that the document went to the State Law Advisors and would be presented to the Cabinet. She asked for a copy to be sent to the Judges as well. In case there were differences between the Chief Justice and the Ministerial draft, both should be made available to the Committee. Ms Smuts was more in favour of the stylistic approach of the first draft which was received. She argued that the edited version had been turned into more legalistic language. She welcomed the fact that the policy content had not been tampered with and that all the typological errors had been cleaned up. She asked if Mr Skosana anticipated any changes that might have come from the amendment to the Act in respect of the new differentiation to be struck between “Judges discharged from service” and “Judges fully retired”. She asked whether it was not appropriate to send a copy of the edited version to the Chief Justice on the worked been done and for his comments. She found it more appropriate not to only get comments from the Executive branch, but also from the Chief Justice.                  

Mr N Koornhof (COPE) asked if the Code would come back to the Committee for final approval. He asked if it was not wise to ask the Chief Justice if extra conditions should be put in place regarding arbitration by Judges. He requested that Judges may act as arbitrators on condition that both parties agree that the case would not go for review in any other Court of Justice.

Ms S Sithole (ANC) was pleased to know that it would be the responsibility of the Judge to explain the litigation process to the people. Going to court, for a rural woman, might be one of her most frightening experiences because in most cases it was the well educated who understood Court processes. The ordinary people were mainly there as frightened spectators. She asked to be re-assured in explanation that other languages would be taken into account during court processes. People who were not native English speakers should be made to feel as comfortable as the Judge in Court.

Mr Skosana said they did indicate at the briefing that it was important for the Code not to be seen as making law. The Code needed to “regulate conduct” because the Act already made law. The Act already made a distinction between “when” and under “what circumstances” retired Judges may perform any function or service for which they may receive remuneration. The Act prevented any Judge in active service from doing anything for which the Judge might receive remuneration except for royalties which came from writing books. The Act stated that the Minster was the one who gave consent to any Judge to perform any function which arbitration was part of. The Act also stated that the Minister should develop guidelines which would guide the Minister in exercising his/her discretion in allowing that process. The issue of arbitration had been included in the Code because it was already posing challenges to Judges. In instances where the Judges already received the necessary consent from the Minister to perform a particular function like arbitration, the Judges should conduct themselves in a particular manner. Even Judges who performed services of arbitration would still be bound by the law. The Code was confined to issues of Conduct and other aspects would be dealt with by the law.

Mr Skosana suggested that it would be helpful for the Committee to reflect on the earlier version of the rules and see what had been omitted. The earlier version of the rules might be helpful for further exploration. The other part had to do with issues of sexism and racism still affecting most of the courts in the country.

Ms Smuts asked whether the presumed amendments to the Act were anticipated in the re-draft.

Mr Skosana responded that there were no amendments suggested by the Judiciary on issues of Conduct. He emphasised that the proposed amendments only dealt with regulation.

Ms Smuts highlighted the argument from Advocate Nicola de Havilland’s submission that Section 16(4) did indeed deal with the distinction to be drawn between retired Judges and Judges who were discharged. She thought that it was a noteworthy issue and asked whether relevant changes to the Act were anticipated in the re-draft. She presumed that it was not done and stated that the Act should be changed as soon as possible.

The Co-chairperson said the document would be sent to the Chief Justice for comment. First, the Committee had to receive the entire response to submissions from the Department and reflect on the issues being raised in the 2000 Law Journal. The Committee had to decide whether it wanted to include some of those issues in the Code. He suggested that the document be sent to the Chief Justice when it was complete and not while it was in pieces.

The Chairperson indicated that the initial extension for the Committee to complete the Code was until 28 January 2011. The Committee would ask the Speaker of Parliament and the Chairperson of the NCOP for another extension so that the Committee could finalise the process. A very strong motivation would be made on the substantial progress of the Code thus far. The Chairperson did not foresee the finalisation of the Code by 28 January 2011.          

Mr Skosana said that the Department should be done with its analysis in less than a week. There was an arranged meeting on 11 February 2011 between the Minister and the Heads of Courts. Mr Skosana suggested that it might have been helpful if the Committee wanted to make use of the opportunity to get some input from the Heads of Courts.

Meeting adjourned.