Judges' Remuneration and Conditions of Employment Amendment Bill: Public hearings

Meeting report

Judges’ Remuneration and Conditions of Employment Amendment Bill [B12 - 2011]
Department of Justice and Constitutional Development briefing
Adv Jacob Skosana, Chief Director: Policy Development Unit, Department of Justice and Constitutional Development (DoJ&CD or the Department) said that it was the firm view of the DoJ&CD that Section 8(a) of the Judges’ Remuneration and Conditions of Employment Act, No 47 of 2001 (the Act) was constitutional. Although an urgent application challenging the constitutionality of the Judges Remuneration and Conditions of Employment Amendment Bill (the Bill) had been brought, the Minister of Justice and State President had defended the Department’s viewpoint before the Court. The introduction of the Bill was not to be seen as indicating any doubt, on the part of the Minister and President, as to the correctness of that defence. The Minister of Justice had wanted to act proactively, by introducing this Bill, to guard against a situation where section 8(a) of the Judges’ Remuneration and Conditions of Employment Act might be deemed unconstitutional. It was important, for the sake of continuity and certainty, that the current processes were managed responsibly.

Discussion
Mr S Swart (ACDP) asked if the comments made during the public hearings would assist the Committee in its deliberations. He asked when the Constitutional Court (CC) was expected to deliver its judgment. He also wondered if the Bill should not refer to the extension of tenure of CC judges generally, including the Deputy Chief Justice (DCJ), as opposed to referring specifically to the Chief Justice (CJ) and President of the Supreme Court of Appeal (SCA).

Dr M Oriani-Ambrosini (IFP) said that the Committee had to acknowledge that there was a problem, and this would then inform the extent to which the Bill would address that problem. He felt that the main problem lay in compliance with Section 176 of the Constitution. This section referred to a specific power of Parliament that related to a judge and was ad hominem in nature. He wondered if it was possible for Parliament to adopt the Bill, when it was possible that it was not constitutional. A further problem was that Section 176(1) of the Constitution made provision for legislation that related to all justices of the CC, and, similar to Mr Swart, he questioned whether it was correct to draw a distinction between the CJ and the other judges.

Mr J Jeffery (ANC) said that the key issue was to consider what powers were conferred on Parliament, under section 176(1) of the Constitution, to extend the tenure of a CC judge. This problem had been apparent ever since the President started appointing Chief Justices, as illustrated by issues concerning former CJ Arthur Chaskalson. He noted the strong view of Members that section 176 should apply to all judges.

Ms D Schäfer (DA) asked for comment from the Department on the possibility that, even if the CC were to suspend an order of invalidity, the term of office of the CJ would still expire, as the law under which the President had acted could be declared unlawful. She thought that too much emphasis had been placed on the need for the President to consult. In fact, the principle set out was ‘after consultation’ and not ‘in consultation’. She asked what had been the extent of the consultation process by the President, when recently extending the term of office of the CJ. Finally, she asked for the Department’s views on whether there might be a need for a constitutional amendment in order to extend the term of office of the CJ.

Mr Deon Rudman, Deputy Director General: Legislative Development, DoJ&CD, replied that the State Law Advisors had certified this Bill as constitutional. The State Law Advisors (SLAs) were satisfied with the distinction between the CJ and the other justices. The Department was satisfied that the Bill would be constitutional even though it contained a distinction between the CJ and the other judges.

Mr Skosana added that Parliament would have to consider this question, and provide guidance on the matter. A judge could be appointed to the CC even if not currently active in the judiciary, perhaps one from academia or practising in the legal profession. It would be difficult for the Department to express an opinion on the issues that have been raised before the CC, which was, at this time, busy adjudicating on the matter. There were various issues upon which the CC would rule.

Ms M Smuts (DA) said that there was no doubt in her mind that the current Section 8(a) of the Act would be struck down. In regard to section 4 of the Act, there was a persuasive argument that this section was not an exception, and in fact changed the period of the term of office, because it allowed judges, in certain circumstances, to remain in position until the age of 75. Section 4, however, seemed to alter the substantive aspects of section 176 of the Constitution. Finally, she noted that the Committee would be bound by the decision of the CC, and asked what would happen if the arguments that there could be no differentiation between judges were supported.

 Mr Johan De Lange, Principal State Law Advisor, DoJ&CD, said that the overriding principle in relation to any actions that would amount to the reduction of judges’ benefits could be found in section 176(3) of the Constitution. This, in itself, did not allow the reduction of the benefits or salaries of judges. In time, the problem would be resolved since more judges appointed to the CC were in fact already active in the judiciary, and it was likely that in future most judges appointed to the CC would serve the stipulated 12-year period, having been previously active judges.

Mr Jeffery said that this was possible. However, the Constitution prescribed that only four of the CC’s judges had to be appointed from the ranks of sitting judges.

Mr De Lange conceded that this was the case, but said that he had been indicating the trends.

Ms Smuts interjected and queried that how would it be possible not to have judges drawn from the existing judiciary, if there was going to be an apex Court, as proposed in the Superior Courts Bill [B7 – 2011].

Mr De Lange said that in 2001 the Constitution was amended to allow that an Act of Parliament extend the term of office of CC judges, and this had resulted in the formulation of section 4 of the Act, which allowed for the12-year term of office to be extended. It was important that nothing should impact negatively on the benefits and remuneration of judges.

Mr Skosana said that the CC’s judgment would enrich the Parliamentary process on the one hand, but on the other, a Bill that would fix section 8(a) of the Judges’ Remuneration and Conditions of Employment Amendment Bill would render the judgment an academic exercise only.

Dr Oriani-Ambrosini said that the constitutional framework in countries like Austria was that CC judges should be appointed for a non-renewable term of 12 years. The question was whether this Committee should wait for guidance from the CC or whether it should continue.

 Mr Skosana said that he was a staunch supporter of the separation of powers. Parliament had to legislate, and the courts had to adjudicate. He thought it would be advisable for the Committee to continue with its legislative mandate. The Department was of the view that the Bill, as presented, was a law of general application.

Ms Smuts said that the Committee should not take the process very far. It could not proceed with an ad hominem Bill, as the Constitution specified the extension of tenure of a CC judge, so any Bill from Parliament would have to be consistent with that wording. The DA believed that the current incumbent of the CJ’s position was preferable, and that his tenure should be extended, as his leadership was needed for the reform of the courts. However, she did not think that this Committee should conclude its work until the CC had delivered its judgment.

Ms Schäfer asked why the Department had decided that the term of office of the CJ should be extended by seven years, noting that no reasons were provided in the Memorandum attached to the Bill.

Mr Jeffery clarified that this decision was based upon the submissions made by the Centre for Applied Legal Studies (CALS). The main argument for the extension of the tenure of Chief Justice Ngcobo was that he should oversee the establishment of the Office of the Chief Justice (OCJ), once the Superior Courts Bill was passed.

Mr Jeffery recommended that the Committee should proceed with its work on the Bill. It was possible that the Court may only make a narrow ruling on the issues before it. It was also not known when the court would deliver its judgment.

Mr Skosana added that the Department could have come up with any number of years’ extension. However, it thought that seven years was appropriate, for the sake of consistency and continuity. Taxpayers would also not be happy, in principle, for a judge who had served the least possible number of years on the Bench to have remuneration for life.

Advocate Frans Reyneke Submission
Advocate Frans Reyneke submitted that any form of legislation should be for the general benefit of the judiciary or the public. The reason for this Bill being placed before the Committee was an attempt to extend the term of service of an individual. The purpose and intent of the legislation must be carefully examined. Section 176(1) of the Constitution set a limit for CC judges to serve, for a 12-year period.  The Judges’ Remuneration and Conditions of Employment Act provided for the general benefits and remuneration of judges. The 12-year period set out in Section 176(1) was a non-negotiable period. The 15-year period set out in the Judges’ Remuneration and Conditions of Employment Act was problematic, at it was in conflict with section 176(1) of the Constitution. It was clear that sections 3 and 4 of the Judges’ Remuneration and Conditions of Employment Act must be brought in line. He submitted that, equally, the attempt to amend section 8 of that Act, by way of this Bill, would also be in conflict with the Constitution. He said that there were also important considerations of public interest, given that the Bill appeared to be framed to cater for the interests of one individual. The comments in the media had been very negative towards the judiciary.

Discussion
Mr Jeffery asked for comment on what Section 176 of the Constitution meant, within the context of the power afforded to Parliament. Professor Pierre De Vos, in his blog, had pointed out that the clauses in the Bill that dealt with the removal of a CJ or CC judge were unconstitutional, and it was possible that some other clauses may also be unconstitutional. He asked whether Adv Reyneke considered it constitutionally correct if some judges could serve for 15 years and others for 12 years.

Ms Schäfer asked how Adv Reyneke could state that the 12-year period was not negotiable, given that there was an exception provided for in the Constitution.

Ms Schäfer also asked Adv Reyneke to expand upon his comments on the ambiguity in sections 3 and 4 of the Judges’ Remuneration and Conditions of Employment Act.

Mr Swart asked for further clarity as to whether Adv Reyneke believed that the exception set out in section 176(1) of the Constitution was unconstitutional, and whether Adv Reyneke also believed that this Bill may be in conflict with other sections of the Constitution.

Adv Reyneke replied that section 176 of the Constitution specified a term of office for CC judges of 12-years. It would be problematic, given the superior nature of the Constitution, for that term to be extended to 15-years in other legislation. The 12-year period was non-renewable. There were certain administrative necessities that could see the term extended, and this was seen as problematic. He urged that the Committee should tread very carefully if it intended to extend the set 12-year period in the Constitution, by way of an auxiliary piece of legislation. He further reiterated that this Bill before Parliament was created to suit an individual, similar to what had happened with former CJ Arthur Chaskalson. He said he was concerned that a “quilt” of legislation was being created to suit individuals, as opposed to the proper purpose of legislation, which was to protect future generations. The intention of the Constitution was to provide for a period of 12 years. In addition, this was in line with international best practice.

Mr Jeffery agreed that it was not preferable to have legislation that attempted to cater for the short term. However, he asked why this Bill was not regarded as complying with section 176 of the Constitution.

Adv Reyneke said that it was necessary, when using an exceptions clause, to bear in mind the preferential period stated, which was 12 years. If the legislature wanted to avoid any discrepancies, it would need to remove the reference to the 12-year period from the Constitution, and instead to state that an Act of Parliament would determine the term of office.  

Mr Jeffery asked what was the point of including the exception in Section 176 if the 12-year period was to be regarded as cast in stone.

Adv Reyneke replied that ideally, a legislature should try to avoid legislating for emergency stopgap solutions.  The exception, which was an addendum, was meant to be an emergency stopgap, to make provision for an individual at that time.

Dr Oriani-Ambrosini said that his main concern was what could or could not be done by the legislature. He asked Adv Reyneke whether the “exceptions” portion of section 176(1) of the Constitution referred to a judge who had not reached the age of 70. He asked for comment whether the language used in this section was making reference to an ad hominem Bill, and whether it was possible that the Bill was referring to everybody except for the CJ.

Ms Smuts urged Adv Reyneke not to be so firm in his view that legislation should not be drafted for the purposes of suiting an individual. This Bill was favourable insofar as it sought to achieve something that would be to the benefit of South Africa as a whole. The current CJ was the appropriate leader, as the entire judicial landscape was about to be changed, to effect a true separation of the judicial arm of state. The CJ was to be the leader of the judiciary, to include the magistracy. The current CJ had already embarked on reforms, which would include an independent administrative agency that would run the courts. He had embarked on the running of the civil justice system, judge-led litigation and the unclogging of case backlogs. His goal was that justice be expedited in a fair manner that would serve the needs of the people. All of these very good reasons for extending his particular term of office should be borne in mind.

Adv S Holomisa (ANC) said that the Bill and the Act could not possibly be unconstitutional, because they were provided for by the Constitution itself. The problem was that the exception did not specify the circumstances under which an extension could be made.

Adv Reyneke replied that legislatures had the power to do whatever was necessary for the benefit of all South Africans. He said that Dr Oriani-Ambrosini had set out a persuasive interpretation on the extension in Section 176(1). However, it was always dangerous to create a Bill for the purposes of suiting an individual, or a specific situation. The wording of the Bill could be extended to cover any future CJ, and should further legislation be passed by Parliament, then the definitions would change. He wished to note his support for the current incumbent, whom he agreed was a person of substantial note.

Democratic Governance and Rights Unit submission:
Associate Professor Richard Calland, Public Law Department, University of Cape Town, and Director of Democratic Governance and Rights Unit (DGRU), said that his submission would try to present a solution that was enduring and in line with Constitutional principles. The correct solution must be one that could withstand any challenges and pass Constitutional muster. The current situation was destabilizing, as the there was a challenge as to the constitutionality of the extension of tenure of the CJ. He agreed that the current CJ’s term of office deserved to be extended, as he had embarked on a significant process of judicial reform. The current judicial dispensation was in the process of being rebuilt under a new institutional process. The current CJ, who had led this process so far, should continue to do so.

Prof Calland said that the Constitutional rule regarding tenure was set out in section 176 of the Constitutional, but an exception to that rule was created in 2001. This, however, did not alter the fact that the rule itself remained in the Constitution. Section 8 of the Act was Constitutionally unsound, as it delegated power to the President. It was expected that the CC would strike down section 8. There was also a question mark over the constitutionality of section 4 of the Act, which had created a new rule “via the back door” as opposed to an exception. The rule for the term of office for a CC judge would be tenure until the age of 75 years or a set period of 15 years.

There was an opportunity for Parliament to pass ad hominem legislation, to give real sense to the exception. However, he warned that the legislation would have to operate genuinely as an exception to main rule, and not create a new rule via the backdoor. It might be necessary to actually strengthen the rule in the Constitution itself, by stating the terms and conditions of CC judges, including the CJ. This would require a Constitutional amendment. There was now sufficient reason for treating the CJ differently from other CC judges, and it was better to separate and differentiate terms in the Constitution itself. Given the need to achieve continuity in the Office of the Chief Justice, he suggested that a possible solution was to pass an ad hominem Bill that extended the CJ’s term, together with a Committee Memorandum that this Bill was passed pending a Constitutional amendment that would clarify the terms of office of all judges. The government could also apply for any order of invalidity that related to Section 8 of the Act being suspended. 

Discussion
Ms Smuts said that she had the impression that too many judges and lawyers were unaware of the work that the CJ had done. She thought that it was too late to proceed to a Constitutional amendment.

Dr Oriani-Ambrosini said that the 12-year term was stated in the Constitution for independence of the CC judges. He asked whether it was correct for the Bill only to deal with the CJ, when the Constitution dealt with a broader class of judges.   

Ms Schäfer asked if the legislature should not be wary of extending the term of office of the CJ, as he had powers that would also be extended under the Superior Courts Bill. She also asked whether it was possible to give sound reasons for extending the term of office of CJs in future. Everyone was aware of the reasons for the current extension. If Section 8 of the Act was declared unconstitutional, then the President would have acted under an invalid law, and the extension of the term of office would similarly be invalid and would thus fall away. She asked how the suspension of an order of invalidity would fit in to this scenario. It also posed the possible danger that individual judges might make decisions favourable to the Executive, in order to have their term of office extended.

Mr Jeffery said that a Constitutional amendment would not be possible. Section 74 of the Constitution provided that any proposed Constitutional amendment had to lie open for comment for 30 days, and then a further days must lapse before that Bill could be put to the vote in the National Assembly. He suggested that one option might be to amend section 8 of the Act, so that the discretion of the President was removed, and at the same time to amend section 4 of the Act, because it may be unfair in its application. Section 8(c) of the Act currently dealt with dismissal of a CC judge by the President, by reason of permanent infirmity of mind or body. However section 177 of the Constitution dealt with removal by the Judicial Service Commission on the grounds of incapacity, gross incompetence or gross misconduct. He suggested that Professor Pierre De Vos was incorrect in his interpretation, and in his criticism of the drafters of section 8(c) of the Act. The two laws applied under different circumstances. He reiterated that a possible solution might be to amend section 4 of the Act, stating the term of office as 15 years, and, even if section 8 of the Act was deemed unconstitutional, then it would be possible to deal with the situation in terms of the revised section 4.

Ms Smuts agreed with Mr Jeffery that should section 8 be struck down, then the only other alternative would be to allow all CC judges a term of 15 years. Should the 15 year term be adopted, then the Committee must make it quite clear that this was done not in order to circumvent anything else, but because the other alternative solutions might not be desirable.

Prof Calland agreed with Ms Smuts, and said this was an opportunity to clean the whole Constitutional scheme for the tenure of CC judges. In the short term, the Committee could pass an ad hominem Bill that dealt with the CJ, alternatively extend the tenure of all CC judges. He thought that the word “except” was an ambiguity, as it gave Parliament the power of extending tenure. He agreed that whilst there might be a fear that a CC judge could give judgments as a way to gain Executive favour, that judge would be one of the body of judges, and was unlikely, in practice, to be able to exercise influence over all other judges.

 Ms Schäfer said that it was possible still to end up with a situation where all 11 CC judges wanted to gain executive favour, by writing judgments with a bias in favour of the Executive.

Prof Calland replied that in law and politics anything was possible. However, it was necessary to have some good faith in the system. It would be impossible to try to legislate for every possible negative outcome. He differed from Dr Oriani-Ambrosini in his interpretation of section 176 f the Constitution. The use of the words “whichever occurs first” implied that the general rule was tenure of 12 years, or until the judge reached the age of 70. The exception to that rule was the legislature’s power.

Adv Holomisa said that there were various reasons why the exception was inserted in Section 176. The judiciary was, by nature, conservative, and the exception provided one way to transform the judiciary faster. Ms Smuts had also pointed out that the current CJ was the best person to undertake the duty of transforming the judiciary.

Adv S Adams (COPE) referred to page 12, paragraph 15, of the submission and asked whether this was not contradictory. It was suggesting that there seemed to be no problem with section 176.

Prof Calland agreed with Adv Holomisa that the current CJ was a judge who promoted reform. The court would give its opinion on the issue of suspending an order of invalidity. It seemed that the government had not provided sufficient reasons for the granting of such an order, in the court papers. In answer to Adv Adams, he noted that it would be possible to amend a provision of the Constitution that was unconstitutional. It would also be possible, in his opinion, to pass legislation that would not be constitutionally problematic, by attaching a Memorandum that clearly indicated the intention to reform the overall governance of the tenure of CC judges.

Southern African Catholic Bishops Conference submission:
Adv Mike Pothier, Research Coordinator, Southern African Catholic Bishops Conference, said that the Committee should decide whether it was desirable to have a minimum term of office for the CJ and President of the Supreme Court of Appeal (SCA). The Southern African Catholic Bishops Conference (SACBC) submitted that this was desirable for the sake of stability, since it was not a good idea to change the judges too frequently. Any limit or cut off of tenure was currently arbitrary, including the cut off ages of 70 or 75 years. The proposed seven-year extension period for the CJ or President of SCA was neither too short nor too long. There was a general consensus that it was not desirable to try to introduce ad hominem legislation. However, this Amendment Bill was not ad hominem,  as it was not introduced only for the CJ, but it applied equally to the President of the SCA. In addition, the Amendment Bill would not be  applicable to one single person, but would apply to any future incumbent of the positions of the CJ and President of the SCA. If a poor incumbent occupied the seat of CJ, then Parliament would have to look into the manner and method of appointment of a CJ. The discretion of the President to discharge a CJ under Section 8(c) of the Act was problematic, because it would be very difficult to exclude political motives for discharge. He wondered what would happen if the President had to discharge a judge who had handed down judgments criticizing the Executive, in genuine circumstance where such a judge might have been injured in a car accident or suffered from a serious health condition. He suggested that, to allay concerns, the words “upon the recommendations of the Judicial Service Commission (JSC)” could be added. He drew the distinction that the provision in Section 177 of the Constitution was to cater for the removal of a judge who had done something wrong.

Discussion
Mr Jeffery felt that the suggestion to include a reference to the JSC was commendable. If section 8(c) of the Act was not in force, it was possible to have a situation where if a judge had suffered a stroke,  a long and contorted process would have to be followed in terms of Section 177 of the Constitution. That section related to a “removal” and not to a “discharge”. If, as Professor de Vos had suggested, section 8(c) was removed because it was seen as unconstitutional, then this would also remove the option where the CJ could request to be discharged.

Mr Jeffery asked for the suggestion from the SACBC on section 3(2)(c) of the Act.

Adv Pothier replied that it would suggest the addition of the same wording (“upon the recommendations of the Judicial Services Commission”), to solve the problem set out in the submission.

Ms Smuts asked for the difference between infirmity and incapacity, pointing out that the term “incapacity” seemed to be generally understood, and the Constitution provided for a situation where a judge was incapacitated. The JSC now had a system to deal  with misconduct. If there was no difference in fact between infirmity and incapacity, then the Constitutional provision should remain in force.

Ms Smuts asked if there was a good reason why the President of the SCA was included in the Amendment Bill. The two positions of President of SCA and CJ were substantially different, with the latter also being head of the judiciary.

Mr Swart said that the SACBC did not go into much depth, in its submission, on the exception in section 176(1) of the Constitution, and queried whether it saw this as a problem. He wondered if it might not be considered serious for a judge who was already in the fifteenth year of service to be appointed as CJ, extending tenure then by another period.

Dr Oriani-Ambrosini said that the wording in Section 176(1) meant that it could not provide for future terms of office. It related to existing incumbents whose ongoing tenure would be extended. He asked if the SACBC had a view on the matter.

Adv Pothier replied that the difference between infirmity and incapacity was that incapacity was a more serious circumstance that rendered a person unable to carry out his or her duties, whereas a person who was infirm would find it increasingly difficult to carry out duties, due to ill health. He recommended that if there were problems with a judge then it should be left to the JSC to deal with the matter.

Mr Jeffery said that there was a difference between misconduct and incompetence, which would result in removal. A discharge would mean that, for example, a judge could be booked off sick, with no suggestion of wrongdoing. If section 177 was the only remaining provision then it meant that every judge who suffered a stroke, and who did not ask to be removed, would require the involvement of the JSC and National Assembly two-thirds majority vote, for removal. This would be quite onerous.

Dr Oriani-Ambrosini said that, linguistically, there was no difference between an infirmity that rendered a judge incapable, and incapacity as referred to in section 177.

Adv Pothier said that an infirmity that rendered a judge incapable was an incapacity. However he agreed with Mr Jeffery that the whole scheme of section 177 was suggestive of a judge who had to be removed against his or her will, as the verb ‘removal’ suggested an intervention.

Mr Jeffery said that there was a need for removal as provided for in section 177 of the Constitution, and for discharge where a judge could not continue in office. The Constitution should then provide for removal and discharge, so that section 3 of the Act could remain, and section 8(c) could be deleted.

Ms Schäfer said that individual judges who wanted to be discharged or who could not request to be discharged also had to be covered.

Adv Pothier asked if the drafters could explain why the CJ and the President of the SCA were both mentioned in the Bill.

Adv Rudman said that the CJ and the President of the SCA were in the principal Act, which was the reason for referring to both in the Bill.

Adv Pothier said that the exception in Section 176 gave Parliament the authority to extend the term of the CJ. It would be difficult to justify why the CJ could not serve a longer term, because this would infringe on equality. It was not problematic to treat the CJ differently. Fixed terms of office, such as the 12-year period, would be supported by the SACBC. Even an extension of seven years for a CJ would not do much violence to that principle, as in most cases the seven year extension would overlap with the 12-year period.
 
Procedure
Mr Jeffery said that the Committee should check when the judgment was likely to be delivered. The Committee may need to sit on Friday, Saturday and Monday. There were numerous different legal interpretations. It had been suggested that clause 2 of the Bill should be retained in its current wording, or with the amendment suggested by the SACBC, to insert “upon the recommendations of the Judicial Services Commission’. Another option would be to amend Section 4(1) of the Act. As a consequential amendment, the division between the 12-year term for CC judges who had already been serving judges would also be abolished and the term would be 15 years across the board. The Committee could then look for a cleaner solution, via the Superior Courts Bill and the 17^th Constitutional Amendment Bill.

Dr Oriani-Ambrosini said that the Committee should await the CC judgment, in order to finalise its deliberations. The interpretation of Section 176(1) of the Constitution was that Parliament could extend the terms of office. If Parliament had the power to extend this 15 years, then this begged the question why it should not be 30 years, and what impact this had on the Constitutional provision of the 12-year tenure. He reiterated his view that all CC judges should be treated equally. 

Ms Smuts said that she believed in the differential treatment between a CJ and other judges. If the court did deal with the question of equal treatment, then the Committee may have to extend the tenure for all CC judges to 15 years. An ad hominem option should be drafted, in case the CC did not address this issue.

Mr Swart agreed with Mr Jeffery’s suggestion as well as Ms Smut’s proposal for an ad hominem option.

The Committee agreed to meet on the following Friday, Saturday and Monday.

The meeting was adjourned.