Code of Judicial Conduct: deliberations

Meeting report

Deliberations on the Code of Judicial Conduct
Mr J Jeffery (ANC) referred to the request from the Judge President of the Supreme Court of Appeal that the Committee finalised the Code of Judicial Conduct as soon as possible.  He suggested that the Committee separated deliberations on the Code from deliberations on the Regulations on Judges’ Disclosure of Registrable Interests.  The Code was required more urgently and had fewer issues that needed to be considered.  The Committee had received submissions from several interested parties during the public participation process.  The Department of Justice and Constitutional Development (DOJ&CD) had provided a summary of the comments and the responses to the Committee.  He understood that the Committee was limited to either accepting or rejecting the Code (as tabled) and that the Minister of Justice and Constitutional Development would withdraw the Code and resubmit the amended Code.  The Code had to be approved by the Chief Justice.

Advocate Sarel Robbertse, State Law Adviser, DOJ&CD advised that the Committee was allowed to make amendments to the Code.

The Chairperson confirmed that the Chief Justice had requested the Committee to finalise the Code.

Adv Robbertse advised that the Department had produced an amended version of the Code.  The amended Code was submitted to the Chief Justice for approval.  The amendments were mainly to align the Code with drafting practices and to make technical corrections.  A copy of the amended Code approved by the Heads of Court on 5 December 2009 was provided to Members.

Mr Jeffery queried the status of the amended Code.

Advocate Jacob Skosana, State Law Adviser, DOJ&CD explained that corrections had been made to the tabled Code.  The amended Code had been approved by the Heads of Court.

Mr Jeffery established that the Committee would have to approve all the amendments to the tabled Code.

Adv Robbertse took the Committee through the amended Code document.

Preamble
The Preamble was divided into bulleted paragraphs and written in language that was easier to read and understand.  The Department suggested that the Preamble included reference to sections 18, 19 and 20 of the Judicial Service Commission Act.

Approval
Section 12 to be read with section 14(4)(b) of the Act.

Definitions
Clause 1 was inserted to include a definition of ‘this Code’.

Application
Clause 2(1) was redrafted to clarify to whom the Code applied.  Clause 2(5) was inserted to provide for willful or negligent breach of the Code to be regarded as misconduct.

Objects and interpretation
Clause 3(1) was simplified to clarify the purpose of the Code.  Clause 3(3) dealt with the inclusion of notes in the Code.  Although international standards and comparable foreign jurisdictions included notes in legislation, it was not the practice in South Africa.  The Chief Justice had suggested that references to notes were omitted as far as possible and that any substantive provisions were included in the Code.  Clause 2(8) in the tabled Code was deleted.

Mr Jeffery disagreed with the deletion of sub-clause (8) as an explanation of the inclusion of the notes in the Code was necessary.  Adv Robbertse agreed to re-insert clause 2(8) in the tabled Code.

Judicial Independence
The notes under clause 3 in the tabled Code were numbered 3A, 3B, etc.  The note numbers were omitted in the amended Code.  Note 3B in the tabled Code was deleted.

Mr Jeffery queried the removal of the note numbers.  After general discussion, Adv Robbertse agreed to insert note numbers in the amended Code.

Mr P Holomisa (ANC) asked if the notes only applied to the Code.  He questioned the inclusion of notes at all as this was not the usual practice in South Africa and the clauses should be clear enough and easily understood.

Mr H Schmidt (DA) found the explanations included in the notes to be so obvious as to be superfluous.

Ms D Schafer (DA) remarked that any judge would understand the principles explained in the notes.  She suggested that the notes were attached to the Code as an addendum.

Mr N Koornhof (COPE) said that the notes would assist ordinary members of the public to understand the Code.

Mr J van der Merwe (IFP) asked if the notes had any legal value.  All legislation should be drafted in language that was easily understood.

Mr L Ndabandaba (ANC) said that the use of explanatory notes was common in scientific documents and dissertations but was not the standard practice in legal documents.

Ms C Philane-Majake (ANC) agreed that it was not standard practice in South Africa.

Mr L Landers (ANC), Mr Holomisa and the Chairperson agreed that legislation should be in easily understood language that did not require additional explanation.  The legal value of the notes was questionable.

Mr Jeffery pointed out that the tabled Code and the amended Code approved by the Heads of Court had included the notes.  This should be respected by the Committee.  Clause 2(8) explained the reason for including the notes.  It would appear that substantial changes had been made to the tabled Code but the amended Code required further changes.  The omission of the notes was a substantial change.  The Committee should refrain from rewriting the Code.

Advocate Johan de Lange, Principal State Law Adviser, DOJ&CD explained that the principles explained in the notes were in accordance with the Bangalore Principles of Judicial Conduct (2001) as revised at the Hague (2002).  The legal value of the notes was not under dispute and the principles were understood by Judges.  Notes were included in legislation in comparable foreign jurisdictions, for example Canada.  He did not consider the inclusion of the notes in the Code to be problematic.

Adv Skosana said that the matter had been discussed with the Chief Justice and with the Minister.  It was agreed that the notes could be included in the code for explanatory purposes and to promote common understanding.

Mr Van der Merwe said that the Committee was not requesting a re-write of the Code.

Adv Robbertse advised that the remaining changes were limited to grammatical improvements.  No other substantive amendments were included.

Ms Schafer suggested improvements to the syntax of provisions on pages 3 and 4 of the amended Code document.

Fair Trial
Mr Schmidt asked what “timeframes specified in law” a Judge had to adhere to (clause 9(c)(i))

Mr Jeffery asked if the Code included a clause requiring Judges to issue written judgments as soon as possible.

Adv Skosana referred Members to clause 10.  Note 9B in the tabled Code specified that all reserved judgments were delivered before the end of term or early the next term at the latest.  The issue was discussed extensively and the Heads of court had insisted that the provision was included in a note.  There were currently cases before the Judicial Services Commission (JSC) that dealt with this issue.

Mr Jeffery was of the opinion that the requirement for timeous delivery of judgments should be included in the Code.  The notes should only be explanatory.  He suggested that the approval of the Head of Court was obtained if the delivery of a judgment would be delayed.

Recusal
Mr Holomisa asked for further clarity on clause 13.
Recusal

Adv De Lange explained that recusal was dealt with in the applicable legislation.  The Committee had to consider if it was necessary to include recusal in the Code of Conduct.

Mr Schmidt said that it should be a breach of the Code if a Judge failed to recuse himself when he was required to do so.  The issue was whether or not an error in judgment should become a disciplinary matter.  He cited the example of a case where the Judge should have recused himself from a case involving his wife.

Mr Jeffery agreed that an erroneous value judgment should not result in disciplinary action.  There were alternative avenues available if a Judge was not sure if he should recuse himself.  The High Court Rules allowed for a case to be struck down if a judgment was appealed because the Judge had failed to recuse himself.  The issue of recusal should be raised during Court proceedings.

Mr Landers remarked that the assumption was made that the litigants were aware of grounds for recusal.

Ms Pilane-Majake said that a Judge should recuse himself if he had an interest in the case.  Systems had to be in place to avoid any chance of appeal on the basis of the Judge’s failure to recuse himself.  The Code should include provision for instances requiring disciplinary action.

Mr Schmidt pointed out that litigants had limited recourse if it subsequently transpired that there were grounds for recusal.  If the matter could not be dealt with by the High Court, it should be included in the Code of Conduct.

Adv Robbertse explained that clause 13 would apply in cases where the Judge had previously acted as a lawyer in the case or the litigant was a family member or was personally known to the Judge.  It was considered to be misconduct if a Judge failed to recuse himself when it was clear that he was required to do so.

The Chairperson suggested that the clause was phrased in a manner that avoided its potential abuse by litigants dissatisfied with the judgment that was handed down.

Ms Schafer commented that it would become apparent during Court proceedings if a Judge was biased.

Mr Jeffery asked if there was an obligation on a Judge to disclose potential conflicts of interest to the parties.  A Judge should not be allowed to recuse himself on unsubstantial grounds.  The grounds for recusal were set out in case law and there were legal precedents.

Adv Skosana referred Members to the notes applicable to the recusal clause on page 13 of the amended Code document.  The Committee had to consider clause 12 as well and decide which associations a Judge should be allowed.

Adv Robbertse listed the associations that a Judge was not allowed.

Mr Landers recalled cases where the Judge had displayed obvious abhorrence when particularly shocking evidence was presented in Court.  The defence could have demanded that the Judge recused himself from the case.

Mr Holomisa pointed out that the recusal clause placed a burden on Judges but the Heads of Court had approved its inclusion in the Code.  He suggested that clause 13 was retained.  Mr Jeffery agreed.

The Chairperson concluded that the Committee would require more time to complete its deliberations on the Code.  The Committee’s programme was discussed and the following meeting was scheduled for Tuesday, 15 May 2012.  Adv Robbertse undertook to provide an updated version of the Code before the following meeting of the Committee.

The meeting was adjourned.