Meeting SummaryRetired Judges Friedman, Nienaber and Marais met with the Committee to voice their concerns on the regulations requiring disclosure of registrable interests by retired judges. A group of retired judges had expressed their disquiet when the Judicial Service Commission Amendment Act was passed, and they had also met with the Chief Justice, prepared a memorandum for the Minister setting out some proposals and requested the opportunity to meet with Parliamentary Committees. They believed that there were some fundamental problems with the definition of a judge as including a judge who had been “discharged from active service”, which meant that every such judge had to disclose his or her registrable interests, and those of his or her immediate family members. They pointed out that any retired judge who wished to engage in other remunerative work or office already had to obtain permission from the Minister and there was no good reason that required the disclosure of interests in addition to that. They believed that there was a constitutional problem, but wished to avoid being confrontational and seeking a court ruling on the point. The proposal was made that sections 11 and 13 should be replaced with wording to the effect that a judge who had been discharged from active service may not hold any office of profit, or engage in another activity, if the holding of this office or engaging in that activity would tend to bring the administration of justice or the judiciary into disrepute.
They pointed out that retired judges had an enormously strong respect for the judicial institution, that it was inconceivable that they would do anything to bring it into disrepute. Most remunerative work undertaken was arbitration work, where the parties specifically chose arbitration to avoid publicity associated with court action, so it made no sense for the judge then to have to disclose their names and possibly the nature of the dispute. However, in answer to a later question, they confirmed that it was not only the principle of arbitration disclosures that was problematic, but the whole concept of disclosure. Even if the requirement that the Minister’s permission be sought to undertake other work was constitutional (there was a difference of opinion on this point), no valid reasons had ever been advanced as to why, in addition, disclosure of their own registrable interests was required. No judge had ever been accused of taking a bribe, it was highly unlikely that this would occur, particularly since it would be unenforceable, and inconceivable that even if it did, the bribe taken, or any assets acquired from the proceeds of a bribe, would ever be disclosed. Therefore, the measure was not only founded on something highly unlikely, but also provided no effective deterrent. The spouses of judges were opposed to being required to disclose their interests. Those who had been retired for many years could not see why anyone could reasonably claim to have an interest in knowing their financial position. A final point was that no judges appointed prior to 1998 had been told, when taking office, that this would be a requirement. The Committee agreed that it would need to look at the constitutionality of making the Act applicable to those appointed prior to 1998.
Members wanted to clarify the distinction between a judge “in active service” and “discharged from active service”, and it was further noted that those aged between 70 and 75, who ha served less than 20 years on the Bench before reaching 70, could still be asked to return to service for three months in a year. Those who had served less than 20 years would, if they refused, be penalised by a portion of their salary withheld. Members felt that this was linked to the “judge for life” principle, but the judges said it was a specific measure designed to allow for a pool of experienced judges, who could return to service without the need for a formal appointment process. They briefly discussed the notion of permission being required to engage in other work, pointed out that similar disclosure requirements applied to MPs and their immediate family, thought the disclosure form was not too complex, and asked if arbitration agreements ever provided for appeals to a court. One Member made the point that human beings were always fallible, hence the need for protection, but the judges reiterated that no good reasons for introducing the principles had yet been advanced.
Meeting with retired judges
The Chairperson noted that this meeting was called at the request of three retired judges who wished to make proposals around the requirement that judges, whether serving or retired from active service, should be required to disclose their and their spouses’ assets.
Judge Gerald Friedman, formerly Judge President of
The Chairperson confirmed that Members had also seen this document.
The Judges were subsequently advised that although these regulations had been published, they would be given an opportunity to place their objections before the appropriate authority, and they had met with the Committee, when Judge Nugent outlined a number of objections, mostly in relation to sitting judges.
The retired judges were not only objecting to the Regulations. Under the Act, retired judges were included in the definition of “judges”, so that any regulations in relation to sitting judges applied equally to them. Judge Friedman wanted to deal with the fundamental problems in the Act. He noted that section 7(g) of this Act contained the definition of a judge, which included any
Judge Friedman submitted that section 11(1) of the Act also had to be considered. He noted that a judge performing active service, as a sitting judge, required consent from the Minister before he could hold any other office or undertake any remunerative work. A judge discharged from active service also required written consent from the Minister before appointed to any office of profit, or being allowed to receive any fees apart from his salary. If the Minister granted consent, the judge must then advise the Registrar of Registrable Interests of the permission granted, and advise of the payment for the services rendered.
The retired judges believed that insofar as sections 11 and 13 also covered retired judges, they lacked constitutionality. However, he stressed that the last thing the judges sought was confrontation, and this was why they had chosen to approach the Chief Justice, Minister and Committee. They would not like to see any court actions to decide upon the issue of constitutionality. However, they believed strongly that once judges had ceased to perform active service, there was no proper basis on which they should be told that they could not perform certain work. For this reason, the Proposals document, on page 3, contained a suggestion that these sections of the Act should be removed, and replaced with a section to the effect that a judge who had been discharged from active service may not hold any office of profit, or engage in another activity, if the holding of this office or engaging in that activity would tend to bring the administration of justice or the judiciary into disrepute. Retired judges had such a strong respect for the judicial institution that it was inconceivable that they would do anything to bring it into disrepute.
Judge Friedman again noted that presently, a retired judge was not entitled to undertake remunerative work without the consent o the Minister. It seemed to make no sense why, having been granted that consent, they should in addition be obliged to advise the Registrar of Registrable Interests how much money had been paid, and by whom. He pointed out that the type of work most commonly performed was work of a confidential nature, such as arbitrations, and the very reason why parties would choose to go to arbitration, rather than to court, would be to avoid publicity and keep their dispute out of the public domain. he type of work would generally be that of a confidential nature, certainly as far as arbitration was concerned. The whole point was to keep their litigation private and not put it in the public domain. It therefore made mo sense to require the judges to disclose how much they had earned from that arbitration. Even if section 11(2) was constitutional and valid, the judges had yet to be given a valid reason why they should then also make a declaration, which they regarded as unnecessary.
As far as section 13 was concerned, the judges had gathered that the main concern behind this was to stamp out any possibility of corruption. Judge Friedman pointed out that he had been retired for nearly 14 years, and his colleagues for more than ten. He questioned if there was any conceivable basis on which they would now be subject to corruption. He noted that one of the points made in support of this section was the possibility that a corrupt judge might, whilst still sitting, agree to accept a bribe that would be payable only after he retired. In this country, there had never been one instance of a judge being paid a bribe, nor had there been an allegation that a sitting judge had entered into an arrangement in terms of which he or she would receive a bribe, prior to or subsequent to retirement. From a practical point of view, a dishonest judge would never be able to enforce the arrangement, and it was ridiculous to think that he would disclose this bribe. The whole proposition was so far fetched that he could not conceive of how the legislature could contemplate such an eventuality. If this section was not intended to deal with the situation of a bribe, there was no other reason that he could see, or that had been advanced, why judges should be obliged to submit a summary of their registrable interests.
A further point had to do with practicalities. Not only was the judge, but also his or her spouse, and immediate family, obliged to state their registrable interests. Many judges’ wives that he knew ran their own businesses, and it was quite unfair that they should be obliged to disclose information that could affect these businesses.
For these reasons, the judges therefore requested the Committee to use whatever influence it had with the Minister, to draw to his attention these difficulties and problems, and prevail upon him to amend the Act along the lines suggested, to include the proposed new section for judges discharged from active service..
Judge Friedman noted that there were no objections to the Code of Judicial Conduct, and the judges were pleased to note that the wording of section 11(3) set out that a judge discharged from active service may not accept any appointment that was likely to affect or be deemed to affect the independence of the judiciary, undermine the separation of powers, and that a judge may not act as legal advisor, or do anything incompatible with the status of a judge. This conformed, broadly, with what the retired judges had suggested should be in the Act.
Judge Friedman finally stated that although the three judges present at this meeting were all appointed prior to 1994, what he had stated represented the views also of more recently-appointed judges. He pointed out that all of them had not been told, when taking office, that they would be subject to these requirements once they retired. He noted that Judge Pius Langa, Judge Bernard Ngoepe, presently Judge President in Gauteng, who was due to retire later in the year, and Judge Cecil Somyalo, formerly Judge President in the Eastern Cape, also associated themselves with these objections.
Judge Petrus Nienaber, formerly a judge of the Supreme Court of Appeal, agreed with Judge Friedman’s comments. He particularly stressed that it was important to ask the question as to what was the basis on which retired judges could be held accountable, and, as previously noted, it had been suggested that this was the possibility of bribery during the period of office, with the bribe to be paid after retirement. He added to the remarks of Judge Friedman, saying that this would require a sophisticated conspiracy between the briber and judge and it was so highly unlikely that not much credence could be given to this reason. Even if it were credible, the measure proposed was inefficient. A person guilty of this kind of conspiracy would never disclose it in the Register.
Judge Nienaber said that not all retired judges engaged in arbitration work, yet Judge Friedman and others who had been retired for a number of years still were obliged to comply with the Register if they undertook any other type of work.
Judge Robin Marais, formerly a judge of the Supreme Court of Appeal, was acutely aware of the fact that he had a personal interest in these discussions, but stressed that in addition to that, the judges were approaching this from the public viewpoint and asking if there was any reasonable justification for creating these requirements. The implications had been spelt out on a number of occasions. The detail of disclosure was very burdensome. The disclosure form required the furnishing of values, for instance of shares, disclosure of the identity of people who had requested arbitration for a specific reason, what they were to pay and, presumably, details of the nature of the issue. Judge Friedman had already indicated why this was problematic, as the information may be confidential. The rationality of imposing that obligation on people who would not again act as judges must be questioned.
He noted that the current climate, both in South Africa and globally, encouraged transparency, but he made the point that perceptions were sometimes seen as more important than reality, and transparency alone was not a good enough reason for imposing these obligations. Whatever was done to counter corruption must be workable, and have the necessary “teeth”. If it was postulated that a judge would be dishonest enough to display this conduct, he would certainly not declare any advantages, and nothing in this legislation could prevent a non-declaration. He could understand the point if the mechanisms provided a real deterrent, yet they did not. He elaborated upon earlier points about the practical burdens of disclosure, and noted that many judges made contributions to investments, in which returns were constantly changing, and he wondered if the intention was that judges should, on a monthly basis, be obliged to consider if the changes in value were so substantial as to require them to submit more returns. He asked the Committee to consider how the “public good” was to be served by this legislation. If there was no public good, then they must consider what other purpose might be behind it, and whether it should not be scrapped. If Members had particular concerns or points to raise, the judges would be happy to answer those.
Mr J Jeffery (ANC) noted that the Committee had engaged with judges in active service. The difficulty was the increasing prevalence of corruption, both in
Mr Jeffery further noted that the Judicial Service Commission Act referred to judges “in active service”. Retired judges were not in “active service”, but they were still “in service”, because the Minister could call upon those judges to perform certain functions. For instance, Judge Nicholson had been called upon to undertake a cricket investigation for government, and there were a number of wealthy individuals who would have an interest in the outcome. He also pointed out that a judge did not have to remain “in service” as he could resign, like former Judge Heath, and then not have to disclose.
Mr Jeffery noted that some judges had already retired prior to 2008, and had made submissions when the Act was drawn. At the moment, the Committee was not charged with amending the Act, but was looking at the Regulations and the Code, which did provide for disclosure for judges not in active service. It was possible to go back to the debates in 2008 as to whether the provisions were necessary, but he pointed out that all parties had unanimously adopted that Bill and therefore supported the provisions, and the Act would have to be implemented as it stood, including the Code and disclosure provisions.
Mr Jeffery said that the retired judges had stated that they did not want this provision to apply to them, but had not suggested how the provision might be made less onerous, perhaps by inserting time frames. Judge Friedman had noted that he had not been in active service for many years, but those who were performing functions on a regular basis fell into a different category. He would have liked to have seen some other amendments being proposed.
Ms D Schäfer (DA) felt that the issue was to avoid any real or potential conflict of interest. She noted the points on retired judges who were not performing a service, but said that this was linked to the concept that judges were “judges for life”.
Judge Marais said that the regulations required disclosure when a judge was called to sit again after retirement.
Ms Schäfer asked whether judges were opposed to the concept that they should apply for permission before engaging in other work. She noted that they regarded the disclosure to the Registrar of Registrable Interests as onerous. MPs had similar complaints from their spouses, who similarly were reluctant to give information about their interests.
Mr L Landers (ANC) acknowledged the position that the judges were not being confrontational, and said that Committee was also keen to seek solutions. Mr Jeffery had adequately addressed the question as to how a retired judge could engage in bribery, and stressed the point that although a bribe would not be disclosed in terms, the public was entitled to ask, for instance, how a property had recently been acquired.
Mr Landers answered the points on the onerous nature of the disclosure form, and stressed that judges were not required to declare fluctuations, but merely to disclose annually, with the values at that date. This was how the system worked in Parliament, and a similar system should be applied to retired judges. The form for disclosure was not that complex.
Mr Landers said that he had asked a number of people what precisely they perceived as the problem, and had received the answer that judges engaged in arbitration, for which they were well-paid, and they simply did not want people to know what they had earned. He was not sure if this was a true reflection of the position, but, if so, it seemed that judges jealously guarded information on what they earned from arbitration.
Adv H Smit (DA) said that Mr Jeffery had referred to what the Act stated must be done, but it was of course possible for the Committee to recommend an amendment of that Act, if necessary. It was important to think about when a judge may have a conflict of interest. The regulations provided for the unfortunate possibility where conflict may arise. The Code of Conduct stated the obvious; for instance Note 4(a) said that a judge must act fearlessly and according to his or her conscience, because an judge was accountable only to the law. He noted that there was no absolute prohibition on retired judges taking on other work, as long as the Minister exercised his discretion reasonably, and wondered why there was a problem with this.
Prof L Ndabandaba (ANC) agreed with Mr Landers that the Committee did not wish to probe into judges' financial and private affairs, so they should not fear the reasons behind the regulations, and there was no ulterior motive on the part of the Minister or the Committee, to put judges under the spotlight. Prof Ndabandaba commended the judges for taking the initiative to come and discuss this with the Committee, expressed his confidence in their intentions and would like to avoid any animosity.
Mr J van der Merwe (IFP) said that he was, at this stage of the discussion, weighing in favour of the points expressed by the retired judges. He noted that there had never been a conviction against a judge for corruption, although there was a long list of corrupt politicians. He made the point that whilst sitting MPs were obliged to disclose, there was no such duty on them once they had left Parliament.
Mr N Koornhof (COPE) thought it was unwise to try to draw any comparison between sitting MPs and judges. He asked the judges whether they had come across arbitration agreements in which the arbitration award was not regarded as final, and appeals may lie to the Court. If so, he was not sure that it would be appropriate for a retired judge to sit as arbitrator. This matter had been considered in another Committee.
Ms C Philane-Majaka (ANC) said that every human being was fallible. The judiciary was a prestigious profession, but it was still comprised of human beings, and absurd as it may sound to suggest that a judge might be bribed, the legislation was intended to cover all future judges. Judges should protect the Constitution, and the reason for disclosure was to ensure that the principles of the Constitution were being upheld, and the integrity of the profession was being enhanced. She would like to see them leading by example. There may be some issues that were contentious, but she assured them that this Committee was not “on a crusade to catch judges”.
Judge Friedman responded to Mr Jeffery that even if the 2008 Act was passed unanimously, that did not mean that it was correct. At the time that the Bill was drawn, judges made strenuous representations against this it, and there was no reason why they should simply accept it as correct once it had been passed, which was the very reason that they were suggesting that amendments were required.
Judge Friedman also clarified that a retired judge, between the ages of 70 and 75, could be asked to sit as commissioners, or act as judges, but they were not obliged to do so. Commissions of Inquiry were not always presided over by judges, although they could be. There seemed to be no reason to require a judge who was heading a Commission to make disclosure of his or her assets, when another head who was not a judge would not be required to make this disclosure. Obviously, a sitting judge would declare interests. Mr Jeffery had also overlooked the fact that the judges were not initially appointed on the basis that, after retirement, they would be obliged to disclose. He wondered who could possibly have any real interest in knowing about his own assets, or fluctuations in the value of his shares. There was clearly a difference with a judge appointed after 2008, as he or she would be aware that disclosure was a condition. However, none of the retired judges had taken up their official duties on that basis.
Judge Friedman said that the “judge for life” concept was a misnomer. The late Minister Kobie Coetzee had introduced this concept, which was borrowed from
Judge Friedman answered Mr Landers' suggestion that judges may be embarrassed to say how much they would receive from arbitration, by noting that it was not only arbitrations that they did; they may also sit on appeal courts of neighbouring countries, act as Commissioners of Inquiry, or in liquidation inquiries. In all these cases, they were performing a function that they were trained to do, and this was why they steadfastly maintained that nobody should interfere with their livelihood. They were not employed by the State, there was no Master-Servant relationship with the State, and they were entirely independent once they retired. He reiterated that the fact that the Act was in place did not mean that it was correct.
Judge Friedman addressed Adv Smit’s question. It was correct that the Minister had the right to tell judges what work they may or may not do, but that was not the basis of the current objection. He added that Mr van der Merwe had made an interesting point that no other state employee or public servant was obliged to disclose his or her interests after retirement.
Judge Friedman made the point that it was not possible to say that every judge would be honest, but the past history showed that it was highly unlikely that they were not, which brought into question why they should suddenly be required to disclose. It was the principle that was objectionable, not whether or not it was onerous. No good reason for introducing this principle had been advanced.
Judge Nienaber responded to Mr Koornhof and stated that every arbitration agreement he had seen had a clause that the parties submitted to arbitration, and if appeal provisions were inserted, they provided that any appeal would lie to a panel of three, usually retired judges, not to court. Judges were best suited to using their expertise in this kind of area.
Judge Marais also confirmed that he had never seen an arbitration agreement that allowed a party dissatisfied with the outcome to approach the court to rectify this. There were many sensitive issues, and it would be awkward to switch between arbitration and courts, and he stressed again that people would opt for arbitration to avoid the publicity associated with court actions.
Judge Nienaber said that nobody had yet answered why it was proper for a judge’s spouse to have to disclose his or her business interests, when even the judge may not be privy to that kind of information.
Judge Nienaber said that he could understand the possibility that a sitting judge could be exposed to bribery, and therefore control measures were important. However, retired judges were not exposed to this situation, and this brought it back to the only possible argument that a “bribe now, pay later” arrangement may have been made. It had already been stated that it was highly unlikely that this could happen, and he wondered why such extensive machinery was being created for a non-existent evil, especially since it would more properly be addressed through the criminal law.
Judge Marais stressed again that if a judge acquired property suddenly, it was intended that this be disclosed, and it was unlikely that a judge who had no conscience about accepting a bribe should suddenly have a conscience about disclosing something on the Register. In this instance, it would be most likely that a new property would not be acquired in the name of the judge. It was fanciful and naïve in the extreme o think that a judge would do something now in return for a bribe that he would never be able to enforce later.
Judge Marais drew a distinction between disclosure by judges and MPs, pointing out that judges were not vulnerable to lobbying from interest groups, nor did they depend on the favour of voters, and these were the two reasons why burdensome obligations were placed on MPs. In addition, an MP did not have to give a reason for supporting or not supporting a vote, whereas a judge had to give reasons, publicly, and was subject to appeal. He thought it inappropriate to compare their positions.
Judge Marais answered Ms Schäfer’s question by noting that Judge Friedman had made the point that the judges already had to get permission from the Minister to engage in other work, and this should be sufficient to ensure that the money was earned for a legitimate purpose, so there was no justification for also requiring disclosure to the Registrar of Registrable Interests. He said that there was not unanimity amongst retired judges as to whether it was correct that permission must be sought to engage in other work. Some judges saw merit in some control being exercised over what a retired judge could do, so that inappropriate business interests would not be allowed. Others, however, saw this as undue interference.
Judge Marais also made the point that it was not standard practice, internationally, that judges disclose their financial interests. Where there was a disclosure requirement, this was done because it was recognised that judges were an important component of a democratic state, therefore that their image must be protected and any activity they indulged in should reflect well upon the bench and not bring it into disrepute. That was a healthy principle.
Mr Jeffery again took up the point of “active” and “non-active” service, and said that there must be a reason why the Act used the words “active service” and “discharged from active service”, rather than “retired”. The fact of a salary for life was an important distinction between judges and others in the public service. He reiterated that the retired judges clearly had right to disagree with the Act, but it would be useful if they could propose amendments; their initial proposal was too vague as there were so many borderline activities that it would be difficult to determine what brought the profession into disrepute. He repeated the point that judges could always resign altogether.
Mr Landers asked if Judge Friedman would agree that these requirements could be applied, without objection, to judges appointed after 2008. The Committee was proud to acknowledge the high integrity of judges, but wondered why, if they were so honest, they had a problem with being required to declare.
Adv Smit said that the question about the Minister’s permission was not a constitutional issue, but one related to desirability and this was different from the purely constitutional issue of declaring own and spouses’ interests.
Judge Marais said that many retired judges did see the question of permission as a constitutionally problematic, but there were others who thought that it may be constitutionally acceptable. The judges were not addressing the Committee on the existence of that provision, but on the point whether it was, in addition to that, reasonable to require disclosure.
Judge Friedman said that Mr Jeffery seemed to misunderstand the point about “service”. If a judge was discharged from active service, he was no longer in any service.
Judge Marais expanded on this, explaining that the Judges Remuneration and Conditions of Employment Act had created a new “class” of judge, with the intention to have a pool of experienced people who had left the Bench, and who, whilst not in active service, would retain their constitutional status as judges. Whenever there was a need to supplement manpower in another division, to answer backlogs, absence, illness or withdrawal of a regular judge to sit on a Commission, members from that pool could be called upon to return to “active service”. He stressed that when they were called back, it was not as “acting judges” but as full judges. It was not necessary for the Minister to gazette the appointments, or go through any appointment process. The person requested to return to “active service” could accept of decline, but if he or she declined, then a percentage of salary would be forfeited for the rest of his or her life. There was only a compulsory requirement for three months per annum, but the judge could act voluntarily for longer. He noted that this was the reason for having a category somewhere between those who were rendering active service and those who were not acting at all.
Mr Jeffery said that section 7 referred to “judges discharged from active service” who had not attained the age of 75, and who “must” be available to perform services until they were 75. That was why he did not agree that a judge was “retired” when he was discharged from active service. He wondered if the regulations should make a distinction between those under the age of 75, whilst those over 75 would not have to disclose at all.
Judge Friedman said that he was not authorised to make concessions of this kind, although he heard the argument. He reiterated that when he, and other retired judges were appointed, there was no such provision in the law. Those appointed after 2008 clearly knew on what terms they were being appointed, and if the Act were to be amended to apply only to them, it would seem to be correct. That, however, was the only compromise that he could make at this point. He also reiterated that he had been off the Bench for almost 14 years and could not see why any other person could reasonably claim to have an interest in his own financial position. Mr Landers had asked why there was objection to making disclosure, and the short answer was that there was no good reason for this requirement.
Mr Jeffery said it would be necessary for the Committee to check the constitutionality of applying the Act to those appointed prior to 2008. He felt, with respect, that the retired judges were perhaps being a little disingenuous in their interpretation of the Judges Conditions of Employment Act. He repeated that perhaps a distinction could be made on the age question, and appealed again to the judges to propose other wording that might improve the current Act and regulations.
Judge Marais said that some qualification was required on the age requirement. If a judge had served for twenty or more years on the Bench before the age of 70, he was not subject to the requirement that he may be called back for three months a year, or to penalties if he declined. This provision applied to those who had served less than twenty years on the Bench before reaching the age of 70. It was not the age of 75 alone that was the determining factor. Even a judge who had served more than twenty years could still be approached to return to service, but s/he was not under an obligation to do so, nor subject to any penalties if s/he declined. If there was intended to be quantification of a “reasonable period” for judges who were liable to be “called up”, to make disclosure, it would still not cater for those who could not be compelled to serve.
Judge Nienaber added that there was also another category, of judges who had resigned or been dismissed, and disclosure did not apply to them.
Judge Nienaber briefly summarised that the Guide to Judicial Conduct of England and
The Chairperson thanked everyone for the spirit in which the meeting was conducted, and said the Committee would continue to deliberate on this, as its term of office would end in June. He noted the concerns about the possibility of amending legislation. The Committee would meet again on the following day.
The meeting was adjourned.
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