The Chairperson expressed this Committee’s concern at the statement, in the previous week, that Parliament was not doing its work properly, and wished it concerns to be recorded as he intended to take up the matter with the House Chairperson.
The Department of Justice and Constitutional Development (the Department) briefly outlined the background to the Code of Judicial Conduct and the Regulations on Judges’ Disclosure of Registrable Interests. Both the Code and the Regulations emanated from the Judicial Service Commission Act, No 9 of 1994, as amended by Act 20 of 2008, whilst the concept of “judges for life” who should continue to earn full salaries after their official “discharge” or retirement, was contained in the Judges Remuneration and Conditions of Employment Act, No 47 of 2001. The background to the concept of “judges for life” was explained, as also the special conditions that related to a judge who had attained the age of 70 and been discharged from active service, specifically that most (depending on the number of years service prior to them reaching 70) were required to make themselves available, until they reached 75, for three months’ service a year. It was also reiterated that judges were not able to engage in other forms of employment without the consent of the Minister. Furthermore, all judges, including Acting Judges, were required to complete annual declaration forms in relation to their assets and income, a point which had been strongly contested by both discharged and acting judges. The fact that the services and conditions relating to judges had now been embedded into the Constitution meant that the “judge for life” concept could be departed from only by way of a Constitutional amendment.
The Code of Judicial Conduct was based upon the Bangalore Principles of Judicial Conduct, and was very similar to those that applied in a number of other countries. A number of amendments were proposed by the Department, as set out fully in the attached document, and the Departmental officials briefly outlined each of these amendments to the Committee. However, time constraints prevented any discussion, and Members were asked to study the proposals in depth in preparation for deliberations at a subsequent meeting.
Chairperson’s introductory remarks
The Chairperson stated that he wished to note the unhappiness of the Committee about the public hearings recently, when the remark was made that Parliament was not doing its own work. He directed that this issue should be noted in the Minutes, because he intended to approach the Chairperson of the House to institute some disciplinary measures.
Code of Judicial Conduct, and Regulations relating to disclosure of registrable interests by judges: Department of Justice and Constitutional Development briefing
Mr Johan de Lange, Principal State Law Advisor, Department of Justice and Constitutional Development, stated that both the Code and the Regulations around judicial conduct emanated from the Judicial Service Commission Act 1994 (Act 9 of 1994). This Act had been amended by the Judicial Service Commission Amendment Act 2008 (Act 20 of 2008) in order to align the provisions of the Act with the new Constitution, to create a procedure for dealing with complaints against judges, to provide for a Code of Judicial Conduct and provide for the declaration of judges’ registrable interests. Judges’ remuneration and conditions of employment were determined in terms of the Judges’ Remuneration and Conditions of Employment Act, 2001 (Act 47 of 2001).
Mr de Lange stressed that an important feature of the Judges’ Remuneration and Conditions of Employment Act was that Judges, unless they actually resigned from the office of a judge, did not retire on pension. Although they retired from active service, after having performed service for a certain number of years, and on attaining the age of 70, they continued to receive the salary of a judge for life. This was referred to in section 11(3)(a)(iii) of the Act, which governed the consent that a “discharged” judge must obtain in order to perform ‘extra judicial’ remunerative work.
Mr De Lange stated that the concept of “judge for life” had been raised during the pre-1994 regime, when the then-Minister of Justice was facing difficulty in getting people of the right calibre to accept appointment to the Bench. Prior to this time, judges had a very different dispensation which was governed by the Judges Pension Act, which provided for a completely different remuneration provision for judges when they retired. Essentially, a trade off was given as an incentive to attract judges, to the effect that those who were prepared to accept an appointment to the bench would be allowed the privilege of earning the same income for life, even after they had effectively stopped working, and would not have to worry about pension. This dispensation was retained in the current provisions governing the remuneration of judges.
Mr De Lange reminded Members that even when a judge had passed the age of 70 and been effectively retired from active service, he must be available to render service for a period of three months in a year. A “discharged” judge who was called upon to render extra service would be given double the salary for that period that he would have ordinarily earned had he not yet retired from active service.
Mr De Lange commented that judges who had been discharged from active service were not allowed to do any other work, without permission, because they were still earning their previous salary for life. A judge who intended to engage in any other form to work to generate more income would have to seek the Minister’s consent and this was provided for in section 11 of the Act. It was noted that judges had earlier expressed their disapproval of this restriction from engaging in other forms of employment that could generate income for them, but this provision had nonetheless been retained.
Section 12 of the Judicial Service Commission Act, as amended, (the JSC Act) made provision for the Code of Judicial Conduct. The Code must be compiled by the Chief Justice, acting in consultation with the Minister, and must be tabled in Parliament for approval. Parliament may, after obtaining public input, approve the Code with or without any changes.
The JSC Act also made provision for two kinds of regulations. Firstly, there were regulations regarding the disclosure of judges’ registrable interests, which must be made by the Minister in consultation with the Chief Justice and must be approved by Parliament, in the same manner as the Code was to be handled. In terms of section 23, regulations were needed in order to maintain a list of persons who were not judicial officers but who may be nominated to serve on a Judicial Conduct Tribunal. Other regulations may be made in terms of section 35. Regulations made under this section (including regulations referred to in section 23) should be tabled in Parliament before publication in the Gazette, but did not require the approval of Parliament.
Mr De Lange stated that it appeared that there was not much controversy in respect of the Code. He urged Members to look at the Code in detail, and make any observations on it. However, it had been pointed out that the judges were not happy with the provisions in the Regulations that required judges who had been discharged from active service to make declarations of their assets and interests. The judges had also expressed their displeasure with the provisions in the Regulations which required acting judges to make similar asset declarations.
The Chairperson asked why the judges were still allowed to earn their salaries even after retirement.
Mr De Lange pointed out that prior to 1994, the Constitution at that time provided that judges’ salary could not be reduced. The Interim Constitution similarly provided that a judge’s salary may not be reduced. However, the new and current Constitutions had gone a further step by providing, under section 176(3), that the salaries, allowances and benefits of judges may not be reduced. The fact that the provision had been embedded in the Constitution meant that it had to be complied with strictly. This was similar to the position elsewhere in the world. However, arguments had been advanced in relation to what exactly “allowances and benefits” comprise. The only way now in which the position of salaries for life for judges could be reversed would be by amending the Constitution.
Mr Sarel Robbertse, State Law Advisor, Department of Justice and Constitutional Development, stated that the Code of Judicial Conduct (the Code) was similar to national instruments used in a number of other countries such as the United States, Zambia, and Algeria, to name a few. The main document used for all, and on which this Code was also based, was the Bangalore Principles on Judicial Conduct. The Code mainly provided for certain conduct to which judges must adhere. Some amendments were suggested to the Code, (as set out in the attached document). Mr Robbertse, as briefly as possible, took Members through that list of proposals.
The Chairperson noted that some Members had other urgent meetings to attend, so there was no time to deliberate the proposed amendments. He suggested that Members should, in the meantime, study the proposed amendments and prepare themselves for deliberation on them at a subsequent meeting.
The meeting was adjourned.
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