Code of Judicial Conduct: Department of Justice briefing

Meeting report

Code of Judicial Conduct: Department of Justice and Constitutional Development draft
Mr Sarel Robbertse, State Law Advisor, Department of Justice and Constitutional Development, stated that most of the amendments to the new draft that the Department of Justice and Constitutional Development (the Department) had prepared were cosmetic in nature. Most of the judges, during public hearings, seemed satisfied with the Code of Judicial Conduct (CJC). He took the Members through the new draft.

Preamble
Mr Robbertse explained that the preamble set out an introduction to the CJC and made reference to the Constitution and also certain provisions of the Judicial Service Commission Amendment Act 2008 (the Act). He highlighted a proposed amendment stating that the judiciary needed to conform to internationally accepted ethical standards, and said this was a reference to the Bangalore Principles of Judicial Conduct, which the drafters suggested should be included.

The Department further proposed that reference to sections 18, 19 and 20 of the Judicial Service Commission Amendment Act should be incorporated into the Preamble, because they were relevant to the specific mechanisms, structures and procedures which were to be applied if a judge acted in an unbecoming manner.

The Department suggested that the original inclusion of section 14(3)(a) of the Act in the Preamble was incorrect, and the correct reference should have been to section 14(4)(b), now corrected. In addition, the last paragraph of the Preamble had been redrafted to conform with current drafting practices.

Article 1
The Department had considered it essential to redraft the definition clause, and Mr Robbertse read out the new draft (see attached document).

Article 2
Mr S Robbertse stated that this clause had originally appeared as paragraph 1 of the CJC, but had been moved and renumbered as article 2.

Mr Robbertse further pointed out that it was proposed that the use of the phrase “judicial officers” should be deleted, as it held connotations to those who were not judges, but magistrates, and this would take the CJC beyond its intended scope of application to judges only.

Mr J Jeffery (ANC) interjected and sought clarity on which document was being amended, since the version that he had in front of him had not contained the phrase “judicial officers”. He said, repeating earlier comments, that the Members needed to have the original CJC which had emanated from the office of the Chief Justice, to check how this document was being amended. He complained bitterly about the apparent lack of respect shown by the Department to the Committee.

Mr Robbertse explained that the CJC to which he had been referring to indeed had the phrase “judicial officers”.

Mr Jeffery disagreed and read out some sections of the document that he had.

Mr Robbertse referred Mr Jeffery to other parts of the CJC, in order to affirm that the two had the same document in front of them.

Mr Jeffery again disagreed that the documents were the same, and objected to the apparent attempt to amend something that was not in the original document from the Chief Justice (the original draft).  

Mr Robbertse explained, in regard to page 1, that the underlined words in the document before the Committee indicated the proposed insertions to the CJC, whilst those marked with a strike-through indicated proposed deletions from the document.

Mr Jeffery reiterated his position that the words “judicial officers” were never in the original draft.

The Chairperson urged Members to maintain calm and attempted to explain to Mr Robbertse what Mr Jeffery saw as the problem.

Mr Robbertse replied that he believed that the words “judicial officer” were indeed part of the original draft.

Mr Jeffery interjected and asked Mr Robbertse to show him where it could be found.

Mr J van der Merwe (IFP) urged the Chairperson to protect Mr Robbertse.

The Chairperson asked Mr Jeffery to allow Mr Robbertse to explain the position.

Mr Robbertse stated that the Department was proposing amendments to the original draft, but it might be possible that some words had, at an earlier stage, been moved elsewhere, which probably accounted for the apparent disparity between the documents before himself and Mr Jeffery.

Mrs D Schäfer (DA) observed that the Committee had earlier directed the Department to make all amendments on the original draft, so that it would be easier to see the changes, but it seemed that changes made to date made it now difficult to reconcile the original draft with that proposed by the Department.

Mr Jeffery agreed, and stressed that the Committee had wanted to see the original draft, and then the strike through and underlining on that draft. The Committee also wanted all documents from the Department to be dated and numbered. He said that the Committee did not want to see deletions of wording that was not part of the original draft.

Mr Robbertse started to go on with his briefing, but Mr Jeffery interjected again and said that if he were to continue, as if this document was the original draft, it would be difficult to know what had been changed.

Mr Robbertse explained that the Department had merely re-worded the original draft, and anything to be moved or altered had been indicated on the document; it would be very difficult to go back to anything else.

The Chairperson asked Members to suggest how this could be resolved, to move forward.

Adv H Schmidt (DA) stated that the confusion stemmed from the fact that the Department had changed the structure of the original draft, moving wording and articles around, which was bound to cause confusion. He though the Department should alert Members to where changes had been made, otherwise the Members would not be able to keep up with the new draft.

The Chairperson agreed, and asked Mr Robbertse to continue with the briefing, but to alert the Members to all changes in structure as well, and indicate which articles and paragraphs may have been moved from one part of the document to another.

Mr Jeffery interjected again, saying that he had a problem with the way in which Mr Robbertse was briefing the Committee, and suggested that the Department should be requested to send somebody else to brief the Committee. He could see what had been done, but the way in which it had been done and explained was causing confusion.

The Chairperson was concerned that time would be wasted if the briefing were not to continue.

Mr Jeffery conceded that there was indeed a need to finalise the deliberations on the proposed changes, but said that he felt the work coming from the Department was not good enough. He reiterated that the Committee had always asked that documents be numbered and dated, but these were not. He agreed that the Committee could proceed, to save time, but would prefer to hear a better quality briefing.

The Chairperson replied that all issues would be noted, and said the meeting should continue.

Mr Robbertse reiterated that the Department proposed that the entire first and second paragraphs of Article 2 of the original draft be deleted, because they were vague. The other paragraphs had therefore been renumbered.

Articles 2 and 3
Members made suggestions for changes, either to correct grammatical errors or to delete some words, and the Department noted this and said it would be done.

Article 4
Mr Robbertse referred to the notes to Article 4. Members had earlier expressed some reservations whether the Notes, which were in the original draft, should be retained, and he asked if Members had made a decision on this point.

Mr Jeffery said that the Committee felt that since the original draft contained Notes, they would be retained, as the Committee wished to make as few changes as possible to what the judges had wanted, but some of the Notes would absorbed into the main body of the Code, if it was felt to be necessary.

Mr Jeffery asked the Chairperson if members had decided on the use of “shall” or “must”. He suggested that “must” was a better style, since “shall” seemed to suggest what a person should do, rather than what he was obliged to do.

Members concurred, and the Department took note, saying that “must” would be used consistently.

Article 4
Mr Robbertse referred to words that the Department propose should be deleted.

Mr Jeffery commented that the usual style of drafting was to include the proposed deletions in square brackets, with a strike-through. This style should have been used in this document.

Mr Robbertse commented that there had been a proposal to use alphabetical numbering for the subparagraphs in the articles, and he also noted that there was a proposal to break down longer sections into several sub-paragraphs.

He asked how Members would like the Notes to be numbered.

Mr L Landers (ANC) suggested that the Notes should use roman numerals, and Members agreed.

Mr Robbertse pointed out the proposed deletions (see attached document).

Article 5
Mr Robbertse again pointed out the proposed deletions, and Members did not comment.

The Chairperson indicated that he had to attend another meeting, and Mr Landers took the Chair.

Article 6
Mr Jeffery opined that there was no need for the first Note under the Article, as it stated an established fact, that judges had to comply with the law. That should be deleted. He then also indicated that some of the wording in the rest of the Notes may be difficult for the layman to understand easily. He believed that all of the Notes relating to Article 6 could be removed, because they did not add anything.

Ms C Philane-Majake (ANC) and Adv Schmidt agreed, saying that the Notes were irrelevant.

Members agreed and gave directions to the Department to remove the Notes under Article 6.

Article 7
Mr Robbertse highlighted the proposals to delete certain words, as set out in the document.

Members disagreed, and decided that the words relating to the conduct of judges in court and chambers, as set out in the original draft, should be retained.

Article 8
Members commented that the use of the word “announce” a judgment in the court was incorrect, and that “deliver” a judgment should instead be used.

Article 9
Mr Robbertse noted the proposal to break down the wording in the original draft into sub-paragraphs.

He noted the reference to the audi alteram partem rule, and stated that there were certain proceedings in which it would not apply. He asked if this legal term should be retained.

Members decided that it should be retained.

Mr Jeffery proposed, and Members agreed, that the meeting be adjourned at this point, with the remainder of the proposals to be presented on the following day.

The meeting was adjourned.