The Department of Justice and Constitutional Development continued to brief Members on the latest draft of the Code of Judicial Conduct, starting from Article 9 and continuing to the last Article 17. Many of the questions and comments by Members were directed to improving the grammar or clarifying meaning. Members suggested that alternative wording for “keeping a firm hand on” be found for Article 9 and suggested that the words “have occasion”, as suggested by the judges, should be retained. In relation to Article 10, sentences dealing with handling of financial issues had been deleted, as these were of a more administrative than ethical nature. Members noted that provisions relating to delivery of reserved judgments timeously had been moved up from the Notes to form part of the Code, and discussed the wording. They stressed that whilst a litigant was entitled to receive judgment in the shortest possible time, recognition would be given to the fact that it would be impossible to deliver judgments, prior to the end of the term, for matters heard only in the last couple of weeks of the term, and that exceptions should also be recognised for judges who might be indisposed, or for particularly complex matters. They decided that a general expectation should be included, and that provision should also be made for permission from the Judge President to deliver a reserved judgment at a later date, where cogent reasons were given. Wording that essentially dealt with the relationship between judges had been deleted from Article 11, and matters of professional secrecy were outlined in the Notes. Members agreed to combine the references to formal deliberations, private consultation and debate between judges, and to state, in a new subparagraph, that all these must remain confidential. In relation to Article 12, Members discussed what might constitute a secret organisation, and wondered whether a person who, for instance, subscribed to a religion that practised discrimination in some respects, could be regarded as acting improperly. They decided to delete the words “any organisation” and simply to state that a judge should not take part in activities that practised discrimination, inconsistent with the Constitution. Members also discussed the wording of Article 12(e) and thought that it should be clarified, in line with the Bangalore Principles, to state “use or lend the prestige of the judicial office to promote the interests of a judge”. In addition, the Notes should reflect that judges taking “sides” to promote one judge over another was undesirable.
Article 13 now included the words “and shall not recuse him or herself on insubstantial grounds”, moving this up from the Notes to the Code. Deletions of what was already in the Act had been made, in Article 14. Members were reminded that if there were any inconsistency, the Act and Regulations would prevail. In relation to Article 15, Members discussed, at some length, whether judges should be allowed to receive honoraria for serving on other bodies, but decided, eventually, that no changes were needed to the current wording. A technical change to the heading of Article 16 was pointed out. Article 17 essentially repeated what was in the Judicial Service Commission Act. DA Members wondered why “must not enter party politics” was contained in the Notes only, and not in the Code, and wondered if a cooling-off period should not apply to those who had been active in party politics but resigned their position to stand for the Bench.
The Department would now effect the necessary changes and the Chairperson undertook to discuss the new document with the Chairperson of the Select Committee, which had to agree on the wording, so that the Code could be expedited in the following week.
Code of Judicial Conduct: Continuation of Departmental briefing
Mr Johan de Lange, Principal State Law Advisor, Department of Justice and Constitutional Development, continued to brief the Committee on the Department’s latest draft of the Code of Judicial Conduct.
Article 9: Notes
Mr de Lange suggested that there should be grammatical changes to Note 9.1, by insertion of a full stop.
Mr J Jeffery (ANC) thought that the wording “keeping a firm hand” was not appropriate, and asked Members and the drafters to suggest a better phrase.
Mr de Lange read out notes for Articles 9.2 and 9.3, and noted that the Department was proposing the deletion of “at the heart of Judges’ tasks is the necessity to make findings as to people's motives, credibility, honesty and competence”.
Mr Jeffery noted that there was a difference between the judges’ suggestion of “have occasion” and the Department’s suggestion of “occasionally have” and suggested that the first, as suggested by the judges, be retained.
Ms D Schäfer (DA) asked what was meant by “put a provisional view in the course of argument”.
Mr N Koornhof (COPE) said that this meant that a judge could stop an advocate who was arguing a matter.
Mr Jeffery expanded that the judge could, for instance, notify the advocate that in the court’s view, the advocate was not making out a case. He thought that “preliminary” was probably a better word than “provisional” but was loath to change the wording that had been suggested by the judges.
Mr de Lange noted that the sentences dealing with financial matters had been deleted, from paragraph (j), as it was not the function of the Code to deal with these types of matters.
He said that Article 10(2) contained wording in relation to reserved judgments, and that it had originally been suggested by the judges as part of the Notes. However, the Committee had suggested that it should form part of the substantive part of the Code.
Mr Jeffery was generally happy with the wording, but pointed out that whilst the inclusion in the Notes had indicated that the delivery of judgments before the end of the term was an ideal, but not a requirement, the way in which it was now worded, in the main Code, did state this as an absolute, because of the word “must”. In addition, whilst a litigant was clearly entitled to receive judgment within the shortest possible time, he thought that permission should be obtained from the Judge President to deliver a reserved judgment at a later point, if the judgment was voluminous or complex.
Mr Koornhof preferred the version that had been contained in the Notes, and thought that this was a more appropriate place. He thought that requiring a judge to deliver judgment before the end of the term was too onerous, particularly since a trial may be concluded only on the last day of the term, when it would clearly be impossible to deliver judgment on the same day.
Mr L Landers (ANC) pointed out that in the past litigants had suffered through judgments not being delivered timeously. He agreed that delivery before the end of term could be impossible, in the case of matters heard in the last week, or indeed if the judge was ill. The litigant should be able to approach the Judge President for relief, but nothing was said on this point.
Ms Schäfer did not agree with Mr Koornhof, because nothing in the Notes was regarded as binding. She too however, agreed that not every reserved judgment could be delivered by the end of the term, but would prefer to see wording such as “at a later date”. Perhaps the wording could also make it clear that all judgments that had been reserved prior to the last two weeks of the term should be delivered.
Mr Jeffery said that there was currently no legal duty on judges to give judgments within any specific time, so the fact that this was now included was already of benefit. In answer to Mr Landers, he said that the Judge President was now asked to take responsibility for ensuring delivery of judgments, so it followed that a litigant could approach the Judge President. He felt strongly that this should be included in the Code, not the notes. He suggested wording along the lines of: All judgments must be given before the end of the term, unless the case has only been completed in the last two weeks of the term, in which case judgment must be given at the start of the next term; provided that if the matter was of a complex nature, the Judge President may be approached to give permission to deliver that reserved judgment later. That would not specify when the extension should be, as this would be in the discretion of the Judge President. He agreed that even though the outer limit of the time frame was set out in Article 10 (2), a litigant was still entitled to judgment as soon as possible after the case had ended.
Adv H Schmidt (DA) agreed, but suggested that “before the beginning of the next term” should be included.
Ms C Philane-Majake (ANC) wondered if it was acceptable simply to refer to judgements that were “complex and voluminous” or whether more clarity was needed on this.
Mr Jeffery answered that the Judge President, because s/he was being asked to give consideration to the request, would also have to consider the nature of the case, and so the Head of the Court, and not the sitting judge, would be the person ultimately confirming that the matter was complex.
Mr S Holomisa (ANC) wondered if the sentence should not start with “a judge must, as a rule, deliver judgments timeously….” He pointed out that it was too restrictive to confine the extensions to matters of a complex nature, pointing out that a judge may be ill, or unable to deal with matters for another reason.
The Chairperson agreed that other circumstances beyond the control of the judge should be included.
Mr Jeffery noted that this was supposed to address a specific problem, quoting the adage that “justice delayed is justice denied”. He cautioned against including too many openings and leeway. Obviously, if a complaint was brought in terms of the Code, illness would be considered an acceptable excuse.
Mr Holomisa still thought that the words “complex and voluminous” were too subjective.
Mr Jeffery suggested that, to settle the matter, the words “or the judge is unwell” could be added in.
Ms Schäfer shared concerns that judges often did not give judgments quickly enough, and proposed that perhaps the Code should simply refer to “where cogent reasons are given”. That would give sufficient discretion to the Judge President.
Mr Jeffery suggested the following: “A judge must deliver all reserved judgements before the end of the term” A provision should follow about the cases that ended close to the end of the term, and the Committee would have to decide whether these should be cases heard in the last two weeks, or even the last month. The provision would then continue: “If there are cogent (or sound) reasons, permission must be obtained from the Judge President of the Court to deliver that reserved judgment at a later date”.
Mr de Lange took the Committee through the Notes to Article 10. He noted that the present position was that recess periods were primarily targeted for research, and for judges to work on their reserved judgments. It was something of an anomaly to say that reserved judgements must be delivered by the end of the term.
Mr de Lange noted that the word “must” would be used, where alternative wording still was noted in the draft.
He took the Committee through the sub-paragraphs of the Article, and pointed out that the original wording of (d) had been deleted, so that this clause now read “not disclose or use non-public information acquired in a judicial capacity for any purpose unrelated to his or her judicial duties'. The omitted wording had essentially dealt with the relationship between judges, and probably was not appropriately placed in the Code. He wondered if one judge should be able to lodge a compliant against other for breaching confidentiality.
Mr Schmidt noted that judges could indeed lay complaints against each other. However, he said that there was some unease around professional secrecy, and so he agreed that the deleted wording had been properly deleted. He thought that judges may ask for advice or discuss matters between themselves, but that was more a matter of professional ethics than of secrecy; A judge should know that he should not discuss matters raised in confidence.
Mr de Lange said that this was also dealt with in the notes.
Mr Jeffery pointed out that, whilst it had not happened in the past, it would clearly be wrong if formal discussions were disclosed. It would not be correct for any information to get into the public domain as to what was being discussed, and it was possible that it could happen. Judges’ disagreement on points could always be expressed in minority judgments, but that would happen later, and any leaks of information should be sanctioned. He thought that subparagraph (iii) should remain, that a judge should respect the confidence of colleagues. Professional secrecy was ill-defined, but he agreed that it should be in the Code, not the notes.
Mr Koornhof wondered if note 11B/(b)(ii) should not be elevated to the Code.
Mr Jeffery agreed that this was possible, to reflect that formal deliberations should be confidential. However, there were also informal discussions, such as private consultation and debate, which should also not be revealed.
Mr Landers agreed with Mr Jeffery, and also agreed that 11B/(b)(ii) should be elevated to the Code, as it was a fundamental point.
Ms Schäfer suggested that the two concepts could be combined, to read: “Formal deliberations, as well as private consultation and debate between judges are and must remain confidential”. This should all be moved up to a new subparagraph (3) in the Code.
Mr Koornhof indicated that he preferred the original wording of Note 11C/C(iii) (dealing with personal criticism).
Mr Jeffery pointed out that judges criticised other judgments all the time, but this was not personal criticism. He agreed that it was sufficient to say that “personal criticism must be avoided, unless it is necessary during the course of appeal proceedings”.
Article 12: Association
Mr de Lange confirmed, in answer to a question from Mr Jeffery, that the word “does” was originally used, but the Committee had agreed on the use, throughout the Code, of the word “must”.
Mr Jeffery asked if there was a definition of “a secret organisation”, and if it was sufficiently legally clear.
Mr Schmidt pointed out that there was a difference between an organisation whose very existence was secret, and one that was known, but whose members were not revealed.
The Chairperson said that membership of secret organisations was a question raised in the Judicial Service Commission (JSC).
Mr Jeffery expanded on his question, asking if, for instance, Freemasonry was regarded as a secret organisation.
The majority of Members thought that the current wording could remain.
Ms Schäfer raised a question in regard to subparagraph (c), pointing out that whilst the Constitution guaranteed religious freedom, some religions did not allow women to participate as judges.
Mr Landers agreed that this was a potentially serious issue. For instance, the Catholic Church’s disallowance of women priests could be argued to be discriminatory, so any practising Catholic appearing before the JSC might be hit by this provision.
Mr Holomisa thought that “discrimination inconsistent with the Constitution” was unfettered discrimination.
Mr Jeffery noted that this could cover gender or sexual orientation. He remarked, in passing, that he had thought it unfair for the Chief Justice to be questioned and criticised about his religion, whilst others ha not been. Traditional Leadership and religion were excluded from some operations of the Bill of Rights, so, for instance, a Catholic nun could not claim that the Church leadership was discriminatory, and a religious denomination could not be compelled to marry a same-sex couple. He suggested that perhaps this provision should be reworded to state that a person should not take part in the activities of any organisation except.. – and here he said that wording should be found that was broader than “the Church”, or even “places of worship” since bodies allied to religious organisations that did good works would clearly not be problematic.
Mr Koornhof thought that his was a very broad debate, and there were enough examples in the South African case law. He thought it would be going too far to exclude membership of churches.
Mr Jeffery pointed out that whilst others might not agree with a religion, it was the right of any judge to belong to any religion. It was a grey area. A church that was racially exclusive would be frowned upon, but a church that discriminated against gays and lesbians could not be stopped.
Mr Holomisa believed that the current provision was sufficient. Judges were expected to promote the Constitution and if they were known to be associated with an organisation that consciously violated the Bill of Rights, then it could be insinuated that the judge could also not be trusted to promote the Bill of Rights. He did not believe that a reference should be made to anything more specific.
Mr Jeffery suggested that the words “any organisation” should be removed, to read “a judge does not take part in activities that practise discrimination, inconsistent with the Constitution”.
Members agreed, and also agreed to remove the redundant word “the” in article 12(d).
Mr Holomisa noted that one of the questions often raised at the JSC was whether candidates had published anything, and he asked if the provisions in Article 12(e), that referred to “secure personal advantage” could be interpreted as a judge writing articles in order to improve his or her chances of promotion.
Mr Jeffery thought that this was not a problem, since (e) was intended to stop inappropriate behaviour. A judge may act to advance himself personally, but could not use his office to do so. An academic article would not be considered as using his or her office to secure personal advantage.
Ms Schäfer agreed with Mr Holomisa that the current wording could be misinterpreted, and suggested that perhaps it should be reworded as “abuse of his or her judicial office”.
Mr Holomisa thought that another possibility was to use the words “to secure an improper personal advantage”.
Mr de Lange said that the Bangalore Principles used the phrase “use or lend the prestige of the judicial office to promote the interests of a judge”.
Members agreed that the latter wording was acceptable.
Mr Koornhof said that in the past, judges had signed letters taking “sides”, to promote one judge over another. He wondered if that should be addressed.
The Chairperson asked where this could be included.
Mr Schmidt suggested that it could be included in the Notes, and agreed this was a potential problem.
Mr de Lange said that the words “and shall not recuse him or herself on insubstantial grounds” had been moved up to appear in the main Article, not the notes. There had been some deliberations on whether it should be in the Code.
Mr de Lange questioned the wording of Note 13E/e (iv), and Mr Jeffery proposed that the words “defer to” were correct.
Mr de Lange noted that what had originally been stated in Article 14(1) had been deleted, because it merely repeated what was in the Act.
Article 15: Extra judicial income
Mr de Lange said that the Code went some way in referring back to what was in the Judicial Service Commission Act (the Act), in Article 15(1), essentially restating what was in section 11(1) of that Act. He reminded Members that if anything in the Code purported to state a legal position that may be seen as inconsistent with the Act or Regulations, the Act would always prevail.
In relation to Article 15(2), Mr de Lange asked Members to think whether they wanted to use the words “must not” or “may not”.
Ms Schäfer questioned whether judges were not allowed to be arbitrators, as she had understood that this was a primary function of the discharged judges.
Mr Koornhof clarified that this would not apply to acting judges.
Mr Koornhof said that it was necessary to specify what “active service” meant.
Mr de Lange noted that this was defined in the Judges Remuneration and Conditions of Employment Act , and “active service” meant a judge who was working full-time, in a court. After the age of 70, a judge would be regarded as a “discharged judge”. This did not affect judges who had retired prior to 1989, but he indicated that they were of a very advanced age and would not be interested in being involved.
Ms Philane-Majake questioned the reference to extra-judicial income, noting that Article 15 mentioned allowances, yet judges serving on administrative bodies might receive allowances.
Other Members pointed out that they should not receive allowances.
Ms Philane-Majake asked about reimbursement of travel expenses, to which others said that this was distinct from an “allowance”.
Mr Landers pointed out that a judge serving on a Council or Commission might be required to travel on Council business. If he had paid for his ticket, and then claimed it back, this was a reimbursement, not an allowance.
Ms Schäfer said that sometimes all members serving on a body were given an “allowance”, which was standard.
Ms Philane-Majake said that a judge serving on one academic institution had solved the matter by repaying everything that he received into a bursary fund held by the University.
Mr Holomisa agreed that there was no consistent standard across institutions, since some university councils gave a sitting “allowance” in addition to reimbursement of travelling expenses, whilst museum councils, for instance, did not. He suggested that it should be made quite clear that only reimbursement of out-of-pocket expenses was allowed.
Mr Landers said that the main point was whether this was income incompatible with a judicial office, and the inclusion of these words could make it clear. He pointed out that the words “and any allowances payable to the judge” were used.
Mr Holomisa pointed out that this referred to what a judge was paid for acting “in a judicial capacity”.
Mr de Lange pointed out again that the Act and Regulations would trump anything in the Code that was inconsistent or unclear. He wondered whether an honorarium was not also additional income.
Mr Schmidt said that he understood “allowances” to mean something of a repetitive nature, to be distinguished from a one-off honorarium. Disbursements were another matter altogether. He thought that an honorarium could be paid, as long as it was not of a repetitive nature.
Ms Philane-Majake suggested that perhaps judges should be allowed to decide for themselves what they wished to do. She pointed out that travelling to attend meetings was in itself an inconvenience.
Mr Landers made the point that nobody had forced the judge to accept the appointment to another body.
Mr Schmidt said that if there was any counter-obligation, then it could be a problem, because delivery was expected in return for an allowance.
Mr JB Skosana, Chief Director, Department of Justice, noted that in practice, judges were not regarded as taking anything on in a private capacity, but as an extension of their civic duty as judges.
Mr Koornhof wondered if it was a good principle, and good for the image of the Bench, that judges should serve on university councils, or, for that matter, on school governing bodies, many of which had become embroiled in court cases.
Ms Schäfer was not sure what the purpose of Article 15(3) was. The judges themselves, in the first draft, had suggested that they should not receive other income, and so she did not think they should receive any other income. She agreed that they may be reimbursed for out-of-pocket expenses, but that was all.
Prof L Ndabandaba (ANC) pointed out that retired professors had been appointed as Professor Extraordinary, and gave lectures for no remuneration.
Mr Landers pointed out that travelling arrangements for a judge were already contained in the Notes.
Mr Schmidt added that state officials sitting on boards were not paid, because they were sitting by virtue of their position in the state entity. However, a judge would be invited to sit not by virtue of his judicial position, but to lend credence to the institution, and he believed that as long as the judge was not in the service of the Council, and the allowance was not of a repetitive nature, it could be allowed.
Mr Jeffery pointed out that the wording had not changed much, and the judges would be likely to have given their comments if they felt they were being restricted. He suggested that the wording should not be changed.
Mr de Lange commented that the heading had been changed from “Informing” to “Reporting (inappropriate conduct”.
Mr de Lange pointed out that this Article dealt with judges discharged from active service. Article 17(1) repeated what was in the JSC Act. He pointed out that those who were likely to be interested would be more likely to look in the Code, rather than the Act, so there was merit in repeating the wording here.
He also pointed out a correction of the wording to “an appropriate appointment as a judge” in Note 17A/a(i).
He said that the standard practice, at the moment, was that those judges who wanted to do arbitrations and similar matters had to apply in writing to the Minister for permission. This had been applicable since 1989, and had been extended by the Judges Remuneration and Conditions of Employment Act. What was in the Code was not a blanket provision to bypass this administrative requirement, and it was not necessary to change it.
Ms Schafer asked why “must not enter party politics” was contained only in the Notes, and not the Code itself. She also noted that there were some concerns about ANC members being encouraged to resign their party membership and apply for appointment as judges, and wondered if a cooling-off period should not apply.
Mr Schmidt agreed that “active party politics” was a cause for concern.
Mr Schmidt asked for an explanation of the wording of Article 17A(i).
Mr de Lange said that some of the younger discharged judges were likely to be asked to accept appointment elsewhere.
Members agreed that the wording of (b) should be “as an advocate.
The Chairperson asked the Departmental officials to “clean up” the document in line with proposals made by the Committee.
Mr Jeffery hoped that this could be taken to the NCOP quickly, and asked the Chairperson to engage with the NCOP Chair over the weekend, to make sure that the text would be agreed. The Code could not be adopted until the NCOP had agreed on the wording, so it was important that changes should not be proposed by the Select Committee. He hoped that the Code might be able to be passed on the following Thursday.
The Chairperson confirmed that once he had the “clean” text he would approach the NCOP Chairperson.
The meeting was adjourned.
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