Code of Judicial Conduct: Department of Justice and Constitutional Development briefing on amendments

Meeting report

Mr Sarel Robbertse, State Law Adviser, Department of Justice and Constitutional Development, stated that the Code of Judicial Conduct (Code) originated from s12 of the Judicial Service Commission Act 1994 which provided that the Chief Justice acting in consultation with the Minister must compile a Code of Judicial Conduct which must be tabled by the Minister in Parliament for approval. The Minister was afterwards required to table the Code within four months of the commencement of the Act, provided that if consensus could not be achieved as contemplated in subsection one, both versions of the Code should then be tabled in Parliament within the said period.

Parliament had the authority to approve the Code or such amendment after obtaining and considering public comment in respect of the Code. The Code was to be reviewed at least once every three years by the Chief Justice acting in consultation with the Minister, and the result of such review, including any proposed amendment to the Code was required to be tabled in Parliament, for approval.

The Chairperson interjected and observed that there had been previous briefings in respect of the Code. He therefore directed that Mr Robbertse should concentrate on singling out new issues which were coming into the Code.

Mr Robbertse concurred and stated that certain amendments had been proposed which related to a number of articles in the Code.

He stated that the first amendment was Article 2 which dealt with the application of the Code. The Code as tabled did not stipulate the persons to which it would apply. However, Article 2)(1) and (2) now stipulated that the Code applied to every Judge referred to in section 7(1) (g) of the Act, a judge released  from active service who was liable to be called upon to perform judicial duties and also an acting judge. A judge not in active service was also included in the Code.

The next substantial amendment to the Code related to Article 6 which governed the compliance with the law. The Article provided that a judge must at all times, also in relation to extra judicial conduct, comply with the law of the land. The Committee was of the opinion that no further notes were necessary to elucidate this obvious rule and the notes to the article had therefore been deleted.

Another major amendment was Article 10 (2) which was previously part of he notes and was inserted under the substantive provisions of the Code and developed by the Committee. The Article provided that a judge was obligated to deliver all reserved judgments before the end of the term but may in respect of a matter that was heard within two weeks of the end of a term or where a reserved judgment was of a complex nature or for any other reason and with the consent of the head of the court give reserved judgment during the course of the next term.

The next major amendment was in respect of Article 11(3) which provided that formal deliberations as well as private consultations and debate among judges were to remain confidential. This provision was previously part of the notes but was inserted by the Committee under the substantive provisions of the Code.

The next amendment was in respect of Article 12. A clause was omitted by the NA ad hoc Committee which provided that “A judge does not use his or her judicial office to secure personal advancement or any personal benefit”.

The next amendment was in respect of Article 13. The clause which provided that “A judge does not recuse him or herself on insubstantial grounds” had been omitted by the Committee.

The next amendment was in respect of Article 14 which dealt with the extra judicial activities of judges on active service. The clause in this article which provided that “In terms of section 11(1) of the Act, a judge performing active service may not hold or perform any other office of profit” was deleted by the Committee.

Mr Robbertse stated that the above amendments were the major amendments which members ought to take note of.

Discussion
The Chairperson asked Members if they would like to take the Code home in order to properly study the amendments.

Ms R Rasmeni (ANC) stated that it would be in order to take the document home for proper study and Members could back at the next adjourned meeting to deliberate upon the amendments.

A Member agreed with Ms Rasmeni and observed that the document that was presented to the Committee was not dated and wondered why this was so.

Mr Robbertse stated that this was an oversight on the part of the Department and apologised for the error.

The Chairperson asked if Members had any questions to ask before the meeting was adjourned.

Mr K Sinclair (COPE) stated that he was a new member of the Committee and sought to know the role of acting judges.

Mr Robbertse replied that acting judges had been included in the Code. The Code contained provisions which were applicable to acting judges in certain circumstances.

Mr L Mashile (ANC) stated that it was also his first time in the Committee and asked if there were any contentious issues which needed to be dealt with.

The Chairperson replied that there was no contentious issue concerning the Code and the only issues were in respect of the Regulations. Public hearings would still be conducted in respect of the Regulations because this was where the major issues were. Judges had no issues with the Code but had raised serious objections to certain provisions in the Regulations and there was therefore a need to resolve the issues surrounding the Regulations.

Mr Robbertse confirmed that there was no issue in respect of the Code and that the outstanding issues were in respect of the Regulations.

The Chairperson stated that there was an urgency to conclude deliberations on the Code as soon as possible. This was because Judges were waiting on Parliament to conclude work on the Code.

The Chairperson thanked everyone for coming to the meeting.
The meeting was adjourned.