The Ad Hoc Committee on the Code of Judicial Conduct and Regulations on Judges’ Disclosure of Registrable Interests (National Assembly) unanimously adopted the Code of Judicial Conduct. The adoption of the Code was preceded by discussions from the Committee where amendments were made. The Committee inserted a semi colon at the end of the words ‘consent of the head of court’ in Article 6(2). The Committee discussed whether Article 12(1)(a) should remain as it was or if it should apply to permanent judicial appointees and exclude acting judicial appointees. Some members were of the opinion that acting judicial appointees should be excluded as it would be difficult to implement and cause problems for the recruitment of acting judicial appointees, something which was already difficult to do. Other members of the Committee were of the opinion that acting judges were for all intents and purposes the same as full time judges and some acting stints were far longer than three or four months. The Committee eventually agreed to the provision as it was in the Code but excluded acting appointees from the application of Article 12(2). The application of Article 15(ii) was limited to judges discharged from active service.
The Chairperson said that the Committee would go through the Code page by page and if Members had any proposed changes they could say so.
Mr J Jeffery (ANC) referred to Article 4 and said that the wording seemed a bit clumsy.
The Committee did not make any changes to the Article.
Mr Jeffery referred to Article 6(2) and said it had to be ensured that this section applied to sub-paragraphs (a) and (b). At the end of ‘consent of the head of the court’ there had to be a semi colon. Under sup-paragraph (a) the wording should be ‘in respect of a matter that was heard within two weeks of the end of that term’.
Adv Johan De Lange, Principal State Law Adviser from the Department of Justice and Constitutional Development (DoJ&CD), said that in that case then Article 6(2) should read ‘A judge must deliver all reserved judgments before the end of a term’.
Mr Jeffery said that he disagreed with Adv De Lange. Article 6(2) referred to a specific term and sub-paragraph (b) should also refer to that specific term as well.
The Chairperson said that more detail should be added to the provision.
Mr Jeffery suggested the addition of the words ‘the term in which the matter was heard should be added’.
The Chairperson referred to Article 12(1)(a) and said that the provision also applied to an acting judge. This was because one could act for three or four terms but never appear before the Judicial Service Commission (JSC). Should the provision not apply to those who happened to be successful as permanent appointees?
Ms D Schäfer (DA) said that this would be a dangerous precedent. The crucial point with the judiciary was that they should be independent and be perceived to be so as well. One could not have an Acting Judge who was an active member of a political party.
The Chairperson said that it would be a member of a political party and not an active one.
Ms Schäfer said that she stood by her views even where inactive members were concerned.
Mr Jeffery said that the provision referred to a member and not an active member. The Constitution provided for a right to freedom of association. It was difficult to get Acting Judges as stated previously by Judge Ngoepe. On Page 15 under Article 5(2) one would not expect an Acting Judge to sever all ties with say the Bar Counsel of which they would be a member. The solution might be to link Article 12(1)(a) to permanent appointments, it would not make sense for the provision to apply to acting judges. Acting judges would be at the discretion of the Judge Presidents (JP) and hopefully they would do some background checks.
Mr H Schmidt (DA) said that in some instances one had judges that acted for years; the provision should apply to all judges because there were some judges who made a living from acting.
Mr Jeffery said that it was going to be very difficult to implement this for the short acting stints. One option would be to implement this provision as it was and hope for the best. Now this applied to lower courts so if a matter went on appeal it would go to judges who were permanent appointees and non-active or inactive members of political parties.
Mr L Landers (ANC) said that he preferred Mr Jeffery’s views on the matter. To assist with the matter of acting judges it could be insisted in the provisions that a membership status for a political party should be declared to the JP or Chief Justice (CJ). This would mean that someone would have knowledge of such a membership.
Mr N Koornhof (COPE) said that he supported the Code. When acting judges appeared before the JSC they were required to declare how many acting stints they had and this was definitely more than three months, they were also asked if they were members of political parties. The Committee should insist that when acting judges acted, they should resign from their political parties. There has not been one judge who upon acting declare that they were still members of a political party, they automatically resigned before appointment.
Ms Schäfer said that there was a reason why there was this provision; acting judges were for all intents and purposes like full time judges the provision should be left as it was.
The Committee agreed.
Mr Jeffery asked if Article 12(2) applied to acting judges as well.
Ms Schäfer said yes.
Mr Jeffery asked how this could be so, to be fair to acting judges this provision should apply to acting appointees only.
The Committee agreed.
Ms Schäfer asked if the Committee had resolved the issue of judges being paid substantial amounts of money for acting.
Mr Koornhof said that this was where they served on university councils for instance.
Mr Jeffery said this was a non-debate and it was in the Act, the Code was subservient to the Act. Article 15(ii) would have to go as it was in conflict to the Act.
Adv De Lange suggested that instead of removing it completely it could refer to judges discharged from active service so that this would save them the trouble of having to apply to the Minister of Justice every time.
The Committee agreed.
The Chairperson asked for someone to propose for the formal adoption of the Code.
Professor G Ndabandaba (ANC) moved.
Mr Koornhof seconded.
The Code was adopted unanimously by the Committee.
The Chairperson said that the Committee was still awaiting the Rules.
The meeting was adjourned.
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