Regulations on Judges' Disclosure of Registrable Interests: deliberations

Meeting report

The Chairperson welcomed all Members of the Adhoc Committee on Code of Judicial Conduct and the Regulations on Judges’ Disclosure of Registrable Interests (the Committee) to the deliberations. He stressed on the need for urgency in finalising the Regulations relating to the Judicial Service Commission Act (the Act) - the lifespan of the Committee would be coming to an end on 15 March 2013, hence the Regulations needed to be finalised before then. He invited the Department of Justice and Constitutional Development (the Department) to comment on amendments made so far to the Regulations.

Disclosure by Judges on Immediate Family Members Registrable Interests
Advocate Johan De Lange, Principal State Law Adviser in the Department, drew the Committee’s attention to the amendments in Part 4 of Annexure A of the Regulation. By virtue of the amendments, judges discharged from active service and acting judges were no longer required to declare the assets of their immediate family members. The forms in the schedules to the Regulations were yet to be adapted to reflect this, but they would.

Mr J Jeffery (ANC) noted that the problem areas on disclosure as identified by the Committee were immediate family, acting judges and judges in active service. It however seemed that Part 4 of Annexure A related only to immediate family members of these judges and did not deal with the other categories. As it was, acting judges had to disclose their assets and this posed a problem. He proposed an alternative to disclosures where a complaint mechanism was instituted wherever it was discovered that a conflict of interest arose.

Mr Jeffery suggested that with regard to retired judges, judges over 75 years of age should not be required to disclose their assets, judges between 65 and 70 years may be required to disclose and for judges 60 to 65 years, the same complaint mechanism recommended for acting judges should be implemented.

Mr Jeffery remarked that the purpose of requiring immediate family members to declare assets was to curb corruption and promote transparency. What was the legal position on compelling immediate family members to disclose assets? The former Chairperson of the Ethics Committee had indicated that spouses could not be compelled to disclose their assets. Was it constitutional to compel disclosure of assets by immediate family members? The issue with attempting to consider the constitutionality or otherwise of this was that the judges who decided on it were the parties of whom disclosure was required.

Ms D Schӓfer (DA) asked what the rationale was on excluding disclosure of immovable properties under Annexure A of the Regulations if the aim was to curb corruption.

Mr Jeffery replied that the rationale was to protect the residential addresses of Judges. It should therefore be included in the confidential section.

Mr L Landers (ANC) suggested that the information on immovable properties of judges in the confidential section should include all holiday homes where judges stayed from time to time.

Mr Jeffery added that all homes judges resided in should be included in the confidential section. The only exclusion should be property usually rented.

Adv De Lange referred Members to the format of the register, particularly Part One and Two; Part One provided for declaration on the number of immovable assets the Judges had, while Part Two which was confidential, provided for details of the assets declared under Part One.

Mr Jeffery proposed that the distinction between the information required under Part One and Two be clearly stated in the main body of the Regulations. Further, the corrections on Part Four to Annexure A also had to be highlighted in the main body of the Regulations.

Adv De Lange opined that reflecting the contents of the Annexure within the main body of the Regulations was a duplication and unnecessary.

Mr Jeffrey replied that considering the proposal to distinguish disclosure on registrable assets between immediate family members of acting judges, judges in active service and retired judges, there was a fundamental change in how Paragraph 2 of the Regulations should read and this in turn affected the cross-referenced Annexure.

The Chairperson asked if it was possible to have these amendments reflected.

Adv De Lange responded in the affirmative. However, it meant having additional annexures.

Mr Jeffrey remarked that the Department had a bureaucratic approach towards the requested amendments. All that was required was to consider the best approach.

Adv De Lange responded that the purpose of Annexure A was simply to define registrable interests.

Mr Jeffrey replied that it was more helpful if the parties that had to disclose were able to see at a glance the information needed to be filled and where.

Adv De Lange remarked that while it was understood that it might add value, it was not very necessary.

The Chairperson remarked that upon completion of forms, it was always more helpful to read through. He suggested that an agreement be reached - perhaps Annexure A could clearly spell out the details required.

Ms Schӓfer stated that she agreed with Mr Jeffery’s proposal that details should be clearly stated on disclosure of location of properties.

Mr Jeffery proposed that Annexure A be self-explanatory. He stated that immovable properties, on which judges did not reside, such as rented properties, did not have to be covered under the confidential section of the Annexure.

Mr N Koornhof (COPE) proposed that the requirement for disclosures by immediate family members be deleted as it was a very contentious issue and there was no way to compel this disclosure.
           
Adv De Lange replied that Section 7(1) of the main Act defined immediate families. The dilemma was that Section 13 (3) of the Act made provisions for disclosure by the immediate family of judges - to propose anything contrary in the regulations would be contradicting the provisions of the Act. He proposed that for the time being, the regulations should specify that interests to be declared in terms of family members were ‘nil’.

Mr Jacob Skosana, Deputy Chief State Law Adviser, stated that he agreed with the proposal by Adv De Lange and it must be considered that the spouses of the judges were not too far removed from the judges.

Mr Jeffery proposed that instead of stating ‘nil’ to disclosure of family members’ interests by judges, the regulations provided for voluntary disclosures. Section 13 (5) of the Act prescribed an obligation for the regulations to prescribe, it was thus important to devise a more user-friendly approach.

Ms C Philane-Majake (ANC) stated that the issue on disclosure of family members’ interests was contentious. If disclosures were totally expunged then it encouraged corruption. There was a need to craft the provisions on disclosures of family members’ interests in a way that where a judge was conflicted, the judge reported the conflict personally, even if family members were exempted from disclosures.

Ms Schӓfer suggested that ‘registrable interests’ be defined in the regulations in cases of immediate family members.

Mr Landers replied that it had already been defined, although the definition could be expanded.

Mr Koornhof asked for further clarification on whether the disclosure requirements applied to acting judges.

Mr Jeffery proposed that the earlier proposal on acting judges be adopted in the Regulations and that an acting judge disclosed to a JP where a conflict of interest existed, at the request of the JP.

Adv De Lange stated that the proposal was well received; however, it was necessary to ensure there was an empowering provision for this in the main body of the Act.

Mr Jeffery replied that the proposal did not add any new requirements; it was still within the broader requirement to disclose where there was an interest. Hence, for retired judges aged 65 to 70 years, who were compelled to perform public service when requested by the State, they should compulsorily disclose. For judges aged 70 to 75 years, for whom acceptance to perform public service when requested by the State was optional, the same complaint mechanism suggested for acting judges should be applied. In this case, the complaint would be directed to the Chief Justice. For judges over 75 years of age, no disclosures were necessary.

Mr Skosana cautioned that with regard to the second category of judges in Mr Jeffery’s proposal, i.e. judges aged 70 to 75 years, the proposal stood in cases where the judges had spent up to 15 years in service. However, where they had not, then they should be treated as judges in the first category requiring compulsory disclosure.

Mr Jeffery suggested that disclosure of interest of family members by judges should be ‘optional’ in the regulations, rather than ‘nil’ as earlier suggested by the Department.

Access to Confidential Information
Mr Jeffery referred to Paragraph 5 (4) of the Regulations regarding access of persons to confidential information in the register, and suggested that the excepted parties should include the JSC disciplinary tribunal. Privileged information given under the Regulations should be protected. These suggestions should be reflected in the main body of the Regulations as well as the Annexure.

Directorship Positions held by Judges
Mr H Schmidt (DA) referred to Paragraph 4 (3) (b) of the Regulations and opined that its provisions contradicted the current status quo which prohibited judges from holding directorship in companies.

Adv De Lange stated that while the Regulations were not necessarily changing the status quo it was a fact that some judges held directorships in companies, not necessarily profitable companies though and there was no restriction on a judge being a director in a non-profitable company.

Mr Schmidt responded that this raised a conflict.

Mr Schmidt asked how the Regulations could ensure that the status quo on judges’ restriction over holding directorship in companies was maintained.

Mr Jeffery suggested that there should be a cross reference to the provisions of the Act.

Mr Skosana stated that the applicable judicial codes disallowed judges in service from holding directorships in companies.

Ms Schӓfer stated that it was important with regard to this issue to distinguish between judges in active service and others.

Mr Jeffery clarified that judges were allowed to be directors, as far as the directorship was not for profit. Incomes and royalties should not accrue.

Adv De Lange stated that the Act allowed judges to accept royalties and commission, but these must be declared.

Mr Jeffery stated that this provision in the Act should be cross-referenced in the Regulations.

Ms Schӓfer suggested that Regulations provided that directorships of non-profits also be disclosed.

Mr Koornhof supported this proposal.

Application Date of Regulations
Ms Schӓfer expressed concern about the application date of the Regulations and the main Act and asked whether it applied retrospectively to Judges employed before the commencement of the Act or only those employed after the commencement of the Act. The problem with retrospective application was that these Judges had been employed under different conditions of service.

Mr Jeffery proposed that the conditions of service upon appointment of the judges must be followed, except if the judges agreed that the Act applied to all judges appointed form the effective day of the Act and remained voluntary for all others appointed before the Act came into effect.

Mr Skosana stated that the Department was aware that the judges had taken the decision that the disclosure would apply to all when the Regulations came into effect. The problem with the proposal by Mr Jeffery on this issue was that it created two dispensations of judges within the judiciary.

Declaration of Received Gifts
With regard to the obligation to declare all gifts received by judges that were worth R1000 or more, Mr Koornhof suggested that the style adopted by Parliament where all gifts were declared should also be adopted in the Regulations.

Mr Landers agreed to this proposal, stating that it was the safest measure.

Mr De Lange stated that the ethics code was about to review the value of gifts to be declared up to R1500.

The Committee decided that the Regulations should also review the amount to R1500.

Mr Jeffery noted that a lot of work still had to be done on the Regulations and given the time frame the amendments needed to be effected as soon as possible and circulated to the Committee.

The Chairperson agreed that there was a need for urgency in the completion of the Regulations and requested that the Department speed up the process. He thanked all in attendance.

The meeting was adjourned.