Regulations on Judges' Disclosure of Registrable Interests: deliberations

Ad Hoc Committee on Code of Judicial Conduct and Regulations

25 March 2013
Chairperson: Mr A Matila (ANC)
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Meeting Summary

The Adhoc Committee on the Code of Judicial Conduct and the Regulations on Judges’ Disclosure of Registrable Interests met to consider the Regulations on Judges’ Disclosure of Registrable Interests (the Regulations). Discussions on the Regulations centred on amendments that had been made to the Regulations since the last deliberations.

A Member of the ANC highlighted that Regulation 2 did not properly capture the previous discussions on the issue. It was agreed that further consultation would be carried out to clarify the issue. In situations where judges were still in active service, disclosure was mandatory irrespective of the age.

A Member from COPE advised that regulation 2 (2) (b) in its entirety be deleted and replaced with regulation 2 (2) (c). Regulation 2 (2) (c) placed the onus of deciding to disclose on the judge- and it became an ethical duty on the part of the judge to disclose. The Department of Justice and Constitutional Development committed to considering the relevant regulations with respect to the age limits and adjusting as appropriate.

Opposition members disagreed with a proposal by an ANC Member that since disclosure by spouses of judges was voluntary and they could not be compelled to disclose, the regulations should contain a provision requiring the registrar to publish names of spouses of Judges who refused to disclose. They pointed out that this was unfair and prejudicial. One highlighted that the provisions of regulation 2 (2) (c) which placed the onus of disclosure on the judge was a preferred option; where judges had nothing to hide then they would disclose.

 

It was further highlighted that regulation 2 (3) had not properly captured the proposals put forward by the Committee in the previous deliberation. The Committee had proposed that acting judges should not be compelled to disclose, but where questions were raised then an application could be made to the head of the court or the chief judge to require that the judge in question disclose his interests.  The regulation had restricted the application to only ‘parties to proceedings’. While the intention to deter persons from constantly raising objections to stall proceedings was understood, the provision seemed too restrictive. This view was opposed by another Member, who highlighted that this provision was not restrictive- where any person had genuine information which might impact on the integrity of the case, then such person could inform any of the parties to the proceedings and the party in turn raised the application.

Members further interrogated the amendments in Regulation 3, Regulation 5 and Annexure A.

It was noted that the provisions of regulation 3 (2) were onerous particularly in relation to share portfolios, the value of which changed constantly. Further, the provisions of regulation 3 (2) and 3 (4) conflicted in regard to value of share portfolios, as it was impractical for a judge to ascertain the accurate value of his share in the light of the constant fluctuation in the value of shares.

Concerning Regulation 5, the Department reported that the previous provision had elaborate provisions on application procedures for persons wishing to have access to the confidential part of the Register containing details of judges’ registrable interests. Upon further research, comparisons had been drawn with the process adopted in Parliament and it was discovered that there were no mechanisms to access Members confidential information; this informed the decision to delete the provision in the draft regulation.

Meeting report

The Chairperson welcomed all Members to the deliberations. He invited the Department of Justice and Constitutional Development (the Department) to comment on amendments made so far to the Regulations.

Regulations on Judges’ Disclosure of Registrable Interests: deliberations

Mr Johan De Lange, Principal State Law Adviser Department of Justice and Constitutional Development, informed the Committee that the Draft of 5th of March was an improvement after informal discussions with Members, from the Draft of 1st March which reflected all amendments from the last meeting with the Committee. It was agreed that the deliberations be hinged on the Draft of the 5th of March.

Initial Paragraph

Mr De Lange informed Members that amendments had been made to the initial paragraph to align with the usual practice.

Definition

Mr De Lange stated that the definitions of ‘acting judge’ and ‘judge’ had been included into the draft.

Regulation 2

Mr De Lange drew Members attention to the substantive changes in Regulation 2 and stated that acting judges had been excluded from declaration of registrable assets as agreed at the last deliberations. Regulations 2 (a), 2(b) and 2(c) were all new insertions based on discussions from the last deliberations.

Mr J Jeffery (ANC) remarked that Regulation 2 did not properly capture the previous discussions on the issue. In previous deliberations, Mr Jacob Skosana, Deputy Chief State Law Adviser, had advised the Committee that four dispensations of judges existed, viz -; (a) Judges in active service who were below the age of 65; (b) Judges discharged from active service who were between the ages of 65 and 70 years, but were required to be available for duty if called upon; (c) Judges between the ages of 70 and 75 years who were entitled to elect whether or not to serve if called upon for duty; and (d) Judges after 75 years of age. The agreement at the previous deliberation was that judges that fell under categories (a) and (b) should be obliged to disclose; this had not been appropriately captured in the regulations.

Mr N Koornhof (COPE) agreed with Mr Jeffery’s observation.

Mr De Lange remarked that the appropriate categorisation will be redrafted and reflected in the regulation. The problem was that judges could be in active service up till the age of 75 years and in such circumstances, it therefore became important to declare.

Mr Jeffery advised that further consultation be carried out with Mr Skosana to clarify the issue. In situations where judges were still in active service, disclosure was mandatory irrespective of the age.

Mr H Schmidt (DA) referred to the case of a Judge in the Labour Court who had attained the age of 70 and the Court had applied for leave on his behalf for him to remain in active service. It was necessary to clarify that the age limit referred to in category (d) was 70 years rather than 75.

Mr Koornhof advised that the provisions of regulation 2 (2) (b) in its entirety be deleted and replaced with regulation 2 (2) (c). Regulation 2 (2) (c) placed the onus of deciding to disclose on the judge- and it became an ethical duty on the part of the judge to disclose.

Mr De Lange committed to considering the relevant regulations with respect to the age limits and adjusting as appropriate.

Mr Jeffery asked if the regulations had any provisions on sanctions where judges refused to disclose.

Mr De Lange remarked that the regulations had provided for the Registrar to report such incidences after which disciplinary process were to commence.

Mr Jeffery proposed that since disclosure by spouses of judges was voluntary and they could not be compelled to disclose, the regulations should contain a provision requiring the registrar to publish names of spouses of Judges who refused to disclose. 

Mr Koornhoof stated that he was uncomfortable with the proposal suggested by Mr Jeffery.

Ms D Schӓfer (DA) remarked that it was unfairly prejudicial to make disclosure voluntary on the part of judges spouses’ and then publish names of spouses who failed to disclose.

Ms C Pilane-Majake (ANC) remarked that it defeated the whole purpose of the Regulations to make disclosure on the part of judges spouses’ optional; assets obtained through corrupt practices were easily hidden by spouses who did not disclose. The suggestion by Mr Jeffery was helpful in combating this. The problem arose with defining who spouses were in the light of same sex marriages and other arrangements. Where it was evident who the spouses or partner of judges were, then the suggestion by Mr Jeffery should be adopted.

Mr Schmidt remarked that he agreed with Ms Schӓfer on the proposal by Mr Jeffery being prejudicial. The provisions of regulation 2 (2) (c) which placed the onus of disclosure on the judge was a preferred option; where judges had nothing to hide then they would disclose.

Mr Jeffery noted that the Judicial Service Commission Act defined immediate family of judges as spouses, civil partners and life partners, thus spouses fell under the confines of regulation (2) (2) (c) also. The regulation should thus be maintained as was and the proposal on the registrar publishing names of judges whose spouse refused to disclose be explored further in the Bill.

Mr Jeffery referred to regulation 2 (3) and remarked that it had not properly captured the proposals put forward by the Committee in the previous deliberation. The Committee had proposed that acting judges should not be compelled to disclose, but where questions were raised then an application could be made to the head of the court or the chief judge to require that the judge in question disclose his interests.  The regulation had restricted the application to only ‘parties to proceedings’. While the intention to deter persons from constantly raising objections to stall proceedings was understood, the provision seemed too restrictive.

Ms Schӓfer remarked that the provisions of regulation 2 (3) was not restrictive- where any person had genuine information which might impact on the integrity of the case, then such person could inform any of the parties to the proceedings and the party in turn raised the application.

Ms Pilane-Majake suggested that there should be a provision in the regulation for disclosure by judges in instances where any interest of either spouses or family members existed before accepting a case or to chair any commission.

Ms Schӓfer responded that this was already provided for in the Judicial Code of Conduct.

Regulation 3

Mr Jeffery referred to regulation 3 and noted that based on the input by Mr Skosana the Committee had proposed that upon discharge from active service, there was no obligation upon judges of 70 years and above to disclose registrable interests. The regulation had stipulated 75 years rather than 70.

Mr Jeffery noted that the provisions of regulation 3 (2) were onerous particularly in relation to share portfolios, the value of which changed constantly. Further, the provisions of regulation 3 (2) and 3 (4) conflicted in regard to value of share portfolios, as it was impractical for a judge to ascertain the accurate value of his share in the light of the constant fluctuation in the value of shares.

Mr L Landers (ANC) remarked that he agreed the provisions of regulation 3 (2) were onerous with regard to share portfolio and stock changes. In Parliament, Members were required to disclose once a year, the same rule should apply to judges.

Regulation 5

Mr De Lange explained that the previous provision of regulation 5 had elaborate provisions on application procedures for persons wishing to have access to the confidential part of the Register containing details of judges’ registrable interests. Upon further research, comparisons had been drawn with the process adopted in Parliament and it was discovered that there were no mechanisms to access Members confidential information; this informed the decision to delete the provision in the draft regulation.

Mr Jeffery indicated his agreement with the deletion of provisions to access confidential information of judges and questioned whether there should be a duty on the Registrar to report any untoward matters discovered in the register to the Head of Court. Should the role of the Registrar be proactive or reactive in this regard?

Mr Landers replied that this issue had been debated extensively in the Ethics Committee of Parliament also. There had also been attempts by civil society to ensure the Registrar in Parliament acted proactively. This was a matter the Committee needed to take under consideration; there was nothing wrong with the Registrar acting proactively but the possible lack of resources and capacity posed a challenge.

Mr Schmidt remarked that it may not be necessary to require in the Regulations that the Registrar act proactively because of capacity and resources constraints. When a complaint was lodged with the Registrar, the complaint guided the investigation and streamlined areas of focus. Registrars did not normally possess investigative skills necessary to launch full out investigations without specific direction; therefore it became onerous to require they did this by virtue of the Regulations.

Ms Schӓfer remarked that a compromise would be to require Registrars to report suspected possible irregularities, such as massive landed property acquisitions, to Heads of Courts or the Chief Justice as applicable.

Mr De Lange remarked that regulation 3 (5) would also be applicable to address cases of suspiciously irregular disclosures.

Annexure A

Mr De Lange explained that the provisions of the annexure outlined in details the information to be provided in the confidential part and public part of the Register.

Ms Schӓfer recommended that the cap on the amount of gifts received be cross referenced to that of Parliament, to avoid constant readjustment of the Regulations.

Mr De Lange replied that it was an option that would be further explored.

Mr Jeffery asked why Paragraph 5 of Part 1 on the provisions of declaration of sponsorships had been deleted.

Ms Schӓfer replied that it had been previously explained that judges were not allowed to accept sponsorships.

Mr Jeffery remarked that the layout of the Annexure did not correspond with the categorisation of judges earlier referred. Part 3 of Annexure should be deleted entirely.

Mr Schmidt suggested that no concrete decisions should be made with regard to categorisation of judges until the age confusion of 70 or 75 years had been clarified.

Mr De Lange stated that while he agreed that the age of a judge was relevant, Section 11 of the Judicial Service Commission Act provided that judges at this age were not allowed to receive any income beyond salaries.

Mr Landers asked whether Section 11 of the Act provided a remedy whereby the remedy kicked in for cases where the judges failed to disclose.

The Chairperson asked what the Committee proposed on the issue.

Mr De Lange suggested that Part 3 of the annexure be linked to the proposed model as well as Part 4.

Mr De Lange informed Members that Annexure B contained the relevant forms which changed with most amendments to the Regulations; it was therefore advisable not to consider them in detail until all aspects of the main regulations had been finalised.

The Chairperson thanked Mr De Lange and stressed the urgency to conclude deliberations and finalise the Regulations.

Mr Jeffery suggested that since the regulations had to be approved by both Houses, the Chairperson liaise with the Chairperson of the NCOP Committee responsible for considering the Regulations with a view to providing an update on the Committee’s progress and encouraging the process of the other committee to be sped up.

The Chairperson thanked all in attendance.

The meeting was adjourned.

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