Regulations for Registrable Interest: Briefing by Department of Justice and Constitutional Development

Ad Hoc Committee on Code of Judicial Conduct on Disclosure of Interests (NCOP)

05 June 2013
Chairperson: Mr A Matila (ANC; Gauteng) As approved (provisional, 18 June)
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Meeting Summary

The Department of Justice and Constitutional Development briefed the Committee on the Regulations on Judges' Disclosure of Registrable Interests.  All judges in active service would be required to provide a disclosure of their financial interests as well as those of their dependent children, and could provide the interests of their immediate family members.  There were less onerous obligations on judges retired from full-time active service, but still liable for up to three months service a year, and provision was made for the head of the court to request a declaration from acting judges and judges no longer obliged to render active service but who might be acting in a particular matter.

Members had some concerns over the different measures applied according to the categories of service.  The public needed to have confidence in the judiciary, and would not be able to distinguish between the four different categories of judge specified in the regulations.  Members of Parliament and members of other government bodies were also liable to declare their interests, and the Committee agreed that members of the judiciary should be submitted to the same scrutiny as those in the other branches of government.  Members of the National Council of Provinces saw the regulations in a different light to those of the National Assembly.

Meeting report

The Chairperson welcomed Members.  Some Members of the National Assembly (NA) might join the meeting as observers.

Briefing by Department of Justice and Constitutional Development
Mr Johan de Lange, Principal State Law Advisor, Department of Justice and Constitutional Development (DoJCD) presented Members with two documents.  The important document was the one containing the proposed amendments to the Regulations.  Various categories of judges would be affected by the regulations.  The categories were those on active service.  A judge continued to receive a salary until he or she was discharged from active service, which was the next category.  Such retired judges would be required to be available to perform active service for up to three months a year.  The third category was those judges no longer required for duty.  A fourth category would be acting judges.   Members in both the NA and NCOP had grappled with the definition of these categories and the declarations required by such judges.

Mr de Lange said that the document boiled down to a judge in active service always being required to make a full disclosure of registrable interests, and those of their dependent children.  They could make voluntary disclosure of the interests of immediate family members, but only if they consented.  The second category, namely judges discharged from active service, did not have the same cumbersome requirements.  They did not have to disclose any fixed property interests, and were also not required to disclose the interest of their children or family members.  Judges fully discharged from active service, and acting judges, had no disclosure requirements.  However, the head of the court in which an acting judge was presiding could ask for disclosure on matters relevant to the matter in hand.  The same provision would be applicable for a judge called up to act in a commission of enquiry or in any other matter.

The Chairperson asked the Mr de Lange to take Members through the regulations.

Mr A Mashile (ANC, Mpumalanga) asked what the regulations were trying to achieve.  The first problem was in deciding the different categories.  A judge was essentially a judge.  He asked why the regulations were needed.  He asked if there was a common understanding about the issues.

Mr de Lange said that there was an Act of Parliament compelling the compilation of such a register.  There was some scope to differentiate between different categories of judges.  The rationale was not to complicate matters, but was standard international practice.  The integrity of the judiciary should be beyond any reproach.

Mr J Joseph (DA, Western Cape) said that there had been a history of no declarations of interest.  This was a step which followed from the Code of Conduct.  Members of Parliament had to make an annual disclosure, and he asked if judges would also be subject to this.

The Chairperson said that Mr Joseph's question would be answered as they went through the regulations.  Judges had given the Committee some feedback.

Mr Mashile said that ordinary people would simply see a judge, not whether he was acting or not.  He asked if public confidence would be enhanced or defeated.

Mr de Lange said that it would not be practical to expect the same disclosure from acting judges, who might only be appointed for one month at a time.

The Chairperson said that the public knew that many judges were appointed after completing their normal active service. 

Regulations on Declaration of Registrable Interests
Mr de Lange said that acting judges were not just to fill vacancies, but an acting appointment served to train legal practitioners for permanent appointments as judges. 

Mr de Lange said that the first change was simply technical.  In the schedule of contents, only the head of the court would now have access to confidential declarations.  This was in line with the policy on Members of Parliament.  The term ‘Acting Judge' would not include those judges acting in a different capacity to their normal duties.  He read through the regulations regarding judges no longer on active service. 

Mr de Lange said that Regulation 3 dealt with the way in which registrable interests would be declared.  A judge in active service was compelled to disclose the interests of dependent children, and could declare those of family members.  Disclosure must be made within thirty days of appointment.  Register of children and family members would be in the confidential segment of the document.  A judge could make disclosure at any time, but had to have reviewed his or her interests by March of each year.  The registrar, if of the opinion that an incorrect declaration had been made by accident or design, could invite the judge to put the matter straight.  If no declaration had been made within 30 days of appointment, or if the registrar felt that there was a failure to comply, then the registrar was compelled to report this matter to the Chief Justice.

Mr de Lange said that Regulation 4 related to judges in active service.  In terms of the Act, they could derive no further income.  This would now be permissible, but only with the consent of the Minister.  Royalties from book sales did not apply.  The Chief Justice must forward the application to the Minister with a recommendation.  The Minister must communicate his or her decision within a reasonable time.  The non-confidential register must be available for public scrutiny.  Only the person conducting an enquiry would have access to the confidential section of the register.  Disclosure of the interests of family members would be voluntary, but the fact that such a disclosure had been made should be public.

Mr de Lange took Members through Annexure A.  This dealt with the types of interest that needed to be recorded.  Part 2 dealt with judges no longer on full-time active service.  Part 3 would fall away.  Annexure B contained the forms to be completed.  Annexure C was the format of the register.  The format was that of an Excel Spreadsheet.

Ms L Mabija (ANC, Limpopo) had not seen any mention of spouses in the regulations.

Mr Mashile repeated his initial question regarding the intention of the disclosure.  If it was to boost the confidence of the public there should be no discrimination between the different categories of judge.  The regulations were littered with the word 'may', and this would create a large degree of uncertainty.  The system might not be helpful on its own.  He had not seen a definition of 'registrar' in the Act.  It seemed that this was an ordinary clerk who would not have the authority to demand compliance.  The Chief Justice would still have to crack the whip. 

Mr K Sinclaire (COPE; Northern Cape) felt that there should be a better definition of 'immediate family member'.  There should also be a definition of 'family trust', as these were becoming more prominent.  He asked how the process would be different to that expected of magistrates. 

Mr Joseph noted that a lot had been deleted from Form B.  There had been a reference to the Judicial Services Commission (JSC). 

Mr Mashile had a feeling that the manner in which regulations were being approached made for a roundabout approach to enforcement.  It seemed that there was a fear of some sort of revolt.  The rules regarding the declaration of the interests of Members and members of the Public Service Commission were clear.  Judges could even refuse to declare their interests.  There could not be options everywhere if there was to be control.

The Chairperson said that there had been a lot of protest when the legislation had been introduced.  All three branches of government should be treated equally.  Judges sometimes felt that they were above the law.  The NA might have followed a different approach as many of those Members had a legal background.  All three arms of state must move with the same understanding.  The Head of the South Gauteng High Court had resigned.  Members were wondering why the judges were afraid of this legislation.  Judges were on a par with the President of the country regarding remuneration and benefits.  If this Committee wanted to make changes, there would have to be consultation with their counterparts in the NA.  An outside person might be needed to oversee the judiciary, as was happening in many other institutions. 

Mr de Lange responded that he could not speak on behalf of the judges.  However, once they were discharged from active service, they felt that there was an extra burden.  A Member of Parliament was only responsible to declare interests while still in Parliament.

The Chairperson said that the big difference was that judges received an income for life.

Mr de Lange replied that judges could still be called on to provide services after being discharged from active service.  There had been some compromise in the NA.  A judge was never released from complying with Section 11 of the Act, which prohibited any income other than that from judicial services, unless permitted by the Chief Justice.

Mr de Lange said that in the case of spouses, the regulations were always referring to the Act.  The explanations in Regulation 1 referred to the definition of 'immediate family member' contained in the Judicial Services Act.  The use of 'may' generally conferred a power.  The word 'must' was used where there was an obligation to act in a defined way.  He could not agree that the registrar would not have enough power.  In fact the registrar was a strong person whose authority stemmed from the Act.  The use of the word 'invite' was a polite form, and there were strong measures if the judge did not comply willingly with such an invitation.  Once a complaint was lodged there would be consequences.  Form 3 was being omitted.  This would provide for a member of the public to apply for access to the confidential register, and would no longer apply. 

Mr Jacob Skosana, Chief Director: Policy Development, DoJCD, said that the Magistrates' Commission followed a different dispensation, which had been approved before the Constitution had been adopted.  Once the situation with the judges had been resolved, the Department would then take on the magistrates.   The Superior Courts Bill had been approved.  The registrar was appointed by the office of the Chief Justice, who would be accountable to the Minister.  The approach was a minimalist one.  There was nothing on the ground at present, and the regulations had to come into force at some stage.  The Minister must report to Parliament annually.  The first instalment might not be perfect, but would be improved on in time.

The Chairperson informed Members that no transport had been arranged, and Members might need to leave to catch the last bus.  The Committee would meet with DoJCD the following week, and would like to finalise the matter before Parliament rose.

Mr Mashile said that the input of Mr Skosana reinforced what he had been saying.  Compliance should be a mechanical procedure.  The Registrar must have enough authority to demand compliance in order to promote confidence in the judiciary.

The meeting was adjourned.


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