Judicial Officers Amendment Bill; Amendment to Judicial Service Commission Act: deliberations

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Justice and Correctional Services

28 August 2002
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Meeting report

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
29 August 2002
JUDICIAL OFFICERS AMENDMENT BILL; AMENDMENT TO JUDICIAL SERVICE COMMISSION ACT: DELIBERATIONS

Chairperson:
Adv J H De Lange (ANC)

Documents handed out:
Proposed changes to Judicial Service Commission Act
Judicial Officers' Amendment Bill - Latest Working Draft

SUMMARY
A mechanism to lodge a complaint against judges has been inserted into the Judicial Service Commission Act. The Committee commenced discussion from Part 3 - the beginning of the complaint mechanism and got as far as Clause 20 that deals with the composition of the board. The Chairperson raised the important question of how magistrates would be dealt with. The current piece of legislation is only for judges but he saw the need for a complaints mechanism for magistrates as well. The Chairperson either wanted the same tribunal to be used for magistrates or for a similar one to be set up in the Judicial Officers Amendment Bill. The drafter preferred that magistrates be dealt with after the complaint mechanism for judges is completed. In principle the Committee was in agreement that a mechanism is needed for magistrates that would be in line with the government's policy of a single judiciary.

Provision is made in the amendment to the Judicial Service Commission Act to allow for the Chief Justice, after consultation, to provide for rules relating to the Inquiry Tribunal. The Tribunal itself would function in an inquisitorial manner in that the judicial officer would have to take an active role, as there would not be an onus placed on anyone to prove a case. The Committee considered ways to expand on the remedies available to cater for incompetence that was not gross.

MINUTES
Mr Johan De Lange, Department of Justice, assisted the Committee in their discussion.

PART 3 - Consideration of complaints about judges by Committee
Clause 13 - Lodging of Complaints
The Chairperson picked off from the last sitting and said that at Clause 13 deals with how to lodge a complaint and the form it should take.

Imam Solomons (ANC) commented that Clause 13 provides the entry points for complaints. He was worried that ordinary people would be the majority of people who uses the complaint mechanism and the complex process would restrict access. He had this view because the complaint was to a judge and because of the standards set in Clause 14.

The Chairperson replied that Clause 14 just contains the circumstances when a complaint can be dismissed. In terms of Clause 13 all a person must do is depose an affidavit.

The Imam asked if there was no way to lodge a complaint at the courts.

The Chairperson replied that the complaint must be handed in at the structure that deals with the complaint not at the court.

The Imam inquired whether it could be given to the clerk of the court.

The Chairperson replied that the clerk has nothing to do with the Judicial Service Commission. He thought it might be a good idea that complaints could be lodged with the Judge President who would pass it on to the JSC.

Mr De Lange said that he had envisaged that the Judge President is on the Committee. If the complaint were to be against the Judge President then it could be handed to the Chief Justice.

The Chairperson instructed Mr De Lange to include the idea in Clause 13(1) that the complaint can be lodged with the Judge President.

Adv Masutha (ANC) felt that the reference in Clause 13(1) that 'any person' can lodge a complaint was too broad because then a person who does not been aggrieved can also lodge a complaint.

The Chairperson took that observation one step further and said that the complaint can be 'about a judge' is also a bit broad because it would mean that a complaint that does not relate to the duties of a judge can be lodged. The Chairperson said that Clause 13(1) must be made more specific to show that the complaint can only relate to the carrying out of the duties of a judge.

Ms Chohan-Khota (ANC) felt that there was merit in leaving Clause 13(1) broad and then let the frivolous complaints be sifted out through the Clause 14 process. The rationale was that the process should not be limited at the beginning and she argued that judges should be judged at a higher standard that other persons.

The Chairperson replied that the personal life of judges should not be judged by their colleagues. He felt that complaints about judge's private lives should not be allowed. He added that if Clause 13(1) is going to be left broad, then Clause 14 should restrict complaints about the private lives of judges.

Adv Masutha wanted a limitation up front in Clause 13 because complaints against things that are not illegal should not be allowed.

The Chairperson preferred that complaints against the private lives be restricted in Clause 14 because then the matter will at least be considered.

Ms Chohan-Khota commented that the purpose of the complaints mechanism was to restore confidence in the judiciary, not only to protect judges form frivolous complaints. A restriction of complaints will be contrary to the important purpose of attempting to brig back credibility to the bench.

Mr De Lange said that even if there are limitations up front, people will still complain.

The Chairperson said that that the nature of the complaint will not be limited but it would be restricted in Clause 14. The Chairperson also wanted Mr De Lange to find another word for 'about' in Clause 13(1). As it reads now the Clause talks about a complaint about a judge. The Chairperson thought that it was not a nice word and something like 'complaint in relation to the conduct of a judge' should be used.

Clause 14 - Complaint may be summarily dismissed
The Chairperson said that under Clause 14(1) there would now be anew Clause 14(1)(e). Mr De Lange would in this Clause have a complaint about the private life of a judge as one that can be summarily dismissed.

Clause 14(2) refers to a time period of one month in which the complainant can ask the Committee to reconsider a decision to dismiss a complaint. The Chairperson asked Mr de Lange to check from when the one month should start running.

Clause 14(3) provides what the Committee must do when they reconsider a dismissed complaint. It must consider the reasons for the dismissal and the grounds on which the complainant has requested reconsideration. The Chairperson said that the Clause does not allow the Committee to consider the whole matter and instructed Mr De Lange to re-word the Clause to say that the Committee must consider the matter.

Adv Masutha agreed with this approach because it did not restrict the Committee when they are reconsidering a dismissed complaint.

The Chairperson asked if the meeting would be an open or closed one.

Mr De Lange advised that Clause 9(5) deals with this.

Clause 15 - Committee may recommend appointment of Inquiry Tribunal
Clause 15(1) obliges the Chairperson or the member concerned to inform the judge in writing of the complaint. The committee will consider recommending to the JSC the appointment of an Inquiry tribunal and then invite the judge to respond to the allegations in writing. The obligation kicks in if the judge may be dismissed for gross incompetence, gross misconduct or incapacity.

The Chairperson said that the three grounds for dismissal are from the Constitution and there should be a cross-reference to show the source of those grounds.

Secondly, the Chairperson thought that the judge should first respond to the allegations before he is told that the Committee is considering recommending to the JSC that a tribunal be appointed. Clause 15(1)(b) and (c) would therefore be switched around and the numbering would change accordingly.

The Committee had no problem with the rest of Clause 15.

Clause 16 - Investigation by Chairperson or member of Commission
Clause 17 - Consideration of finding and recommendation by Committee

The Chairperson read through these Clauses and picked up that at no stage is there a formal hearing. The judge is just given an opportunity to address the Committee. The Chairperson felt that there is a need for a hearing. He suggested that the Committee could appoint one or two judges to conduct the disciplinary hearing. He told Mr De Lange that a Clause would have to be drafted to give effect to this.

The Chairperson referred to the balance of probability test in Clause 16(1) where the Chairperson or other member conducts an informal investigation to see if the judge has acted in a way that is unbecoming a judicial officer. He said that the test here should be a prima facie one and at the hearing the test should be on a balance of probability. The Chairperson had an idea to use the tribunal to do the disciplinary hearing and there would be two judges presiding. And when the tribunal has to deal with a removal then three judges must preside.

Mr De Lange preferred that this discussion continue after the discussion of the tribunal.

The Chairperson agreed.

PART 4 - Consideration of appeals to Commission, and appointment of Inquiry Tribunals by Commission
Clause 18 - Consideration of appeals by Commission
The Chairperson said that the JSC appoints the tribunal in terms of Clause 19. For this reason he felt that a separate disciplinary hearing is needed at the Committee stage. He picked up that Clause 18(3)(c) would not be needed if there is a disciplinary hearing. The Clause says that after the commission considers an appeal it has the option to set aside the decision and appoint an Inquiry Tribunal to investigate the matter de novo. The Chairperson said that a de novo investigation would not be needed because the disciplinary hearing would provide the record of proceedings. The Chairperson confirmed then that the Tribunal will only consider matter that deal with the three grounds of dismissal.

The Chairperson also wanted a provision in Clause 18 to say exactly how a decision is made.

Mr De Lange said that the Constitution provided for that.

The Chairperson wanted it made explicit that a decision is arrived at by the majority of members.

The Chairperson clarified the process:

if the complaint is frivolous it is dismissed. If it is possible that the judge might be dismissed on one of the three constitutional grounds then a tribunal is appointed. If the complaint is not as serious then the judges deal with it themselves. A member will make a recommendation to the Committee. At the moment the Committee can call for more information or be addressed by the judge that is the subject of the complaint. What Mr De Lange has to do is provide the Committee with the option to have a disciplinary hearing. Once the decision is made at the hearing, it is conveyed to the JSC.

The Chairperson added that a Clause must be drafted that makes it explicit that the decision referred to the Commission is a final one.

Clause 19 - Appointment of Inquiry Tribunal
Clause 19(1) refers to the three grounds of dismissals and the Chairperson thereagain wanted a reference to the constitution within the Clause. Secondly, he wanted a Clause like 18(1) to show how the matter has been referred to the JSC.

Mr De Lange advised that he wanted Clause 19(1) to be an open test that the JSC could use at any time even if there has not been a complaint. He said however that he would add a Clause to show how the matter end s up at the JSC but retain the principle to allow the JSC to appoint a tribunal even if there had been no complaint.

Adv Masutha felt that Clause 19 meant that the JSC can only appoint a tribunal if the matter has been referred to it through the complaint mechanism.

The Chairperson thought that maybe the tribunal should only be appointed if a complaint had come through the complaint procedure. He added that Clause 15 provided that the committee must refer the matter that could result in dismissal to the JSC. The Chairperson also wanted the reference to section 14(1) in Clause 15(1) deleted because it was obvious that the complaint was not dismissed.

Mr De Lange replied that the reference to Clause 14(1) creates a nexus with the process that went before.

The Chairperson said that the wording of Clause 14(1) should be used to create that nexus.

Part 5 - Composition and Functioning of Inquiry Tribunal
The Chairperson did not like the term Inquiry Tribunal. He wanted a new name but one that includes tribunal and there should be a reference to Judicial Officers.

The position of magistrates was raised by the Chairperson. He said that the legislation being dealt with now only dealt with judges. He felt that a similar structure is needed for magistrates alternatively the structure that is now being created could also deal with magistrates. He said that the first choice was to bring in the concept of magistrates at this point but added that would result in a set of problems. The other choice would be to go through this process again with the magistrates' commission.

Mr De Lange preferred to deal with magistrates once this legislation had been completed.

Ms Chohan-Khota commented that in principle one mechanism is desirable for both magistrates and judges, one code of conduct and thereafter the concept of one single judiciary would fall into place. She wanted the same standards applied for judges and magistrates.

The Chairperson asked if the tribunal for magistrates could be put into the Judicial Officers Amendment Bill.

Mr De Lange replied that it could be done but he still preferred to deal with it later.

The Chairperson concluded by saying that there must be a move towards the ANC policy of one single judiciary.

Clause 20 - Composition of Inquiry Tribunal
Mr Magwanishi (ANC) wanted a lay person to be one of the members of the tribunal. He felt it was important way of empowering the people and lent more credibility to the process of obtaining justice.

Ms Chohan-Khota wanted a magistrate to be a permanent member on the tribunal. She felt it was important for the move towards a single judiciary. She also did not want to create the perception that judges can sit in judgement of magistrates but magistrates could not sit in judgement of judges. Further, the member wanted the tribunal to have a female member.

The Chairperson replied that it was not the tribunal that makes the decision, but the JSC and Parliament. He therefore questioned the need for a lay person on the tribunal. He added that at other stages of the process there was lay representation. Another consideration is the cost implications of lay representation.

Mr Magwanishi wanted lay representation at all stages.

Imam Solomons was of the view that the process does accommodate lay representation and that it was not necessary for the tribunal to have a lay member because it only decides questions of law.

Ms Chohan-Khota replied that she could not see why there cannot be lay representation on the tribunal.

The Chairperson replied that he has thus far not been given a reason why there must be lay representation. If there is lay representation there are the questions of budget for salaries and the Chief Justice would have to decide would have to decide on who the lay member is. He questioned whether all this was necessary especially since the tribunal does not make the final decision. He said that there was a difference of opinion and said that the proposal of Ms Chohan-Khota and Mr Magwanishi is therefore - three judges, one magistrate and one lay person making a total of five persons on the tribunal.

Ms Chohan-Khota wanted two judges, two magistrates and one lay person.

The Chairperson said that there cannot be a situation where the judges can be outnumbered. The tribunal sits in judgement of other judges and he said that the judges themselves will not be happy with that arrangement.

Ms Chohan-Khota said that three judges would be fine.

The Chairperson asked Mr De Lange to draft two options. The first was a tribunal with three judicial officers made up of three judges and a magistrate one of them being a woman. The second option is a tribunal with five members, three judges, one magistrate and one lay person. One of whom will be a women. He also asked that a procedure be created for the appointment of a lay person by the Chief Justice and somewhere a Clause has to provide how a decision is made i.e. a majority of members.

Afternoon session
The Committee deliberated on the Judicial Services Commission Act

Clause 21: Nature of proceedings
The Chair was of the opinion that the Tribunal should determine its own procedures where they were not provided for in the Act, through directives issued by the Tribunal. A set of rules must be drafted to fill in the gaps in the Act. A clause must be inserted to make provision for the Chief Justice to decide where the Tribunal sits.

Adv Masutha (ANC) said that he had been battling with the problem of parliamentary oversight over delegated legislation. He could appreciate that aspect in the context of the independence of the judiciary. One of the challenges faced was to create norms and standards over delegated legislation.

The Chair asked Mr De Lange to insert a clause to allow the Chief Justice to decide on rules, after consultation. The rules would be published in the Government Gazette so that they would be available to all and would first be submitted to Parliament. Before being published, although it would not be an official tabling.

Adv Masutha remarked that the prevailing situation was that there was no common approach to delegated legislation.

The Chair asked that it be spelled out that the Commission will report to the Portfolio Committee on each case and the findings that came out of it. Provision should also be made to keep judges informed in terms of precedents that have been created.

Imam Solomon (ANC) asked for clarification on the origin of the term "officer" in clause 21(2)(d)(ii).

The Chair replied that the term had come from the Department.

Mr De Lange remarked that the original proposal had used the term "independent counsel" but he was not sure what that meant.

The Chair agreed and asked that "independent counsel" be replaced with "officer".

Mr De Lange suggested the addition of the words "or a person in the employ of".

The Chair agreed with the suggestion as it would also allow for the employ of an outside advocate under contract.

Mr Landers (ANC) referred to the term "inquisitorial manner" in subclause (1) and said that although he might be familiar with the term, there might be a problem with other people who did not.

The Chair said that the Committee might want to spell it out in more detail in a separate subsection. He noted that the Act needed to spell out the specific inquisitorial-related matters and if it did not, the matter would depend on the rules. If the rules were silent, the provision would only amount to words on paper.

Mr De Lange felt that the main definition of an inquisitorial approach is that it could never be said that the Tribunal sat back and failed to establish a case because it was up to them to establish one.

Adv Masutha suggested that, to avoid a situation where a dispute might arise on a technicality, the provision be made less explicit and state that the proceeding be conducted generally in an inquisitorial manner, similar to the words used in the crossing-the-floor legislation.

The Chair stated that Mr De Lange would look at it and see if that was one way of dealing with it, as well to check if there was a simpler way to state all the different things that a lawyer does at a trial. He asked if anyone could attend the proceedings.

Mr De Lange felt that it might be necessary to state specifically who may attend.

The Chair was of the opinion that the proceedings should be in camera, except for those specifically stated and unless the tribunal decided otherwise in terms of the public generally or any person specifically.

He continued that subclause (8) needed to come much earlier in the Bill. He asked that the period of imprisonment in terms of sub(9) be increased to three years, which he felt was still low because the law stood, only a third of the sentence needed to be served before being eligible for parole. He questioned if those were the only crimes that could be thought of.

Mr De Lange replied that those were all the important ones that were needed.

The Chair asked if this was apposite to the equivalent of a hearing and findings. He questioned if it were possible to find a judge guilty of lying at a tribunal in the same way that it was criminal to do so in a court.

Mr De Lange said that the rule applied to witness but not the accused, except in the case where one was under oath, in which case lying would amount to perjury.

Adv Masutha felt that part of what needed to be decided was if the person concerned should be compelled to testify. Ordinarily, as a matter of criminal procedure, the accused has the option of not putting the accused on the stand. He questioned whether the intention was to create a procedure whereby the Tribunal could compel the person against whom the complaint was lodged to testify, or to allow it to be a matter of discretion on the part of the Tribunal.

The Chair explained that Mr De Lange would think about that as it had the potential to create problems. One of the problems experienced within the ANC was with charging a person who did not arrive for the hearing. He suggested that a clause be looked at to allow for proceedings to continue where a person who has been duly served has not arrived. It should be made clear in the Bill that evidence should be given from both sides and including the fact that the onus is not on anybody. The Judicial Officer then has to take responsibility to find out the truth.

Mr Landers asked if there would be provision in the regulations dealing with the actual service.

The Chair agreed and said that a clause would be drafted to allow the Chief Justice to draft rules dealing with the issue.

Mr Magwanishe (ANC) asked if a judge resigned because of a looming sexual harassment case, could he then become an advocate.

The Chair replied that in theory he could because he had not done anything wrong. However, with sexual harassment there might be a criminal charge as well.

Mr De Lange added that a judge could not remain on the roll of advocates once he became a judge. However, he was not entirely sure.

The Chair suggested that the complaint could then be made to the bar, which would then have jurisdiction.

Clause 22: Inquiry Tribunal to submit report to Commission
The Chair stated that one interesting thing was that although the clause dealt with the issue of a report with findings, it made no reference to sanctioning. He supposed that it did not really matter if the findings were included. He noted that there was also no Appeals procedure, although, in any event the Tribunal would only make a recommendation. He remarked that there would be quite a few modifications to include magistrates in the Bill and separate procedures for magistrates and judges.

Clause 23: Commission to consider report and make findings
The Chair, referring to subsection (3) asked whether the Tribunal should not decide on a finding of incapacity, gross incompetence and gross misconduct.

Mr De Lange said that the intention was to avoid the situation where they would have to make a finding.

The Chair felt that it was the sanctioning, more than the finding that was the problem.

Adv Masutha felt that the way sub(2) was worded, the Tribunal may have to make a finding, without making a finding on incapacity, gross incompetence or gross misconduct.

The Chair felt that it was important to see what the Constitution said on the matter. Mr De Lange pointed out Section 177 of the Constitution for his attention. The Chair, after reading the section, noted that it was Parliament which called for a judge to be removed, after asking for findings from the Tribunal.

Mr Jeffrey commented that there are degrees of incapacity for example, epilepsy. He suggested including something including this circumstance and relating to the Commission in the Bill.

The Chair said that it could also be dealt with in terms of the Remuneration Act.

Adv Masutha remarked that the area of incapacity had been the subject of many battles in the disability sector. They were seen as battles won against the systematic exclusion of the disabled from the workplace. Incapacity is the inability to perform a job function, but that can only be arrived at if necessary steps have been taken. One must ask if steps for "reasonable accommodation" have been taken to perform the job.

The Chair stated that what the provisions were stating was that if the Commission found incapacity, provided that it was not gross incompetence, it might make a finding that the judge attends a course.

Adv Masutha suggested that there might be room to allow for necessary steps.

The Chair agreed that that could be done, but that it would not be in legislation.

Mr Jeffrey propose that making the attendance of a course the only remedy might be unduly restrictive although he could not think of other remedies.

The Chair suggested looking at Clause 16(5) for additional options to include.

Mr Jeffrey felt that although the judges could not be reprimanded or asked to apologise -as listed in Clause 16(5)- they could be sent for counseling.

The Chair, regarding incompetence, gave the example of a situation where a judge gave a rule nisi order to attach a ship in another harbour. This was clearly not incompetence, but would be better dealt with by training as the judge did not have the necessary skills to deal with the matter. He did not see the situation as a problem and felt that Mr Jeffrey was just trying to widen what could be done in terms of incompetence and was being sensitive to the situation.

Imam Solomon suggested that the words "is not grossly incompetent" not be used.

The Chair responded that that could not be done, as those were the words used in the Constitution.

Mr Magwanishe suggested adding the words "or other related training" to the relevant provision.

The Chair agreed that it was not a bad idea to widen it.

Mr Jeffrey suggested that timeframes might want to be specified for reports to be submitted to the Speaker. It might be in the public interest to make it as expeditious as possible.

The Chair asked Mr De Lange to look throughout the Bill at timeframes and maybe put in a general clause that these matters must be dealt with in all haste. He thought it ridiculous that suspended judges were receiving salaries for years.

Mr De Lange pointed out that in terms of Section 177(3) of the Constitution, the President may suspend a judge for whom proceedings were pending. He suggested putting something in the Bill in terms of how the JSC would deal with such a recommendation.

The Chair felt that it was important to include such a provision and to place it earlier in the Bill.

The meeting was adjourned.

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