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JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
3 November 2004
JUDICIAL CONDUCT TRIBUNALS BILL: BRIEFING
Chairperson: Ms F Chohan-Kota (ANC)
Draft Judicial Conduct Tribunals Bill
Draft Judicial Service Commission Amendment Bill
The Department briefed the Committee on the latest draft of the Judicial Conduct Tribunals Bill which puts in place a tribunal that would consider allegations of gross misconduct, incompetence or incapacity by judicial officers and submit its findings to the Judicial Service Commission to make a final finding. During the discussion, Members asked the Department to explain:
- whether the Judicial Service Commission Amendment Bill referred to the tribunal as well;
- whether the tribunal was investigative in nature;
- whether the punitive provisions in the Bill were in line with other legislation that governed commissions of inquiry;
- whether a standing tribunal with fixed members that were appointed for a specific period of time could be established;
- whether charges of negligence by the judicial officer would also be considered by the tribunal;
- what would happen if the Judicial Service Commission does not fully agree with the finding of the tribunal or that the judge committed an offence which did not amount to gross misconduct, incapacity or incompetence and
- whether the hearings of the tribunal would be held in public or in camera.
The Chair noted that Mr Molewa (ANC) had passed away over the weekend, and that the Committee would extend their condolences to his family. She stated that he had been a dutiful and long-standing Member of the Committee, even when his health prevented him from attending more regularly.
Mr J Jeffrey (ANC) asked whether the Magistrates Bill would be considered by the Committee before the Parliament rises at the end of the month.
Mr J de Lange, Legal Drafter: Department, replied that this was a possibility because that Bill was in a very advanced stage and could be finalised as soon as that week.
The Chair noted that the Department would have to find out what the Minister's plans were for the passing of that Bill.
Mr de Lange responded that the Magistrates Bill, the Judicial Service Commission Amendment Bill and the Judicial Conduct Tribunals Bill were likely to go to Cabinet, because the new provisions have financial implications which were not envisaged when the Bills were first introduced.
Draft Judicial Conduct Tribunals Bill: briefing
Mr de Lange informed Members that this version of the Bill was essentially the same as the version considered by the Committee at the end of 2003. That 2003 version was sent to Chief Justice Chaskalson for comment, but he did not want to comment on the Bill as it was linked to the Judicial Service Commission Act and he wanted to wait for that draft amendment bill. These draft bills were now being considered by the judiciary. He proceeded to take Members through the Bill.
The fourth paragraph was important because it clearly stipulated that the Magistrates Act would now be brought in line with the Bill.
Clause 1: Definitions
Mr de Lange highlighted the wide definition of the term 'judge'.
Mr de Lange read through these clauses.
Clause 6: Rules and procedure
The footnote indicates that this matter was flagged by the Committee for reconsideration, and its final formulation would probably depend on the feedback received from the judges.
Mr de Lange read through these clauses.
The Chair asked whether the Judicial Service Commission Amendment Bill referred to the Judicial Conduct Tribunal as well.
Mr de Lange said that it did. He stated that the proposed amendments to Section 16(4)(b)(ii) of the Judicial Service Commission Amendment Bill dealt with the formal hearing, and referred to clauses 5-16 of this Bill.
The Chair asked whether the tribunal was investigative in nature.
Mr de Lange replied that Clause 7 related the nature of the tribunal. He stated that it was similar to a commission of inquiry in that it would compile a report based on its findings, and that report would be referred to the Judicial Service Commission (JSC). The JSC would then make a finding as to whether the judge was guilty or not.
Ms Camerer stated that the Bill contained punitive provisions, and asked whether those were in line with punitive provisions in other legislation that governed commissions of inquiry.
Mr de Lange responded that the existing models used by the Masters Office, for example, were used. The "checks and balances" put in place here was that the evidence disclosed by the judge during the tribunal sitting could not be used against him at a later stage. The onus was instead on the tribunal itself to unearth the facts of the case.
The Chair agreed and stated that the tribunal was the investigative arm of the JSC. She asked whether there was any thinking as to how the JSC would deal with the hearing of the tribunal.
Mr de Lange replied that he did not foresee the JSC wanting to entertain future hearings once the final report was compiled. He stated that some of the situations in the Bill were hypothetical and the Department was in the unenviable position that it would have to actually wait for a complaint of this nature for the regime to be tested. If a judge was unhappy with the findings of the tribunal he could take them on review, even before the tribunal's report was handed over to the JSC.
Ms Camerer questioned whether the findings of the tribunal could be appealed against because it was actually an administrative decision, even though it stemmed from a quasi-court environment. She proposed that the tribunal be called an inquiry tribunal instead.
The Chair stated that this would be considered.
Imam G Solomon (ANC) asked whether the tribunal would hand over only a final report of the proceedings to the JSC, or whether it would also make recommendations to the JSC.
Mr de Lange responded to these two questions by stating that Clause 15 of the Bill stated that the tribunal would make a finding, which was very much a quasi-judicial finding.
Dr T Delport (DA) questioned the use of an ad hoc tribunal, and suggested that a standing tribunal with fixed members that were appointed for a specific period of time was preferred.
The Chair stated that the problem with such an approach was that the tribunal would also consist of laypersons, and not only judicial officers.
Mr de Lange responded that he did not think a standing tribunal could be established, because there might not be enough work to warrant a permanent tribunal. On the other hand, a standing tribunal would add certainty to the process.
The Chair asked whether the Magistrate's Commission used the same people on its panel all the time.
Mr de Lange replied that the Magistrates Commission does not draw on a number of people from a single group.
Mr B Magwanishe (ANC) asked whether charges of negligence against a judicial officer would also be considered by the tribunal.
Mr de Lange responded that the Constitution itself stipulated that there were only three grounds, and the tribunal was restricted to those three grounds. It was however possible that an act of gross negligence could amount to gross incompetence or even gross misconduct.
In reply to a request by Mr S Swart (ACDP) for a flow chart to show the process the tribunal would follow, Mr de Lange replied that this would be made available to Members.
Mr Swart asked Mr de Lange to explain what would happen if the JSC does not fully agree with the finding of the tribunal, or that the judge committed an offence which did not amount to gross misconduct, for example.
Mr de Lange responded that this was catered for in the amendments to Section 19(5) of the JSC Amendment Bill.
Dr Delport expressed concern that all offences by judges would now have to be heard by the tribunal, even less serious ones.
Mr de Lange replied that the process "would not need a Rolls Royce if a bike would do" and thus not every offence would have to be heard by the tribunal. In fact, the judge could even confess and there would then be no need for the tribunal process.
Imam Solomon asked whether the hearing of the tribunal would be held in public or in camera. The matter could be in the public interest, and might thus have to be held in public.
The Chair stated that the hearings would be closed because, although it was not a court trial, it would be an investigative or inquiry hearing. Mr de Lange added that Clause 10 of the Bill stipulated that the hearings would be closed to the public. He had not found any examples where disciplinary hearings were held in public, and thus an exception should not be made in the case of a judge.
The Chair stated that this could probably be the final meeting of the year.
During the meeting, there was a heated exchange between the Chairperson and Ms Camerer (DA) about the answering of cell phones during the committee meeting.
The meeting was adjourned.