Criminal Law (Minimum Sentencing) Amd Bill; Judicial Service Commission Amendment Bill: deliberations

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Justice and Correctional Services

28 August 2007
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Meeting Summary

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Meeting report

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
29 August 2007
CRIMINAL LAW (MINIMUM SENTENCING) AMENDMENT BILL; JUDICIAL SERVICE COMMISSION AMENDMENT BILL: DELIBERATIONS

Chairperson:
Ms F Chohan (ANC)

Documents handed out:
Criminal Law (Sentencing) Amendment Bill: version dated 29 August
Extract from Schedule 2 of the Criminal Law (Sexual Offences) Bill
Extract: Schedule 2, Part 1 in relation to Section 51 matters incorporating proposed changes referring to the Sexual Offences Act
Judicial Service Commission Amendment Bill: Summary of submissions
South African Catholic Bishops' Conference submission: Judicial Education Institute Bill
Judicial Service Commission Amendment Bill [B…….

Audio recording of meeting



SUMMARY
The Department of Justice tabled a further version of the Criminal Law (Sentencing) Amendment Bill. The latest changes were to the new Section 51(3)(b), to find a wording that was narrow and that cut out the possibility of creative interpretation. Changes to the new Section 51(3)(aA) now reflected the words "an apparent lack of physical injury to the complainant". The heading to the new Section 53A had been changed. New wording for assaults with a firearm were included in Part IV of Schedule 2. Technical amendments relating to "imprisonment for life" had been made. The National Prosecuting Authority had nothing further to add to their written submissions on the question of policy and directives, contained in the new amendment to Section 21 of the National Prosecuting Authority Act. A new draft wording of the schedule to the Sexual Offences Act was tabled, and it was explained that this could be introduced as an NCOP amendment, which would not delay the process on this Bill, since "compelled rape" did not yet exist as a crime.

The Department of Justice's response to the public submissions was discussed. Comments on the preamble were not supported by the Committee, which believed that the principles were already clear. In relation to Clause 4 it was suggested that only a judge should chair the Judicial Service Commission, and the Committee asked the drafters to re-draft the clause to establish the principle. In the new Section 7 it had been suggested that there was a need to exclude non-judicial members of the Judicial Service Commission from processes of impeachment. The drafters were asked to research the reasons why NCOP members were excluded. Members felt that there was good reason not to limit the process to judicial members only, in the interests of transparency.

A number of principles were raised in relation to judges taking other work. The principles of whether sitting judges should be permitted to undertake other work for remuneration at all, whether there should be broad acceptance that they could undertake lecturing or writing, whether they should receive disbursements or honoraria, and whether judges discharged from active service should need to apply for permission, whether above or below the age of 75, were fully discussed. Some submissions had suggested that requiring them to apply for permission was unconstitutional, an unreasonable fetter and some had regarded this as a "prohibition". The Committee believed that they were placed in no different position to the present case, other than that the Minister would have to consult with the Chief Justice. Members stressed that the mechanism was intended not to be prohibitive, but protective of the status and reputation of the judiciary, and that this was a matter of public concern. The then-Minister's statements in Hansard in 1989 seemed to support the concept of "judges for life". Several judges disputed that this was the intention at the time. It was suggested, in relation to the Code of Judicial Conduct, that the Minister should not be involved in the drafting. Submissions were made that discharged judges should not be required to reveal their financial interests. A further suggestion that the Judicial Service Commission should be bound by a recommendation of a Tribunal, was considered by Members to run contrary to the wording of the Constitution.

MINUTES
Criminal Law (Sentencing) Amendment Bill
Dr Lirette Louw, Legal Drafter, Department of Justice (DOJ) tabled a new version of the Criminal Law (Sentencing) Amendment Bill, which included some new options and the suggestions made the previous day. She also tabled a schedule dealing with compelled rape. She detailed the changes as follows:

New Section 51(3)(b)
Dr Louw explained that Option 1 used the original wording. Options 2 aligned with the suggestions made the previous day. Option 3 had simplified the introduction further. Option 4 had similar wording to Option 3, but also included the references to substantial and compelling circumstances.

Adv L Joubert (DA) said if there was a need purely to record that there were no substantial and compelling circumstances; that was not what the Committee had intended.

The Chairperson said that there were still difficulties in interpretation. She outlined that this would require the Court to go through a series of steps. A finding would have to be made whether to convict on the offence. If the person was convicted, then the next question was whether there were substantial and compelling circumstances. If the answer was no, then the minimum sentence would apply. However, the Committee was seeking to ensure that the Court gave attention specifically to the fact that, for a youth between 16 and 18, the fact of youth might in itself be a substantial and compelling circumstance. The Committee would specifically like it to be recorded why, in the cases involving youth, the minimum sentence was considered suitable. It was necessary to find a wording that was narrow and that cut out the possibility of creative interpretation. She agreed that careful consideration would need to be given to the options. It was not a matter of principle but rather of trying to narrow down the interpretation. The Committee would discuss the options further at another meeting.

New Section 51(3)(aA)
Dr Louw noted that the subclause (ii) now included the words "an apparent lack of physical injury to the complainant"

New Section 53A
Dr Louw noted that the heading to this clause had been changed.

Substitution of Part IV of Schedule 2 of Act 105 of 1977
Dr Louw noted that the National Prosecuting Authority (NPA) suggestions in regard to the wording relating to assault with a firearm had been included.

Clause 7: Amendment of Section 309 of the Criminal Procedure Act
Dr Louw noted that the wording "imprisonment for life" was now used, consistent with the rest of the Justice legislation.

Clause 8 : Amendment of Section 21 of the NPA Act
Dr Louw said that she had now spoken to the NPA. They had nothing further to add to their written submissions that had already been forwarded to the Committee.

Amendment of Schedules
The Chairperson informed the Committee that the rapes contemplated in Part I of the Schedule related to rapes in special circumstances, including serial rapes, gang rapes, and rape of a person under 16. Part 3 also included rapes, other than those specified in Part I.

When the Committee had dealt with the Sexual Offences Bill, it had included the words "compelled rape" wherever "rape" was used. She reminded the Committee that this would occur where a person, typically a youth being initiated into a gang, would be compelled by other gang members to rape a person. The person doing the compelling, although not taking part in the physical act, could be charged.

It was necessary then to put similar wording into this Bill. Part I stated specifically what circumstances must attach to the crime to bring it under this Part of the Schedule. However, the Sexual Offences Bill had not been implemented, so that there was not yet a crime of compelled rape on the statute books. This Bill could not legislate for a non-existent crime and it would serve no purpose to include this crime here, because it could delay the Bill. She noted that the Sexual Offences Bill would require development of policy frameworks, and some of that legislation would be subject to delays. Therefore she and the drafters had agreed that the amendments in respect of compelled rape should not feature in the Schedule to this Bill, but rather in the Schedule to the Sexual Offences Bill.

If this Committee agreed with the proposals, then the Department would raise the matter with the NCOP when it dealt with the Bill. The changes in respect of compelled rape would be treated as NCOP amendments, to be referred back to the NA for approval, and could then be approved in the final approved Sexual Offences Bill.

Mr S Swart (ACDP) said that there had been a suggestion that rape should be moved in the Schedules.

The Chairperson indicated that the Committee was opposed to this submission. The five years additional discretional sentence would already take the sentence to a high level. There was already reluctance amongst judicial officers to impose minimum sentence for rape, and increasing the minimum period would not be effective. The Committee believed that the ten years, plus the additional five years discretionary period, was sufficient.

Dr Louw tabled the proposed revised Schedule. Rape and Compelled Rape were listed, with the circumstances applicable to each, as separate items. In respect of the compelled rape, under paragraph (a)(i) the wording had been made more clear.

Mr Swart noted the circumstances set out under (a)(iii). He said that compelling a person who had HIV or AIDS to rape another was common in jails.

The Chairperson suggested that the wording under (a)(iii) in respect of compelled rape should be changed to" "Compelled rape.....when committed- (iii) under circumstances where the accused knows that the person committing the rape has the acquired immune deficiency syndrome or the human immunodeficiency virus".

Judicial Service Commission Amendment Bill: Department response to public submissions
Mr Johan de Lange, Principal State Law Advisor, Department of Justice, went through the submissions and gave comments as follows:

Preamble
Rhodes University submitted that the Preamble seemed to suggest that judicial independence and dignity was somehow being balanced against openness and transparency.

The Chairperson believed that the principles were clear, and openness and transparency were overriding features.

Mr de Lange believed that it was not necessary to say this specifically, as Rhodes University had suggested.

Clause 4
Mr de Lange explained that Clause 4 said that if neither the Chief Justice nor Deputy could preside, then an Acting Chairperson should be appointed to chair a meeting of the Judicial Service Commission (JSC). The
Centre for Constitutional Rights (CCR) suggested that the members listed under (j) should not be eligible for appointment, and that the chairperson could only be a judge.

The Chairperson indicated that she had raised this point at the time and wondered if section 178(1) of the Constitution should not specify that a judge should always chair the meetings of the JSC.

Mr Joubert indicated that if there was a blanket exclusion of (j) this could also exclude a person who might have been appointed by the President and who was also a judge. He had asked for a list of Presidential designates but had not yet received it. The members of the JSC would be the ones designating an Acting Chairperson.

The Chairperson thought that sufficient options were already available. However, she thought the wording could be changed to reflect that when the Chairperson was unavailable, then the members must designate one of the other members holding office as a judge to act as Acting Chairperson. This would establish the principle that only a judge should chair the JSC.

Clause 7: Substitution of Section 5
CCR had indicated its support for Clause 7.

Clause 8: Substitution of Section 8
CCR had supported this clause.

Clause 9:
New Section 7
Mr de Lange said that the new Section 7 dealt with definitions and interpretation, including the definition of the word "Commission". CCR held the view that the four persons designated by the President under section 178(1)(j) should be excluded from the Commission for the purposes of Chapter 2 as well.

Adv Joubert asked why politicians were excluded from the process.

The Chairperson said that this was probably because impeachment would ultimately be referred to the NA. She wondered why NCOP members should be excluded in principle.

Mr Swart commented that this was a similar situation as the Magistrate's Commission.

Mr de Lange noted that the Constitution (Section 178(5)) said that the NA and NCOP members would only sit in respect of appointment of judges. Impeachment was dealt with in Section 177(1)(b). He noted that "appointment" could be broadly interpreted as including everything to do with the holding of a position, which could also include dismissal. The reasoning behind the exclusion of parliamentary members was that the decision to impeach would in the end be referred to Parliament, and that members should not sit twice on the same issue.

The Chairperson felt that the members set out in section 178(1)(j) should be part of the process. They were designated after consultation with all political parties, and would be eminent people, acceptable across all party lines. She believed their inclusion gave transparency to the mechanism, ensuring that it was not merely a self-regulating mechanism by the judicial profession. She asked that the NCOP issue be flagged for further discussion. In principle NCOP members should not be excluded from sitting, as they would not be called upon to be final arbiters. She agreed that it was a part of the appointment process, as impeachment had a bearing on whether the person remained as an appointed judge. A non-impeachable offence would go elsewhere, and that clearly should remain in the domain of the judiciary.

Adv Joubert pointed out that the Minister was part of the NA, and she would also be part of the Commission for this purpose. He thought that there must be another reason why the members were excluded. The Interim Constitution had contained different provisions.

The Chairperson asked Mr de Lange to look further into it.

New Section 8
Mr de Lange said that the new Section 8 dealt with the composition of the Judicial Conduct Committee. The CCR had supported it, and the General Council of the Bar (GCB) pointed out a technical change.

New Section 11
Mr de Lange pointed out that the principle related to judges performing other work for remuneration.

The CCR, in its written submission, agreed that in principle the prohibition against judges performing other work was correct. However, it suggested that serving judges should be allowed to participate in literary or educational activities.

The Chairperson said that during the oral submission, CCR stressed that judges should be concentrating on court work. The principle that a judge should not be taken away from his work on the Bench would apply irrespective of the type of work he was doing.

Adv Joubert noted that judges had long leave, and there should not be a prohibition on what they did during this time.

The Chairperson noted that the prohibition related to remunerative activities. The question was also the broader one of whether judges, given their special status, should be allowed time away from the bench.

Dr Delport agreed that a judge should not earn anything other than his salary. If a judge was asked to deliver a lecture at university, or write a book, he thought that would be acceptable. However, this did open the door for involvement in other activities. He was not sure whether service on the bench of neighbouring states had a close enough connection to service in South Africa. Allowing a judge to sit on arbitration matters was even more difficult. The position might differ with those over 75 years of age, who were no longer contractually bound to serve for set periods in a year.

The Chairperson said that there was a difference in sitting in another country. Even though this was being done outside South Africa, it would still be serving as a judge. The Executive and the Chief Justice would of course need to give permission. If the concept of "judge for life" applied, then this must mean "judge for all circumstances". She felt that holding any other office would be a problem.

Dr Delport said that there was also the practical question whether a judge, in view of the backlogs and workload, should be released for other work.

Ms N Mahlawe (ANC) thought that a judge involved in the training of other judges should not be receiving additional remuneration, because he was still being paid his judge's salary.

Mr G Magwanishe (ANC) noted that Judge Goldstone had been appointed to international positions.

The Chairperson thought that this was an executive function, and she felt that judges in these circumstances might have to resign.

Mr Swart enquired if there were any international obligations placed on judges.

The Chairperson noted that a judge could sit on an international tribunal. However, being appointed to prosecute was really a status issue.

Mr Swart asked if the prohibition on remuneration would also extend to disbursements for expenses.

The Chairperson felt that perhaps limits should be set on disbursements. The consensus seemed to be that there should be a general prohibition from doing work outside of the judicial function. This would not necessarily exclude judges from applying for permission to serve as judges elsewhere. However she thought that in principle they should not be consultants for businesses.

Mr de Lange noted that the existing Section had followed the wording of the old Supreme Court Act, in referring to "may not hold any office of profit, nor receive any fees, emoluments or other remuneration". Judges could apply for consent to accept honoraria to write papers, act as external examiners, or have expenses covered for overseas trips. Judges did have a fairly long leave every 4 years, and they would take lectureships while in "active service" during this time.

Mr de Lange gave examples of some of the applications granted. These included serving on boards of various foundations (usually with expenses paid, but not necessarily remuneration) travel expenses to visit schools of law, acting as executor in an estate, lecturing, and the like.

The Chairperson agreed that expenses should be disbursed. Personally she was not in favour of a person who was serving as a judge also serving on any board or foundation. Judges must not be perceived to be partisan and there was always the danger of those boards becoming involved in legal proceedings. Anything potentially affecting the status or dignity of the office should be disallowed. Lectures and travelling expenses must follow the application process. She thought that there should not be a closed list, but that judges must make application, in a similar way as was done at present.

Mr de Lange said the new Section 11(3) dealt with the position of judges who had been discharged from active service. CCR had submitted that this section should, but did not, distinguish between judges who had been discharged but must be available to perform service (those up to age 75) and those who were no longer required to perform active service (those over 75). CCR claimed the restriction for discharged judges was in conflict with Section 22 of the Constitution, and could not be justified. CCR suggested that there be a re-draft, making a clear distinction between those judges who had been discharged but who were still required to perform active service, and those over 75.

Mr de Lange then moved to the submission made by Judge Nienaber, who was the fourth judicial incumbent of the Ombudsman for Long Term Insurance, having been appointed for a five-year period. It was traditional to appoint a retired judge as the ombudsman. He said that if the amendments were passed, then this would preclude the appointment of retired judges to this position, and appointment of retired judges to the internal appeal tribunal.

Mr de Lange noted that nothing had in fact changed. The Ombudsman currently had to apply to accept this position and exactly the same would apply under this new Bill. There was in fact not a "prohibition". It was a restriction; judges needed to apply, and the Minister may or may not grant the application. In coming to a decision the Minister would consider whether the position detracted from the status or dignity of a judicial officer.

The Chairperson agreed. It seemed there was a misunderstanding about the purpose of the legislation. It was supposed to protect the judiciary from being perceived as falling into disrepute. It was a protective, not a prohibitive provision

Adv Joubert noted that the principles were contained in court pronouncements. There would be no objective reason why the Minister should refuse permission for certain types of work, and he could not see why this should be considered problematic. He added that the separation of powers could also apply;

Adv Joubert said that the idea of the separation of powers had also been dealt with when considering Judge Heath's position vis a vis the Special Investigating Unit.

The Chairperson said that this was the kind of criterion that the Minister would apply. If an Ombudsman was to move into an administrative role, or be placed in a position that could involve a legal dispute, then it might well be appropriate for the Minister to refuse permission.

Mr Magwanishe asked if there was some sort of guideline.

Mr de Lange was not sure, but said there was a long list of applications developed in the past, and these had developed into a kind of protocol. The Minister would as a matter of principle consult with the Chief Justice.

The Chairperson noted that this consultation process was being written into the new legislation.

Mr de Lange noted that Rhodes University supported strict control over serving judges. However, Rhodes University did not seem to support the requirement of obtaining permission in respect of "non-serving" judges. Their comment that judges must declare income would not necessarily pertain to serving judges, but may apply to those who had been discharged.

Mr de Lange said that the GCB supported the purpose and objects as they related to "judges in active service" However, the GCB felt that it was inappropriate to curtail what retired judges did in their retirement or seek to discipline them. GCB said that they were deemed to be judges merely for pension purposes. It felt that the new Section 11(3) and (4) were in conflict with Section 22 of the Constitution.

The Chairperson confirmed that the GCB were referring to judges discharged from active service, but made no distinction between those under and over 75. She could not understand why it was suggested that it would be "irrational" to set limitations on the type of work judges could do after discharged from active service. The judges appearing before the Committee had declined to comment specifically on the limitations clause. She felt it was entirely relevant. Judges and the judiciary had a special place in the Constitution, and the reputation of the judiciary was vital to and must be guarded in any democracy.

Dr Delport noted that the judges could always resign, so that there was a way out if they felt strongly about wanting to accept other work.

The Chairperson said that they could take on other work, with permission. The necessity to get permission would allow for evaluation of work at a particular time and in a particular context. This would allow the Minister to determine whether acceptance of a position had the potential to harm the justice system. She cited the hypothetical example of arbitration. It could happen that in Cape Town, all big businesses could decide not to take their cases to the High Court, but only to take them to arbitration. All arbitrators might be white former judges, and all sitting judges on the Bench in Cape Town might be black judges, who could thus be precluded from gaining any experience in commercial matters. In this example the arbitrations would be undermining the justice system. In, for instance, Free State this situation might not exist, and so there would be no reason for permission to be granted for Free State arbitrations. She believed that giving a blanket permission was problematic and that each case being dealt with on its own merits was far safer.

Adv Joubert said that he believed the possibility of conflict would justify the exercise of the limitations clause.

Mr Magwanishe pointed out that similar principles had been raised by other submissions.

The Chairperson asked if there should be differentiation between those judges under and over 75.

Mr Magwanishe pointed out that it was possible that some judges might still be sitting after the age of 75, although they had no obligation to do so, and agreed that each case must be dealt with individually.

Adv Joubert asked how many of the judges below 75 were being used for the three-month period.

The Chairperson said that it seemed that the Acting positions were being filled more often by younger members of the profession, to give them some experience.

Mr de Lange added that discharged judges could also be used for chairing commissions of enquiry, or as inspectors of prisons.

Mr Landers asked if they were paid for these positions.

Mr de Lange confirmed that when they were called in to act, they would be paid separately from their "pensions" which would still continue.

The Chairperson stressed again that the rationale was the potential to harm the image of the judiciary, and this would not change according to the age of the judge. Although some discharged judges did not any longer use the title "Judge", the general public perception was that they were judges, with the same status and reputation. This was intended as a protective mechanism.

Mr Magwanishe felt that the distinction between serving and discharged judges was artificial, and did not believe that there should be differentiation.

Mr Swart said that perhaps there was a slight distinction, but would address this further.

The Chairperson summarised that the view of the Committee seemed to be that there should be a general prohibition on accepting other remunerative work for those judges on active service, except in relation to subsistence and travelling, where permission could be sought to receive these expenses. There should be a category of discharged judges, (with no distinction as to those above and below 75 years of age) who could do work if they obtained permission. The Minister, in consultation with the Chief Justice, would draft a list of criteria against which applications could be determined. There would not be a closed list nor any blanket permission. No two instances would be exactly the same, and everyone would need to apply.

Adv Joubert stated that seemed to be taken for granted that judges could be appointed as executors in deceased estates, but even here there could be problems, as the estate could be involved in litigation.

Mr de Lange then moved on to the comments of Judge Marais. He suggested that the unqualified and absolute prohibition was an unconstitutional fetter on the rights of a judge, and was in conflict with Section 22 of the Constitution.

The Chairperson said that this was a misunderstanding; there was no such "absolute prohibition".

Mr de Lange noted that there had been a prohibition on accepting other paid work from 1959. When the dispensation changed in 1989 this provision was carried over. There had originally been a Pension Fund for Judges Act (although the Judges had not contributed to the scheme) which fell away when the 1989 dispensation was introduced.

The Chairperson noted that from 1989 a new dispensation applied. Judges would receive a salary for life, their leave was curtailed, and other measures were introduced to address the backlogs, and attract younger members to the Bench. On retirement they must make themselves available for at least three months a year to help with backlogs during other judges' leave. The "salary for life", plus the tax-free gratuity on retirement (of not more than three times the annual salary) were introduced. However, in return for all those benefits, there was a concurrent responsibility: compliance with a code of conduct, disciplinary procedures, and the necessity to apply to do additional work. Any judges who had opted to resign, after having served 15 years, would still receive a salary for life, but without the annual increments.

Mr de Lange said that Judge Marais further submitted that arbitration functions were entirely appropriate, and should not cause any problems. He believed that the proposed wording would prohibit many worthy activities. He also felt that the existing provision that the minister should monitor was sufficient.

Adv C Johnson (ANC) pointed out that in fact the judges were not being placed in any worse position than at present.

The Chairperson suggested that it might be that they were opposed to the intervention of the Chief Justice, but this had not been specifically stated. She felt that the wording was quite clear and there was no prohibition.

Adv Joubert commented that personal involvement would often cloud people's perceptions.

Mr de Lange then summarised the submissions of Judge Kriegler. He felt that there was no reason to include retired judges in the scope of the Bill, and had submitted a memorandum on behalf of sixteen other judges. He felt that the Bill had given the Executive and the Legislature a controlling role. He reiterated that "discharged" (effectively retired) judges were deemed to be judges for the specific purpose of pegging their pension to prevailing judicial salaries. The words "discharged from active service" were purely a semantic mechanism, and they were no longer judges. He said that the restriction on accepting other work conflicted with their contracts, and were in breach of the labour law. The restriction could not be said to be reasonable in terms of Section 36(1), and infringed section 22 of the Constitution. He added that there would be practical difficulties if the Minister was vested with the discretion.

Mr de Lange noted that the Minister already had a discretion, and over 200 applications had been dealt with by the Minister already, so he did not understand the reason for this comment.

Mr de Lange reported that Judge Kriegler also said that it was unacceptable for the legislative or executive branch to decide what activities were inconsistent with judicial office. He suggested that they had no legitimate interest in prohibiting a judge from engaging in activities that did not impinge on the performance of his judge's duties.

Mr de Lange said that Judge Fleming had commented that the provision requiring ministerial approval for earning of other income, was unwarranted and unconstitutional.

Adv Joubert said that some discharged judges did not consider themselves to be judges in anything other than name.

The Chairperson pointed out that the Hansard records at the time of the 1989 dispensation showed that the Minister had indicated that they would be "judges for life". They could not accept the benefits without the obligations. The Committee had already discussed the roles of the executive and legislature. It was a very narrow view to suggest that nobody should regulate what the judiciary could or could not do. Their reputation and status was a matter of public concern, and the legislature must ensure that that the status and high standard was preserved. If the public had low regard for the judges who were enforcing the legislation, then this would have a direct impact on the perception of the law that the legislature was passing. International perceptions could also affect the economy and have a direct impact on the building of a democracy. She did not believe that the attempts to draw comparisons with retired politicians or other professions. Judges held a special status and their profession was distinct from others.

New Section 12: Code of Judicial Conduct
Mr de Lange reported that Rhodes University suggested that the Minister should not be involved in drafting the Code of Judicial Conduct, but only be responsible for tabling it in parliament.

Adv Joubert added that the separation of powers was not always clear-cut.

The Chairperson said that once again this would reflect the argument about public interest in the status of the judiciary. The Code of Conduct was the document against which judges could be impeached and removed, and this would have to have the status of law. She asked why all three arms of government should not, as a matter of principle, determine the standards against which judges should be impeached.

Adv Joubert said that all branches were involved in determining appointments, and this was merely the flip side of the coin.

New Section 13: Register of interests
Mr de Lange reported that Judge Marais had submitted that the financial interest information should be applicable only to those judges still rendering active service, and the register should not be accessible by members of the public.

Imam G Solomons (ANC ) indicated that he did not agree.

the Chairperson said that the register would act as a check whether a judge had complied with the application procedure.

New Section 14(4)(c)
Mr de Lange reported that Judge Marais suggested that the offence of accepting or holding an office of profits, in contravention of Section 11, should also be withdrawn.

New Section 17(5)(c)(ii) and new Section 18(4)(b) and (5)
Mr de Lange noted that valid technical points had been raised on these clauses, and that he would amend the references.

New section 20
Rhodes University felt that the JSC should be bound by a recommendation of a Tribunal and should not be allowed to disregard it. Mr de Lange said the DOJ did not agree. The Tribunal should not come to a decision, other than reaching a finding on the facts. It was the JSC that should make the decision ad they should not be bound by any other body. The relevant Constitutional Clause referred to the removal of a judge "by the JSC".

New Section 37 and New Section 38
Mr de Lange indicated that submissions had been made on technical cross references, that he would correct.

The Chairperson noted that the drafters would probably need to look at re-drafting the issue of serving judges performing remunerative work, and the question of disbursements being refunded.

The Committee would still need to study those clauses not covered in the submissions, and would try to do so the following week.

Other Committee business
The Chairperson indicated that Mr Tsenoli, Chairperson of the Provincial and Local Government Provincial Committee, believed it would be useful for the joint committees to have a briefing on the import of the Matatiele judgment. She had indicated that the Committee might also still want to consider the possibility of oral hearings, although it was not obliged to do so. The deadline for submissions for the Cross Boundary Bill was 5 September. It was suggested that 11 September be set aside to cater for the possibility of public hearings. The Committee noted that joint hearings were being proposed between Eastern Cape and Kwazulu Natal Legislatures in all affected areas, to avoid the possibility that other constitutional challenges might be raised for areas other than Matatiele.

The meeting was adjourned.

 

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