Judicial Service Commission Amendment Bill: deliberations

Meeting report

JUSTICE PORTFOLIO COMMITTEE
7 September 2007
JUDICIAL SERVICE COMMISSION AMENDMENT BILL: DELIBERATIONS

Chairperson Ms F Chohan (ANC)

Documents handed out:
South African Judicial Education Institute Bill [B4-2007]
Judicial Service Commission Amendment Bill

NOT RECORDED

SUMMARY
The Department of Justice took Members through Clauses 1 to 14 of the Judicial Service Commission Amendment Bill. The definitions changes were outlined; many were technical amendments arising due to the fact that the principal Act had been passed while the Interim Constitution was still in effect. Clause 4 had been amended to note that the Chairperson of the Judicial Service Commission (JSC) should always be a judge. The reference to the appointees would be amended to "holding office in terms of section 178(1)(b) and (c)". Clause 5 contained an amendment to the reference to the Minister, but the Committee also asked for clarity on the wording in relation to those who could not claim remuneration. Clause 8 covered the procedures. The Committee requested an amendment to clarify that the Speaker should table the annual report. Provision would be made in the new Section 20(5) for a time frame in relation to impeachment recommendations. The new Section 7 dealt with the composition of the Commission in certain matters. There were difficulties in relation to the Chairperson of the Judicial Conduct Committee and head of court correlation, and the wording also referred only to “spouse”. The Department’s drafters would check if same-sex partnerships would be included. The new Section 8 dealt with the establishment and composition of the Judicial Conduct Committee. The terms of office were discussed and the drafters would consider staggering of terms, and renewal of terms for one further period. It was agreed that there should be four judges and the Chairperson of the Judicial Conduct Committee should be the Deputy Chief Justice, to avoid the situation where the Chairperson and the Head of a Court could be the same person. The procedures were discussed. There was a need to provide for continuation of matters should a member of the Committee die or be absent. The new Section 10 would need to include further wording to cover all objects. The Committee would revert to Clause 11 at a later stage. Clause 12 comments were noted. The Committee agreed that Parliament did have a vested interest in the reputation of the judiciary, given its role as preserver of the status and dignity of the country. Thus it must also be involved in the Code of Conduct. There was a distinct difference between this and the internal Code of Ethics. The Code of Conduct should be submitted to Parliament for approval and then published in the Gazette. The new Section 13 was to be further discussed, against the principle that judges were appointed judges for life. The new Section 14 was briefly discussed. The Committee would continue with the discussions during the following week.

MINUTES
Department of Justice (DOJ) briefing on changes to draft bill, and discussion of clauses
Mr Johan de Lange, Principal State Law Advisor, DOJ, proceeded to take the Committee through the clauses of the Bill, highlighting the matters raised in the public hearings, and suggesting amendments.

Clause 1
He noted that there was a change to the definition of Chairperson. Parts I, II and III of Chapter 2 referred to the Chief Justice, who would be Chairperson of that Committee. The Chief Justice was always chairperson of that Committee, but there was no harm in clarifying it.

Ms Chohan (ANC) mentioned that there were some inconsistencies, as the chairperson of the Committee could well also be the head of the Court to whom a matter should be referred by the chairperson. The JSC would also hear appeals. Members would elaborate during discussions on the relevant clause.

Clause 4: Amendment of Section 2
Mr de Lange said that the JSC Act, being passed before the Final Constitution came into effect, was still referring to sections of the Interim Constitution. Many of the changes here were therefore consequential changes

In relation to the composition, there had been a lacuna in specifying what would happen if the Chairperson of the Commission were not available. Provision had now been made for this. Following the Committee’s discussions this subparagraph was now worded that the Chairperson of the Judicial Service Commission (JSC) should always be a judge. The suggestion had also made that the words "as a judge" in subclause (2) should be substituted after the words "holding office" so that all the references to the different sections of the Constitution could be deleted.

Ms Chohan pointed out that the President could appoint a retired judge to the Commission, and therefore perhaps the references to the Constitution should be retained. On the other hand, she asked Members if they felt that the Chairperson should always be a “serving” judge, who had been appointed by virtue of the office he / she was currently holding. She suggested that in this event, then the references to the sections of the Constitution could be changed, as only R178(b) and (c) then needed to remain.

Mr S Swart (ACDP) asked if it had happened before that the Chairperson of the Commission would not be available.

Mr de Lange was not sure; but factually it would be unlikely that the Commission would meet if the Chairperson were not available. The Chairperson would call the meeting.

Ms Chohan suggested that this be left as "holding office in terms of section 178(1)(b) and (c)". This was agreed to by other Members.

Mr de Lange noted that the reference to 178(3) ha been changed.

Clause 5: Amendment of Section 3 of principal Act
There was a consequential amendment, dealing with the naming of the Minister.

Ms Chohan asked if, in subparagraph (d) the words "in the employ of the State" would cover, for instance, the Speaker of the Legislature. She would imagine that this would be the civil service

Mr de Lange noted that there was a dual requirement - of being in the employ and subject to the laws governing the public service. It was not really a provision giving people the right to remuneration.

Ms Chohan said that members of provincial legislatures and the Speaker should not be claiming remuneration. She asked Mr de Lange to check on this wording.

Clause 7: Substitution of Section 5
This was again a consequential amendment relating to the references to the Minister and correction of a reference, so that it now reflected a reference to the final, not interim, Constitution

Clause 8: Substitution of Section 6
This clause was necessary to cover the new procedures.

Ms Chohan noted that there might be a submission to Parliament, but not necessarily a tabling or referral to a particular Committee. The Committees would not necessarily get the Annual Reports. She requested an additional clause to specify that the Speaker or the Minister should table the reports.

Mr de Lange noted that one of the submissions on the Judicial Education Institute had raised a problem in relation to the Annual Report. Rhodes University suggested that the report be submitted to the National Assembly directly, noting that the JSC referred the report to the Minister.

Ms Chohan said it would make no difference. The submission should be through the Office of the Speaker, but there must be provision that the Speaker should then table.

Mr de Lange confirmed that he would put in a provision to this effect, that the Speaker would table.

Mr Swart asked what would happen if there was a recommendation of impeachment, and noted that if the Report was tabled Parliament would read about it. He wondered what detail would be contained in it, and wondered if there might be a problem about recusal.

Ms Chohan said that this report would be finalised six months after the year-end. A recommendation to impeach, made in December, would already have reached the NA by the next month, January. By the time the Annual Report for the year ended December came out in June, the impeachment would already have been dealt with.

Mr Swart said that in all practicality this would be likely to have been publicised in the media.

Ms Chohan agreed, and said that the hearings would be held behind closed doors. Whatever the recommendation to the National Assembly, this would be in the format of a report that was a public document.

Mr de Lange said that there was already provision for this in the new Section 20(5) and it might be useful to put a time frame there.

Chapter 2 : New Chapter dealing with oversight
Mr de Lange reminded members that this Chapter dealt with conduct of judges, disciplinary procedures and complaints mechanisms, and with the declarations of interest and asset registers.

New Section 7
The new Section 7 contained definitions specific to this Chapter. He read through the definitions. The reference to “members” in sections 178(1)(h) and (i) was to members of the NA. He noted that this clause might not be entirely necessary, but there was no harm in having it included. He noted also that a query was raised some time ago that if the composition of the Commission was prescribed, was it possible to say that the Commission could be acting without participation of certain members? These Members were excluded from matters other than those dealing with appointment of a judge.

Ms Chohan said that the NCOP did not sit in impeachment matters, and this was perhaps as a result of an oversight in the drafting of the Constitution.

Ms Chohan noted that advice had been received from the JSC (which was interesting; the legislation might not allow them to "advise" parliament), and this would be circulated.

In relation to the "Head of Court" definition, the Chairperson said that any complaint would go first to the Chairperson of the disciplinary committee. If it was an impeachment matter, the Chairperson would have to refer the complaint to the head of the court - and it could be that the Chairperson of the Committee, being the Chief Justice, was also the head of the court in which the judge complained of was appointed. She asked Members to note this.

Mr de Lange said that the definition of "immediate family member" became important in dealing with disclosure of assets. A comparison had been done with other jurisdictions.

Ms Chohan pointed out that the wording referred to "spouse". There was no reference to partners. She wondered if this could cover same sex relationships that were not marriages.

Dr Lirette Louw, Researcher, Department of Justice, said that she would check the research on the matter.

Mr de Lange added that under the definition of "judge", the labour courts were already included. It would also include presiding officers in courts such as the Consumer court. Water courts, Tax court and the Land Claims Courts, all of which had judges as defined in terms of the Judges Remuneration Act. At the moment the Labour Court comprised only of judges, and when there were acting appointments, these were also judges.

Mr de Lange pointed that subclause (2) was intended to indicate that any judge or respondent was entitled to have legal representation. He wondered if this should be in the definition clause, as it contained substantive law. It might be necessary to put in a clause to clarify specifically that a judge should be allowed to have legal representation, although the general interpretation was that unless an Act specifically prohibited it, legal representation was always allowed.

New Section 8
The new Section 8 dealt with the establishment and composition of the Judicial Conduct Committee (JCC). He asked that the reference in subparagraph (4) to "subsection (1)(b)" should read "subsection (1).

Ms Chohan asked for an option to be drafted to deal with the problem of the Chairperson. She suggested that perhaps the reference to three other judges should be amended to four other judges. The other issue was the term of office of these other judges. She suggested that perhaps a time frame should be specified, without restricting discretion. The Chief Justice could be retained in clause (c), but perhaps the period should be worded as "a period which shall not be more than five years" - this period was probably appropriate as it tied into periods for which the Minister of Justice would be appointed.

Adv C Johnson (ANC) suggested that the periods should be staggered.

Ms Chohan said that this could be done when making the appointments, particularly if the term was “not more than”.

Mr Swart noted that he had attended a meeting the previous day when there had been discussions about renewable terms of office on boards. He wondered if there should be provisions for renewal.

Ms Chohan said that this was a valid point. Over a five-year period, it might be desirable to change only two of the four judges, or to consider that a judge could be appointed again for another term, after a gap. She suggested "Three (or four) judges.... for the period determined by the Chief Justice at the time of such designation, which period shall be not more than five years per term".

Mr de Lange said that there were a number of examples in legislation - dealing with re-appointments, consecutive periods and so forth. He would check them.

The Chairperson agreed that renewal was useful, but perhaps if should be renewable only for one further period.

Adv Johnson asked whether there should be five members - generally the Chief Justice, the deputy and the three. If the Chief Justice could not chair, then there would be another.

Ms Chohan said that this was why the Chief Justice should not be the Chairperson, as he could be in a conflict matter. The Chief Justice would make the decision, he could be the person to whom the complaint should be referred, and he would also be the person chairing on appeal. For this reason then it would be preferable to have the Deputy Chief Justice as the Chairperson of this JCC, plus four judges appointed. Those four would have limited time. She believed the quorum should be set at five judges. Diversity was important. However, there would need to be consideration given to a clause dealing with filling of vacancies if a judge fell ill or died. Members would deliberate further on these aspects. She noted that any decisions would have to be supported by the majority, so there was protection given already by this clause.

Mr Swart wondered if this should all be set out in the Act, or in regulations.

Ms Chohan said that it was necessary to consider that there would probably be challenges made to the decisions of the JCC. A procedure whereby the matter was started with five judges sitting, and then continued with only four sitting, was open to challenge if the legislation was silent on the issue. This should be in the main body of the Bill. The JCC would be dealing with procedural issues.

Mr de Lange asked if clause 9(2), that the decisions of the majority must be supported by others, might cover the position.

Ms Chohan said that the decisions of this JCC would have consequences, and therefore procedural challenges could be raised. She would prefer it to be in the legislation that the JCC could continue if one of the members died or was absent. There could still be a clause to say the JCC could determine its other procedures. However, she still felt that the terms, the quorums, and absence e of members must be considered and set out specifically.

Adv Johnson noted that there were other issues, such as subpoenas, documents, witnesses and so forth.

Mr de Lange said the JCC would not act as a plenary unless in an appeal. The JCC acted as a committee when there was the issue of whether to recommend a tribunal, or if the judge or complainant might be asked to speak to a matter. The investigation was almost never done by the JCC, and there might also be a problem if the single judge doing the investigation died.

Ms Chohan said that subpoenas would not be relevant here.

Mr Swart asked what would be happen if a Judge President was having difficulty in obtaining information.

Mr de Lange said that there was the ability to subpoena.

Mr Swart asked what would happen if there was no way, without further information, to determine whether the offence might be impeachable.

Mr de Lange noted that there must be reference to a balance of probabilities leading to a reasonable assumption.

Ms Chohan said that the JCC could not be given that power to investigate as it would open the doors to abuse.

Mr Swart conceded that if the allegations were serious enough the JCC would be likely to refer the investigation elsewhere.

New Section 9
Mr de Lange indicated that this set out the provisions in relation to meetings. "Persons whose presence are required" would include the secretary, recorders or minute takers, similar to the Magistrate's Commission. .

New Section 10
This was an objects clause. The Committee would have to report on its activities to the Commission at least once every six months. He noted that if the JCC were to dispose of a matter, it would not have to be referred to the JSC. The appeal would be part of the "disposal" of complaints, under Part III. He noted that an early stage the Committee had considered the appropriateness of the language "to consider complaints about judges". The Constitution, in section 180, referred to "complaints about judicial officers". He said that it might be useful to re-visit this clause once the whole Bill had been discussed.

Ms Chohan asked who would receive complaints.

Mr de Lange said this would be the Chairperson of the JCC.

Ms Chohan said that the objects must then be "to receive, to consider and to dispose" - so that all three principles were captured.

Mr de Lange wondered if "deal with in terms of part III" would be better than "dispose". He suggested again that this should be reconsidered at a later stage.

New Section 11
This clause related to other office or profit. The Committee had considered this during the public hearings, and would come back to this clause.

New Section 12
This clause related to the Code of Judicial Conduct, which was to be published in the Government Gazette.

Mr de Lange indicated that some commentators had queried the role of the Minister, who was to table the first code within six months after commencement of the Act, and thereafter the Code should be reviewed every three years “in consultation with” the Minister.

Ms Chohan noted that this was an important clause. The Code would have to have the force and effect of the law. The NA should formally adopt the Code.

Mr de Lange noted that Rhodes University had stated that the drafting should be done by the judiciary only, without executive interference, and the Code should only be tabled in parliament.

Ms Chohan pointed out that this was not an area where the other arms of government had no role to play. The conduct of the judiciary was an instrument to preserve the status and dignity of the country. To suggest that parliament, the representatives of the people, had no role or interest was completely against the spirit of the Constitution. If this was the standard against which judges - who were judges for life - were to be measured, then there should be broad societal consensus about that standard. Parliament was the only mechanism that could hold public hearings. It should be allowed to ask people to comment on the contents of the Code. It was wrong to suggest that this was an exclusive domain of the judiciary, since the other arms of government had a vested interest in the reputation and good standing of the judges. Furthermore, the NA would decide, ultimately, whether a judge should be removed from office, and this was entirely consistent with that principle. The Chairperson said that the contents of the Code could not just be the subject of agreement between executive and judiciary. This was not the same as the Code of Ethics. It was a measure against which a judge could be impeached and removed from office.

Mr Swart said the maxim of “who should judge the judges applied. The judiciary was independent, but Parliament was able to impeach them. This was an age -old discussion of the link between the three arms. There was a delicate balance between the independence and accountability.

Ms Chohan suggested that the wording should reflect "must be submitted to Parliament for approval and then published in the gazette."

Mr de Lange wondered if it was still necessary to say "in consultation" or "after consultation" Parliament had to approve.

Ms Chohan asked that some options be drafted on this clause.

Ms Chohan said that Mr Magwanishe had also commented, in relation to the existing wording, that the process of getting perfect alignment between executive and judiciary might delay the process and the deadline of six months would be missed.

New Section 13
Mr de Lange said that this dealt with the register of judicial officers' interests, which would include all registrable assets for officers "in active service" and their immediate family.

Mr de Lange asked that "discharged" should be substituted for "retired" in subclause (2). Those judges discharged from active service were not required to declare assets unless they were asked to do further service as a judge. That was why there had been the discretion built into subclause (2).

Ms Chohan asked how that would work in practice.

Mr de Lange said that it was only “on request”. This would probably happen if there were any suspicion that there might be any bias in a specific instance. He did not foresee it happening.

Ms Chohan asked why the differentiation had been made, if judges were to be treated as judges for life.

Mr de Lange said that it was possible to distinguish the cases; here there was the difference between active and discharged judges because there would not be a perception of bias.

The Chairperson said that a discharged judge who had a separate source of income would then not have to disclose it. She could understand that there was less possibility of bias for those not on active service. However, certain rules and regulations would be applicable to the judges for life. She asked that this point be flagged for discussion on the principle.

Mr Swart noted that he was still thinking through the whole issue of retired judges.

Mr de Lange wondered if perhaps this mechanism should be duplicated in the new Section 11 so that there was a more specific prohibition.

Mr de Lange noted that the new Section 13(3) set out the regulations. He briefly discussed the reasons for insertion of subclause (4) and noted that magistrates would not be covered. The heading should refer to “Judges’ Financial Interests”

Ms Chohan said that in the case of magistrates, the register of interests could perhaps lie with the Secretary of the Magistrate's Commission. She asked who would be doing the register on a day-to-day basis.

Mr de Lange said that that was covered in the new Section 37, covering the Secretariat of the Commission. He noted that this section referred to "judges' financial interests".

Ms Chohan asked who would complain, if there were to be non-compliance.

Mr Swart said that this could be any person who had knowledge. The procedure for lodging a proper complaint would be in regulations.

The Chairperson said that there were inconsistencies in this. The Chief Justice was here being given the power to make regulations.

Mr Swart said that this might lead to a number of applications for recusal. The public may have access to parts of the register.

Ms Chohan noted that the parliamentary register would record Members' assets in the public part, while those of the spouse were to go in the confidential part. Something similar could apply in this instance.

Ms Chohan noted that the consultation with the Chief Justice to make regulations was problematic. There should be some consultation, but it could not be "in consultation". "After consultation" in new Section 13(3) would be more appropriate to avoid litigation against the Chief Justice. She suggested that the Regulations should be tabled in Parliament, and then published.

Mr de Lange said that this was already in Section 35. Any regulation made must be tabled in the NA before publication.

Part III: Consideration of Complaints
New Section 14
Mr de Lange noted that this section dealt with the lodging of complaints. Any person could lodge a complaint. The Chairperson would deal with this under Sections 15, 16 or 17, but if the complaint was under section 15 the Chairperson could designate a head of Court (unless the complaint was against this very person) to deal with it. The grounds were set out in subsection (4).

Mr Swart asked what "prejudicial to accessibility" meant

Mr de Lange noted that that was reflective of the Constitution.

Ms Chohan said that Dr Delport had previously raised the use of the word "grossly". This was a term also used in the Constitution - and clearly should be the highest possible test, but it was difficult to distinguish exactly what was meant.

The Committee would be continuing with the matter the following week, from Tuesday afternoon. The Committee would sit with the Local Government Portfolio Committee on Tuesday morning.

The meeting was adjourned.