Judicial Service Commission Amendment Bill: deliberations

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
12 September 2007
JUDICIAL SERVICE COMMISSION AMENDMENT BILL: DELIBERATIONS

Chairperson: Ms F Chohan (ANC)

Relevant documents:
Judicial Service Commission Bill

Audio recording of meeting

SUMMARY
The drafting team from the Department of Justice continued to take the Committee through the Judicial Service Commission Amendment Bill. Section 20 would have the reference to "judge" replaced with the word "respondent". The Committee asked that it be checked that the Bill contained reference to the respondent having been informed of the findings in the report. Cross references would need to be checked. Under new Section 21, a clause should be added that the complainant would be informed about the Tribunal, and the references checked. Under new Section 22, the drafters would change the wording in relation to the previous evidence, so that the validity of any evidence submitted to a previous Tribunal should not be affected. The phrase "at least one of whom was a judge" was not necessary under 22(3)(a). The definition of "judicial officer” would be checked by the drafters in relation to new Section 23. The provisions on the powers and functions of the Executive Secretary (akin to a CEO in the Office of the Chief Justice) set out in new Sections 24 and 37 would be extracted for the information of the Committee. Under new Section 25 there should be an option containing a time by which rules should be made. The wording in new 26 would again be checked to ensure that there was consistency between an onus of proof, and a finding. It was suggested that complaints should be "upheld" rather than stronger wording being used. Under new Section 27 and other subsections, the references to "the seat of the Tribunal" could be re-considered as a matter of style.

Provision needed to be made that failure to take the oath referred to in new Section 31 would be an offence. The drafters would check provisions in other legislation dealing with compelling a respondent to given self-incriminating testimony, as there should be a two-step procedure set out, and the respondent should not be given the choice whether to answer. In new Section 33, the reference to the Magistrate's Commission would be removed. There should also be reference to the relevant documents being submitted to the Judicial Service Commission, as well as to the Chief Justice. Under new Section 34, the drafters would double check that all offences from the previous drafts had been incorporated. In respect of new Section 35, the Committee would consider whether the regulations should be approved by Parliament. The funding described in the new Section 36 was discussed, and would need to be considered. In new Section 37, references to "Committee or Committee" must read "Committee or Tribunal". There was a need to renumber subparagraph (4). The references to "executive secretary" in subparagraphs (2) and (4) should be to the "secretary". The drafters were requested to include in the section the fact that the register must be updated annually. In new Section 38 the drafters were asked to check other legislation and clarify what was to be regarded as confidential, and to provide for access by certain persons. The long title and transitional provisions would be considered later. The Committee would also discuss what needed to be included in the Report. It would start its clause-by-clause deliberations shortly.

MINUTES
Judicial Service Commission Amendment Bill: Department of Justice briefing
The drafting team from the Department of Justice (DOJ) continued to discuss the Judicial Service Commission (JSC) Amendment Bill.

Part IV: Request to appoint Tribunal and consideration of Tribunal report by Commission

Mr Johan de Lange, Principal State Law Advisor, DOJ, indicated that this part dealt with the situation where matters would be referred to a Tribunal.

New Section 19 Commission to request appointment of Tribunal
This new Section 19 stated that when it appeared to the Commission that there were reasonable grounds to suspect that a judge may be suffering from incapacity, be incompetent, or be guilty of gross misconduct, the Commission must request appointment of a Tribunal. As framed at the moment, the Commission could also of its own accord request the appointment of a tribunal, and had inherent power to exercise its own discretion.

Section 19(2) set out the necessity to state the allegations to investigate in writing. The judge concerned and the complainant must be asked to comment in writing. The President must also be informed. The Constitution, in Section 177(3) noted that the President, may, on the advice of the JSC, suspend the judge who was the subject of proceedings.

The Chairperson asked if there was anything here that was different from the previous dispensation.

Mr de Lange stated that nothing had been taken out, but the last part of 19(4) had been added.

The Chairperson asked what was the test for reasonable grounds to suspect. This would differ from the new Section 16, where the test was "satisfied, in the case of a complaint being established". This was a higher test, because it related to the appointment of a tribunal, not a preliminary investigation.

Mr de Lange noted that the judge could have been charged with a criminal offence, and the charge itself would be reasonable grounds to suspend.

New Section 20 Commission to consider report and make findings
Mr de Lange noted that once the Tribunal had made its report, the Commission must consider the report and inform the judge of the time and place, and that written representations could be submitted. He asked that the word "judge" should be replaced with "respondent".

Mr de Lange noted that the person would have been the subject of an enquiry and would have been informed by the tribunal. He referred to the new Section 33. On conclusion of the hearing the Tribunal would make a finding as to the merits of the allegation, and would submit a report with its findings, to the JSC.

The Chairperson asked how the respondent would place his position before the JSC if he did not know the contents of the report.

Mr de Lange noted that the findings should be known to the respondent. He said that he would look again whether there was a lacuna in regard to the respondent being informed. He would revert to the Committee.

Mr de Lange noted that new Section 19(3) contained a cross reference that he would need to check again. The words "the Commission must make a finding" was of importance. He noted that the JSC had submitted that the JSC should be exercising this function. The Department felt that as long as the JSC had facts upon which to make a finding, the constitutional requirements were satisfied.

The Chairperson said that the JSC had suggested that it was inappropriate for the Committee to deal with complaints. The Constitution only provided that the JSC must make a recommendation in regard to an impeachment. The lesser complaints could be dealt with differently.

Mr de Lange said that the Department interpreted this provision as a safeguard against arbitrary dismissal of judges. The Constitution gave the National Assembly a mandate in these matters.

The Chairperson noted that complaints did not necessarily mean impeachment mechanisms. Certain offences wee clearly not impeachable. The JSC should not, in principle, be bogged down by every small complaint. The Constitution spoke only of impeachment. The impeachment process was, quite rightly, cumbersome.

Mr de Lange continued that the new Section 20(4) contained the provisions in relation to a judge suffering from incapacity, gross incompetence or gross misconduct. The new Section 20(5) stated that the Commission could make a finding for a judge to attend a training course. The new Section 20(6) required the Commission to inform the judge and complainant of the finding and reasons.

The Chairperson asked for clarity how the Committee would make a decision.

Mr de Lange noted that this would be the majority of the members of the Commission, as set out in section 178(6) of the Constitution. The Commission could determine its own procedure but the decisions must be supported by the majority.

Imam G Solomon (ANC) asked when a suspension would come into effect.

The Chairperson noted that this was contained in the new Section 19(4). When the Commission decided that a tribunal was necessary, this would mean that there was the possibility of impeachment. The Commission could suspend the person after applying their minds to the issue of suspension. If they agreed on suspension, the recommendation would go to the President, who would effect it.

The Chairperson noted that in the Magistrate's Commission there was the possibility of suspension without pay. This was often used where magistrates defrauded the Department.

Mr de Lange did not think that there was any scope for this.

Ms M Meruti (ANC) asked what the possibility was of moving the judge to another court.

The Chairperson noted that if there was, perhaps, a sexual harassment charge, then there might be arrangements that the judge would have to work with another person. This was within the Judge President's powers. In some instances where judges were facing criminal charges, they had been granted leave of absence.

Chapter 3: Judicial Conduct Tribunal

New Section 21 Appointment of Tribunal
Mr de Lange read through the provisions of the new Section 21. The Judicial Conduct Tribunal (the Tribunal) was appointed by the Chief Justice, when requested to do so by the Commission. There was provision for delegation to the Deputy Chief Justice.

The Chairperson asked why there were so many references to "the seat of the Tribunal".

Mr de Lange noted that the Tribunal could sit anywhere. He thought that this was probably inserted for financial reasons.

The Chairperson asked why there was no reference to the complainant being informed, where applicable.

Mr de Lange indicated that this could be added in.

In regard to the new Section 21(5), the Chairperson asked about the delegation of functions. She could only see that the delegation was necessary if the complaint was about the Chief Justice.

Mr de Lange thought that the references to Sections 10(2) and 29(2) were incorrect. He would check on this.

New Section 22 Composition of Tribunal
Mr de Lange noted that the Tribunal would consist of two judges, one of whom would be designated by the Chief Justice as the Tribunal President, and one person from a list of suitable persons, drawn by the Chief Justice in concurrence with the Minister. Such list would relate to non-judicial members of the Tribunal. Provision was made that at least one must be a woman. The JSC had objected to that provision, stating that it was not necessary, from policy or practice, to put this clause in. Mr de Lange did not see that it did any harm.

Provision was made in sub clause (3) for a vacancy arising. If there were not two members remaining, at least one of whom was a judge, the Tribunal must be dissolved and a new Tribunal appointed.

The Chairperson noted that the Chief Justice, in appointing a new Tribunal would have to comply with the new Section 21(4). The terms of reference would remain the same. She asked what formalities would have to be complied with. She asked that a specific reference be inserted to reflect that in this case there must be full compliance with 21 (4).

The Chairperson asked about the reference to "any evidence gathered by or submitted to the former Tribunal.... may be considered by the new Tribunal". She wondered if it should not always be considered, except where there were allegations of bias. She would not like there to be a challenge on this point.

Mr de Lange noted that the 2002 draft had contained the same wording. The idea was to ensure that matters should not simply lapse. He conceded that the use of "may" could open up the question. Perhaps a provision could be introduced along the lines of "the validity of any evidence submitted should not be affected".

Imam Solomons asked what would happen if a presiding officer was not able to continue.

Mr de Lange explained that if there was only one judge, the case would have to start again. If there was more than one, the case could continue.

The Chairperson indicated that this was not a criminal trial, and this provision was intended to cover the practicalities of the position.

Mr de Lange said that the words "at least one of whom was a judge" in sub-clause (3)(a) were not necessary.

New Section 23
This had been largely dealt with. The principle was to make sure that a non-judge was always on the Tribunal. The heading contained the reference. The wording used to be "one fit and proper person who is not a judicial officer".

The Chairperson suggested that the clause refer to "a list of persons who are not a judicial officers". This would be likely to be a person who served on the JSC, such as a professor, who would be a person with weight and respect. The Tribunal was not to be seen as a "closed shop". She asked if "judicial officers" had been defined.

Mr de Lange said he would look to the dictionary meaning of this, and noted that there were definitions in other legislation. Judicial officers would be a term wider than judges. The Constitution also used that term.

Mr de Lange noted that the new section 23(2) made provision for compensation.

New Section 24
Mr de Lange indicated that this was intended to allow for collection of evidence.

The Chairperson asked whether the Executive Secretary 's powers and functions had been defined, except under Section 37. The creation of the post was contained elsewhere.

Mr de Lange noted that there was not a CEO named in the Office of the Chief Justice. Most of the provisions relating to this would not strictly speaking be necessary once the Superior Courts Bill was in effect, as this Bill covered the position. However, on an interim basis there needed to be authorisation to incur the expenses.

The Chairperson asked that the Department extract the clauses relating to the Executive Secretary for the information of the Committee. In this Bill there were references to what the executive secretary must do. At the end of the day there would be practical solutions. It would be useful to make it clear which clauses had been relied on in this Bill under the different functions.

New Section 25
This set out the rules of procedure. The Chief Justice could make any rules regulating any aspect of a Tribunal's procedure, to be published in the Gazette. Subject to this Act, the Tribunal had the power to regulate and protect its own proceedings.

The Chairperson pointed out that there was no reference to the day by when the Rules must be made.

Mr de Lange noted that he could not foresee the Chief Justice making rules in anticipation, although it may be a good idea to do so.

The Chairperson asked that Mr de Lange include an option "within x number of months".

Mr de Lange said that there was probably an example in other tribunal rules, even if this was a basic framework.

Part 2 : Hearings of Tribunal: new Section 26
Mr de Lange noted that the new Section 26 set out the objects of the Tribunal. Mr de Lange noted that the discussions yesterday had been around inquiring and investigating; the objects here were to inquire. That may need to be looked at.

The inquiry was to be conducted in an inquisitorial manner and must make its determination on a balance of probabilities.

Mr de Lange noted that there was a possible conflict in the wording if the legislation said there was no onus to prove anything, yet there could be a finding of guilty.

The Chairperson said that the Committee had taken a principle in decision that less strong language that "guilty" could be used. The wording should be that a complaint could be "upheld".

Mr de Lange noted that the wording in the Constitution was "guilty" but his was in relation to the JSC. This clause was dealing with the Tribunal. He would look at it again.

New Section 27
Mr de Lange continued to read through the subclauses.

The Chairperson noted that the "seat of the tribunal" was again referred to here. She agreed that there should be flexibility as to the place where witnesses were interviewed. However, she would like this to be cleared up; it was a stylistic matter rather than a substantive one.

New Section 28
Mr de Lange noted that this clause set out the procedural aspects. He noted the need to correct the typographical error in the numbering of 28(3)(e).

New Section 29
Mr de Lange noted that the hearing could only be attended by the respondent, his or her legal representative, the complainant and their legal representative. The reference in sub-paragraphs (e) and (f) would need to be corrected. Mr de Lange noted that in (c) the complainant could only attend if the complaint was related to this hearing. There should be no disclosure unless the Tribunal President, in consultation with the Chief Justice, determined otherwise.

New Section 30
Mr de Lange indicated that this related to subpoenas.

The Chairperson asked what would be the position of the prosecuting authority appointed.

Mr de Lange said that that person was only to assist in leading evidence. It was the Tribunal that must subpoena. This was an inquisitorial procedure. It was necessary to avoid the idea that it was an independent arbiter. The onus was on the Tribunal to establish the facts.

New Section 31
Mr de Lange noted that the evidence was to be given under oath.

The Chairperson asked whether other legislation relating to taking the oath was worded in this way.

Mr de Lange indicated that there were various examples. A person could not refuse to take the oath, as this would be an offence. He agreed that an offence should be included in this Bill - although this might be covered by "wilfully hindering".

Mr de Lange noted that the clause covered the giving of evidence, and the compulsion to do so, even if an article or document was self-incriminating. These were fairly standard provisions, but there had been criticism against the principle of compelling to give self-incriminating evidence.

The Chairperson was concerned that a person should be able to be prosecuted on any statement.

Mr de Lange did not think it was such an issue in this context.

The Chairperson indicated that these were closed hearings. However, the Tribunal would only deal with serious matters. If a person was being investigated for a serious offence, it was unlikely that this would precede the criminal matter.

The Chairperson thought that there were clear provisions regarding the self-incriminating testimony in either the DSO legislation or in the parliamentary legislation. The Tribunal should consider its options. She seemed to recall that the parliamentary legislation gave a detailed stipulation of the steps to be followed. She asked Mr de Lange to check this.

Mr de Lange indicated that in the previous draft there was more direct terminology used. However, whilst it conveyed a strong message it had not altered the law. He read out a draft dating back to 2003.

The Chairperson indicated that the wording about the self-incrimination as read out was not set out in steps. The Tribunal had not been required to consider the implications of forcing someone to answer. Under a two-step procedure, the respondent would first claim that the answer might be self-incriminating and then the Tribunal would order an answer to be given notwithstanding the self-incrimination. That evidence would not, however, be admissible against the person in criminal proceedings.

The Chairperson asked why, if this was an inquisitorial procedure, the questions should not be imposed at any stage.

She asked that the clause from the previous draft be inserted in the next draft for consideration.

Mr de Lange said that in the previous draft the respondent had the choice of answering or not.

The Chairperson said that it would make more sense to place an obligation to answer.

New Section 32
This was a fairly standard provision. The Tribunal must notify the National Director of Public Prosecutions if there was disclosure of evidence of a commission of an offence.

New Section 33
Mr de Lange noted that the reference in 33(1)(b) to the Magistrate's Commission was still a remnant of the earlier draft.

Imam Solomons noted that the references throughout were to "findings" yet at the end the word "report" was used.

Mr de Lange noted that the findings would be recorded, and would form part of the report. This was made more clear in 33(1)(b)(i). The record also formed part of the report.

The Chairperson asked whether the relevant documents should not also be submitted to the JSC, as well as to the Chief Justice. Although she noted that the JSC could call for these, she would prefer it to be specifically mentioned.

New Section 34
Mr de Lange noted the offences. The current maximum fine would be R200 000, or imprisonment not exceeding five years.

The Chairperson asked whether the previous drafts contained any other sanctions not included here, and asked that this point be checked.

Chapter 4 Miscellaneous Provisions
New Section 35
Mr de Lange noted that the Minister must make regulations under Section 13, and may make other regulations relating to other matters. Any regulations must be tabled in the National Assembly before publication.

Mr de Lange indicated that this was a very wide clause. An earlier draft indicated that the regulations would have to be "approved" by Parliament.

The Chairperson said that the Committee should perhaps consider whether the regulations should be approved. This was rather different from the Code

New Section 36
Mr de Lange indicated that this clause dealt with the finances and accountability. Monies appropriated for the JSC must be used only for this purpose, unless approval was obtained for them to be used in another manner. This was a new provision, and would go some way to ensuring the perceived independence of the JSC.

Mr de Lange indicated that there would be regulations around the consultation on the budgetary process. There would be a line vote for the JSC, and the funds would be ring-fenced.

The Chairperson was slightly worried, as the staff complement costs were allocated to the Chief Justice. However, this was money pertaining to the Commission. She asked what this money would be used for.

Mr de Lange noted that it would cover the travel allowances, transcripts, witness fees and other expenses to do with the Judicial Conduct Committee.

The Chairperson indicated that it was only possible to budget at the beginning of the year. It would be undesirable to over-budget, but it was impossible to make a proper estimate. The Committee would consider it in more detail later.

New Section 37
Mr de Lange noted that the Executive Secretary must assign appropriate personnel.

The Chairperson noted that the reference in 37(2) to "subject to Section 36" was incorrect. The funding for secretarial and administrative services under (a) to (f) reflected what the money appropriated could be used for. The budget, which would be ring-fenced, would lie with the Department of Justice, but only as far as it related to the Commission. The Executive Secretary, approved by the Director General, would provide secretarial and administrative services to the Commission. The Chief Justice would then advise what was needed. The Executive Secretary would do the work to apply for money, fill posts and so forth for the Commission.

Mr de Lange noted that the reference to "Committee or Committee" in subparagraph 37(2)(f) should be "Committee or Tribunal". The reference must also be corrected - so that subparagraph (4) must be renumbered (3).

Mr de Lange noted that this clause was copied from the provisions on superior courts.

The Chairperson said that the register was to be maintained by the Executive Secretary.

Mr de Lange said that the reference to the "Executive Secretary" in sub paragraph (2) should be the "secretary" - meaning the Secretary of the Commission. In sub paragraph (3) (formerly numbered (4)) the reference should also be to the "Secretary".

The Chairperson noted that (3) was to provide that other staff should act under the control and supervision of this person.

The Chairperson clarified that although the Secretary would maintain the register. There was no provision for regular entries or updating.

Mr de Lange stated that this would be in the regulations.

The Chairperson said that the logistics of how the updates referred to in the new Section 13 would happen should be in the regulations, but the necessity for the update should be in the principal legislation. In addition, there should be powers and functions given to the Secretary, relating to non compliance.

New Section 38
Mr de Lange noted that this clause related to protection of confidential information. This went beyond the complaint mechanism to cover all staff. Provision was made that breach of confidentiality would result in a fine or imprisonment not exceeding a period of five years.

The Chairperson said that this begged the question of what was confidential information. She wondered if it was to include every piece of information presented before the JSC, unless the Chief Justice said otherwise. Members of the Commission would include MPs. Not everything received could be regarded as confidential information. She would think that it must be the register, any matter that the Chief Justice ruled as confidential, and information submitted relating to the working of the Tribunal. The JSC was there as a body to give some transparency and openness to the issue of appointments. The problem was not the mechanism, but the definitions.

Mr de Lange indicated that this was a new provision. He could not recall offhand what it was based upon. He thought that not too much should be read into this. He said that a document was not necessarily confidential but there was some provision relating to the purpose. The question was why a person would want to disclose any matter picked up in the course of involvement.

The Chairperson suggested that the words "any confidential document" should perhaps be used.

Mr de Lange agreed that the asset register and allegations (that could be unfounded) that could ruin reputations must be included as confidential.

The Chairperson noted that the parliamentary register contained a public section and a confidential section. This legislation did not contain any regulations saying who could have access to the confidential section. Even though the detail of the access could be regulated in regulations, the principle of access must be contained here. Once there was access to the confidential part, then there should not be disclosure. Members of the JSC should clearly have access to the confidential part.

Substitution of Long Title
The Committee would look at this later.

IX: Transitional Provision
Mr de Lange said that this would probably require further thought. It may be sufficient but perhaps it would need an audit closer to the time that the law was to be passed, to look at whether the transitional provision was needed, if there were full time staff, and how it should be worded.

XX: Short title
Mr de Lange read out this provision.

Mr de Lange noted that essentially this Bill was substituting the current Act.

The Chairperson indicated that the Committee would still finally discuss what it should include in the Report, which would probably include the position of the Deputy Chief Justice.

The Committee would begin to consider the clause-by-clause draft later in the week.

The meeting was adjourned.