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JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
18 September 2007
JUDICIAL SERVICE COMMISSION AMENDMENT BILL: DELIBERATIONS
Chairperson: Ms F Chohan (ANC)
Documents handed out:
Judicial Service Commission Amendment Bill (latest version: 18 September)
Audio recording of meeting
The Department of Justice took the Committee through the latest version of the Bill, highlighting the changes. Clause 3 now included two definitions, of "respondent” and "tribunal" previously included in Chapter 3. Clause 4 contained an option in respect of the composition of the Judicial Service Commission. It was noted that Section 178 of the Constitution covered the situation of the Chief Justice in relation to the chairmanship of the Commission. The Committee report would discuss the composition of the Commission. The option would be reworded as "if neither the Chief Justice, nor the Deputy Chief Justice is available.." It was agreed that the chair of the Commission should always be a judge. Clause 5 now included a reference to a member of a provincial legislature, and it was agreed that this should also be inserted in sub-clause (2). The new Section 6 should record that the report of the Commission must be tabled "for consideration" in each House. The Annual Report should be worded as containing reference to both Chapter 2 and Chapter 3. The new Section 8 now included different options for the Judicial Conduct Committee. These changes had been made following public submissions querying whether it was appropriate for the Chief Justice to chair this Committee. It was agreed that the drafters would look at the clause and consider whether another option was needed to allow the Deputy Chief Justice to delegate powers and functions.
In the new Section 10, the objects of the Judicial Conduct Committee had been amended. Although there were no changes made to the new Section 11, this clause had been extensively discussed during the public hearings. The Committee stressed that this clause was not intended as a prohibition, as had been suggested by some submissions, but rather as a mechanism to protect the office and status of the judiciary. The Committee discussed whether serving judges should be permitted to hold directorships and consultancies, and whether there should also be reference to "benefits". The Committee agreed that permissions granted should be published, and the drafters would insert a provision to this effect, as well as a mechanism to get the information on the register. The new Section 12 now contained an option in respect of the drafting of the Code. The Committee discussed whether the Chief Justice should draft the code "in consultation" or "after consultation" with the Minister, and also considered where the Code must be tabled. The Committee discussed, but were assured that there was unlikely to be a problem of the Code not being produced within six months. It was agreed that the code would be tabled in the National Assembly. The remaining clauses of the Bill would be discussed on 19 September.
The Chairperson reported that an interesting conference was held during the previous weekend between the judiciary and the Ministry, with about 500 magistrates present at the two-day Magistrates Conference. Issues of governance and ethics were raised. There was discussion on the distinction between being independent, in terms of decisions, and accountable, in terms of the running of matters. Issues around hierarchy and governance were also raised. The Chairperson had asked for copies to be made available to the Committee, particularly the speeches. No final decisions were taken, as this was not the intention of the conference, but there were broad-ranging decisions. Some of the issues would then be intensified into specific debates.
Judicial Service Commission Amendment Bill
Mr Johan de Lange, Principal State Law Advisor, Department of Justice took the Committee through the latest version of the Bill, highlighting in particular the options. These would be refined as the meetings proceeded. The changes were indicated by vertical lines in the margins, with the highlighted boxes on the right showing the omissions.
This now included two definitions previously used in Chapter 3: These were "respondent" and "tribunal".
This dealt with the composition of the Judicial Service Commission (JSC) if neither the Chair nor Acting Chair was available. The new Option 2 provided that a member holding office in terms of 178(1)(b) or(c) would be appointed.
The Chairperson said that it had been indicated that although the Deputy Chief Justice was not a Member of the JSC, he or she was able to chair the JSC in the absence of the Chief Justice.
Mr de Lange confirmed that this provision was in Section 178 of the Constitution. The Deputy President of the Supreme Court of Appeal was not a member of the JSC. An alternate member would be a standing member.
The Chairperson indicated that it seemed odd to have a provision like this, when the people were not currently members of the Commission. She wondered if consideration should not be given to changing the composition of the JSC as set out in the Constitution. She suggested that perhaps the Department should be asked to investigate this, and the issue could be included in a report.
Mr S Swart (ACDP) agreed.
The Chairperson wondered if, in light of Section 178(7), this option in this Bill should not also reflect the hierarchy. As worded, it pertained to existing members, although it did refer only to the Commission, not the chairmanship.
Mr de Lange indicated that the Chief Justice was ex officio the chairperson of the JSC. If he was not available then the Deputy Chief Justice, as his alternate, would be acting ex officio as chairperson. He suggested that the option would probably better read, "If neither the Chief Justice, nor the Deputy Chief Justice is available..".
Mr de Lange noted that Section 178(7) referred to the Chief Justice being "temporarily unable to serve on the Commission". Section 178(8) dealt with other members being unavailable "whenever the member is temporarily unable to do so" but this was a different test, as it was qualified by the addition of reasons. These provisions were not originally in the Constitution, but were added in 1998 when the logistic difficulties came to light.
The Chairperson agreed that the Chair of the JSC should always be a judge.
Mr de Lange noted that a reference had been added, at the request of the Committee, to a member of a provincial legislature, under the new Section 3
Mr Swart asked if the composition of the Commission was to be addressed. He suggested that perhaps this might be in the Report of the Committee.
The Chairperson said that this could be looked at in the Report, but it could not be dealt with in this piece of legislation.
Mr J Jeffery (ANC) asked if there was not incongruity in adding "member of a provincial legislature" in Clause 3(1) but not in 3(2). He suggested that this could be dealt with by reference back to those listed under 3(1).
He asked why they were not listed twice; he suggested that those not listed under 3(1) could get allowances.
Mr de Lange said that the drafters had done the minimal changes; the intention was in fact not to bother with this clause.
Mr G Magwanishe (ANC) indicated that a member of the provincial legislature would be representing the premier, if unable to attend.
The Chairperson added that another possibility was that the President could nominate a person who was a member of the provincial legislature to be a member. She thought that there should be reference to this in both subclauses.
Clause 8: New Section 6
Mr de Lange indicated that this was a stylistic change, in sub clause 1. Dr Lirette Louw, Researcher: Department of Justice, and he would go into the terminology and ensure that the Speaker was able to table matters. The intention was to convey that the parliament must consider the report. The activities to report on were now listed in sub-clause (2).
Mr Jeffery noted that the reference should be "The Speaker of the National Assembly or the Chairperson of the National Council of Provinces". He asked whether this was really necessary.
The Chairperson indicated that this provision was inserted as a result of the Moseneke matter not being brought to the attention of the Committee.
Mr Jeffery indicated that this was tabled, but not referred to the Committee. He did not think that it was advisable to say which Committee it must be referred to. He would prefer wording along the lines of "for tabling and consideration in the house".
The Chairperson agreed. She asked that "for consideration" should be inserted.
Mr de Lange asked what was the situation at the moment.
The Chairperson said that the Committee was not receiving the report. That was an internal problem. However, it was necessary to consider who should submit the report - whether this should be the JSC, or the Chief Justice, who in practice, would sign and submit reports. The SA Human Rights Commission reports would be sent to the Minister of Justice, who would send them through for tabling. No Commission had been asked to table before. She wondered if the wording should not refer to "the Chief Justice, who should submit the report to the Speaker for tabling" She noted that a person who was not a Member of Parliament could not table. The clause should reflect an obligation on each House to consider the report.
Mr de Lange indicated that he would check the situation, and report back.
The Chairperson noted that the Annual report must contain matters pertaining to Chapter 2. She asked why the appointment of a Judicial Conduct Committee should not be included, as this was in Chapter 3.
Mr de Lange noted that the reference came from the fact that the request for appointment was referred to in Chapter 2. However, he agreed that it was probably best to include a reference also to Chapter 3.
New Section 7
Mr de Lange noted that the definitions formerly under this clause had been moved to the general definitions clause.
New Section 8
Mr de Lange indicated that the options for the Judicial Conduct Committee (JCC) were now included.
The Chairperson noted that the option 2(a) had been drafted in response to the public comments. The public comments had discussed whether it was appropriate for the Chief Justice to be chairing this Committee. If the Deputy Chief Justice was to be the Chairperson, then there should be four judges, of whom two should be women. She indicated that this latter issue would be looked at again. The JSC had suggested that it should be left up to them to consider the diversity.
Mr de Lange indicated that the "Option re term of office" on page 7, was necessary only if the main Option 1 was retained. Clause 8(1) must be read together with sub-clause (2). There could be a numbers problem, unless there was to be consideration of a casting vote.
Adv L Joubert (DA) asked if the solution was not to provide for another alternate position, and to specify "the Chief Justice or the Deputy Chief Justice"
The Chairperson indicated that retaining the Chief Justice as Chairperson could give him the option to designate to the Deputy Chief Justice. If the Deputy Chief Justice were to be the Chair, then there could be a general designation to another member of the JCC. However, this was not such a major problem as the JCC would not have to sit all the time.
Mr de Lange would look at the clause again, and consider whether another option was needed for sub-clause (2) to allow the Deputy Chief Justice to delegate powers and functions.
Mr de Lange noted that the discussion around terms of office was now included in the new sub-clause (2).
The Chairperson thought that perhaps there should be reference to "a judge in terms of (1) (b) or (c)"
Mr de Lange thought that this was not strictly necessary, but it could be included.
Mr Joubert asked what was the position of a judge who retired and whether he could still be a Member of the Committee.
Mr de Lange noted that a retired or discharged judge remained a judge. Perhaps the Committee needed to look at this, as judges out of active service would have more time. The reference to "judges", unless the context otherwise indicated, meant a judge in active service or a judge discharged from active service.
New Section 10
Mr de Lange noted that the objects of the Committee had been amended, to reflect "receive, consider and deal with complaints".
New Section 11
There had been no changes to this clause.
The Chairperson indicated that the clause had been discussed during the oral hearings. There was a call for a general exclusion for judges, other than those currently serving on the bench, to do work closely allied to the judges' profession. Generally serving judges should not be doing work for remuneration outside of their office. She would be opposed to a serving judge doing arbitrations, or holding on to directorships. Mr de Lange had indicated that some international instruments set out prohibitions. Whether a directorship fell into the definition of "services" was debatable; she was not sure whether it was possible to be a "non-active" director. Currently some judges did hold these offices, with permission. There was some debate whether this should continue to be allowed.
Mr Magwanishe said that the Corporate Governance Code suggested that directors should be active and applying their mind to matters. He felt that the principle was that judges should give their primary responsibility to the bench and not be placed in a position where there was a possibility of compromising their judicial office. He felt that directorships should not be allowed.
Mr L Landers (ANC) agreed with his view. If there was to be a compromise, then he suggested that acceptance of any directorships be properly regulated. Cabinet Ministers were required to disclose their interests. He asked how judges could be regulated. In the event that the Minister granted permission for a serving judge to sit as a Director, that should be made public. If a Cabinet Minister wished to accept other remunerative employment, then he or she must obtain the permission of the President.
Adv L Joubert( DA) agreed that the possibility of a conflict must be prevented at all costs. He agreed that the King Report had placed heavier responsibilities on directors, who were responsible to the shareholders.
Mr Jeffery said it would be useful to see the international treaties, as this did seem to be an emotive issue.
Mr Jeffery noted that if the Committee did wish to go for Option 2, he suggested that the reference to "the National Assembly" should read "Parliament" and the amendment of the list should also be tabled in "parliament" under clause
Mr Swart indicated that the Hlophe matter related to holding of a consultancy appointment, not a directorship. He felt that consultancy appointments were undesirable. He agreed that he would like to look at international law, but felt that consultancies were also undesirable.
The Chairperson indicated that the prohibition was quite wide. She was concerned whether directors would receive a fee that was shared, which was more of a benefit than a salary. Perhaps the word "benefits" should be added, which could cover shares and directors' benefits. She agreed that it would be useful to have the list. There would be a general prohibition, but the Minister would then table a list, setting out the duties that could be performed by judges in active service. She said that she would be happy with publication of an article, for which a person was paid. However, she did not feel that long-term lectureships, that took judges away from the bench, would be a problem. The idea that matters must be "closely connected with the office of a judicial officer" would limit it. However, she would not like to see adjudications on that list. Parliament would have to approve the list, and this Committee would be able to look at the list of services that could be rendered, for which judges could receive remuneration.
Mr Swart asked if it was possible to get list of what had been approved already.
The Chairperson was not sure whether this was a formal list; she did not think that there would be a problem in getting a confidential list.
Mr Swart agreed that a regulatory framework should be put in place.
Mr Magwanishe suggested that the Committee might also wish to consider whether there should be a distinction between holding office in companies for profit or not-for-profit, and disbursements.
The Chairperson indicated that no matter the nature of the company, it could become involved in matters such as labour disputes, which could still give rise to a conflict of interest.
Mr Landers did not approve of a "secret" list; he believed all permission should be publicised. It was both a question of remuneration and of conflict of interest.
The Chairperson indicated that a USA judgment had stated that the office of a judicial officer should not be put at the disposal of the advancement of private interest. This judgment had set out principles, as well as some of the principles relating to discharged judges, and she would try to distribute the judgment to Members. It discussed not only the position of "judges for life" but also the public's perception of their standing in the community, and their access to and influence with serving judges.
Mr Magwanishe noted that the overriding principle was protection of the judicial institution from conflict of interest, and from being taken advantage of.
Mr de Lange indicated that he would look again at the wording. There were three areas where this principle was addressed. There was this provision, a direct cross-reference to the asset register, and there would also be consideration of any violation of the Code of Conduct.
Mr Jeffery raised the question of discharge from active service. He asked if consideration had been given to an opt-out clause. If judges, on being discharged, decided not to take their remuneration, he wondered if this would make a difference, particularly for those judges who had served only for a short period on the bench. There was still the consideration of the standing, but there would not be a close link with continued payment.
The Chairperson indicated that there were different options. A judge who had served 15 years would receive a salary for life (with increments); but up to the age of 75 he would be obliged to give three months service per year on the Bench. The second category covered those who were over 75, who received the salary, but were no longer required to serve. The third option was akin to the Judge Heath situation; the judges would resign, and still receive, for life, the salary as at the time of resignation, but they forfeited the annual increments that accrued to serving judges.
Mr de Lange indicated that a judge would have to have served for at least fifteen years to qualify for a salary for life.
Mr Jeffery said that the phrase here was "a judge who had been discharged from active service". This would not cover people such as Judges Heath and Jali. They would not need permission. However, he wondered if those who had been discharged had the option to give up their pension.
Mr de Lange indicated that this would be treated as a resignation. In practice, judges would tend not to resign as they would be deprived of the annual increment.
The Chairperson stressed that this was not a prohibition from doing work. It was a screening process to ensure that the kind of work permitted did not bring the judiciary into disrepute. Those released from active service would no doubt be allowed to do arbitrations, so they were in a better position. The judges' submissions had regarded this clause as a prohibition, but this was clearly not so. The criteria would be thought through and there was no question of arbitrary refusal of consent.
Mr Landers suggested that there should be provision for the Minister's written consent to be tabled in Parliament.
The Chairperson wondered if there should not rather be publication from time to time in the Gazette. This would allow for broader access.
Mr Jeffery agreed. However, tabling in Parliament could imply that Parliament could do something about the permission. He thought that the main concern was that the permission should be made public.
Mr Landers said he thought it would be appropriate to make the permission public at the time it was granted, not, for instance, a year after the event. The issue was not that parliament should be commenting. The problem with the Government Gazette notification was that not everyone had access to the Gazette.
Mr Magwanishe indicated that if parliament was unhappy about the permission, it would have an obligation to speak.
Mr Swart was happy with the situation relating to active judges. However, he was still grappling with issues around discharged judges. He asked what would be disclosed in the financial register.
The Chairperson indicated this would only be updated yearly.
Mr Landers asked what would happen if the information was published in the Gazette, and then parliament did not approve.
Mr Jeffery did not feel very strongly about the issue of publication, and mentioned that time frames could be set. He agreed that the general public might not read the ATC or Gazette, but it would be expected that the NGOs or media would pick it up.
The Chairperson agreed that it was important to talk about the principle. MPs would have to seek permission from their Party to do certain work, and this must be disclosed in the Register. If the Minister granted permission to a judge, then this should be conveyed to the Registrar of the Judges' register of interests, and it should be available. Over and above this, there could still be an obligation for publication from time to time of all applications that had been received. Either way, the applications would have to comply with certain criteria. She did not think that it was appropriate for parliament to debate the matters. The real issue was that an aggrieved person would be able to lodge a complaint.
Mr de Lange agreed that he would insert wording for publication of all applications granted, and a mechanism to get the information on the register, once permission had been granted.
New Section 12
Mr de Lange indicated that there was now a Option in respect of Clause 1. The Code should be submitted to the National Assembly for approval. Strictly speaking it would not then be necessary for the Chief Justice to act "in consultation" with the Minister because the Minister would have to address this in Parliament. Option 2 contained wording noting that approval must take place within 6 months. Similar processes would be put in place for amendments to the Code.
Mr de Lange said that the Committee should consider whether the Code needed to be considered by the National Assembly only, or whether it should be worded as "Parliament". He had used the NA in the draft, as this was the body that considered impeachment.
Mr Landers indicated that the new Section 12(2) was speaking of "tabling"
The Chairperson noted that the Constitution had not seen a role for the NCOP in impeachment proceedings. If a role was given to them here, then this would start to undermine what was in the Constitution. There was no problem with the NCOP also considering the list and the criteria. The Code pertained specifically to disciplinary issues.
Mr Jeffery did not have particularly strong feelings on this; he had not remembered that only the NA could impeach judges. He had raised the issue because of his concern about the inconsistent use of wording to describe the houses and parliament.
Mr Landers agreed with this point. However, under sub-clause (2) there was reference to the Minister tabling the "Code" in the National Assembly. He asked if the Code would have to be approved - if so, then this should be stated specifically.
The Chairperson said that this Code must have legislative authority. She said that Option 2 contained the words "for approval". She noted that the original wording reflected that the Minister and Chief Justice would draft "in consultation" and the Code would be tabled. The option now was that the Chief Justice, "after consultation" would draft the Code, and that it would be tabled for approval within six months.
The Chairperson asked what would happen if the Code was not produced within six months.
Mr de Lange indicated that this would depend on the options. The Chief Justice would consult with the Minister, and that was unlikely to be a problem. If the words were "in consultation" then he could foresee that there might be a problem, and there might be a need to devise some sort of deadlock breaking mechanism.
The Chairperson thought that the legislation should look at this.
Mr de Lange said that there was a possibility of parliament drafting the Code, but this would be a very unorthodox precedent and he would be hesitant to suggest this. Looking at the functionaries, it was highly unlikely that there would be a problem, and at the end of the day, if there was, then the Department could come up with a new Bill.
The Chairperson indicated that this was already unorthodox.
Mr Jeffery wondered if the Committee was not making an issue of something that was not in fact problematic. If the Chief Justice was not following the law, then this would be dealt with separately, particularly if it was "after consultation".
Mr Landers asked what would happen if Parliament, instead of approving the Code, decided to change it.
The Chairperson noted this, but reminded Members that parliament was to make the law. If the Code was not submitted in six months, Parliament should not use its authority to draft. She noted that Mr de Lange did not think that there would be a problem. One difficulty with the words "after consultation" was that both Minister and Chief Justice could deal with the matter as both had a role. The words "in consultation" might alleviate the problem of severe disagreement and deadlock.
It was agreed that in this clause the reference to "parliament" would be substituted with "the national Assembly".
The Chairperson agreed that the option should read "Chief Justice, after consulting with the Minister". She further went on to say that the Minister should publish in the Gazette and table in parliament.
Mr de Lange indicated that in these circumstances there was no longer a necessity to publish in he Gazette. The Committee's report would be published in the ATC, but it would be useful to include the approved version in the Gazette, as part of the legislative process.
Mr de Lange indicated that he still needed to re-draft the remaining clauses, to include comments.
New Section 13
Mr Jeffery asked if, in relation to the register, there was an intention also to include judges' liabilities (similar to the publication of the Executive's interests. He asked the drafters to look at this.
The meeting was adjourned.
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