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JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
19 September 2007
JUDICIAL SERVICE COMMISSION AMENDMENT BILL: DELIBERATIONS
Chairperson: Ms F Chohan (ANC)
Documents handed out:
Latest version of the Judicial Service Commission Amendment Bill (dated 19 September)
DVD "Taking the Administration of Justice into the 21st Century" (Department of Justice)
Audio recording of meeting
The Committee watched and briefly discussed a video clip prepared by the Department of Justice, setting out some of the achievements in courts by way of the new electronic scheduling, recording and noting equipment.
The Department of Justice drafters took the Committee through the latest version of the Judicial Service Commission Amendment Bill. Wording had been substituted in Clause 4. Under Clause 6, the Annual Report wording would be changed to "submitted to Parliament, for tabling". The Chapter 3 matters would also have to be included in the Annual Report. The definitions of "immediate family member" were discussed in relation to Clause 7, to cover also civil partners and life partners. Members agreed that interests of spouse or life partner, family members living in the same household and dependent children should be covered, but not parents. In the new Section 8, references to appointments needed to be clarified. The new Section 11 must still be changed to reflect "benefits" as well as remuneration, emoluments and fees. In the new Section 12, the National Council of Provinces should not be included, but the Report of the Committee would suggest that the Department investigate why the NCOP should not, in principle, be part of impeachment discussions. The wording of this section must indicate clearly that Parliament was not precluded from obtaining comments from persons other than the Chief Justice, and separate out the sub-paragraphs for greater clarity. It was noted that 12(4) stated that the code must be published in the Gazette.
Members discussed at length in the new Section 13, all judges should be obliged to disclose assets. It was agreed that two options would be included - one being disclosure across the board, and one setting out a special dispensation for judges over 75 who opted not to take on any work in the broad legal field. This clause and the new Section 37 must be amplified to reflect the various stages of creating and maintaining a register, and the regulations would supplement what was in the main legislation. There must also be clarity as to what assets were in the public and confidential sections, who could obtain access to the confidential section, and what could be done if evidence of collusion or misdoing was found. If it was intended that the Chief Justice as Chairperson of the Judicial Conduct Committee have access to the confidential section, then the Members would have to choose the optional clause naming him as Chairperson of that Committee. There must be a definition also of registrable interests, and Members agreed that this should include liabilities. A separate office of Registrar should be created under the new Section 37. Breach of confidentiality should be covered in separate clauses - one relating to staff and one to members of the Conduct Committee, and Members would need to consider whether this should be dealt with as a complaint or as a criminal offence. Clause 16(4) had been altered by deletion of the references to appeal, which were not appropriate as the inquiry did not relate to the merits of the complaint. Clause 17(9) had been re-drafted, so that the State would not be responsible for expenditure unless the remedy was contained in a list of approved remedies.
There had been minor changes to the wording of clauses 14, 16, and 17, 18, 19, 20(5)(b), 21, 22 and 26.
The drafters indicated that there still remained some clauses to be re-drafted. Changes would still be effected to clauses 23(1), 25 (insertion of option in relation to rules being made within a certain period), 31 (self-incriminating answers), 33 (addition of new sub-clause to refer to documents), 38 (protection of confidential information).
The Chairperson, who was to chair the Public Enterprises Portfolio Committee in the next term, expressed her appreciation to all Members and said that she had been privileged to chair this Committee.
Department of Justice (DOJ) video: Taking Administration of Justice into the 21st Century
The Committee watched a short video clip on "Taking the Administration of Justice into the 21st century" which summarised the introduction of e-scheduler, internet facilities, digital recording and close circuit cameras in courts, and summarised the benefits.
Mr Johan de Lange, Principal State Law Advisor, Department of Justice, indicated that cases were accessible on various websites, including through links from the Department of Justice website.
The Chairperson congratulated the Department on its achievements, and indicated that these changes had made a substantial difference to the people working in the department, and to those who used the court on a regular basis. Consideration was also being given to the use of pool laptops, cell phones and the use of new dictaphones. The real advantage was that people were becoming more confident about the service received from the courts, particularly in matters such as maintenance.
Mr S Swart (ACDP) noted the positive impact, especially upon backlogs, and conveyed his congratulations to the Department.
Ms M Mahlawe (ANC) agreed that the removal of the obstacles inherent in manual systems was a very positive development and could only lead to better relations between court personnel and court users.
Judicial Service Commission (JSC) Amendment Bill
Mr Johan de Lange, Principal State Law Advisor, DOJ, took the Committee through the new draft of the Judicial Service Commission Amendment Bill (the Bill). He would deal only with the clauses where changes had been effected since the last discussions.
The reference to the Chairperson or Acting Chairperson had been substituted by reference now to the Chief Justice and the Deputy Chief Justice.
New Section 6
The wording of the clause had been re-arranged and the reference to tabling by the Speaker had been removed. Reference was now made to "Parliament".
The Chairperson indicated that there should still be a reference to the Speaker tabling the Report.
Mr de Lange suggested that the wording be changed to "submitted to Parliament, for tabling". He could not find references in other legislation to the Speaker. He noted that there must also be a reference to Chapter 3 matters being included in the Annual Report. The fact that it was not included here was due to an oversight and it would be corrected
New Section 7(1) (g)
Mr de Lange noted that a change had been made to the definition of "immediate family member" He had added in a reference to a civil partner or life partner. Since the passing of the Civil Union Act, a married same-sex partner would be either a spouse or a civil partner. The new wording would cover domestic partnerships, same sex partnerships (whether a marriage or a civil union) and marriages.
The Chairperson noted that the reference to family members living in the same household might exclude dependent children who were not living in the same household, who, for instance, were in a University residence. The category of dependent children should be added.
Mr de Lange noted that this wording could be expanded on further in the Regulations. It might be safest to leave this open as a possibility.
Dr T Delport (DA) asked if all family members were to be included; he suggested this should be members to the second degree of consanguinity.
The Chairperson would prefer to stipulate immediate family members, meaning the life companion and children.
Dr Delport noted that the first letters of each paragraph should be consistently in lower or upper case.
Mr de Lange noted that Dr Lirette Louw had just handed him a draft register of interests of MPs for comparison. Here the family members were defined as parent, spouse, and children. He noted that there were privacy issues to be considered, and said that objections could be raised to other family members, for instance, having access to the register.
The Chairperson suggested that a definition of family member was needed, and she believed that this should be first degree relationships, to include children, spouse and parents.
Mr de Lange thought it might be sufficient just to include the reference to "immediate family members".
Imam G Solomon (ANC) asked why the financial interests of immediate family members had to be registered.
The Chairperson said that this was limited to dependent children, and would not include adult children. This was an attempt to prevent corruption, and to avoid assets being held in another person's name. The idea was to forge a balance between privacy and the ability to screen immediate family members.
Mr de Lange said that Members of Parliament were obliged to disclose interests of "spouse, dependent child and permanent companion".
The Chairperson pointed out that judges were appointed for life, and therefore the offices could be distinguished.
Mr de Lange noted that perceptions were important, and so he thought that parents would also be included.
The Chairperson pointed out that this was a limited mechanism, and the Committee must be careful not to try to cover everything. She suggested that there should be reference to dependent children, and family members living in the same household. The Committee was generally agreed that it was not necessary to include parents.
Mr de Lange agreed that this provision was already quite onerous. A judge would not necessarily know of all assets of his parents, and there was the right to privacy of the family members. It was impossible for the legislation to cover all possibilities.
New Section 8
The Chairperson noted that the references to appointments under (a) (b) or (c) still needed to be inserted after the discussions the previous day.
The Chairperson also asked that the option relating to the designation of Deputy Chief Justice should be included.
New Section 11
The Chairperson pointed out that the wording still needed to be changed to reflect "benefits" as well as remuneration, emoluments or fees. Some options still needed to be drafted for this new Section.
New Section 12
Mr de Lange indicated that he had now included an option to 12(1), noting that the Code "must be submitted to Parliament for approval". Publication in the Gazette had been removed from sub-clause (1). The reference to National Assembly had been changed to "Parliament".
Mr de Lange said that he and Dr Louw had checked at the interim constitution, which had said that an impeachment procedure had to go through both houses of parliament. In the current Constitution, justice was supposed to be a national issue, and therefore under the National Assembly (NA). However, this would then beg the question why the National Council of Provinces (NCOP) still had representation on the JSC, and why the premier of the Province had a seat on the JSC when a court in his province was under discussion.
The Chairperson disagreed that the NCOP should be included. She confirmed that both houses could be included in relation to some matters, as discussed the previous day. If there was a difference of opinion between the houses, it was not clear whether this was a Section 75 or 76 procedure. The deadlock-breaking mechanism applied only to legislation. She wondered if all the references to "parliament" should in fact refer only to the National Assembly. The Committee Report could then suggest that the Department should review why the NCOP should not, in principle, be part of impeachment discussions.
Mr de Lange indicated that perhaps there needed to be a more general discussion on what would happen in a stalemate, which did not involve legislation, but this was an issue outside of this Bill. He agreed to make the changes
Mr de Lange indicated that there was a new sub-clause (3) to cater for what parliament could do in relation to the Code.
The Chairperson reminded the Members that when the Code of Conduct was brought to parliament, there should be public hearings. She suggested that this should be worded "after obtaining, inter alia, comment from the Chief Justice..."
Mr de Lange did not think that it was necessary to specify this as parliament could decide its own procedures. However, it would do no harm.
The Chairperson noted that there was a similar provision in relation to magistrate's remuneration, that had been subjected to several different interpretations. She thought that parliament would have to call for submissions. The Chief Justice would be able to make written contributions to this discussion. She would not like the clause to be interpreted as a provision that only the Chief Justice must be consulted.
Mr de Lange suggested "after obtaining and considering public comment, including comment from the Chief Justice".
The Committee agreed with this wording.
Imam Solomon asked when and how public comment would be sought.
The Chairperson set out that first there would be compilation of the Code, by the Chief Justice, after consulting with the Minister. This must happen within six months. The Code must be submitted to Parliament for approval. At the point that it was considered, there would be a referral from the Speaker, either to this or an ad hoc Committee. The ATC would reflect the referral. The Chairperson of the relevant Committee would call for written submissions, in the same way that legislation was dealt with. The written submissions would allow the Committee to decide whether it also needed oral engagement.
Imam Solomon indicated that the wording seemed to indicate that the process could stop at the point where "parliament may approve the Code " with or without amendments.
Mr de Lange said that he could separate out the phrase "after obtaining... the comment" so that it was clear that it applied to either (a) or (b), and that the reference to "on those changes" should be taken out. He noted that the Chief Justice could not obtain the comment of every member of the judiciary, and this would afford all interested judges and other parties an opportunity to comment.
Mr de Lange noted that sub-clause (4) now stated that the Code should also be published in the Gazette.
Mr de Lange noted that the heading had changed, from "judicial officers" to "judges".
Dr Delport asked where it was stated that a judge must list all registered assets.
The Chairperson indicated that there were a number of matters that were not presently, but should be included in this part, including the references to the Registrar, powers and functions, and procedures, and she would revert to this point when the relevant clause was discussed.
Mr de Lange indicated that there was an option to sub-clause (1), which had originally dealt only with judges in active service. The option now dealt with all judges. Sub-clause (2) related to discharged judges.
The Chairperson stated that the issue was whether judges discharged from active service should fall under the regime for registration of assets. Sub-clause (2) was now saying that a judge who had been discharged from active service (the reference to "retired" here must be corrected) would have to fill out the register when asked to do his three-month service on the bench. She was not sure whether this was the correct procedure. If a judge did not apply to the Minister for permission to do other work, there was no way to check whether he had done other work. This provision would also not guard against the possibility that a litigant might try to bribe a judge with a promise of a reward once he had been discharged. She agreed that it was inconvenient for judges to have to complete a list of assets, but the benefits and safeguards outweighed the personal inconvenience. She felt that the Minister should not merely request compliance with the register from time to time, but that regular disclosure should be part of the regime of being a judge for life.
Dr Delport asked if there would be access only to the confidential part. He felt that there should be protection of the right to privacy, and this would become paramount in the case of a judge not in active service.
The Chairperson indicated that the MP's register listed only certain matters in the public portion. She wondered whether perhaps discharged judges over 75 should be required to update the register every two years. She felt that there was no reason why matters should be confidential if the judge was doing work such as arbitrations, under Section 11. She took a particular view of the privileged position of retired judges. She stressed that they had access to and a privileged relationship with those currently serving on the bench, and could exert indirect influence. If there was to be any differentiation, it should be more of a cosmetic change than a principle change.
Adv L Joubert (DA) indicated that perhaps there should be a distinction between judges under 75 and over 75.
The Chairperson indicated that both still received salaries and could do work under Section 11. The only real distinction was the responsibility on those under 75 to take on three months work a year. A judge doing any work at whatever age could still have the possibility of tarnishing the image of the judiciary. If there was to be any distinction, she thought it should relate to the procedural issues, such as the disclosure periods.
Imam Solomons commented that the wording was not clear as to what should be included in the register. There needed to be better definitions.
The Chairperson agreed, but said that the Committee would come back to this issue.
Mr J B Skosana, Chief Director, Office of the D-G, Department of Justice, indicated that the drafters had originally preferred not to draw a distinction between the categories. Discharged judges had complained that they would find this particularly onerous, and had indicated that they were in fact only receiving pensions, despite the appellation of "salary", and that they should not be regarded as part of the "fold" of judges,
Adv Joubert said that he had not yet made up his mind on the issue.
Dr Delport also had not made up his mind finally, but he thought that there should be a distinction between judges who retired altogether from the legal profession, and perhaps became farmers, and those who continued to do work related to the legal field, such as arbitrations. He wondered if those who wanted to do quasi-legal work, or who were prepared to be called on to the bench, should list their names, and then be subject to the requirement.
The Chairperson indicated that until judges received 75 there was always the potential for them to be called to do work on the bench, and they should be required to disclose the assets. The Chairperson agreed that Dr Delport's suggestion was very useful; she enquired if those giving notice that they were not intending to do legal work would then be blocked from accepting it.
Imam Solomons felt that it was a simple issue. Based on the principle of judges for life, the status and dignity of the profession should be protected. Any judge, active or not, would have an impact on that status. Therefore all should be subject to the requirement of disclosure. He could not see that the judges would object to protection of their own profession.
The Chairperson suggested that perhaps two options should be drafted. The first would follow Imam Solomon's suggestion. The second option would require all active judges and those discharged judges up to the age of 75 to disclose. Judges over 75 could apply to the Minister to be relieved of these obligations, and the consequence would be that they could not apply to do extra work. Therefore sub-clause (2) as introduced could be taken out, and replaced with Dr Delport's option.
Mr de Lange indicated that sub-clause (3) stated that the Minister must act in consultation with the Chief Justice, and the regulations must describe at least the circumstances set out in the sub-clauses. A new sub-clause (c) had been added.
Mr de Lange then read out what was contained in the new sections dealing with the Secretary and other staff of the Commission in the new Section 37.
The Chairperson thought more specific powers and functions were given in relation to the register in other legislation, and asked the drafters to check on this. She did not think that the functions should be in the regulations.
The Chairperson asked Members to consider the role and function of the registrar, and what should be recorded to make the function work.
Adv Joubert asked if there was an existing office of Executive Secretary.
Mr Skosana indicated that this was similar to Chief of Staff, but what was envisaged would be adding more functions to what was already being done.
The Chairperson noted that there was a register in Parliament, that contained information taken from forms that must be completed by Members. She was concerned that the various steps of the procedure were not set out. She said that firstly there was no mention of who was to establish a register, so the creation of the register must specifically be included. Then there should be provision, as Dr Delport had suggested, that judges must fill out the forms. There must be recordal of the details provided in the forms. Entries in the register must be updated, and this implied that judges would have to fill out new forms on a regular basis. If a document was not properly completed, then the registrar must have the authority to take this up with the judge. If a judge were to indicate a payment for other work, but did not attach the permission from the Minister to undertake the work, then the registrar should also have authority to call for permission.
The Chairperson suggested that even if every detail was not stipulated in the Bill, then there must be some provision to the effect that the Registrar would have the powers stipulated in the regulations, which should include "xyz" - and here the basic powers to open, scrutinise, update, call for information could be named. The regulations could stipulate what the form should contain, and which part of the register would be in the public and which in the confidential domain. The Committee had indicated yesterday that the permission to do work under Section 11 should be in the public section, and that family interests should be in the confidential section. Provision must also be made for keeping confidentiality, and specify who had the authority to scrutinise the confidential portions - perhaps this should be the Registrar and Chief Justice. She was not sure what the legislation said in regard to MPs, but there must also be circumstances set out as to what could be done if there was evidence of collusion or unlawful links.
The Chairperson noted that "registrable interests" did not give any guidance as to what they should be. Gifts, travel, hospitality and other issues must be considered to decide what were registrable interests. She suggested that the rules around MPs' interests could provide a useful starting point.
Mr de Lange noted that a number of the matters were dealt with in the Code. He would look at this again. He noted that remunerative employment outside Parliament, for MPs, formed part of the confidential part.
The Chairperson agreed, but noted that permission had to be obtained from the political party, so someone would know about it. The ethics committee and the registrar had access to that part. She again stressed that the two positions were not exactly the same, as MPs were not MPs for life. They did not adjudicate on disputes directly. She agreed that the details should be in regulations but the broad guidelines should be included in the legislation, and certainly the Section 11 matters should be specified.
Mr Skosana noted that at the time of the original drafts of this legislation, a different dispensation was envisaged. He noted that it might be necessary again to look at establishing an Office of the Registrar, within the structure of the office of the Chief Justice. The staff complement in the Office of the Chief Justice could only be confirmed once it was decided what was to be done, so this legislation would be informing the structure of the Chief Justice's office.
The Chairperson thought that there was sense in saying that over and above the Executive Secretary there should be a specific appointment to fulfil the role and function of the Registrar, who could also provide administrative support to the Tribunal and the Judicial Conduct Committee. A registrar should open and maintain the register. She felt that the confidential part should be accessed by the Judicial Conduct Committee, acting under the Chairmanship of the Chief Justice. If the Committee agreed to this, then the Committee would need to opt for the clause in the early part of the Bill that noted that the Chief Justice should be the chair of the Judicial Conduct Committee.
It was agreed that Mr de Lange should then draft a clause making reference to an office of the registrar, lodged in the office of the Chief Justice, who would report to the Chief Justice and the Judicial Conduct Committee. The option saying that the chief Justice must be the Chairperson of that Committee must then apply. The authority should be specified, and there should be a general clause along the lines that the Registrar should " carry out instructions of the Chief Justice in relation to the updating and maintenance of the register". Other issues would be dealt with under regulations.
Mr de Lange noted that in the event of failure to lodge the information, this was dealt with under (e) and reference would need to be made to this.
Mr de Lange noted that sub-clause (3)(f)(iii) referred to a breach of confidentiality, but this referred specifically to complaints lodged in terms of Section 14(1). He wondered if (iii) should not be covered elsewhere.
The Chairperson suggested that there should be a separate confidentiality clause in respect of other staff, and the Conduct Committee, and this should be a criminal matter as well. She wondered if in fact it should not simply be a criminal matter, and not be dealt with as a complaint. She would think that a breach would be charged under the Code of Conduct. She suggested that this point should be highlighted for further consideration.
Adv Joubert asked if liabilities would be dealt with as a registrable interest. He thought that this would be relevant.
The Chairperson suggested that perhaps something should be included in the definitions, stating what was included, so it was interpreted as an exhaustive list. The regulations could supplement.
Mr de Lange noted that Cabinet must register its liabilities, and this was included in international precedents for judges.
Members generally agreed that liabilities should be included.
The Chairperson noted that the Code would then include a reference to any breach of any legal obligations, which would include the matters set out in the Bill (in broad lines) and regulations.
Mr de Lange indicated that there had been an amendment to 14(2) where the word "lodged" was now replacing the original "referred".
Clause 15 had not been altered.
Mr de Lange had re-arranged this clause. Sub-clauses (1) and (2) had been collapsed to avoid duplication. The cross reference to Section 17(4)(c) was new, because the Committee had asked for separation of formal inquiries, and inquiries on the papers that would result in the recommendation to appoint a tribunal.
Sub clause (4) had previously raised the issue that if the complaint was dismissed, there should be an appeal. He believed that there should not be an option at this stage for dismissal. This was the situation where the Chairperson was merely looking at whether a further inquiry was necessary. It did not go to the merits of the complaint. The Committee agreed with his view.
Sub clause (4)(a) now referred to an "inquiry" rather than an investigation.
Mr de Lange noted that the heading had been changed to "inquiry" instead of "investigation of" and similar changes had been made to the main body of the clause. The Committee had discussed whether it was appropriate to use terminology such as "guilty". The clause now read, "that the complaint had been established". He related this back to Section 17(1)(a) which also referred to "a valid complaint being established". He noted that the JSC had objected to the original language, and so their submissions had been taken into account.
Mr de Lange noted that sub-clause (9) had been re-drafted quite comprehensively. The State would not be responsible for any expenditure incurred unless the remedy was selected from a list of approved remedies. This would not close the door on any other appropriate additions.
There were only a few consequential grammatical or reference amendments.
Mr de Lange pointed out that references to "investigation" had again been changed, consistent with what was discussed earlier.
The proviso had been changed, similar to what had been done in clause 17
The words 'judicial officer" had been substituted by "judge".
Mr de Lange indicated hat he had deleted the reference to "at least one of whom is a judge" under (3)(a), for the reason that the Tribunal would always comprise two members, of whom two must be judges.
Clauses 23, 24 and 25 had not been changed.
There had been a consequential replacement of "Judicial Officer" by "Judge".
Clauses 27 to 36 contained no substantive changes.
Mr de Lange noted that this would still change, to reflect the office of the Registrar, and therefore some of the functions of the Secretary would need to be refined as far as they related to the Tribunal.
Clauses still to be amended.
Mr de Lange wished to remind the Committee that some points discussed earlier still needed to be incorporated in a new draft.
Clause 23(1) needed the insertion of "persons who are not judicial officers"
Clause 25 should also contain a further option after sub-clause (4), that rules should be made by the Tribunal within a certain number of months. There had not been consensus that this should be done in anticipation of the Tribunal being appointed, and this was a point still to be discussed.
Clause 31 needed a reworking of the references to self-incriminating answers.
Clause 33 contained an incorrect reference to the Magistrate's Commission, which must be corrected. The Committee had also suggested that a sub-clause (iii) be added to refer to all other relevant documents.
Clause 38, relating to protection of confidential information, needed to be reworded.
In respect of confidential information, the Chairperson had suggested that should be a general clause, relating to both judicial and non judicial officers and that there needed to be more specifics as to what information was regarded as confidential. The "information" should also obtain reference to "documents".
The Chairperson noted that a single disciplinary mechanism had been discussed at the conference over the weekend. For the purpose of this legislation, should it be necessary to discipline a magistrate, the Chief Justice would probably appoint a tribunal that was different in composition, but which followed a similar mechanism.
Mr de Lange noted that at one stage there was a separate Judicial Tribunal Bill.
The Chairperson asked that if Members had any further comments, these should be conveyed to her or Mr de Lange prior to the next draft (which would contain all the options) being considered.
The Chairperson said she had felt privileged to chair this Committee. She extended her thanks to each and every Member for their tremendous support, cooperation, friendship and good humour. She was encouraged that all Members, despite their political differences, had held paramount the interests of passing good legislation, in a spirit befitting of the institution of parliament and the people that Members represented.
Dr Delport noted that he would be speaking formally at the evening function, but wished, on behalf of the opposition Members, to thank the Chairperson for the pleasant and cooperative manner in which she had dealt with the opposition parties.
The meeting was adjourned.