Judicial Service Commission Amendment Bill: deliberations

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
13 November 2007
JUDICIAL SERVICE COMMISSION AMENDMENT BILL: DELIBERATIONS

Acting Chairperson: Ms F Chohan (ANC)

Documents handed out:
Latest version of the Bill dated 13 November 2007

Audio recording of meeting

SUMMARY
The Department of Justice legal drafters took the Committee through the latest draft of the Judicial Service Commission Amendment Bill (the Bill). The changes were noted and Members recommended that still further amendments be done to the latest draft. The reference to the Constitution in the Preamble had been changed. A technical amendment was made to the new Section 7(f)(iv) and it was noted that this section now dealt also with a judge discharged from active service. The new Section 9(c) would be further discussed at the next meeting as some Members felt the procedure was too formalised. It was noted that the new Section 11 now contained a blanket prohibition against judges in active service accepting other paid work, with a certain proviso in relation to royalties. Members asked that a provision be inserted to stipulate that permission must be sought in writing and that permission would apply only to a specified period. An enabling clause would be inserted in clause 35 to specify that the Minister could make regulations for applications under the new Sections 11(1) and (2). The wording of the new Section 11(4) was improved. It was agreed that the report to be tabled in Parliament should include details of all applications, whether approved or not. The new Section 12 would specify that the Code would be tabled to the National Assembly and the wording would be tidied up by deletion of the reference to “the first Code”. The National Assembly should be referred to also in new Sections 13(7) and (8). New Section 13(7) should be amended to require the regulations to be tabled within four months after that section came into operation.

Members asked that the affidavit in the new Section 14 should not be in a prescribed format. The drafters were asked to consider and report back to the Committee on the wording of 17(5)(c)(iii). Inconsistencies were highlighted and corrected in the new Section 25(1), which Members agreed should be changed to reflect that the Chief Justice "must" make rules. It was further noted that this new section must specify that the Minister was to table the Rules, and that sub-clause (3) should specify a period of six months. Section 37(2) needed to be amended to clarify the line of reporting of the Secretary of the Commission, and there were amendments agreed upon to the wording of the new 37(3)(b). It was agreed that 37(4) was superfluous. It was further agreed that there was no need for transitional provisions.

MINUTES
Judicial Service Commission Amendment Bill (the Bill)
The Acting Chairperson noted that she had been co-opted to act as Chairperson for all further discussions on this Bill until its finalisation. It was hoped to take the Bill to caucus during the week. .

Adv L Joubert (DA) said that he would discuss the matter of the DA caucus and revert to the Chairperson.

Mr Johan de Lange, Principal State Law Advisor, Department of Justice and Constitutional Development, noted that he would go through the substantive amendments first, as some Members indicated they had to leave early.

New Section 11
Mr de Lange noted that there had formerly been a provision that there would be a list of work that serving judges would be permitted to undertake. There was now a blanket prohibition against judges in active service receiving outsourced remuneration from other services, but with a proviso that a judge may, with the written consent of Minister, who must have concurrence of the Chief Justice, receive royalties of publications.

Judges discharged from active service may hold office with the written consent of the Minister. In the older version there was a provision that the Minister would publish a list of criteria, but that had now fallen away. The Minister would have to be satisfied that the work for which permission was sought would not affect the efficiency and effectiveness of the profession, the image of the administration of justice, the legal framework of the judge-for-life concept, result in conflicting action, or bring the judiciary into dispute. The Minister could also issue any other criteria. The Act therefore was now laying down the basic guidelines, and could be supplemented by regulations.

Clause 11(4) dealt with Judges' registrable interests having to be disclosed. Clause 11(5) stated that the Minister must table a report in parliament every twelve months containing particulars of the applications granted.

The Acting Chairperson noted that the provisos had been included because they were not necessarily in conflict with a judge's position.

Adv L Joubert (ANC) noted that the Minister had to give consent in writing, but there was nothing to say that the judge had to apply in writing.

Mr de Lange noted that this would probably be covered in regulations.

Mr L Landers (ANC) was worried that a situation could arise where a judge might state that he had asked for permission orally. He believed strongly that the application must be in writing and specifically noted in the legislation. He believed also that the written consent must match to a written request.

The Chairperson asked whether something should not be added into 11(3)(b).

The Chairperson also wondered if the time periods should be stipulated, so that the permission would be effective only for a certain period.

Mr de Lange suggested that it was possible to include a proviso to (1) and (2), by adding in the words "on application to the Minister, in the prescribed manner".

The Chairperson wondered if there should not be a general enabling clause to say that the Minister could make regulations for applications under 11(1) and (2).

Mr de Lange pointed out that clause 35 was already widely framed. He suggested that a specific reference could be inserted there to cover applications under Section 11.

The Chairperson noted that the criteria for the granting of consent under subsection (3)(a) were new, and that the efficiency, effectiveness and the reputation of the criminal justice system were now contained in 11(3)(a)(i). She wondered if there was merit in splitting them.

Mr de Lange did not have any strong views.

Adv Joubert noted that there was special reference to civil justice. He wondered if this would include arbitrations.

The Chairperson thought that it would be a matter of degree. If in one jurisdiction all civil matters were being referred to arbitration this could amount to undermining the court, whereas in another jurisdiction and under different circumstances it would not do so. This was not intended to be a bar on arbitrations.

Imam G Solomon (ANC) felt that there were in fact two separate issues. He thought that the reputation should refer rather to the judiciary than the reputation of the administration of justice. He suggested that the issues should be separated out

The Chairperson agreed. She also said that the word "and" at the end of (iii) should be "or". She suggested that the references should read "adversely affect the reputation of the judiciary or the administration of justice" and that this should be in a separate paragraph.

Mr de Lange said that the bringing the judiciary into disrepute was mentioned already under (iv).

The Chairperson thought that these were separate concepts. The reputation of the judiciary was a broader issue, which could also include skill and competence, and a degree of confidence in the ability of the judge.

Some further ideas were mooted by Members, but eventually it was decided that the reference to the administration of justice should remain.

In relation to 11(4) the Chairperson suggested that the wording could be better expressed. She suggested that the words "to be informed of " should replace "to receive". Later the words "where written consent has been granted" should be used.

Mr Landers wondered if the report under Section 11(5) would include the judges' names.

The Chairperson assumed that it would. She was not sure that this was required, as the information held by the Registrar should be available to the public, but this was a kind of accountability instrument. She asked whether every application, granted or not, should form part of the report.

Members thought the report should include all applications, and that it was necessary to know who did not receive permission.

Adv Joubert added that the JSC report did not indicate who had failed to be appointed as judges, and he felt that this information should be given.

Mr de Lange was a little concerned about the use of the two phrases "must report particulars" and then "especially". He was not sure whether it was intended to draw a distinction.

The Chairperson agreed that this phrase should read "the outcome of any application, including any conditions" and that "especially" should be removed.

New Section 12
Mr de Lange said that there were not many changes. The Code would have to be tabled to, and approved by the National Assembly (not parliament) and they could amend this only after obtaining public comment. There was a deadlock-breaking mechanism now being proposed in (2), to the effect that if no consensus could be achieved, then both disputed versions of the Codes must be tabled in the National Assembly (NA). The NA would be entitled, under sub clause (3) to make changes.

The Chairperson said that clearly parliament would be circumspect about changing the Code if both the Minister and Chief Justice had agreed to the Code. It there was a dispute, parliament would look closely at the issues in dispute. This was a more amicable way of dealing with the difficulties ad it did not hamstring the individuals dealing with the matter. It allowed for a freer exchange of information.

Adv Joubert agreed, and said that there was a code already in existence.

The Chairperson said that this was a Code of Ethics, and was far more general than the Code of Conduct referred to in this section.

Mr de Lange noted another technical issue and suggested that sub clause (2) should not contain a reference to the "first Code". He pointed out that there would be only one Code, with any changes being by way of amendments.

Imam Solomon wondered whether it was necessary to stipulate in this Section what Parliament would do.

The Chairperson indicated that the procedure was not widely known. Setting out what Parliament would do was allaying fears. Some regulations might just be tabled, not taken to report or a call for public submissions. In most of its work parliament would call for public submissions. This Code was to have legislative status, and therefore the full procedure would be followed.

Adv Joubert noted that the obligation on parliament was always to consider the submissions, not necessarily to implement them.

Imam Solomon asked how the National Assembly would "effect such changes".

The Chairperson noted that when any legislation came to parliament, it was channelled through a Committee. It was not necessary to specify that.

Mr de Lange reminded the Committee that the present sub paragraph (3) was not in the original Bill. This was about accountability and the Committee felt it important to state that the public could have a say.

The Chairperson agreed that this went to the heart of having openness.

New Section 13
Mr de Lange noted that the heading had changed. "Judges' financial interests" was regarded as too narrow and therefore it had been changed to "Disclosure of registrable interests". Clause 13(1) had been changed slightly to reflect that a designated person would be charged with this responsibility. The obligation of the Registrar was described in 13(2). The act of disclosure was now specifically set out, in sub clause 13(3). Immediate family members were defined. Sub clause 13(5) specified what the regulations should cover. It was noted, under sub clause (13(6) that the criteria may differ for judges in active service and those who had been discharged from active service. A similar provision was contained here as with the Code of Conduct, that Parliament could change the regulations if it deemed this necessary.

Mr de Lange then referred to the definition of "immediate family member" under the new Section 7(1)(g). This now included civil partners or permanent life partners and included family members living in the same household with that judge and dependent children.

Mr Landers wondered if there should be an inclusion of siblings.

The Chairperson said that the Committee had wondered if even children should be included. She thought that siblings would be included if they were family members living in the same household. Parents were included only if they were in the same household. She noted that the MP's rules on disclosure only related to disclosure of spouses' interests.

Mr de Lange noted that the Department had also done a study on what other jurisdictions had included.

The Chairperson commented that a senior official was to be appointed as Registrar and placed in the Office of the Chief Justice. The reporting line was now more correct, as this person would be accountable to the Chief Justice.

Adv Joubert asked what time frame applied for the disclosure.

Mr de Lange confirmed this would be covered in the regulations, and this was included in "as prescribed".

The Chairperson asked for confirmation on the time frames under 13(4). Within four months of the Act being passed, the regulations would be in place. The Registrar would be appointed during this time. She asked why there was reference to a further 60 days.

Mr de Lange noted that the President could determine a date for disclosure in advance, and the judges would then have 60 days after that date to disclose the interests. The President would not have to wait until the four month period had elapsed.

The Chairperson pointed out that clause 13(5)(f) now included the reference to the confidential and public parts of the register, as requested by the Committee.

Mr Landers said that 13 (5)(g) related to lodging of a complaint by the Registrar. He asked who would receive the complaint, and whether the complaints procedure was included in the Bill. He asked what would happen if a member of the public was aware that a judge had failed to register.

The Chairperson noted that the complaint would go to the Judicial Complaints Committee. This appeared under clause 14(1). The complaint by a member of the public was also possible under clause 14(1).

The Chairperson noted that there were different criteria set out under 13(6), as it was necessary to include also judges who may be acting whilst still maintaining other interests.

The Chairperson noted that there was reference, in 13(8) to "the Parliament". This clause was now dealing with the register, which was a mechanism to ensure a degree of transparency. The Code of Conduct pertained to disciplinary matters, where the NCOP would not play a role. She asked if there was a particular reason for “parliament”.

Mr de Lange noted that there was a possible problem with consistency. There was no deadlock breaking mechanism in respect of disagreement between NA and NCOP on secondary legislation.

The Chairperson suggested that since this was a question of procedure rather than of substantive matters, the reference to parliament in sub-clauses (7) and (8) should change to “the National Assembly.” She pointed out that there was nothing to prevent this Committee from conferring with the Select Committee.

Mr de Lange said that Sub clause (7) stated that the first regulations must be tabled within four months of the commencement of the Act. He was a little concerned that legislation such as this might be delayed pending the finalisation of regulations. He suggested that wording this as “four months of the commencement of the section” would allow for disciplinary procedures to be put in place while the rest of the Act could come into operation in advance. .

Members agreed to amend this clause.

The Chairperson noted that the time limits relating to disclosure for a judge who had just been appointed would be regulated separately.

Mr de Lange then returned to the beginning of the Bill and ran through those clauses in which there had been substantive amendments since he had last addressed the Committee. He noted that the document tabled was comprehensive and contained all the changes to date.

Title
The Chairperson noted that the Judicial Officers Bill was still technically with the Committee. The long title was made rather more comprehensive.

Preamble
Mr de Lange explained that there was now reference to Section 177(3) of the Constitution, which referred to a President suspending a judge. The only way to interpret the phrase "subject of a procedure" meant anything connected with the application of those provisions.

The amplifications in the Preamble were necessary because of the combination of two Bills. The Preamble from the Judicial Tribunals Bill was carried over to this, but then needed to be amended to cover the other matters. At the moment the Judicial Service Commission (JSC) Act did not have a preamble.

Adv Joubert noted that the Judicial Education Bill preamble wording had been changed to "Since" instead of "Whereas".

The Chairperson said that she was not arguing for one word or the other.

Clause 4
Mr de Lange noted that there had been a minor change to sub-clause (2). In sub-clause (7) the words “including subsequent amendments” had been added.

New Section 6
Mr de Lange noted that there was an amendment to the wording of the new Section 6(1). The tabling of matters was included. Sub clause (2) had been elaborated upon, by insertion of the new (c) and (d).

New Section 7
The definition of immediate family member had already been discussed.

Mr de Lange noted that 7(f)(iv) and (v) were new insertions, which now covered all possibilities.

Adv Joubert wondered if the "and" at the end of (iv) should be "or".

Mr de Lange agreed that this should be changed.

Mr de Lange noted that the definition of the judge also referred to a judge discharged from active service. This would erase any doubt around the "judges for life" concept. It also related to judges in an acting capacity.

New Section 8
There had been an addition of sub-clause (6) to clarify the position in relation to vacancies on the JSC. The limited tenure had already been discussed.

New Section 9\
Mr de Lange said there had not been a substantial redraft of this section. The procedures were similar to what must be done in terms of the existing Act in relation to the appointment of judges.

The Chairperson felt that sub-clause (c) was perhaps too strict. She wondered if it was correct that this Committee should be bound by procedural rules. It was a mechanism that received the complaints. She would prefer it to be able to be convened in a less formal way, and setting out exact procedures would put it at risk of being challenged on procedural irregularities, when it should be concentrating on substance.

She asked that Mr de Lange include this wording as an option, and re-draft something to cater for a less formal procedure as a further option. She also asked Members to consider whether such procedures should apply.

Adv Joubert said it was not clear whether (c) was a procedure to deal with a complaint.

The Chairperson said the Committee would only meet if there was a complaint.

Mr de Lange noted that the Act set out very comprehensively what should happen at the meetings. He noted that there was however a contradiction. The Constitution stated that the JSC should determine its own procedures, which must be supported by the majority of the members of the JSC. However, then there was a further provision stating that the procedure must be published.

The Chairperson thought that there was a balancing act. The Tribunal was seized with making a final recommendation. Here, there was merit in using a more formalised procedure, with openness and transparency. She asked Members to consider this point further. Procedure was probably more important at Tribunal level.

New Section 10
Mr de Lange pointed out that the objects of the committee had been specified as "to receive, consider and deal with complaints"

New Sections 11 to 13
These had been dealt with

New Section 14
The Chairperson asked how the affidavit referred to in Section 14(3) would be prescribed.

Mr de Lange explained that this would be a form.

The Chairperson thought that this was probably over-kill, and would like to see an affidavit being accepted in any form, as long as it was a sworn statement. She asked that this description be removed.

New Section 15
Mr de Lange noted that section 15(1)(b) was a new procedure. A Head of Court could be asked to deal with a complaint. In theory the Head of Court might decide he could not dismiss the complaint, in which case it would have to be referred back again to the Chairperson. He pointed out that the Chief Justice, in practice, would be making a value judgment before referring the matter, and there was unlikely to be a problem. Section 14(1) stated that if a complaint fell within the parameters of Section 15, it could be referred to the Head of Court. If this happened then it must be referred back to the Chairperson. The Chief Justice would in any event make a value judgment before he decided to refer.

New Sections 16 and 17
Mr de Lange noted that most of the changes here were consequential changes, where the language had been changed at the request of the Committee.

Section 17(8) dealt with remedial steps that could be imposed. 17 (8)(d) was a new sub-clause, and stated that a judge could be required to comply with any form of compensation. Sub-clause 17(9) was also a new addition, with the elaboration that the State should not be responsible for any remedy unless it was selected from a list of approved remedies, and then only to the extent set out in that list.

The Chairperson noted that serious, but non-impeachable complaints, would be dealt with under 17(5)(c)(iii), If a formal hearing was conducted, which concluded that a Tribunal should be established, then the recommendation must go to the Committee. The Chairperson asked why the Chairperson should not make the recommendation directly to the JSC. It seemed a rather cumbersome procedure.

Mr de Lange noted that this would effectively be a one-member investigation. However, the Committee under Section 16 was a larger body, and would give the respondent an opportunity to try to persuade the Committee not to act. He would check the wording and report back to the Committee on this point at the next meeting.

New Section 18
Mr de Lange noted that 18(4)(b)(ii) had been changed, by substitution of the wording "guilty of" with the less strong wording "the complaint being established".

Mr de Lange noted that there were a number of instances where there had been references to "judge concerned" and he had changed these to "respondent". Members agreed that this was correct

New Sections 19 and 20
These contained consequential amendments only.

New Section 21
Mr de Lange noted that Section 21(5)(b) had been brought in line with the previous provision relating to the State’s liability for expenses.

New Sections 22, 23 and 24
There were no changes to these sections.

New Section 25
Mr de Lange noted that the new Section 25(1) stated that the Chief justice “may” make rules. However, Section 25(3) stated that the first rules " must" be made within four months. He thought this was inconsistent.

The Committee agreed that the Chief Justice "must" make rules and the wording should be changed in 25(1).

She noted further that it was not the Chief Justice who tabled the Rules, but the Minister. Sub clause (c) should therefore specify that the Minister must table the Rules.

Mr de Lange noted a further change to sub-clause (1); he suggested that the wording should be “must make rules regulating the proceedings of Tribunals ".

Mr de Lange also wondered if the tabling should be to parliament, or only the National Assembly.

Members agreed that since this was a tabling, it should be done to Parliament.

Mr de Lange raised a further query under sub-clause (3).

Members agreed that the period should be six months. It was desirable to ensure that by the time the Tribunal was appointed the rules should ideally be in place in anticipation of such a Tribunal.

General substitution of “judicial officer”
Mr de Lange pointed out that the original legislation had used the term “judicial officer”, as it had dealt with both judges and magistrates. This new Bill had substituted those references with “judge”.

New Section 34
Mr de Lange noted that there was merely a change of font in 34(1)(d).

The Chairperson asked if Mr de Lange had done cross-referencing checks.

Mr de Lange said that he had done so, but this would all be checked again.

New Section 35
Mr de Lange noted that a new sub-clause (iii) had been added under 35(1)(b) referring to the manner of obtaining written consent from the Minister

New Section 37
Mr de Lange noted that the line of reporting under 37(2)(b) had been clarified. The Executive Secretary fell now under control of the Chief Justice, so it was not necessary for any administrative staff, including the Secretary, falling under him to report directly to the Chief Justice.

The Chairperson asked why, under 37(2) there was a reference to the Secretary of the Commission providing support to the Registrar of Judges’ Interests. The Registrar’s office would be lodged firmly in the office of the Chief Justice, and would be supported by its own administrative staff. The Head of that office was the Executive Secretary.

Mr de Lange noted that there was also reference to supporting functions under the new section setting out the functions of the Registrar. He undertook to deal with this matter and correct it.

Mr Landers asked if the register of complaints mentioned in 37(2)(d) would be confidential.

The Chairperson thought not; there would be a report to Parliament. This register was also intended to build up a record of individual complaints against specific judges. Sometimes what was on the face of it a non-impeachable offence might become impeachable after a while and several repetitions.

Mr Landers wondered if anyone could get access to the Register before it was placed before Parliament.

Mr de Lange said that there was a section dealing with protection of confidential information, and that there was a reference to "safeguarding" records, but there was nothing directly in point. If information was required, any person would have to use the Access to Information Act to obtain it.

The Chairperson asked if this register was merely a register of complaints lodged, or complaints finalised. She would not have a problem with public access to complaints that had been dealt with. She did not think that the complaints should be confidential.

Mr de Lange noted that sub clause 37(3) was new. This set out the duties of the Registrar, who would be under the control and direction of the Chief Justice. Anything associated with the keeping of the Register would be done by that Registrar. He noted that there had previously been another clause, which was still noted at the side of the document. He asked if the previously deleted (c) should not be retained in place of (3)(a).

Members agreed that this would make more sense.

The Chairperson asked that the wording of the new Section 37(3) (b) be changed so that it read "all records of matters in relation to the Register, in terms of this Act, to be safeguarded". Sub section 37(3)(d) should be amended to read "perform such secretarial and administrative tasks related to the maintenance of the Register as may from time to time be directed.."

Mr de Lange said that 37(4) was largely unchanged.

The Chairperson asked what subsection (4) was supposed to achieve, that was not already covered in (1)

Mr de Lange said that this was referring to the other personnel, but agreed that it was superfluous as the secretary would be included in the "other personnel".

Members agreed to delete 37(4).

New Section 38
There were no amendments.

Clause 10: Long Title
Mr de Lange tabled the new long title.

Transitional provisions
Mr de Lange noted that the former version of the Bill had contained a clause 11 with transitional provisions to deal with the existing staff of the JSC. He had discussed this with the officials in the Department and they had assured him that there were no JSC staff who would be affected.

The matters would be discussed again later in the week. This Bill would probably be debated in the house on 21 November.

The meeting was adjourned.