Judicial Services Commission Amendment Bill: briefing

Meeting report

Introductory Remarks by the Acting Chairperson
Mr Shiceka announced that he would be standing-in for Mr Mokoena, who was presently occupied with other commitments. Addressing the Department, he stated unequivocally that the executive should change its approach concerning the manner in which it introduced legislation into Parliament. He warned that Parliament would not process the Bill unless the Minister engaged Parliament more frequently, particularly on the politics of the Bill. Such interaction should be supplemented by officials, who were expected to expand on the details. Finally, he concluded that “Ministers should be held accountable for their Bills”.

Briefing by Department of Justice and Constitutional Development (DoJ)
Mr Johan de Lange, Principal State Law Advisor: DoJ, explained that the Bill emanated from the Judicial Officers Amendment Bill, that was introduced into Parliament in 2001. The Bill constituted a redraft of various provisions originally proposed in the JOA Bill pertaining to judicial conduct and complaints about judges.

He summarised the Objects of Bill, which broadly covered the question of ethics, judicial conduct, the disclosure of judges’ financial interests and judicial discipline. He highlighted that sections 180 and 177 of the Constitution underpinned the legislation. The former envisaged the formulation of the Bill, while the latter talked to how a judge may be removed from office.

Mr de Lange briefly described the content of the different chapters in the Bill and highlighted certain controversial clauses. He revealed that during the development of this legislation, strong views emerged about who should police judges. Judges were explicit that they wanted to be evaluated by their peers and by nobody else. As a result, this Bill established the Judicial Conduct Committee (JCC), which comprised only of judges, to exercise oversight over judicial conduct and accountability of judicial officers.

He conceded that one of the most contentious chapters concerned the prohibition on judges to hold other office of profit or receive other remuneration apart from their salary. This ban was absolute for active judges (with the exception of royalties for legal books), while discharged judges were required to obtain written consent from the Minister, who would act after consultation with the Chief Justice. He also listed the criteria for which the Minister would grant consent to discharged judges to be economically active.

Mr de Lange indicated that the hearings of the Judicial Conduct Tribunals (JCTs) would function in an inquisitorial manner. There would be no onus on any person to prove or disprove any fact.

Discussion
Mr Shiceka referred to section 177 of the Constitution and queried why this section did not allow for the NCOP to be involved in the removal of judges.

Mr de Lange admitted that he was not certain of the rationale behind this decision. Nevertheless, he presumed that that only one House was given such capacity because it would be untenable if there were any disagreement between the two Houses on such a fundamental issue.

Mr J Le Roux (DA, Eastern Cape) agreed with the Chairperson’s opening statement that the Minister should show more interest and address the Committee on the Bill. He applauded the Chairperson for further emphasising that Parliament would not to be the Executive’s “rubberstamp”, and that it would also not to be pressurised into fast tracking Bills. Finally, he asked the Chairperson about the process and approach the Committee would take with this Bill.

Mr Shiceka mentioned that he would not tolerate a situation where the executive ran roughshod over Parliament. He emphasised that Parliament should be respected. Regarding the Committee’s approach to the Bill, he explained that Members would make preliminary comments about the Bill and thereafter do some personal research and deliberation. After that, the Committee would engage clause-by-clause on the Bill and propose amendments where necessary. Once that process was concluded, the Committee would deal with the formalities on the desirability of the Bill.

Mr Shiceka maintained that the judiciary had an unfair “edge” over the other two branches of government. To buttress this point, he cited that the judiciary had the sole right to determine the salary of all the branches (of government) and also make observations on Bills. Finally, he stated that “judges encroached on Parliament’s independence almost every day”.

Mr de Lange clarified that Members of the NCOP and NA were represented on the Judicial Services Commission (JSC). However, the Constitution stipulated that parliamentarians should be excluded when the Commission dealt with anything other than the appointment of a judge. This implied that when the Commission considered a complaint against a judge, the parliamentarians would not be part of that process. Mr de Lange supposed that the rationale for this was “you probably did not want Parliament to sit in judgement twice”. Interestingly, he noted that only the NA, and not the NCOP, would be involved in the final decision whether to impeach a judge. He therefore failed to understand why Members of the NCOP could not be part of the process at the JSC level.

Mr Shiceka understood the logic why the NA could not be involved in the JSC, when it dealt with complaints against judges, because it would be a “referee and player at the same time”. However, he failed to understand why the NCOP was excluded because it was a structure that also dealt with oversight. Consequently, he recommended that the Department consider the involvement of the NCOP at some level. Lastly, he emphasised that this should be construed as a fundamental suggestion.

Mr Le Roux queried whether the Committee contemplated getting a broader input on the Bill, by means of written submissions and public hearings.

Mr Shiceka reminded the Member that he was “warming the chair” of Mr Mokoena and could therefore not give a conclusive answer to his suggestion. Nonetheless, he admitted that it would be a useful exercise that would ensure a variety of views.

Mr N Mack (ANC, Western Cape) posed two questions. Firstly, he queried why the JCC was only composed of judges. Secondly, he sought an explanation why it was specified how many women judges should be part of the JCC and the JCT. He viewed this as discriminatory.

In response to the primary question, Mr de Lange replied that it was international best practise for judges to be judged by their peers. The procedure leading up to the removal of judges was done by the judiciary itself, and the actual decision was taken by Parliament. Concerning the latter question, he conceded that the Committee was best placed to decide on the composition of the Board.

Furthermore, Mr Mack related the experience of a community in Prince Albert (Western Cape) that was repeatedly victimised and intimidated by a magistrate. He argued that in the deep rural areas, judicial officers were still “a law unto themselves” and immune from any repercussions.

Mr de Lange replied that this was an unfortunate situation. He commented that there were systems in place for such judicial indiscretions at a magisterial level and hoped that the matter would be resolved.

Mr D Worth (DA, Free State) suggested that the Committee should invite several retired judges to state their views and experiences on the subject of remuneration.

Mr Shiceka acknowledged that it would be beneficial for the Committee to hear the views of those who were more knowledgeable on the subject. In addition to retired judges, it would be helpful to have institutions of higher learning make submissions to the Committee.

Mr Paul Hoffmann, Director: Centre for Constitutional Rights, contended that the only real contentious issue in the Bill centred on whether a retired judge could be economically active. In his view, a retired judge, just like any other retired person, could not be deprived of this right and any prohibition to that effect would be inconsistent with section 22 of the Constitution.

Mr Shiceka countered that nobody, except judges, continued to get paid by the state when they retired.

Mr Hoffmann explained that judges were made judges for life in the dying days of apartheid by the then Minister of Justice, Mr Kobie Coetzee. He clarified that at the time most of the judges were unhappy with the political situation and were earning a small fraction of what they could earn in private practice. Accordingly, Mr Coetzee persuaded suitable people to remain on the bench and as a trade-off offered them a salary for life. He concluded that it was regarded as a substitute form of pension.

Mr de Lange mentioned that he would provide the Committee with a document that explained the dispensation of judges. Further, he pointed out that section 176(3) of the Constitution specified that the salaries, allowances and benefits of judges may not be reduced. Rhetorically, he wondered whether Parliament could pass a law in contravention of that provision. He suggested that Mr Hoffman’s comments were hearsay and disclosed that there were individuals in the Department who could enlighten the Committee, as they were privy to the negotiations involving the former apartheid Minister. Moreover, he explained that the system (involving the remuneration of judges) was introduced in the interim Constitution and was carried over by the new dispensation. Over the years the circumstances had changed; there was a growing pool of judges who at an earlier stage were entitled to benefits for life. The fiscus was not growing at the same rate. He added that the biggest opponents to the ban anticipated that the Minister would decline their request to work for profit when in reality this was not the case.

Mr Shiceka told Mr Hoffmann that he was the Chairperson of the Constitutional Review Committee and said that the Constitution could be amended when it was necessary to do so.

Mr Shiceka remarked that the Committee would assemble a range of stakeholders to enrich the debate. In conclusion, he thanked all observers and participants for their interest and input.

The meeting was adjourned.