Judicial Services Commission Amendment Bill: public submissions

Meeting report

Judge Friedman and Judge Howie submissions
The Committee was addressed by Judge Friedman, a retired judge of the High Court on Clause 11(2) and (3) of the Judicial Services Commission Amendment Bill. His submission referred to adjudicatory work performed by retired judges, focusing on arbitration.

Judge Friedman stated that problems arose from the current definition of judge, as a judge was statutorily defined as anyone who held judicial office from 1 April 1989. Those who retired afterwards were thus regarded as judges for life and were bound by prohibitions generally applicable to judges. This would include arbitration work conducted by retired judges.

He stated that there were two reasons for preventing judges from hearing arbitration cases: the Hlophe Report and the fact that retired judges were paid salaries for life. Judge Friedman continued to consider the former reason whilst his colleague, Judge Howie, briefed the committee on the latter.

Judge Friedman said that the Hlophe Report on racism in the judiciary was released in December 2005. The report stated that there were instances in the Cape High Court that, when practitioners saw that their case was to be heard by a black judge, they requested postponement and went to arbitration. Judge Friedman said this incident was a despicable occurrence and a professional body should have taken necessary action.  However because of the nature of the statement, there was an immediate feeling that retired judges should be stopped from arbitration. A response to the Hlophe memorandum which emanated from the Arbitration Foundation of South Africa, said such incidents would have been isolated. The countrywide Arbitration Foundation stated that only a handful of approximately 1000 arbitration cases over a period of eight years had emanated from the court system. A closer inspection of these cases revealed special circumstances which explained the reasons for their reference to arbitration. Such reasons included arbitration being quicker than litigation, the confidentiality of arbitration which, unlike court proceedings, were not open to the public and the fact that many, if not most, commercial contracts contained an arbitration clause. If a contract contained such a clause, the court would refuse to hear a contractual dispute before arbitration. This was especially prevalent in the building and construction industry where such clauses were standard.

Judge Friedman stated that the purpose of the clause was to curb activities of judges. However, it was not clear what mischief judges had been doing that required parliamentary intervention. Many retired judges performed a useful function in acting as arbitrators and in sitting on the bench in neighbouring countries such as Botswana, Lesotho and Swaziland.

He concluded by saying that there was no reason for Parliament to proceed with the complicated provision in Clause 11(2) and (3), which would almost certainly be contested, in the Constitutional Court. The clause should be amended to allow retired judges to do certain activities without requiring permission from the Minister of Justice. Examples of these certain activities were arbitration, sitting as a judge in a neighbouring state or acting as an ombudsman. Activities outside this narrow band would require the approval of the Minister.

Judge Howie then briefed the Committee on the second issue, where judges who served for a certain number of years were paid a full salary for life. He noted that the perception might be that if you receive a salary for life, you were in fact in employment. In his view this was not a salary for life, but an enhanced pension. Although judges might be required to hear cases for three months each year for a period of five years after retirement, if this occurred they were paid a proportional annual amount separately from their salary. He stated that the “for life” aspect related to being paid for life, not serving as a judge for life, as the life salary did not entitle him to act as a judge, hold judicial office or exercise any judicial functions save for those three months. The money paid after retirement was in respect of what a judge used to do in active service and did not entail that a retired judge could not undertake any other remunerative work.

Centre for Constitutional Rights
Mr Paul Hoffman, Director, spoke on the constitutionality of Clause 11(2) and (3). He referred the Committee to three constitutional provisions:
- Section 2 of the Constitution stated that the Constitution was the supreme law of the land and that any conduct inconsistent with the Constitution was invalid.
- Section 22 stated that every citizen had the right to freedom of trade, occupation and profession.
- Section 176(2) stated that judges (Constitutional Court judges excepted) serve until discharged from service in terms of an Act of Parliament. Currently, they were discharged from service once they reached seventy and once discharged, these judges ceased to hold the powers and privileges of judicial office.

Mr Hoffman submitted that Clause 11(2) and (3) was unconstitutional because it did not comply with the Sections 2 and 22 and did not take into account that a judge discharged from active service was entitled to his freedom of choice.

Mr Hoffman submitted that the most appropriate manner to remedy the unconstitutionality of Clause 11 was to delete the offending subsections. Lastly, he cautioned the Committee against passing unconstitutional legislation in order to avoid the unedifying spectacle of judges in the Constitutional Court deciding what was to happen in their retirement.

Webber Wentzel submission on behalf of Avusa Limited
The final presenter was Dr Dario Milo, an attorney from Webber Wentzel Attorneys, who addressed the Committee on behalf of their client Avusa Limited [previously Johnnic], publisher of the Sunday Times, Business Day and other newspapers. The submission was concerned that the Bill, as currently drafted, endorsed secrecy in formal hearings on misconduct by judges.

Dr Milo drew the Committee’s attention to a section in the Preamble of the Bill which stated that it was necessary to create an appropriate and effective balance between the protection of the dignity of the judiciary and the overriding constitutional principle of openness and transparency, which the Bill failed to take into account, and that this was the crux of the issue.

Dr Milo stated that the Bill provided for three types of complaints against judges – frivolous complaints, impeachable complaints, and serious complaints that fall short of being impeachable. Dr Milo said that the former would be screened by the Chief Justice and dismissed as lacking merit. This process would not and need not be open to the public. The latter two proceedings would be heard before the Judicial Conduct Tribunal and the public, including the media, would be barred from attending.

Dr Milo said that in regard to formal hearings and appeals, there needed to be, as a general rule, openness and transparency and that the public should be entitled to attend. Currently, Clause 29 provides that only the complainant, the respondent, their respective legal representatives, subpoenaed witnesses and necessary employees may attend a hearing. There was a provision allowing for any persons, whose presence was deemed to be necessary or expedient, to be present, but Dr Milo said it would be straining language for this to be read as including the general public. Although Clause 29 applied to hearings involving impeachable complaints, Clause 17(5) applied it mutatis mutandis to non-impeachable hearings. Clause 29 should be struck out. However, it should be an absolute rule that all proceedings should be open to the public and if deemed necessary for reasonable and desirable reasons, a hearing may be closed to the public.

The Bill made it a criminal act to wilfully or negligently convey information of a hearing in contravention of Clause 34 of the Bill and provided for a sentence of up to five years imprisonment. The result would be that if the Sunday Times acquired a transcript through legitimate means it could not publish it even if it would be in the public interest to do so. This was a draconian restriction on freedom of expression unacceptable in a democracy.
 
Dr Milo discussed the constitutional principles of openness and transparency, the right to freedom of expression, and the proper administration of justice and concluded that at least at certain stages of the complaints process against judges, proceedings should be open to the public. He also looked to foreign jurisprudence for support of this proposition.

The principle of open justice applied to all adjudicatory proceedings. This principle applied in overseas jurisdiction, including the UK, USA and Canada. Dr Milo cited the Canadian Named Person case where the Supreme Court of Canada stated that an open court was more likely to be regarded as an independent and impartial court. Although the JSC was not a court, the provisions in Clauses 26 to 33 essentially rendered it a court of law.

He argued that secrecy bred speculation and inaccurate reporting, pointing to the reporting around Judge Hlophe’s appearance before the Judicial Services Commission. He concluded that it was in the public interest for such hearings to be in the public gaze. The general rule must be that proceedings were open to the public, for it to conform to the Constitution.

Dr Milo recommended a new two-part Clause 29. The first clause would state that the public would be allowed to attend formal hearings. The second clause qualified the former by allowing the public to be excluded at the discretion of the chairperson if reasonable and justifiable in an open and democratic society. He emphasised this would be the exception rather than the rule as was currently the case.

He urged the Committee not to find solace in Clause 8 which provided for the submission of reports to Parliament on an annual basis. This did not suffice from an open justice viewpoint and Dr Milo said he was arguing for contemporaneous access, not a belated summary. Nor should the Committee be misled by Clause 9, which provided for access to committee meetings only, not tribunals.

Discussion
Mr D Worth (DA, Free State) asked if by allowing retired judges to do arbitration, this denied less experienced judges opportunities to handle such cases.

Judge Howie responded that there was more than sufficient work for all. He noted that this was not a new development and pointed out that advocates also act as arbitrators.

Mr Hoffman expanded, saying that some high court trials were submitted to arbitration for various reasons – for example, the assigned judge might be too inexperienced for the complexity of the case to be heard. He repeated Judge Freidman’s point that these were isolated litigants. He emphasised that if litigants did not want to civilly litigate, for whatever reason, they could not be forced to and removing retired judges would not help as they would simply approach senior advocates instead to perform arbitration.

Dr van Heerden (DA) asked whether the judges’ submission was also made to the Justice Portfolio Committee. He further asked if there was a need for alternative dispute resolution, especially in light of the full rolls in all divisions of the high court.

Judge Howie replied that submissions had been made to the relevant portfolio committee.

Mr J Le Roux (DA, Eastern Cape) said he was satisfied that the Committee would apply its mind to the constitutionality of the disputed clauses and that he was in full agreement with Judge Friedman, and largely in agreement with Mr Hoffman. However, he expressed uncertainty as to whether requiring the permission of the Minister for extra-judicial work seriously compromised judicial independence.

Judge Howie did not agree as they were not members of the judiciary and did not perform any judicial function.

Mr Hoffman elaborated, explaining that judicial independence operated at two levels; institutional of those on the Bench as an institution and their individual independence, meaning they were free to perform duties without fear or favour. He pointed out retired judges may have enjoyed the status of judges for several months a year, but now were rarely called upon to adjudicate cases. He believed that the last time a judge was brought out of retirement to hear a case was in the Schabir Schaik trial adjudicated by Judge Hillary Squires. From the point of view of being a potential acting judge, this was no different from advocates, attorneys, law professors and others in the pool of potential acting judges.

Mr A Manyosi (ANC, EC) asked how the proposed amendment differed from the Bill.

Judge Howie responded that the Bill assumed a judge discharged from active service was not allowed to anything without permission, whilst amendments dealt with those things retired judges were likely to do. He explained that a retired judge would have been on the bench for at least 15 years before retirement and was nit qualified to do anything else. However, there was certain work retired judges were qualified to do, which employed an important role in the community and to which there could be no logical objection.

Mr Manyosi asked if it was being suggested that retired judges were indisposed to have their work regulated by legislation. Addressing Judge Howie, he asked if the right to freedom of occupation should be regulated by legislation.

Judge Howie replied that he was against regulation only to the extent laid out in his amendment. He pointed out that retired judges were no longer employed by the State or anyone else and the mere fact they were paid the same salary by the State did not entitle the State or anyone else, to exercise control over a judge.

Mr N Mack (ANC, Western Cape) said that one had the right to choose one’s profession including becoming a judge. He noted that they made this choice knowing the limitations on post-retirement work. The fact that they still wanted to do work after retirement could create the perception that judges were greedy.

Judge Howie pointed out that when he joined the bench in 1977, there was no such law limiting his post-retirement work, nor did they receive any other pension.

Judge Friedman replied that the salary received by a retired judge was not for what he did now, but for what he used to do and was essentially a pension. He also pointed out that the State no longer required their services.

An ANC committee member wanted to know what was unconstitutional about the Bill and what the judges’ attitude would be towards receiving a pension.

Judge Howie responded that he would have no objection, but this need to be conveyed to judges when they were appointed. However, he could not speak on behalf of other judges. He referred the question of constitutionality to Mr Hoffman.

Mr Hoffman stated there was confusion about “judges for life”, which can be attributed to former Minister of Justice Kobie Coetzee in 1989. The Constitution stated that judges were discharged, so it was a misnomer to regard payment after discharge as a salary, rather it was an emolument. This was done in the throes of pre-democratic South Africa, as it was hard to persuade them to take up positions on the bench in a time of uncertainty. He was unaware of any examples of a retired judge doing anything that would bring the judiciary into disrepute. Against this background, he could not see why it was necessary to regulate the activities of retired judges.

Mr van Heerden asked if there was anything similar to the “judge for life” concept in other jurisdictions.

Mr Hoffman answered that he was not aware of any similar arrangements in foreign jurisdictions. He reiterated that it was conceived to suit special circumstances, which existed in 1989. At the time, it was clear that South Africa was heading towards democracy and the then government was experiencing difficulty in attracting candidates to the Bench in a climate of such uncertainty. 

Mr Worth sought clarity as to why there were differing standards regarding the conduct of judges and magistrates.

Mr Hoffman replied that magistrates were regulated by statute but no similar provisions existed for judges. The only law regarding judicial misconduct was to be found in the Constitution, which provided only the bare bones yet to be fleshed out by legislation.

Mr Mzizi stated that he did not believe that the intention behind Clause 11 was for the Minister to intend to refuse applications and requested an example of where an application to the Minister had been refused.

Mr Hoffman responded that Judge Hlophe had requested permission to bottle 3000 bottles of wine at a wine estate he was developing. Permission was not granted, but Mr Hoffman emphasised that this was a sitting judge.
 
The meeting was adjourned.