The Department of Justice responded to the submissions heard the day before from Judges Freidman and Howie, the Centre for Constitutional Rights, and Webber Wentzel Attorneys acting on behalf of their client, Avusa Limited. No decisions were made at this stage as to whether the Committee considered the Bill to be constitutional.
A briefing was given on the related South African Judicial Education Institute Bill. Questions focused on why the Bill stipulated that reports must be submitted to the National Assembly but not to the National Council of Provinces. Other questions looked at the role of traditional leaders and the composition of the governing council.
Judicial Service Commission Amendment Bill: Department response to submissions
Mr Johan de Lange, Director: Legislation, gave the Department of Justice and Constitutional Development (DoJ) view on the submissions made on 25 March 2008 to the Committee. The judges’ submission, presented by Judges Friedman and Howie, was that Clause 11(2) and (3) of the Judicial Service Commission Amendment Bill was problematic as it required retired judges to obtain permission from the Minster to do any remunerative work, such as arbitration, after retirement.
Mr de Lange said that between 1994 and September 2006, 44 retired judges had made 280 individual applications to the Minster and all were granted. Arbitrations constituted 197 applications. He noted that since the publication of the Hlophe Report, 37 applications were approved for arbitration, showing no significant drop in granting applications for arbitration.
He said that, with the exception of Dr Milo’s presentation, the submissions on 25 March did not raise new points. Judge Friedman’s argument to allow retired judges to work in certain fields without needing permission had been discussed at an earlier stage in the legislative process. It was thus up to this Committee to decide whether his suggestion should be incorporated. What seemed to be objectionable prima facie was the current wording of Clause 11 and they might consider different wording to render it less objectionable.
With regard to Dr Milo’s presentation, the issue of whether formal enquiries by the Judicial Service Commission should be public was briefly aired at an earlier stage in the legislative process. He explained that at the early stages of complaints against magistrates, these were initially open to the public but once it reached Parliament, proceedings were then held in camera. He conceded this was a bit of an anomaly.
Mr de Lange apologised for his lack of research, pointing to the limited time at his disposal to respond to the submissions. He conceded that it was correct that under Canadian law, the formal stage of enquiries did take place in public, unless the enquiry committee ruled that administration of justice required that it be heard in private. It could prohibit publication of any documents before it if deemed not in the public interest. He said that there was one state in the USA where these were held in public, but was unable to locate other jurisdictions where they were held in public. He noted the damage that could be done to a person’s reputation should it held in public and the judge was later found to be innocent.
Ms Refilwe Mathabathe, Parliamentary Legal Advisor, pointed out that reliance on section 22 of the Constitution which provided that every citizen had the right to choose and practice his or her trade, occupation or profession was misguided, as all fundamental rights could be limited by the operation of section 36 – the limitation of rights clause. She stated that unless it could be said that it was unreasonable or unjustifiable in an open and democratic society, the right could be limited. She drew attention to Clause 11(3) of the Bill and said that in her opinion this limitation could be justified as it was arbitrary and did not completely remove the right. Permission would only be denied if it would adversely affect the image or administration of justice or otherwise bring the judiciary into disrepute.
Dr F van Heerden (FF+) stated that the provision requiring retired judges to obtain ministerial permission to do any paid work would not withstand s36 analysis.
Mr J le Roux (DA, Eastern Cape) noted that two eminent judges and a senior counsel had questioned the constitutionality of the Bill and that the Committee should take their concerns seriously. If Clause 11 were not amended, there would be a constitutional challenge.
Mr M Mzizi (IFP, Gauteng) said that as far as Clause 11(2) and (3) was concerned, there needed to be a very convincing statement to remove any doubt that there was any sinister intention behind this legislation. His fear was that if retired judges were allowed to perform other work it would open the floodgates and encourage other judges to retire.
Mr Z Ntuli (ANC, KZN) it would be better to move from a position that this section was a qualification, not a prohibition. The qualification was justifiable in his opinion as they did receive a salary for life.
Mr de Lange said that Judge Friedman’s submission sought to introduce certain categories where permission was not required from the Minister, such as arbitration, holding a judicial position in a country outside South Africa, acting as an ombudsman or as a chairperson of a statutory body. Consent by the Minister was readily granted for these categories.
The Chair interjected to ask for examples of instances where consent might be refused.
Mr de Lange replied that a retired judge holding the directorship of a company could be a problem. He also pointed out that while it was accepted that a retired judge could not return to active practice, there was no law preventing a judge from returning to practice and that this might be an issue that would require legislation.
Mr de Lange continued, saying that there were a few factual inaccuracies in the previous days’ submission. He said that the issue of being judges for life was moot. It was true that it was introduced in 1989. A few years later, the interim constitution provided for a seven-year term for Constitutional Court judges. After their term, they would receive a once off gratification. The final Constitution extended this period to 12 years. This influenced the formula used to calculate the gratification and one of the principal reasons they had to revisit, the Judges Remuneration Act in 1999. This resulted in a new act being passed in 2001. Thus it was carried over into the new dispensation.
He stated that it was difficult to compare this to any other category, whether MPs or other professionals. It was not a pension, but a salary and was stated as such in law. It was continually adjusted, as if the office were held. The rationale for the proposed legislation must be rational and could not be for the sake that “they were having too good a time”. The mischief that was to be addressed by such legislation could never be anything other than to protect the dignity and integrity of the courts.
Ms Refilwe Mathabathe, Parliamentary Legal Advisor, responded to an earlier objection regarding law of general application. She said that it did not mean that it had to apply to everyone, but to a certain group, but must apply to all within that group equally. This was the case with the way judges were being treated.
She pointed out there was a perception in the Cape Bar, that white advocates, in certain circumstances, look at court rolls and if their case was to be heard by a black judge, they would withdraw the case from the court roll. She pointed out that judges now being discharged were those who had been in the system for a while, who were invariably white and were now working as arbitrators and that this was a reality that the Committee had to face.
Dr van Heerden strenuously objected, wanting to know whether race or the Bill was being discussed and asked for a ruling.
Ms Mathabathe apologised, but qualified her apology, saying it was a sensitive issue and that racial issues needed to be discussed. She pointed out that this perception could affect the administration of justice.
The Chair emphasised that Ms Mathabathe was talking about perceptions.
Mr van Heerden said that the Committee was present to discuss the Bill, not to speculate on perceptions.
Mr D Worth (DA, Free State) added that this was no longer a discussion, but had turned into a political issue.
The Chair said that the perceptions raised by the parliamentary legal advisor were not new and had been widely discussed in the media.
Mr le Roux pointed that the most outlandish comments could be said under the caveat of “perceptions.” He suggested that this issue be set aside to allow heads to cool.
Mr M Manyosi (ANC, EC) stated that there was no basis to the argument that the full salary paid to judges was to make up for the shortfall during the time they were in active service. He claimed Judge Friedman had advanced no argument. Secondly, there would be problems in deleting Clause 11 in totality. Although tacitly judges were not allowed to return to the Bar, it was a potential occurrence and thus must be removed.
The Chair pointed that the judges did not wish to remove the entire Clause 11.
Mr N Mack (ANC, Northern Cape) said that constitutionality of Clause 11 was problematic and that the Committee needed to be advised as to whether it was constitutional. He pointed out that each profession had it rules and limitations, but such limitation must not be unconstitutional.
The Parliamentary Legal Advisor once again apologised for her earlier statements and said that she did intend to offend the Committee.
The Chair accepted her apology.
Dr van Heerden pointed out that even for a judge, to return to the Bar would take a while to build up connections with attorneys.
Judicial Education Institute Bill: briefing
Mr Johan de Lange stated that a Justice Colloquium had been held in April 2005 when a package of laws, including the controversial constitutional amendment bill dealing with superior courts, was introduced. There were extensive discussions at the Colloquium and an Advisory Committee had been established with this matter on its agenda. A draft Judicial Education Institute Bill had been presented, refined and put before Cabinet.
Mr de Lange stated that the objects of the Bill was to establish a training institution with legal personality for aspiring and newly admitted judicial officers, both magistrates and judges, as well as continuing education for established members of the Bench. The Bill vested governance in a council drawn from interested parties.
Mr De Lange stated that the Preamble and first four clauses provided the objects and the definitions.
Clause 5 provided for the functions, which was to establish, maintain and provide judicial education.
Clause 6 provided for the establishment of the governing council, whilst Clause 7 governed its composition, which included members from all spheres of government and the branches of the legal professions as well as the general public. He noted that the majority of the council would consist of persons in the judiciary.
Clause 8 dealt with meetings of the council.
Clause 9 allowed for the establishment of standing committees by the council with various responsibilities. The council may also appoint an executive committee. The members of the standing committees must be members of the council but they can co-opt other persons.
Clause 10 detailed the powers and duties of the council.
Clause 11 dealt with the appointment of staff
Clause 12 allowed for the appointment of a director.
Clause 13 was a standard provision relating to financial accountability.
Clause 14 dealt with the remuneration of staff.
Clause 15 dealt with an annual report which must be prepared and submitted to the Minister.
Clause 16 provided for the issuing of guidelines in exercising powers and functions of the Institute.
Clause 17 provided for reimbursement of council members expenses incurred in the course of their duties.
Clause 18 provided for a seal for the institute.
Clause 19 contained transitional provisions.
Clause 20 provided the short title and commencement date.
The Chair drew attention to Clause 15(3) which referred to the National Assembly, but not the National Council of Provinces (NCOP), and stated it was unacceptable.
Dr van Heerden pointed out a similar provision which excluded the NCOP in the previous Bill.
Mr Mzizi wanted to know whether the running of the Institute would be outsourced or whether it would continue along the lines of the present Justice College.
Mr Manyosi noted that the council included 17 members trained in law and two ordinary members drawn from the public. He wanted to know what the criteria were for selecting members of the public. There was an element of transformation in the Bill and he was of the view that the judiciary could not transform itself, that it needed input on the views of the public. He feared that their voice would be drowned out by the highly qualified legal persons on the council.
Mr de Lange said he could not shed much light as to how laypersons would be selected. He did point out that transformation of the judiciary was not so much about demographics, but was rather about jurisprudential changes following a shift towards constitutional democracy. The council was centred on judicial education and it seemed unlikely that it would be able to contribute much. He was of the opinion that the laypersons were there to ensure accountability and to ensure additional representation of the public alongside representatives of advocates and attorneys’ bodies.
Mr Ntuli drew attention to Clause 7 that contained another provision which omitted the NCOP.
Mr de Lange said that he could not comment on this and would have to speak to his principals.
Mr Manyosi asked whether traditional leaders would be represented.
Mr de Lange said he did not know and would speak to his principals to establish their position.
The meeting was adjourned.
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