Judicial Service Commission Amendment Bill: public hearings

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Justice and Correctional Services

16 August 2007
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Meeting Summary

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Meeting report

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
17 August 2007
JUDICIAL SERVICE COMMISSION AMENDMENT BILL: PUBLIC HEARINGS

Chairperson:
Ms F Chohan (ANC)

Documents handed out:
Judicial Service Commission Amendment Draft Bill as of 21 February 2007
Submission from Retired Judges
Submission from Centre for Constitutional Rights
Submission from Rhodes University
Submission from Judge Harmse on earlier draft of the Bill

Relevant documents:

The Prevalence of Acting Judges in the High Courts from Adv IJ Trengove

Audio recording of meeting

SUMMARY
The Committee heard submissions on the Judicial Service Commission Amendment Bill from three retired judges, representing fifteen of their peers, the Centre for Constitutional Rights and Rhodes University. The Centre for Constitutional Rights submitted that the Bill inter-related with a number of sections of the Constitution. In principle, the Centre believed that sitting judges should be fully committed to their work on the Bench and should not be permitted to take on outside work. The second part of the submission had related to the position of retired judges, and the Centre did not believe that there should be limitation of their right to undertake work freely. It suggested an amendment to the relevant clause, to clarify the position of judges between the ages of 70 and 75. The Centre further submitted that only members of the judicial or legal profession should be eligible to be a chairperson of the Judicial Service Commission (JSC). Questions by Members addressed the eligibility for holding the Chair of the JSC, the desirability of excluding non-judicial members from it altogether, and the distinction between the retired judges under and over 75 years of age.

Fifteen retired judges had jointly made a submission in which they stated that, despite payment of "a salary" they were in fact judges in name only, having surrendered all judicial privileges, duties and office at the time of discharge. They explained the 1989 dispensation, and how they had understood it at the time. They submitted that there was no justification for requiring discharged judges to obtain ministerial consent to undertake any other work. Members discussed what the intentions of the 1989 legislation were, and read out an extract from Hansard at the time. Some held the view that the concept of "judge for life" was indeed intended, and this was the quid pro quo in return for the improved financial arrangements. This was debated by the retired judges, who reiterated that they would not have agreed to such a condition. The retired judges proposed that they should not require permission to undertake any work, but that if this provision was left in, then there must be a fully comprehensive list of work, and that the Minister should give permission "in consultation" instead of "after consultation" with the Chief Justice.

The Law Faculty, Rhodes University, indicated that it broadly supported the Bill, but suggested changes to the wording of the Preamble. The drafting of a Code of Conduct should be performed by the judiciary, without executive interference, although it was conceded that the Code would have to have legal effect. It proposed that all extra-judicial income generated by serving judges should be cleared, declared and recorded, and that "closely connected" services should be defined in the legislation, not merely in the Regulations. The disciplinary processes of the JSC needed to be clarified, in particular the role and status or the tribunal. Members raised the membership of the tribunal, and agreed that the process seemed cumbersome. They also queried whether in principle guidance on ethics should not be a specific function of the JSC, as contained in an earlier draft.

The Committee would consider also a submission from Judge Harmse that had been previously received.

MINUTES
Centre for Constitutional Rights (CCR) Submission
Adv Paul Hoffman, Director: Centre for Constitutional Rights, noted that the Centre was a unit of the FW de Klerk Foundation. Its mission involved informing the public of their constitutional rights, lobbying and assisting people to assert these rights. He noted that his written submission had been circulated. Although the Centre recognised that there was a need for the type of reform contemplated by the Bill, it impacted upon a number of sections of the Constitution. He summarised these sections: section 1(c) identified the supremacy of the Constitution and the rule of law, section 7(2) set out the need to respect the Bill of Rights, and section 22 noted that every citizen had the right to choose their trade, occupation or profession freely, although the practice of a profession may be limited by law. Section 36 was the limitation provision. Section 34 stated that everyone had the right to have any dispute that could be resolved by application of the law, decided in a fair court of law or impartial tribunal or forum. Section 35 dealt with the right to a fair trial, in particular 35(3)(d), which stated that there was a right to have the trial concluded without unreasonable delay. Section 165(2) was also of importance, stating that the courts were independent, and subject only to the Constitution and the law, which should be applied impartially and without favour, fear or prejudice. He also referred to Section 195(1)(b) and section 237.

CCR believed that sitting judges being able to take on outside work was problematic. The waiting times for Court hearings were too long, and would be exacerbated if sitting judges were given the opportunity to take on this work. CCR believed that it was necessary to have judges fully committed to their work.

The second aspect of the submission had related to the position of retired judges, but he noted that the retired judges would be making their own submissions and he would therefore not repeat what was already written.

Adv Hoffman finally pointed out a typographical error in the Bill. He stated that on Page 6, Section 8(4) should have referred to designation under subsection (1)(c).

Discussion
The Chairperson said that the general comments in the written submission on the utilisation of judges had been dealt with in the 1989 dispensation. The challenges faced currently in transformation of the judiciary would mean that many of the Acting positions should be freed up for potential judges, to give them some experience on the Bench. However, she was sure that over the next few years many of the acting positions would probably be filled by former judges who had been discharged, as was originally intended.

Adv Hoffman said that there had recently been some interesting research by Adv J Trengrove on acting appointments.

The Chairperson indicated that it would be useful to have sight of this research.

The Chairperson noted the comments made in relation to Clause 4, where the CCR had submitted that only members of the judicial or legal profession should be eligible to be nominated as Acting Chairperson of the Judicial Service Commission (JSC). She asked whether the principle should not be established that only judges should chair meetings of the JSC.

Adv Hoffman agreed, but added that the principle went further in that lay members should not be in charge of any machinery around the administration.

The Chairperson said that the JSC was to advise the Executive on important matters, and it was perhaps symbolically appropriate that it should therefore be chaired by a judge.

The Chairperson noted that CCR had made a similar point in relation to Chapter 2, but she was not sure that this was correct. The CCR had suggested that it was necessary to exclude non-judicial members from the JSC altogether and she did not agree that it was desirable to entrench a system of complete insulation, which would amount to internal professional regulation of conduct. The good standing and integrity of the judiciary was essential in any democracy, and this would be enhanced by public confidence in the process. Persons designated by the President were not party-political appointments, and would include eminent persons such as FW de Klerk, or Archbishop Tutu. 

Mr Hoffman still believed that non-judicial persons should not be included, as he believed that it was vital for the process that the persons appointed had experience in legal proceedings.

The Chairperson felt that there was more danger of this being seen as a closed process. The inclusion of other persons would be a balanced way of introducing a degree of impartiality without affecting the integrity of the judiciary.

Adv Hoffman reiterated that CCR was of the view that conducting disciplinary proceedings was a specialised matter, requiring specialised legal knowledge.

The Chairperson said that in relation to the limitations clause an argument had been advanced that a distinction should be made between judges who had been discharged from active service, but who could still be called upon to sit for three months a year, and those who were over 75 years of age. She asked if it was ever envisaged, in the 1989 dispensation, that there should be a separate dispensation for judges over 75 to serve on the bench should they wish to.

Adv Hoffman replied that judges between 70 and 75 years old were obliged to give three months service a year. Those over 75 did not have such an obligation. For the remaining nine months a year, the judges between 70 and 75 were indistinguishable from those over 75. To add in a requirement now that they must have permission to undertake work amounted to changing their conditions unilaterally.

The Chairperson asked what was being changed.

Mr Hoffman said that the retired judges' entitlement to sit on the Bench of neighbouring states, or to be appointed as arbitrators or consultants was being curtailed.

The Chairperson did not feel that there was any automatic entitlement that was now being changed by this Bill. A serving judge, or one discharged from service, had to apply to do extra work, and the discretion to approve this lay with the Minister. This Bill was merely opening up that discretion and making it more transparent by requiring the Minister to consult with the Chief Justice.

Mr S Swart (ACDP) noted the comments made as an aside in the Hlophe matter, and agreed that there had indeed been delays, and, when dealing with the complaint submitted by the ACDP, the JSC had indicated that there was a need for guidelines. He asked if CCR was suggesting that there should be a total prohibition on outside work for active judges, whether only Ministerial permission be required, or whether there should be a list of permissible work "in consultation" or "after consultation" with the Chief Justice.

Adv Hoffman replied that permissible work should be limited to writing textbooks and lecturing on topics of law. He had difficulty with full time judges being allowed to do outside work as this had the potential to dilute the independence or impartiality of the judiciary. Business Day had recently reported that Judge Mojapela had agreed to appointment as a trustee of a charitable trust, which in itself was unlikely to involve any conflict of resolution. However, the Trust had then decided to enter into black economic empowerment deals in order to boost its income, and the Judge was now in the situation where he was unable to sit in any matter where First Rand Bank interests were involved. The draft legislation had no boundaries or capping on what a judge could do. A judge could, for example, become involved on an international lecturing circuit, which would effectively remove him or her from Court for months of the year. CCR did not believe that sitting judges should be able to undertake outside work.

Dr T Delport (DA) asked if this should also apply to those judges between 70 and 75.

Adv Hoffman replied that CCR believed that provided the appointment did not impinge upon their ability to do their work when called upon for the three months of the year, then there was no problem.

The position of retired judges: Submission by fifteen retired judges
The Chairperson noted that the public hearings were part of the legislative process, and in view of the need for separation of powers, she had some reservations about judges participating. She asked for comment.

Judge Joos Hefer, retired Judge, stated that he did not believe there was any problem in the appearance and submissions by retired judges who, because of their age, were not in fact "judges" other than in name, and had no connection with the judicial system.

Judge Hefer noted that the expression "discharged from active service" was introduced in the 1989 legislation. Prior to that, judges had served until the maximum retirement age of 70 and then went on pension. Under the new system, judges held office "until discharged from active service" Once they were discharged, they were not regarded any longer as holding office, and therefore were no longer judges. All judicial power was relinquished, and the judicial duties and privileges no longer applied. There was perhaps confusion because of the fact that they were still paid "salaries". During 1989, when the Minister had asked for longer periods of service from retired judges, the judges had in return asked for better conditions, including better pensions for themselves and their widows. National Treasury had stated that the pensions could not be tied to increases in sitting judges' salaries, and therefore the payments to the retired judges were dubbed as "salaries", although in effect the payments were a pension. There was never any intention that those judges called upon to sit would be paid a double salary. Their "pensions" continued, and they were paid ad hoc for the work they were undertaking while sitting. There was little difference in the status of discharged judges below and above the age of 75, as neither held any office. Judges asked to sit for any periods had to re-take the oath.

The retired judges felt that the proposed legislation was unconstitutional. In terms of this Bill, a retired judge was not permitted to conduct a profession or occupation without Ministerial consent, which amounted to an infringement of Section 22 of the Constitution. The State had no interest in these judges, as they were not serving. There was no threat to public interest, and therefore no justification for the section in any event. Judge Hefer pointed out that the section requiring Ministerial permission was not part of the 1989 legislation, but was inserted only in 2001. The old Supreme Court Act of 1959 had required permission for other work, but this applied only to serving judges. Only one section of that Act, dealing with appointment of a Chief Justice, had mentioned "a former judge", but otherwise no other provisions of the Act applied to retired judges. The retired judges were of the view that the requirement in 2001 had been inserted mistakenly as a result of the definition of "a judge" as one who, at a certain point in time, was holding office. There was no other profession which required Ministerial consent to apply the skills an individual had acquired over the years, and no justification for such consent. 

Discussion
The Chairperson asked for comment on what the 1989 regime had intended to do. Her sense was that this legislation had been based upon agreements between the then-Minister of Justice, Mr Coetzee, and the serving judges. A scheme was proposed that a judge, having spent a certain amount of time on the bench, would be discharged. A different dispensation applied to those who had resigned. She asked what were the practical implications of a judge on active service, and one who had been discharged.

Judge Johann Kriegler added that there was no mention, in 1989, that judges should not undertake work after their retirement. The judges would certainly have raised objections if this had been the case. It was no concern of the Minister or the State if retired judges decided to undertake work in, for instance, arbitrations. Once a judge had retired, he held no public office. A judge between 70 and 75 doing his three months' service was in no different position to a senior advocate who was called in for an acting appointment. The concept of "judge for life" was never put to the judiciary in 1989.

The Chairperson said that the benefits of that dispensation to judges were entitlement to a salary for life, without contributing to a pension fund, a tax-free gratuity on retirement, and separate payment for any work done for three months for the State, or any other outside work. She asked what the quid pro quo was at that time for the State.

Judge Gerald  Friedman, retired Judge, said that the quid pro quo was the agreement that judges would be available for more work. Under the new dispensation, Court recesses were reduced to two and a half months, long leave was substantially reduced, and the Court terms were extended to a maximum of fourteen weeks in a year.

Judge Kriegler added that in addition, because of the new conditions of service, the Executive was able to persuade senior and excellent legal practitioners to accept appointment to the Bench, taking a substantial drop in current income in return for better arrangements after retirement.

The Chairperson read out an extract from Hansard, quoting the then-Minister of Justice explaining what he believed were the aims of the new conditions. He said that the appointments to the Bench should be made more attractive, to accommodate the increase in the volume of work, while keeping the same number of judges, and to entrench the independence and status of a judge for the duration of his life. A person appointed as a judge would remain a judge for life, similar to the position in the USA. Instead of retiring, he would, on reaching a certain age or having completed a number of years, be removed from active service. The Minister had continued to explain that judges were often asked to serve after retirement, and there was also nothing to prevent them from acting full time.

The Chairperson submitted that these comments were central to the concept of "judge for life". She believed that there was a conscious decision to call the payments a salary, and that this was not merely a question of semantics. The concept of "judge for life" had, in her view, been adopted, although in fact there may not have been a substantial difference in the conditions. She wondered if the real issue was the maintenance of the integrity and good standing of the judiciary, to boost confidence from the public. She doubted that the dispensation was introduced to cater only for the interests of the judiciary, as the Legislature and Executive must have an interest in the reputation of the judiciary.

Judge Kriegler reiterated that retired judges were no longer part of the judiciary.

The Chairperson argued that, despite the fact of their retirement, the retired judges were still in a privileged position. They had probably mentored the sitting judges, and thus had access to them and enjoyed their confidence. They were clearly not on the same footing as other retired persons.

Judge Hefer stated that he had no problem with the State's interest in the sitting judiciary, but believed that his personal actions would not reflect on the judiciary.

Dr Delport agreed that the approach of the Minister at the time was to have judges for life. However, he believed that this scheme was intended to benefit both the State and the serving judges. It was difficult to ascertain the real intention of the legislature. It was necessary for the Committee to deal rationally with what was before it and decide what limitations would be appropriate.

Judge Hefer argued that if the judges were "judges for life" this did not explain why they lost their privileges, functions and powers, and were therefore in effect judges in name only in so far as their status was concerned. No matter what the Minister had said at the time, the lack of judicial duties and powers meant that they were not judges.

Adv C Johnson (ANC) noted that some criticisms had been expressed by parliamentarians on the lack of involvement and submissions from judges on difficult legislation, such as the Sexual Offences Bill, despite their vast experience in matters. There was criticism that judges would only get involved in matters affecting their pockets.

Judge Hefer noted that in the Free State there was in fact limited involvement of judges in sexual offences matters. In addition he said that judges were often not aware of the importance of legislation until seeing discussions in the newspapers, and, in the absence of specific invitations to comment, were often not aware of the proposed legislation.

Imam G Solomons (ANC) asked if judges serving their three months' service were paid.

Judge Hefer replied that they were.

Imam Solomons said that if judges out of active service were given free reign to undertake work, there was the danger of conflict of interest.

Judge Hefer noted that the limitation did not apply prior to 1989, and therefore it was obviously not seen as a problem then.

The Chairperson said that serving judges had had to apply for permission after 1959, but the difference was that there was a distinct category of "retired judge". After 1989 people there were applications to undertake extra judicial work. This new Bill was merely making the process more transparent, by introducing the concept of consultation with the Chief Justice. Firstly, active judges had a list of services they could perform, which were associated with their office. This Committee would need to debate in principle whether judges should be permitted to perform extra-judicial functions. Then there was the question whether the dispensation currently in place should be maintained or opened up to further consultation. She could not understand why this should be seen as restrictive. The decision of the Minister had to be reasonable.

Judge Friedman made the point that no matter what Minister Coetzee had called the "salary", it was in effect a pension. He personally could not be called upon to sit on the Bench, due to his age. There was therefore no reason in principle why anyone should be concerned with what he did.

The Chairperson commented that the dispensation had been beneficial to the judges at the time..

Judge Hefer asked why judges should not be regarded in the same way as Members of Parliament, in whom public confidence also resided.

The Chairperson said that MPs were elected every five years, and if they misbehaved they would not be re-elected. Judges were appointed and held office until discharged. Even that situation was of itself a protection of their positions.

Judge Hefer pointed out that the Constitution noted that the holding of judicial office ceased on the date of discharge. He wanted to place on record that the judges would not have agreed to be regarded as judges for life.

Mr C Burgess (ANC) asked how the Bill would affect judges who were on active service, and whether the comments made now by the retired judges were also reflecting the viewpoint of the currently serving judges. If so, he had a problem, because of the separation of powers doctrine, and queried if it was appropriate to consider these comments.

Judge Hefer said that this Bill would not affect judges in active service, but would of course affect them when they retired. He said again that the retired judges were judges in name only.

Judge Kriegler asked that the Committee should look at the technical differences between Clauses 1 and 2, and 3 and 4. Under Clauses 1 and 2 there was certain work set out for which no application was required. He enquired what criteria would apply, and how it was possible to distinguish between different types of arbitration, or acting appointments in a neighbouring country, and what details would be required.

The Chairperson noted that the criteria would still need to be set. However, if the judges were suggesting that no criteria should be published, then they should ask for these to be taken out.

Judge Kriegler asked that a list of services that judges could render should be published up front. The ad hoc application was a problem. He would prefer to see a list of every possible type of legal work.

Judge Friedman reiterated that judges should not require permission, as they were not subject to any regime. However, if there was insistence that the proposed legislation be passed, then he argued that at least there should be a fully comprehensive list.

The Chairperson said that she would not be unhappy to see a list, but if it was to be interpreted as excluding some occupations because they had not been listed, then the judges were defeating the object. The list would be drafted by the Minister, in consultation with the Chief Justice, who presumably would consult with the retired judges.

Dr Delport said that he understood that the list for active judges would be short, but there should be a far more comprehensive one for retired judges.

Judge Hefer reiterated that his first point was that the retired judges did not believe that they should have to apply for permission at all. However, if this proposal were rejected, then the judges would like to have a far more comprehensive list. They also suggested that the consent of the Minister should be "in consultation" with the Chief Justice, and not "after consultation".

The Chairperson noted that since 1994 there had been 276 applications from 44 retired or discharged judges. Of the 16 judges named in the memorandum, 11 had in fact applied for permission to do extra work.

Submission by Rhodes University
Ms Rozanne Kruger, Law Faculty, Rhodes University, had made a written submission stating that the proposed legislation and its goals were broadly supported, but would like to make some comments. The wording of the Preamble seemed to suggest that judicial independence and dignity was to be balanced against openness, transparency and accountability. She suggested an alternative wording, to reflect that the latter principles were overriding and would in fact enhance judicial independence. 

The written submission noted that the limitation of political influence in disciplining judges was welcomed.

Clause 12 involved the Minister and Chief Justice in the drafting of a Code of Conduct. She submitted that this task should be performed by the judiciary, without executive interference, and the Minister should only be involved in the tabling process in Parliament, and the publication in the Government Gazette. She stated that this Code would not have the role of legislation.

The Chairperson interjected that a Judge could not be removed from office on the basis of a Code that did not enjoy legal effect, and it would have to have such a role.

Ms Kruger continued that strict control over the interests of serving judges was supported, and that all extra-judicial income generated should be cleared, declared and recorded. It was necessary to define what were "closely connected" services, and she submitted that this should be defined in the legislation, rather than being left for the Minister to define in regulations.

Ms Kruger stated that there seemed to be a tiered process in the disciplinary process. Clause 8 made it clear that the Commission had a judicial conduct committee, but the position of the tribunal was not clear, as the Bill did not state whether this would be a tribunal of the JSC, nor was its status and membership set out. Clause 20 allowed the Commission to disregard the recommendations of the tribunal, which would not make sense if the tribunal was a functionary of the JSC. She believed that the Commission should be bound by the recommendations of the tribunal, or that an appeal should lie to the Commission against any recommendation of the tribunal. It would be undesirable to repeat the entire process if a judge needed to be impeached.

Discussion
The Chairperson asked if there would not be a practical problem in having the members for disciplinary processes drawn from the JSC membership. It would be administratively difficult for serving judges to sit. The idea was to have a pool of people available, who might not be part of the membership of the JSC. Perhaps the JSC should apply its mind to the recommendations. It was only the seriously harmful matters affecting the reputation of the judiciary that would go to the Tribunal, but she agreed that the process did look very cumbersome.

Ms Kruger noted that there was no mention of whether the Chief Justice was acting in that capacity, or as Chairperson of the Committee. She suggested that this process needed to be re-examined.

The Chairperson agreed in principle, but said that in addition it should not be easy to remove a judge. In practice, most of the complaints would be dealt with elsewhere. The status of the tribunal, how it came together, and how it related to the status of the JSC was important. She mooted that perhaps there should be a pool of judges, with approval.

The Chairperson said that this Committee had originally discussed an issue that did not appear in the Bill any longer, but which had stated that the JSC should be giving guidance on ethics. She believed that this could be a useful tool, as there must be some grey areas. She asked if this issue had been considered, as it was one way in which the judges could regulate their own ethics.

Ms Kruger said that judges believed that ethics should be held separately. She did agree that there should be legislative provision but that members of the public should be able to have access to a Code of Ethics. She suggested that perhaps this Bill was not the appropriate place for this matter.

The Chairperson thought this was an important corollary to what was being dealt with.

The Chairperson noted that a further submission had been received from Judge Harmse some time back, and although his submission had related to a different version of the Bill, some salient points were raised. She asked that this submission also be made available to the Members.

Committee business
The Chairperson announced that the Constitution Thirteenth Amendment Bill would be discussed on Tuesday 21 August, in a joint session with the Select Committee on Security and Constitutional Affairs and the Portfolio Committee on Provincial and Local Government.

The meeting was adjourned.

 

 

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