MEMORANDUM

concerning the

JUDICIAL SERVICE COMMISSION AMENDMENT BILL, 2007

THE POSITION OF RETIRED JUDGES

We thank the Portfolio Committee for the opportunity to present this memorandum on the provisions of the abovementioned Bill. While we unequivocally support the profound concerns expressed on behalf of the Judiciary about the constitutional and practical defects of the Bill in general, we are confident that these concerns will be adequately articulated by others. We therefore deal with the Bill only in so far as it affects retired judges.

1. The aim of the Bill, which we respectfully endorse, is to regulate the conduct of serving judges but there is no reason to include in its scope retired judges, who no longer exercise any state power or perform any public function and whose activities are of no public significance or interest.

2. If, however, the conduct of retired judges should have to be subjected to oversight, the Bill is defective in principle. It goes go the heart of the constitutional guarantee of an independent judiciary. It is universally recognised in constitutional democracies that the ethical standards of the judiciary are set and enforced by the judiciary itself. We are accordingly deeply concerned that the Bill envisages that the Executive and the Legislature will play a controlling role in this regard.

3. The Bill is defective in yet another fundamental respect. Judicial ethics and its expression in a code are not concerned with rules and their transgression, some form of crime and punishment, but with conduct that could bring the Judiciary into disrepute, conduct that is unbecoming of a judge. In the case of a retired judge the impact of the code must be largely if not wholly confined to public activities and the range of remedies is perforce extremely limited. The Bill, however, goes much further and seeks to limit the activities of retired judges generally and to subject them to ministerial oversight. It overlooks the elementary distinction between active judges whose primary duty is to expend their time and energy in performing their judicial functions and whose engagement in other activities (gainful or otherwise) are for obvious administrative reasons subject to limitations, and retired judges who are under no such obligation and whose day-to-day activities are of no administrative concern to anyone. The Bill assumes that retired judges are judges in the real sense of the word and that their conduct has to be regulated in the interests of society. It loses sight of the fact that retired judges are deemed to be judges purely for the purpose of pegging their pension to prevailing judicial salaries.

4. The Bill ignores the history of the relevant legislation, which was initiated by then minister Coetsee in 1989. At the time judicial salaries were inadequate to attract candidates that were regarded as suitable for judicial appointment and the continuing shortage of judges was exacerbated by temporary vacancies when judges went on long leave. The minister addressed both problems with an ingenious proposal: long leave would be curtailed and as quid pro quo judges’ pensions would be hitched to the prevailing salaries of serving judges and they could be called upon to perform three months’ remunerated service per year after their retirement (until age 75 years). The semantic mechanism devised by the minister, which was then incorporated in the Judges’ Remuneration and Conditions of Employment Act, 1989, was that judges would no longer “retire” but would be “released from active service” and instead of going on “pension” would continue to be paid a judge’s “salary”. The artificiality of the terminology is exposed when it is noted that a retired judge performing “active service” is entitled to be paid a normal judge’s salary over and above his or her pension/salary.

5. But the substantive conditions of employment of serving judges were amended in respect of long leave and pension only – and in no other respect. At no stage was it contemplated that retired judges would retain any other rights or remain under any other obligations appertaining to their office. In all other respects their rights and duties would terminate upon their retirement. They would no longer be entitled to their ranking on the protocol list; to be paid out their gratuity; to enter and inspect any prison or police lock-up; to have the use of an office and law library and the services of a personal registrar and access to secretarial facilities; to have the free use of a motor vehicle provided, maintained and fueled by the state; to government transport to and from an airport or railway station for themselves and their spouses. By the same token they would lose none of the rights which they had under their existing conditions of service and on the basis of which they had accepted appointment to the bench, namely:

(a) to elect to retire at age 65 or 70 on the applicable pension and gratuity conditions;

(b) upon retirement to terminate his or her professional relationship with the state, to be a free agent exercising all the rights of a citizen;

(c) in particular, upon retirement to engage in any gainful activity, to work, write, lecture, farm, conduct a business and earn an income as freely as any retired civil servant or retired politician would be entitled to do, subject only to the unwritten ethical rule that such activity would not bring the judiciary into disrepute.

6. The provision in the Bill which seeks to regulate the conduct and manner of employment of retired judges conflicts with the above rights of judges flowing from their contracts of employment and is in breach of our labour law. It is also grossly unfair toward retired judges, many if not all of whom accepted appointment to the bench on the basis that after their retirement they would be entitled to engage in any suitable occupation of their choice. They did not waive that right and were not requested to do so. This right cannot unilaterally be terminated or curtailed. This would be in breach of their contractual and constitutional rights.

7. Judges must at all times conduct themselves in a manner that is consistent with the office of a judge. They cannot be made to conform to any other professional standard. Conversely a judge or retired judge cannot be subjected to the coercive influence of being prevented from engaging in activities that are not inconsistent with that office. The Bill in its present form infringes in both respects. Section 22 of the Constitution guarantees the right of every citizen to choose his or her trade, occupation or profession freely. The prohibition contained in section 11 (3) of the Bill infringes section 22 of the Constitution. The fact that consent may be obtained from the Minister to perform remunerative work does not validate the prohibition. Nor can the infringement be said to be “reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom” as required by section 36 (1) of the Constitution.

8. The test for justification under section 36 of the Constitution requires that the competing interests involved be subjected to a balancing exercise. Here we are at a loss. On the one side of the scale there are the legitimate contractual rights of retired judges plus their constitutionally protected right to engage in gainful activities consistent with their former status. On the same side of the scale one has to place the public interest in preserving and usefully employing the skills, talents and experience of a fairly select group of experts whose competence and integrity has been established over many years. Over centuries it has been regarded as in the public interest for retired judges to perform any manner of offices for which their former occupation qualified them, e.g. as arbitrators, mediators, chairpersons of statutory and other commissions of enquiry, ombudsmen, lecturers, textbook writers, part-time judges in kindred jurisdictions, etc.. What, then, is to be placed in the opposing scale? We know of no justification, official or otherwise, for this radical step and can think of none.

9. We invite the Honourable Members of the Portfolio Committee to submit the discretion the Bill envisages vesting in the Minister to an elementary test. Assume the Minister is indeed vested with the discretion to permit retired judges to perform certain remunerative activities or to refuse such permission. Assume further, by way of example, an application by former judge X to act as an arbitrator in a commercial dispute between two corporations. By virtue of what criteria is this discretion to be exercised? Is it the identity of the parties, their nationalities, domiciles or principal places of business, the nature and complexity of the dispute(s), the cause(s) of action, the sum(s) of money involved, the likely duration of the proceedings, the identity of the arbitrator(s), whether arbitration is obligatory in terms of the original contract between the parties or has been agreed to ad hoc later, whether the arbitrator has been jointly selected by the parties or has been otherwise nominated, etc.. By virtue of which of these factors or combination of factors is the Minister to exercise the discretion envisaged? How are such factors to be established? Will there be a right of audience and, if so, who will be entitled to be heard and in what manner? Will the Minister be obliged to keep a record of the application proceedings and/or to give reasons for any decision? How will confidentiality, often an essential motivating factor in a decision to determine a dispute by arbitration, be maintained? It is respectfully suggested that a superficial review of these realistic questions demonstrates the minefield into which the proposed provision will lead the Minister. Which, in turn, demonstrates that the Minister has no business getting involved in such matters. If litigants wish to exercise their time-honoured and universally recognised right to have their disputes determined by willing, able and available arbitrators of their choosing, there is no warrant for gratuitous interference by the Executive.

10. Constitutionally the head of the Judiciary is the Chief Justice; and it is the Chief Justice who is the final arbiter of judicial propriety, not the Minister and not Parliament. Yet the Bill in its present form empowers the Minister, with the approval of Parliament, to permit or not to permit a retired judge to engage in particular gainful activities while the Chief Justice is relegated to a mere consultant. What judges may or may not do is a matter to be determined solely by whether it is or is not consistent with judicial office. That is a matter on which the other branches of government cannot dictate. It is constitutionally unacceptable for the Executive or Legislative branches of government to be the arbiters of what activities are or are not consistent with judicial office. It is therefore all the more constitutionally offensive for the Minister to determine what activities of retired judges are permissible and which not. The Executive and the Legislature have no legitimate interest in prohibiting a judge from engaging in activities that do not impinge on the performance of the judge’s official duties. In the case of retired judges (who have no official duties) the Executive and Legislature have no legitimate interest at all.

IT IS RECOMMENDED that all references in the Bill, direct or indirect, to retired judges (judges discharged from active service) be deleted from the Bill.

JJF Hefer JW Smalberger CG Hoexter G Friedman

PM Nienaber JC Kriegler RM Marais C Plewman

EKW Lichtenberg PJ van der Walt PJ Schabort K van Dijkhorst

AP van Coller G van Coppenhagen IWB de Villiers LI Goldblatt