The Prevalence of Acting Judges in the High Courts
-
is this consistent with an independent bench?
1.
Many of our colleagues have served
with distinction as acting judges, and continue to do so.
It is a practical necessity that
acting judges be appointed to substitute when permanent judges are temporarily unavailable to hear cases due to
illness, long leave, other assignments or personal circumstances.
Acting appointments are also a useful method of screening prospective candidates for
permanent appointments.
2.
However, service by acting judges brings complications which require careful
management, measures for which currently do not exist.
And, the practice of a substantial “parallel bench” of acting judges
appointed by the Minister without any input by the JSC could, in the wrong hands, ultimately become a tool with which
the independence of the judiciary
may be compromised.
3.
Accurate statistics are hard to come
by as there is no formal system of
publicising acting appointments. An
inquiry at the Department of Justice
to obtain such statistics was fruitless. Details
of acting judges published in the SA Law Reports, which are not necessarily reliable, indicate that large numbers of acting judges serve
in High Court on a regular and ongoing
basis. There are a total of 121 permanent
judges in the four largest divisions of the Court, i.e. the CPD, NPD, TPD (including their local divisions) and WLD. According to the details published in the SA Law Reports about 66 acting judges served in these divisions in 2005, and 56 served in 2006. These
details do not appear to include numerous counsel who regularly assist with the hearing of criminal appeals. It
is likely that, of these acting appointments, a substantial number served for
brief terms (three weeks is generally a minimum) but in each of the four divisions a number of acting judges served continuously for one to three years during the period 2004 to 2006.
4.
The need for acting judges is directly related to the number of
permanent judges in a division.
According to an informal survey the waiting time for civil trials in the CPD, the NPD and the TPD is now close to two years, which is a significant inroad into the right
of access to the courts for the resolution of disputes as required by s 34 of the Constitution. The waiting times are that long despite the fact that a large
number of acting judges has been serving in these divisions. There appears, therefore, to be a strong argument that the number of permanent judges
in each of these divisions is not sufficient.
5.
The Constitution does not provide how many permanent judges should
serve in the High Court. The Supreme Court Act provides that a division of the High Court shall
consist of so many judges as the (State)
President may from time to time determine.[1]
It has been suggested that the President has been slow to authorize more
permanent judges because an insufficient number of suitable candidates from
previously disadvantaged ranks have been making themselves available for nomination, and furthermore because acting judgeships are useful to
groom prospective but inexperienced candidates for permanent posts.
The JSC has also, on occasion, declined to nominate permanent appointees
in order to hold positions open until suitably qualified previously
disadvantaged candidates become available.
6.
There is general agreement that the
bench should be transformed so as to reflect broadly the racial and gender
composition of the population, as contemplated by s 174(2) of the Constitution.[2]
But the question should be asked
whether the practice of not appointing a
sufficient number of permanent judges to reasonably deal with the case
load in High Courts, and the concomitant large scale use of acting judges to make up the shortfall, is permissible under the Constitution.
7.
The Constitution prescribes a judiciary which determines cases
fairly, impartially and independently without influence by government or any other institution or person.[3] The
8.
The Constitution limits the
appointment of acting judges of the
9.
In practice, acting appointments are
made when the Judge President of a division
notifies the Minister that there is such a need.
Presumably the Minister usually acts on the Judge President’s
recommendation, including who to appoint, but the Minister does not have to and
it should not be presumed that he or she always would.
10. The question is then whether there are constraints on the
Minister’s power to appoint acting judges. According
to section 10(4) of the Supreme Court Act the Minister may appoint acting judges for a period not
exceeding one month. That limitation may have been overridden by sec 175(2) of
the Constitution, but it is arguable that s 10(4) of
the Supreme Court Act, read with Schedule 6 of the Constitution, still applies
and that the Minister’s power of appointment remains limited to one month.[8]
11. In the First Certification Judgment[9], when construing sec 175(2) of the Constitution, the Constitutional Court held that the intention was that acting judges be appointed for
temporary purposes, i.e.:
“… to fill temporary vacancies which occur between meetings of
the JSC, or when Judges go on long leave, are
ill or are appointed to preside over a
commission. These appointments are necessary to ensure that the work of the
Courts is not disrupted by temporary vacancies or the temporary absence or disability of
particular Judges” (para 127).
12. The Court further commented that,
“Acting appointments are essentially
temporary appointments for temporary purposes.
. . . If there is a vacancy in a Court the JSC is under a duty to fill
it. It may no doubt delay or defer an
appointment until a suitable candidate is identified, but it should not be
assumed that it will abdicate its responsibility by allowing permanent
vacancies to be filled indefinitely by acting Judges. . . ”
(para 128)
13. One might argue, therefore, that the
intention of s 175(2) was not that the Minister may appoint large numbers of acting
judges on an ongoing basis to fulfil functions which ought to be performed by
an adequate number of duly appointed permanent judges.
14. Because their independence needs to be preserved, permanent judges may not hold any other office for
profit or receive fees in respect of any service without special permission of the
Minister of Justice. [10] According to Principle 15 of the Judicial Ethics Guidelines for Judges of South Africa[11] which were endorsed by the JSC in
2000, upon appointment a judge should sever all professional links, speedily recover all fees and organize his or her personal and business affairs in order to minimise the potential for conflicts of interest.
Principle 15 further provides that “A judge . . . should not sit in any case in which the judge or the judge’s former firm
is or was directly involved as either attorney of record or in
any capacity before the judge’s appointment.
Such a judge should not sit in any case in which the former firm is involved until all indebtedness between the
judge and the firm has been settled”.
15. Most acting judges are drawn from
practising members of the legal profession.
Because their appointments are temporary most acting judges,
understandably, do not sever their professional relationships, which creates a potential for conflicts of
interest. Principle 16 of the Ethics
Guidelines provides that, “An acting judge who is a practising
attorney should not sit in any case in
which the acting judge’s firm is or was involved as attorney of record or in
any capacity. It is better to err on the
side of prudence, for it is not only actual bias that
is to be avoided but its mere appearance”.
16. Although the Guidelines do not
address the position of practising counsel, an ongoing professional
relationship with a client or a law firm should obviously have the same potential of creating a real or perceived conflict of interest.
17. A conflict of interest may
detrimentally affect either side of a case. An acting judge may feel pressure, for
example, to demonstrate his or her independence and rule against the interests
of the party with whom the
judge has
a professional relationship even if
that may not strictly be justified by the facts of the case.
18. In practice, acting judges’ professional integrity should be
sufficient to prevent such conflicts from affecting the outcome of cases.
There may nevertheless be a
perception of bias in the eyes of the parties or the
public, the reality of which should be
recognized and prevented or managed in order to
protect the integrity of the judicial system.
19. There is at present no system in place whereby the
appointment of acting judges is publicised before they serve on the bench. It is not an uncommon occurrence for parties
to arrive at court to appear before an acting judge about
whom they know nothing and whose existing professional relationships are
unknown to them.
Counsel are then unable to advise their clients
about potential conflicts of interest or other pressures to which the acting
judge may be exposed.
Or, if the acting judge’s professional relationships are known and have the potential of creating
a conflict of interest, it places parties in the unenviable
position of having to raise the possible need for recusal.
20. Instances where conflicts of
interest may arise, or may be so perceived, are numerous. For example, a counsel or attorney who is
frequently briefed by governmental or institutional clients may be inhibited by that
relationship when adjudicating a
case which affects those clients’ interests. The potential for such a conflict is amplified when the acting judge hands down the
judgment after having returned back to private practice, as is frequently the
case.
21. Acting judges who aspire for permanent appointments may be mindful of the effect that their judgments might have on their eventual nomination for permanent appointments by the JSC, the majority of whose members are
nominated by the executive and legislative branches.[12]
22. Acting judges who serve for a
substantial period of time may be subject to
additional pressures. The length of their service as acting judges may, in effect, cause them to relinquish their private practices and make them unduly dependant on the good graces of the Minister and
the local Judge President for further appointments.
23. At present, there are no structures
in place to protect acting judges from these potential or real pressures.
One manner of managing or preventing such
complications would be to formulate a code of
conduct for acting judges. It could provide for confidential disclosure to parties of the judges’ ongoing professional relationships
and set out guidelines on how to identify actual or perceived conflicts of
interest.
The guidelines could also assist Judges President to avoid conflicts when assigning cases, and they could assist acting judges to identify potential conflicts and occasions when recusal would be appropriate.
They could further provide guidance on how acting judges should manage their ongoing professional
relationships while serving on the bench, so as to avoid compromising their
perceived independence.[13]
24. The JSC should formulate clear
guidelines on how the decisions by acting judges
will be reviewed when they appear as nominees for permanent appointments. The
guidelines should be phrased so as to minimize
the potential that acting judges may feel vulnerable to criticism by the JSC for the political ramifications of their judgments.
25. The terms of appointment of acting
judges should be limited to prevent an undue dependence from developing on being reappointed for subsequent
terms.
26. But the underlying reason for the
large scale use of acting judges should also be addressed, i.e. the shortage of permanent
judges.
The Constitution is relatively new. If there develops a practice of deliberately understaffing the bench, which facilitates the appointment of large numbers of
acting judges, and the practice is allowed to become entrenched there is a danger that it may become a tool whereby the Executive might dilute the independence of the bench if it desired to do so.
27. The Constitution envisages a bench
staffed by permanent judges who are appointed after rigorous scrutiny and
nomination by the JSC. The appointment
of acting judges does not include that degree of scrutiny, and if large numbers serve on an
ongoing basis it undermines the purpose
and intent of s 178 of the Constitution which is to maintain the independence and the proficiency
of the judiciary.
28. The remedy may lie with the Chief Justice who, in consultation
with the Judges President, should formulate
a practical standard for the determination of how many permanent judges are needed in a division.
The number of judges should allow for foreseeable absences of judges due
to long leave and temporary absences of judges who serve in
other courts.
The number of permanent judges should be sufficient so that the
need for acting judges is occasional rather than routine.
29. Implementation of that standard should then be taken up with the President and the Minister of Justice.
Funding of additional permanent
positions should not be an insurmountable problem as acting judges are paid on
a par with the basic salaries of permanent judges.[14] Then, if vacancies exist, they should be
filled whether or not suitable candidates of previously disadvantaged
backgrounds make themselves available.
Although fair racial and gender representation on the bench is needful, it is a long term goal the
realization of which cannot justify compromising the
independence of the judiciary.
30. Until the shortage of permanent
judges has been remedied, consideration could be given to making more use of the services of retired judges pursuant to section 7 of the Judges'
Remuneration and Conditions of Employment Act 47 of 2001. The
Act requires retired judges to be
available for up to three months a year to perform service upon request, up to the age of 75.
By reason of their retired status, such judges would not be subject to
many of the pressures to which other acting judges are exposed.
[1]
Section 3(2) of the Supreme Court Act
59 of 1959.
[2] S 174(2) provides that “The need for
the judiciary to reflect broadly the racial and gender composition of
[3]
See e.g De Lange v Smuts NO and
Others 1998 (3) SA 785 (CC)
[4]
Van Rooyen and others v S and Others 2002 (8) BCLR 810 (CC) para 19
[5]
Section 175(1) of the Constitution
[6]
Section 175(2)
[7]
Ex Parte Chairperson of the Constitutional Assembly: In Re Certification of the
Constitution of the
[8]
The language of s 175(2) of the
Constitution differs markedly from the language of s 175(1), which deals with
the appointment of acting judges in the
[9]
Ex Parte Chairperson of the Constitutional Assembly: In Re Certification of the
Constitution of the
[10]
S 11 of the Supreme Court Act, and s 2(6) of the Judges' Remuneration and
Conditions of Employment Act 47 of 2001.
[11]
The Guidelines were issued by the then Chief Justice (Ismail Mahomed), the then
President of the Constitutional
Court, the Judges President of the
High Courts and the Labour Appeal Court, and the president of the Lands
Claims
Court.
[12] S 178 of the Constitution
[13] For example, the prohibition in s 11
of the Supreme Court Act of judges holding any
other office for profit or receiving fees in respect of any service without
special permission of the Minister of Justice, also applies to acting judges
during their terms of service. See
Principle 25 of the Judicial Ethics Guidelines for Judges of
[14] If funding turns out to be a realistic
obstacle, it could be argued that
under funding the bench constitutes a violation of the constitutional principles
of the separation of the powers of government and of cooperative government.