Paul Hoffman S C: CFCR

August 2007.

THE LOT OF RETIRED JUDGES.

Legal and political history was made on 17 August 2007, when three retired judges appeared before the Parliamentary Select Committee on Justice and Constitutional Affairs to make representations regarding a draft bill under consideration by the Committee. In its draft form the bill contemplates a dispensation in which retired judges will have to seek the permission of the Minister of justice before they are allowed to do work other than short stints as acting judges during their retirement.

As far as can be ascertained, this was the first occasion on which former members of the judiciary had chosen to participate in the democratic processes now in place in parliament. They were treated to a red-hot reception by the parliamentarians on the Select Committee. There was a suggestion (entirely misplaced) that their mere presence infringed the doctrine of the separation of powers. The ex-judges were there to put their case, not to usurp the law making functions of parliament. A backbencher, quite contrarily, wanted to know why it is only when their personal financial interests are involved that the retired judges bother to stir themselves to participate in the law making process. She felt that the expertise of retired judges would be valuable and welcome when considering tricky new draft laws such as the Sexual Offences Bill. There can be no doubt that retired judges are a national treasure, they constitute a highly qualified and experienced resource that the nation should cherish in the interests of effective administration of public affairs. The benefit of the wisdom of retired judges could be of inestimable value in tricky situations such as that raised by the backbencher.

The essential question at issue which prompted the retired judges to make representations to the Portfolio Committee, is whether or not it is proper, and indeed constitutional, for them to be required to seek ministerial permission to be economically active after their discharge from active service as judges. The question is somewhat bedeviled b the Ie islative rovision that ermits the state to call u on exjudges in their first five years of retirement to sit as acting judges for up to 3 months a year. This status is in effect no different to that of counsel and attorneys who also act as judges for short periods when called on to do so, and does not mean that by some magical means the retired status of discharged judges is altered.

The conclusion seems inescapable that retired judges, notwithstanding their "salaries for life" dispensation, are actually no longer members of the judiciary once they are discharged from active service, usually on reaching the age of seventy years. [There is a different dispensation for those judges who serve in the Constitutional Court, who have a non-renewable 12 year term of office.] All other judges hold office “until they are discharged from active service in terms of an Act of Parliament" - to use the words of section 176(2) of the Constitution itself. Much of the heated\' debate during the representations made by the retired judges turned on the notion introduced by former Minister of justice, Kobie Coetzee, when the current dispensation for judges was introduced in 1989/ that judges are "judges for life". The Chairperson of the Portfolio Committee, Fatima Chohan-Khota, suggested that this" principle'" is why judges are paid for life without ever having contributed to any pension fund as most other prudent people are required to do.

Not only does this argument lose sight of the actual wording of the Constitution, which obviously supercedes anything Coetzee had to say, it also does not take into account the context in which the "judges for life" dispensation was introduced in the dying days of apartheid. At that time, and for obvious reasons, it was extremely difficult to recruit suitably qualified, fit and proper persons to serve as judges. The dispensation put in place was designed to ensure the independence of the judiciary and to entice senior counsel, whose daily fee rate approximated the monthly earnings of judges, to turn their backs on the high earnings of private practice in exchange for the generous non-contributory pension, and widow's pension, which was on offer.

Part of what these candidates for the judiciary could factor into their financial planning was that they would one day be in demand as arbitrators, adjudicators, appeal tribunal personnel and other similar occupations upon their discharge from what the Constitution calls" active service". To now seek to limit or remove this option from retired judges is curmudgeonly, unconstitutional and counter-productive. Judges have talents and experience which are in short supply. Our neighbouring states depend on retired South African judges to sit in their appeal courts and, generally speaking, the rule of law is promoted through the services offered by those retired judges who prefer not to simply relax with their grandchildren.

On a more fundamental level, our Constitution guarantees the rights of all citizens to choose their trade, occupation or profession. No good or justifiable reason exists to limit this right in the case of retired judges and any legislative attempt to do so may prompt a challenge which, in the nature of things, will have to be finally adjudicated upon in the Constitutional Court by judges who, deo volente, will themselves retire. Not a desirable or edifying prospect. The argument that retired judges may take to barely legal or unsavoury pursuits in their retirement is so far fetched as not to warrant serious consideration.

Why then this strongly held desire to clip the wings of retired judges? The answer lies in the wish to prevent certain well heeled business litigants from engaging in the long established practice of forum shopping. In its local manifestation this takes the form of proceeding in the High Court up to the point at which a judge is allocated to hear their disputes. If both litigants are comfortable with the judge so allocated the matter proceeds in court, if not, an arbitrator is swiftly appointed by the parties and the matter is taken away from the court. In the ongoing transformation of the judiciary, numerous appointments to the Bench have been made to reflect broadly the racial and gender composition of the country, too often without due regard to the commercial law competence of the new appointees. A misperception has arisen that unfair discrimination on racial grounds is at the forefront of forum shopping.

Over sensitive affirmative appointees feel slighted by forum shoppers who prefer to have their complex commercial disputes determined by seasoned retired judges or experienced senior counsel rather than recently appointed judges with little or no commercial law experience. A good illustration of this wish is to be found in recommendation one of the (now refuted) Hlophe report on racism which expressly called for retired judges not to be allowed to arbitrate disputes. Of course, this will not prevent forum shopping since the shoppers will simply take their business elsewhere, usually to senior silks.

Parliament should unhand the retired judges and leave them to pursue their retirement as actively or passively as they choose. Instead concentrate, as required by section 165(4) of the Constitution, on protecting the courts so as to ensure their independence, impartiality, dignity, accessibility and effectiveness by precluding sitting judges from moonlighting.

Paul Hoffman S C

CFCR

August 2007.