PARLIAMENT

RESEARCH UNIT OF THE REPUBLIC OF SOUTH AFRICA: BY PATRICIA WHITTLE

29 April 2008

Constitutionality of Clauses 11, 29 and 38 of the Judicial Service Commission Amendment Bill [B50 - 2007]

At its last deliberations on the Judicial Service Commission Amendment Bill [B50 - 2007] on 26 March 2008, and after having heard submissions on the constitutionality of clauses 11, 29 and 38 of the Bill, the Select Committee on Security and Constitutional Affairs requested a research submission regarding the constitutionality of the said clauses. The purpose of this paper is to assist the Committee in its further deliberations on the Bill, especially in respect of the mischief which the draft legislation aims to address and the circumstances under which rights contained in the Bill of Rights may be limited by s36 of the Constitution

Clause 11 of the Bill and section 22 of the Constitution

The Committee was addressed by two retired judges regarding the constitutionality of Clause 11 of the Bill which states that "[a] judge who has been discharged from active service may only with the written consent of the Minister, acting after consultation with the Chief Justice, hold or perform any other office of profit or receive in respect of any fees, emoluments or other remuneration or allowances apart from his or her salary and any other amount which may be payable to him or her in his or her capacity as a judge". According to the judges' submission the requirement for retired judges to obtain permission in writing from the Minister before engaging in any economic activity for profit is unconstitutional in that it infringes on section 22 of the Constitution which guarantees their right to "choose their trade, occupation or .profession freely".

According to Dennis Davis s22 must be read as a corrective to historical inequities created by Apartheid which, among other things, saw the "making available of structures to develop skills and training in the employment sphere to selected sections of the population only, and the statutory reservation of jobs for members of particular races". Thus, a court would look at what is the rational connection between the purpose of the regulatory legislation (in this case Clause 11 of the Bill) and the objective it seeks to achieve (or the mischief it seeks to address).

What mischief does Clause 11 seek to address or what is the rational connection between the purpose of the regulatory legislation and the objective it seeks to achieve?

The Department of Justice and Constitutional Affairs ("the Department") stated that the limitation was necessary in order to prevent the Bench from being brought into disrepute. In terms of Clause 11 of the Bill, permission may only be given if the Minister is satisfied that it will not adversely affect the efficiency, effectiveness, image or reputation of, or undermine any aspect of the administration -of justice, or bring the judiciary into disrepute; undermine -the legal framework underpinning the judge for life concept; or result in any activity that is in conflict with the vocation of a judge. As retired judges received a salary for life, equal to what judges in active service received, they were in fact judges for life, and therefore it was important to regulate their conduct even after their discharge from active service.

The retired judges rejected this argument saying that:

(1) The notion of a "judge for life" was flawed because the salary that they received was in -fact a pension or reward for the work that they had done previously.

(2) The salary for life was intended as an incentive to attract advocates to the bench as many were reluctant to leave their practices for a less profitable position.

(3) Retired judges or judges discharged from active service no longer had to report to the office and were in fact under no-one's control.

(4) The fact that in certain instances parties had bypassed certain judges perceived to lack the necessary skills or experience to go to arbitration will not be addressed by limiting the right of retired judges to adjudicate arbitration matters, as arbitration in itself is a valuable procedure that helps alleviate the already overloaded court rolls.

(5) Retired judges should be able to perform work related to the judiciary for which they have in any case been granted permission to do in the past, and should not have to apply to the Minister (a member of the Executive) for such permission.

(6) It does not reflect positively on the independence of the judiciary for the Executive to exercise so much power over retired judges. Instead, if permission should be obtained, it must be obtained from the Chief Justice and not the Minister.

The Centre for Constitutional Rights made a similar submission on clause 11, arguing that the scope in s22 is the regulation of a trade (in this case the practice of being a judge) which does not apply to retired judges as the aim of clause 11 (3) is to "curtail engagement in other occupations". Furthermore, the public should not be deprived by placing a limitation on services that would likely be rendered by retired judges as this would not be in the public interest. In its view "there is no rational basis" for curtailing the right of retired judges to engage freely in any occupation.

If clause 11 interferes with the right of judges to freely choose their trade, occupation or profession as stated in s22, is such "interference" justified?


In the Machaka case the court stated that the Constitution does not provide that a person may abuse the right enshrined in s22 as it does not create an "unqualified freedom", Section 22 also states that "[t]he practice of a trade, occupation or profession may be regulated by law",

In addition, section 36 of the Constitution provides that a right contained in the Bill of Rights may be limited by laws of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including-

(a) the nature of the right;

(b) the importance of the purpose of the limitation;

(c) the nature and extent of the limitation;

(d) the relation between the limitation and its purpose; and (e) less restrictive means to achieve the purpose.

Limitations analysis requires that a limitation must take a form of a 'law of general application' and the objective of the impugned law must be of sufficiently pressing and substantial import to warrant overriding a constitutionally protected right; there must be a rational connection between the means employed and the objective sought, and the means employed must impair the right as 'little as possible'; and the burden imposed on those whose rights' are impaired must not outweigh the benefits to society that flow from the limitation.

Limitations analysis also requires a "value judgement". It is generally understood that the values underlying both the Bill of Rights and the limitations clause are: openness, democracy, human dignity, freedom and equality, In order to strike a balance, the importance of the values underlying the right allegedly being infringed must be compared with the importance of the values underlying the policy or right or interest supporting such infringement.

South African case law on s22 of the Constitution

In Van Rensburg v South African Post Office Ltd the court stated that "the right to choose a trade, occupation or profession, [is] within the framework of any lawful regulation which controls its practice. The power of the government to control the practice of a trade, occupation or profession necessarily involves the power to place such restrictions on the practice of a particular trade, occupation or profession as are considered necessary or desirable." However, such restrictions must be reasonable.

In the Janse van Rensburg case the Minister of Trade and Industry invoked provisions of the Harmful Business Practices Act in order to curtail certain practices of the applicant's enterprise. In term of s85 of the Act the Minister could take steps to prevent a business from operating and attach and seize assets. The court found that the Act was designed to protect consumers and that the general and uniform restrictions placed on business did not breach the provisions of s22. However, such restrictions had to be set out in the form of a law of general application. Because the section empowered the Minister to take ad hoc administrative action to restrict the activities of individuals, such measures did not fall under the category of regulations authorised by s22.

Comparative examples from foreign case law

The Japanese and German constitutions contain similar provisions to s22 of the South African Constitution, and the German constitutional court has analysed legislation from the basis of the protection of individual rights. In the German Pharmacy case it was stated that the freedom to choose an occupation may be restricted only in so far as an especially important public interest compellingly requires... [and] only to the extent that protection cannot be accomplished by a lesser restriction as freedom of choice."

In Japanese case law in Gypsy Taxi Cab an unlicensed taxi operator was charged with violating the road transportation law which prohibited the use of private vehicles for transporting passengers for profit. The cab operator appealed to the Supreme Court on the ground that the provision unreasonably restricted his freedom of occupation. The court found that the objective of the transportation laws was to ensure fair competition and the proper and orderly operation of the road transport system. The absence of regulation would lead to the. development of unlicensed business and would render regulation less effective under the licensing system. The law therefore did not contravene the constitutional guarantee. The justification for the court's decision flowed from the need to regulate commercial practice.

When considering the above examples from German and Japanese jurisprudence, it might be concluded that, in the Bill before the Committee, there is a "compelling public interest" in limiting and regulating the right of judges' to engage freely in economic activity in order to preserve the reputation of the Bench. However, it is clear that the question must still be answered regarding whether there is a less restrictive way in which this objective can be achieved without intruding on the rights of retired judges to exercise their occupation freely.

Section 165(2) and (3) of the South African Constitution states that "[t]he Courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice" and "[n]o person or organ of state may interfere with the functioning of the courts". According to Idasa the current system contains a number of constitutional provisions, including protection from arbitrary removal of office, security of tenure, and a guarantee against the reduction of salaries and allowances of judges, which is aimed at promoting judicial independence. Security of tenure and remuneration, which otherwise may be used to manipulate judicial officers, are specifically provided for in the Judges' Remuneration and Conditions of Employment Act.

Conclusion

The prohibition or limitation in Clause 11 of the Bill is by no means new, as the Judges' Remuneration and Conditions of Employment Act of 2001 contains an almost exact limitation in section 2(6) which applies to Constitutional Court Judges. The problem seems therefore not to be with the fact that judges must get permission, but rather that discharged judges must get permission from the Minister. The retired judges have proposed a redraft of Clause 11 to set out the activities which they may be permitted to engage in, with the exception that activities that fall outside this list will require permission from the Minister (or the Chief Justice if the Committee so decides). The Centre for Constitutional Rights made a similar proposal; while another view is that such permission should not be automatic (in the case of active judges). It would serve the Department of Justice and Constitutional Development well to look at these proposals with a view to finding a compromise that would benefit both parties, as it is generally recognised that there is a need to regulate the judiciary, but without compromising the independence of the Bench. According to Idasa an independent judiciary is a "judiciary confident to give judgements without threat from or influence by the executive, the legislative branches of government, and private interests.

The following proposal by the Institute for Security Studies, to expand the functions of the Judicial Services Commission to oversee the economic activities of judges, may be of assistance to the Committee in its deliberations:

"[I]t is not only in the public interests that judges are financially independent, but also that their conduct, both on and off the bench, does not reflect negatively on the judiciary. It follows then that some form of accountability for judges is necessary in order to further enhance public trust in the developing South African judiciary and its justice system. Judges must be seen to be beyond reproach, and their conduct beyond their term of office is equally important.

How is this accountability to be effected? The only recognised structure that currently can exercise legitimate authority over the judiciary is the Judicial Services Commission (JSC).. .Its powers can and should be expanded to include oversight over the activities and conduct of the judiciary (my emphasis). There is a compelling case for setting up a panel or committee within the JSC for this purpose, one presided over by the Chief Justice or President of the Supreme Court of Appeals and consisting in addition of lawyers and non-judicial persons. This JSC panel or committee should provide guidance on which extra-judicial activities judges may engage in, and it should also be responsible for dealing with improprieties and discipline.

Two important considerations necessitate granting the JSC such responsibilities. First, the JSC is undoubtedly the most broadly representative structure that could be given oversight of the activities of serving and retired judges...Second, going the JSC route will ensure that a nonpartisan statutory body is responsible for judicial accountability, and this will further preserve the principle of judicial independence. The JSC's status and structure would enable it to insulate the judiciary from direct partisan politics. This is unlikely to be the case if the Minister had the sole responsibility to oversee the activities of judges. Making judges accountable to the JSC will help to ensure public confidence in the judiciary."

In exercising caution in its deliberations the Committee is no doubt guided by the decisions in the Doctors for Life .International and Matatiele cases. However, these cases were challenged on the basis that there had been inadequate public participation and it should be pointed out that the Constitutional Court did not find fault with the way Parliament fulfilled its obligation in this regard, but rather that the public involvement at the provincial stage of the process had been inadequate.

The Bill currently before the Committee would require the Committee to ask the questions the Constitutional Court would ask if it had to analyse the constitutionality of the said clauses. An important question in this exercise is whether the same result or objective can be achieved by employing less restrictive means. In S v Singo less restrictive means were found to be available where the purpose of deterrence could be achieved by means that were less restrictive. The Court had voiced a willingness to allow the legislature some deference in its choices between differing reasonable policy options, but was unwilling to "give them an unrestricted licence to disregard an individual's rights. A court would have no right, power or mandate to express any view on the political choices made by the legislature. However, the Committee would have to assume the role of a referee who polices the rules for negotiation between the stakeholders in order to find optimal solutions grounded in compromises from which all parties will benefit.

Access to information and freedom of expression: Clauses 29 and 38

Dr Milo, representing the media (Avusa limited), had made a submission to the Committee on the Constitutionality of these two sections of the Bill, citing the relevant latest case-law on the subject. In order not to duplicate the quite substantive work already covered in the submission, I would like to touch on some aspects which may not have been covered in the submission.

The issue of access to information, in this instance access to records of the Tribunal or Judicial Services Committee, was raised by highlighting two important considerations in the Bill. In respect of clause 29 the first consideration was the fact that proceedings against judges (whether frivolous or serious) will not be open to the public and only parties directly involved in the proceedings may attend the Tribunal hearings.

The second consideration is that, as far as the records of the JSC are concerned, clause 38 also makes it a criminal offence for any person to "wilfully or negligently" disclose any confidential information that came to his or her knowledge by means of a person who conveyed that information in contravention of subsection (1)". In terms of clause 38 the conditions under which a person may disclose such confidential information are only to the extent to which it may be necessary for the (a) proper administration of any provision in the Bill, (b) performance of any function in terms of the Bill, (c) by order of a court of law and (c) with the written permission of the Chief Justice.

Avusa has an interest in the freedom of the press being protected and the Committee will have to consider whether the limitation placed on disclosure (applying any person, including the press) can be said to be reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. It should be noted that the Promotion of Access to Information Act deals only with access to records and not with the right to attend proceedings. It has been argued that because proceedings against magistrates are open to the public, formal hearings involving judges, at the least, should also be open to the public (and by implication the media). This is an important consideration and the Committee would have to decide whether it would be in the public interest, in the interest of transparency, for proceedings against judges to be open to public scrutiny.

The Bill seems to contain an anomaly. On the one hand the Department wishes to limit the judiciary in order to make them more accountable, while on the other hand the judiciary is being shielded from the public who has to make up their own minds on whether or not judges are in fact accountable in the way that justice is "seen" to be meted out to them as well. Here the Constitutional right of equality before the law contained in s9 should be a guiding factor.

In the 2007 case of Tshabalala-Msimang and Another v Makhanya and Others the High Court had to weigh up two equally important, but conflicting constitutional rights - the one being the right to dignity (tied up in the right to privacy) and the right of freedom of expression (including freedom of the press) contained in section 16 of the Constitution. In the above case the court held that hospital records were private and that every person, in order to protect his or her dignity, has a right not to have his or her private details disclosed in public. Therefore the respondents were ordered to return the stolen hospital records.

Freedom of expression included the right to acquire information and to disseminate it. The court considered that the applicant, the Minister of Health, was a public figure and that the public had a right to be informed of current news and events concerning the lives of public persons such as politicians and public officials. The court also recognised instances when information obtained by unlawful means might be published due to "overriding considerations of public interest which would permit its publication". However, the court also stressed that journalists had an ethical obligation to verify whether a document was obtained legally. .

Thus, when considering clause 38 of the Bill in the light of the above judgement it is clear that limitations may be placed on the obtaining and disseminating of information as described in s 38(1).

Conclusion

Every case has to be decided on merits and the Committee has to consider whether it is in the public interest to allow the media (and the public) to attend formal proceedings against judges and to use that information for the interest of advancing public interest by publishing facts and opinions without which a democratic electorate cannot make responsible judgments. Limiting such rights is only justifiable, as it was stated in the Midi Television case "if the prejudice that the publication might cause to the administration of justice is demonstrable and substantial and there is a real risk that the prejudice will occur if publication takes place. Mere conjecture or speculation...[is] not enough...publication will not be unlawful unless a court is satisfied that the disadvantage of curtailing the free flow of information outweighs its advantage".

I conclude by reiterating what was said previously when discussing clause 11 of the Bill. The Committee will have to play the role of a referee who facilitates negotiation between the stakeholders, in order to find optimal solutions grounded in compromises from which all parties will benefit. In this regard it would appear as if the limitation in clause 38 may be justifiable, however, the harshness of criminalising contravention may have to be reconsidered.

As far as clause 29 is concerned, it might be in the public interest to allow access to the public in proceedings against judges in order to "enhance public trust in the developing South African judiciary and its justice system."