BRIEFING NOTE: JUDICIAL SERVICE COMMISSION AMENDMENT BILL
(EMANATING FROM JUDICIAL OFFICERS AMENDMENT BILL, 2001)

1. Historical background:
1.1 The Judicial Officers Amendment Bill, 2001, was introduced into Parliament during 2001 with the following main objectives:
To effect the consequential amendments required as a result of the office of President of the Constitutional Court becoming that of Chief Justice, and the office of the former Chief Justice becoming that of President of the Supreme Court of Appeal.
To further regulate the tenure of office of Constitutional Court judges and to effect the necessary consequential amendments to the legislation dealing with judges' remuneration and conditions of service.
To provide that the Independent Commission for the Remuneration of Public Office-bearers should make recommendations to the President on the remuneration of judges and magistrates.
To further regulate the appointment requirements of magistrates.
To provide that the benefits received by spouses of deceased judges can also be received by partners of judges in permanent heterosexual or same sex relationships.
To establish a mechanism to deal with complaints against judges as contemplated in section 180(b) of the Constitution.

1.2 The amendments referred to in par 1.1(a) and (b) above were subsequently dealt with by way of the enactment of a new Judges' Remuneration and Conditions of Employment Act, 2001 (Act 47 of 2001), and those referred to in paragraphs 1.1(c), (d) and (e) were dealt with in the Judicial Officers (Amendment of Conditions of Service) Act, 2003 (Act 28 of 2003). Both these latter pieces of legislation were dealt with by the Portfolio Committee, in terms of National Assembly Rule 249(2)(g), as part of the Judicial Officers Amendment Bill. Rule 249(2)(g) provides that a committee “…may recommend approval or rejection of the bill or present with its report an amended bill or a redraft of the bill”. Hence the Judges’ Remuneration Act and the Judicial Officers (Amendment of Conditions of Service) Act were dealt with as redrafts of the relevant parts of the Judicial Officers Amendment Bill.

1.3 Thereafter, the Portfolio Committee, in dealing with the remainder of the Judicial Officers Amendment Bill, embarked on the process of redrafting the provisions relating to the mechanism to deal with complaints against judges by means of a third redrafted Bill, namely the Judicial Service Commission Amendment Bill. Likewise, this Bill is a redrafted Bill in terms of National Assembly Rule 249(2)(g).

1.4 This Bill formed part of the package of legislation on the transformation of the judiciary that was discussed at the Colloquium hosted by the Minister during 2005. Following further consultation with role-players, the principles contained in the redrafted Bill were subsequently noted by Cabinet and Cabinet was requested to approve the further processing of the redrafted Bill by the Portfolio Committee. The redrafted version of the Bill (which is essentially a redraft of the relevant part of the Judicial Officers Amendment Bill) was then returned by the Minister to the Chairperson of the Portfolio Committee for further processing in Parliament.


2. The original version (as introduced in 2001) of the Judicial Officers Amendment Bill proposed the insertion of a new Chapter in the Judges' Remuneration and Conditions of Employment Act (currently Act 47 of 2001) in order to create a mechanism for dealing with complaints about judges. This would entail the establishment of a “Judicial Council” comprising five judges, which could entertain complaints about judges. The Council would have limited powers in that it could either "dismiss" a complaint or, following an investigation, it could "reprimand" the judge or refer the matter to the Judicial Service Commission.

3. During the Justice Committee's deliberations on the "complaints provisions" a number of concerns were raised, the most noteworthy (arguably) being the following:

3.1 In terms of the Constitution, judges are appointed on the advice of the Judicial Service Commission (section 174) and they can only be removed from office upon a finding of incapacity, gross misconduct or gross incompetence by the Judicial Service Commission (section 177(1)). The National Assembly has to call for such removal with a supporting vote of two thirds. There is, therefore, a strong argument that the scheme of the Constitution seems to indicate that issues regarding incapacity, misconduct and incompetence of judges fall within the province of the Judicial Service Commission, and that the Judicial Service Commission Act, 1994 (Act 9 of 1994) should therefore make provision for any envisaged complaints mechanism.

3.2 The Bill as introduced did not make provision for a procedure leading up to a finding of incapacity, gross incompetence or gross misconduct by the Judicial Service Commission. To date this has not been a problem, as no judge has yet been "impeached" in South Africa. However, recent controversial incidents regarding alleged indiscretions by members of the judiciary have highlighted the lack of a credible legal framework in terms of which such matters could be dealt with.

3.3 The Bill as introduced did not deal with the disclosure of assets by judges, which is an established practice in a number of developed countries. The rationale for such a procedure is that it serves to promote the perceived independence of judges from undue influences and it also provides a framework for regulating the financial interests that, in accordance with contemporary norms, is acceptable for judges to maintain. Again, the recent controversy around certain judges’ alleged business interests underscores the value of a system of registering judges’ financial interests.

4. The Justice Committee is therefore proposing to amend the Judicial Service Commission Act in the following respects:
4.1 The Bill envisages the establishment of a committee of the Judicial Service Commission, to be known as the "Judicial Conduct and Ethics Committee". The Committee's objects will be to consider complaints about judges, and—
(i) when appropriate, dispose of such complaints; or
(ii) recommend to the Commission that a formal inquiry should be held by a Judicial Conduct Tribunal.

4.2 The Conduct Committee will comprise the Chief Justice, as Chairperson, the Deputy Chief Justice and three judges (at least one of whom must be a women) designated by the Chief Justice in consultation with the Minister. The Chairperson will be the first port of call for the lodging of a complaint about a judge. The Bill provides that when a complaint against a judge is received, one of three processes can be followed. Firstly, if a complaint is related to a judgment (a matter that can be taken on appeal or review), or is frivolous or hypothetical, that complaint will be rejected out of hand. Secondly, if there is substance to a complaint, the Chairperson or a member of the Conduct Committee may conduct an investigation and, if necessary, a hearing, and dispose of the matter. But, thirdly, if a valid complaint could lead to a finding of incapacity, gross misconduct or gross incompetence, the Conduct Committee must refer the matter to the Judicial Service Commission along with a recommendation that the appointment of a Judicial Conduct Tribunal must be considered to investigate the matter formally and report to the Commission on its investigation.

4.3 The Conduct Committee will have the power to impose any of the following remedial steps:
(a) Requiring the judge to apologise to the complainant.
(b) Formally reprimanding the judge.
(c) Ordering appropriate counselling.
(d) Ordering attendance of an appropriate training course.
(e) Giving a written warning.
(f) Any other appropriate corrective measure determined by the Conduct Committee.

4.4 The Bill also makes provision for the establishment, by the Chief Justice, at the request of the Judicial Service Commission, of a Judicial Conduct Tribunal, in order to—
inquire into allegations of incapacity, gross misconduct or gross incompetence of a judge, by collecting evidence and conducting a formal hearing;
make findings of fact and findings on the merits of the allegations; and
submit a report containing its findings to the Judicial Service Commission.
A Tribunal must conduct its inquiry in an inquisitorial manner and there will be no onus on any person to prove or to disprove any fact before a Tribunal.

4.5 A Tribunal will comprise of two judges and one person who is not ordinarily involved in the administration of justice. At least one member of a Tribunal must be a woman, and all members will be appointed by the Chief Justice.

4.6 A Tribunal must submit a report containing its findings to the Judicial Service Commission, whereupon the Commission must, after hearing the parties concerned, consider whether to make a finding of incapacity, gross misconduct or gross incompetence on the side of the judge in question.

4.7 In order to address the problem referred to in paragraph 3.3 above, the Bill makes provision for the introduction of an asset register for judges, similar to that applicable to the Legislature and the Executive. (New section 13)

4.8 Provision is made for a “Code of Judicial Conduct” to be made by the Chief Justice acting in consultation with the Minister for Justice and Constitutional Development. The Code must be tabled in Parliament and published in the Gazette, and will serve as the prevailing standard of judicial conduct for judges. (New section 12)