SUMMARY OF COMMENTS ON

JUDICIAL SERVICE COMMISSION AMENDMENT BILL

 

PREAMBLE

 

Rhodes University

(Prof De Vos)

1.  The fourth paragraph creates the impression that judicial independence and the dignity of judicial officers should be openness, transparency and accountability.  The latter principles are overriding in a democracy like ours.  The pursuit of openness, transparency and accountability enhance judicial independence and the dignity of the judiciary.

 

 

CLAUSE 4

 

Centre for Constitutional Rights

(FW de Klerk Foundation)

1.  The four members of the JSC designated by the President should not be eligible to be designated as acting Chairperson of the JSC.  (The reference in subsection(2) to "(j)" should be deleted.)

 

 

CLAUSE 7

 

Centre for Constitutional Rights

1.  The peremptory nature of the duty to publish is a welcome step in ensuring openness and transparency.

 

 

Rhodes University

1.  The limitation of political influence in the process of disciplining judges is particularly welcomed.

 

 

 

CLAUSE 8

 

Centre for Constitutional Rights

1.  Obligating publication of procedures and enquiries into judicial conduct promotes openness and fair administrative justice.

 

 

CLAUSE 9:  NEW SECTION 7(1)(c)

 

Centre for Constitutional Rights

1.  Members of the JSC referred to in section 178(1)(j) of the Constitution (the four persons appointed by the President) should also be excluded from the Commission in the application of the new Chapter 2.

 

 

 

CLAUSE 9:  NEW SECTION 8

 

Centre for Constitutional Rights

1.  The composition of the Conduct Committee is supported, as it will enhance institutional and individual independence of the judiciary.

 

General Council of the Bar of South Africa

1.  The reference in section 8(4) to "subsection (1)(b)" should be to "(1)(c)".

 

 

CLAUSE 9:  NEW SECTION 11

 

Centre for Constitutional Rights

1.  The general prohibition on serving judges performing other remunerative work is welcomed.  However, serving judges should be allowed to participate in literary and educational activities.  It is proposed that section 11(2)(a)(i) should be amended to read "which are closely connected with the office of a judicial officer and which are only educational in nature".

 

2.  Section 11(3) does not pass Constitutional muster, since─

a)       it fails to differentiate between judges who must be available to perform service and those who are not so required;

b)       it is in conflict with section 22 of the Constitution (freedom of trade, occupation and profession);  and

c)       the limitation cannot be justified under section 22 of the Constitution.

 

3.  It is proposed that subsection (3) be amended to read as follows:

"(3)       A judge who has been discharged from active service, but who is still required to perform active service under section 7(1) of the Judges' Remuneration and Conditions of Employment Act, 2001 (Act No. 47 of 2001), may [only with the written consent of the Minister, acting after consultation with the Chief Justice,] hold any office or perform any services for reward, [other office of profit or receive in respect of any service any fees, emoluments or other remuneration 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] provided that such office or service does not interfere with or inhibit such judge's capacity to fulfil any legitimately expected active service".

 

Nienaber J (Ombudsman for Long-term Insurance)

1.  Justice Nienaber  ("retired") is the fourth judicial incumbent of the office of Ombudsman for Long-term Insurance and was appointed as such with the prior written consent of the then Minister Maduna on 1 January 2003 for a term of five years.

 

2.  It is tradition to appoint retired judges to this position of Ombudsman, and such appointments are nowadays made by a Council that is entirely independent of the Long-term Insurance Industry.  The Council is chaired by "retired" Justice Friedman (former JP of the Western Cape).

 

3.  Should the proposed amendment become law, it would in effect preclude the Council from appointing retired judges to this post.  It would also prevent the office from continuing its practice of appointing retired judges to sit on its internal appeal tribunal when dissatisfied complainants appeal against decisions of the Ombudsman.

 

4.  Much would be lost if the office of the Ombudsman and similarly placed institutions were to be deprived of the opportunity of drawing on the expertise, experience and status which retired judges are able to contribute to such bodies.

 

Rhodes University

1.  Strict control over the interests of serving judges is supported.  It is unclear whether judges have to disclose their involvement in "closely connected" services and whether permission has to be obtained for such involvement.  All extra-judicial income-generating involvement must be cleared, declared and recorded.

 

General Council of the Bar of South Africa

1.  The purpose and objects (of the whole Bill) are supported in so far as they relate to judges in active service.

 

2.  Section 11(3) and (4) should be removed.  It is considered inappropriate, unnecessary and unconstitutional to curtail what retired judges do in their retirement or to seek to discipline judges who are no longer on active service.  Such judges are merely deemed to be judges for pension purposes and the size of their pension is in turn attributable to, and calculated on the basis of, their years of active service.

 

3.  Section 11(3) and (4) is in conflict with section 22 of the Constitution.  The wide prohibition contained therein serves no legitimate government purpose and would fail the rationality test.

 

4.  It is difficult to discern what benefit is derived from requiring judges no longer on active service to obtain ministerial permission to continue to practice their profession as lecturers, consultants or arbitrators.

 

Marais J

1.  The unqualified and absolute prohibition in section 11 amounts to an unconstitutional fetter upon the right of a judge to utilize his professional skill and training for reward even although he or she has been discharged from active service and owes no further service obligation to the state.  It is in conflict with section 22 of the Constitution and cannot be justified under section 36.

 

2.  There may be something to be said for exercising some degree of control over the activities of non-serving judges.  That is presumably one of the reasons why section 2(6) of the Judges' Remuneration and Conditions of Employment Act, 2001, already exists.

 

3.  What should not be debatable is the right of a judge to continue to do in a different arena, as arbitrator, what he or she had been doing in the service of the state, namely, deciding disputes between parties.  It is a function which is entirely appropriate and which cannot embarrass the judiciary or the state or cause the public to raise its eyebrows.

 

4.  If enacted in its present unqualified and absolute form, many worthy activities would become prohibited and a retired judge's energy, ability, experience and skills would go to waste for all practical purposes.

 

5.  The existing provision which empowers the Minister to monitor and, if necessary or desirable, to veto extrajudicial activity for reward in a particular case is surely sufficient to ensure that judges act appropriately in responding to requests to them to accept offices of profit or to render service for reward.

Kriegler J

(Memorandum on behalf of 16 non-serving judges)

1.  There is no reason to include retired judges in the scope of the Bill.

 

2.  The Bill envisages that the Executive and the Legislature will play a controlling role in regard to the enforcement of ethical standards of the judiciary, which is deeply concerning.

 

3.  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, losing 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 fact that judges are "released (discharged)" from active service is a semantic mechanism, meaning that they are really retiring on pension. Once so retired they would have the right 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.

 

5.  The provision which seeks to regulate the conduct and manner of employment of retired judges conflicts with the rights of judges flowing from their contracts of employment and is in breach of our labour law.  Many retired judges 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.

 

6.  The prohibition contained in section 11(3) infringes section 22 of the Constitution.

 

7.  The said infringement cannot be said to be reasonable and justifiable in terms of section 36(1) of the Constitution.

 

8.  In the event of the Minister being vested with the discretion to permit retired judges to perform, for example, arbitrations, various practical difficulties are foreseen as to the criteria to be used in exercising that discretion.

 

9.  The Chief Justice is the head of the Judiciary, but the Bill 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 on which the other branches of government cannot dictate, and it is constitutionally unacceptable for the Executive or the Legislative branches of government to be the arbiters of what activities are or are not consistent with judicial office.

 

10.  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.

 

11.  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.

 

Flemming J

1.  The provision in terms of which a "retired" judge may not earn income except if the Minister approves, is unwarranted and unconstitutional.

 

 

CLAUSE 9:  NEW SECTION 12

 

Rhodes University

1.  The Minister should not be involved in drafting the Code of Conduct, as this task should be performed by the judiciary without executive interference.  The Chief Justice should involve the judiciary in this process, with the Minister only responsible for its tabling in Parliament and publication in the Gazette.

 

 

CLAUSE 9:  NEW SECTION 13

 

Marais J

1.  If a register of judges' financial interests is necessary (which is doubted) only judges still rendering active service should be required to furnish the information and the register should not be accessible to the public.

 

 

CLAUSE 9:  NEW SECTION 14(4)(c)

 

Marais J

1.  This provision should be withdrawn (Marais J refers to "14(1)(c)").

 

 

CLAUSE 9:  NEW SECTION 17(5)(c)(ii)

 

General Council of the Bar of South Africa

1.  The word "guilty" has been omitted.

 

 

CLAUSE 9:  NEW SECTION 18(4)(b) and (5)

 

General Council of the Bar of South Africa

1.  The references to "judge" should be references to "respondent".

 

 

CLAUSE 9:  NEW SECTION 20

 

Rhodes University

1.  The JSC should be bound by a recommendation of a Tribunal and should not be allowed to disregard a Tribunal's recommendation regarding impeachment.

 

 

 

CLAUSE 9:  NEW SECTION 37

 

General Council of the Bar of South Africa

1.  The second reference to "Committee" in subsection (2)(f) should be a reference to "any Tribunal".

 

2.  Subsection (4) should be renumbered to "(3)", and the reference to subsection (3) should be a reference to "(2)".

 

 

 

CLAUSE 9:  NEW SECTION 38

 

General Council of the Bar of South Africa

1.  The second reference to "Committee" in subsection (1) should be a reference to "any Tribunal".