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". |