Code of Judicial Conduct: deliberations, & procedure to be adopted for Regulations

Meeting report

Opening remarks
Mr N Koornhof (COPE) noted that he had found the previous day’s meeting to be useful, and Mr Jeffery, in particular, had focused the meeting well, and perhaps the drafters from the Department of Justice and Constitutional Development (DOJ) could draft something for consideration.
 
Mr J Jeffery (ANC) thought that the meeting had been useful but had been disappointed because the retired judges raised personal concerns. There were many contentious issues such as enforceability of the judges’ family members’ disclosure, disclosure for acting judges, as raised by Judge Ngoepe. He reiterated that the Judicial Service Commission Amendment Act (the Act) had been passed unanimously. He felt that whilst they could still reserve their rights to oppose the provisions, they could have suggested other alternatives. He reminded Members that there was a distinction between judges discharged from active service who were less than, and more than 75 years old, and those who continued to make themselves available may need to continue disclosing. The Committee may need to seek further legal advice on whether the entire Code and Regulations could be enforced against those appointed prior to 2008.

Mr Jeffery noted that, on the other hand, there seemed to be nothing emotive about the Code, and he had understood that this was needed urgently to deal with judges’ disciplinary matters. He suggested that it made sense to finalise this first, and then come back to consider the Regulations, on which more creativity may be needed.

Ms D Schäfer (DA) thought that the Committee had already agreed to split the Code from the Register of Registrable Interests. She agreed with the need to seek clarity on those appointed prior to 2008 and to consider the category of judges who were still liable to be asked to return to the Bench, as well as the wording of the categories in the Judges Remuneration and Conditions of Employment Act.

Ms Schäfer asked how the Code would affect disciplinary matters pending for the last two or three years, and asked about the status of investigations started prior to this.

Mr L Landers (ANC) agreed with Mr Jeffery's approach and agreed that Ms Schäfer's point on the retrospective effect of the Code also needed consideration. In relation to the Code itself, he noted that judges could face serious threats to personal safety. He wondered if judges' places of residence should not be placed in a confidential Register, accessible only by the Registrar and the Chief Justice. The reasons were adequately motivated by the group headed by Justice Lex Mpati, and it was not necessary to repeat them.

Mr Landers would have liked to have asked Judge Friedman whether the retired judges agreed with the Bangalore Principles of Judicial Conduct, agreed to in 2002. He was also disappointed that they had not put forward other proposed wording.

The Chairperson felt that a lot was covered in the meeting, and there was thorough engagement.

Mr N Koornhof reiterated his impression that the engagement had been valuable.

The Chairperson received confirmation from the officials from DOJ that they had captured how the process would be taken forward.

Code of Judicial Conduct deliberations
Mr Sarel Robbertse noted that section 14(4)(a) of the Judicial Service Commission Act provided the grounds on which any compliant against a judge may be lodged. These included incapacity that led to an inability to perform the functions of the office, according to the prevailing standards, gross incompetence or gross misconduct as envisaged in the Constitution. This was quite wide, and authorised investigations against a judge already, even where there was no Code. A further section detailed the removal of a judge, which could happen only if the Judicial Service Commission (JSC) found certain factors present.

Ms Schäfer asked if this meant that it was then unnecessary for the JSC to be holding disciplinary proceedings in abeyance.

Mr Robbertse said that there were no Rules, which had to be tabled in terms of section 25 before they could be published, and that might be the hold up in the process.

Mr JB Skosana, Deputy Chief State Law Advisor, DOJ, confirmed that at the moment a complaint could be laid, an investigation done, or the Committee could recommend that a formal Tribunal Enquiry should take place. However, the Tribunal’s activities were to take place in terms of rules made the Chief Justice, not regulations, and these rules had been drafted. The problem, however, was that a Tribunal must comprise of two judges and one member appointed in terms of a procedure set out under the Regulations. Those Regulations were not in place, and so the Tribunal could not be appointed to sit. 

Ms Schafer asked where the rules were that had been drafted, and what stage the Regulations were at.

The Chairperson said it then seemed that the Committee would have to finalise the Regulations urgently.

Adv H Smit (DA) saw the Code of Conduct as defining the broad guidelines in the Constitution. Any current or future complaints would be dealt with in terms of the Code.

Mr Jeffery said that, in light of this explanation, his original proposal that the Regulations could probably be delayed would not apply, although he wondered why Judge Mpati had suggested that it was the Code that needed to be finalised more urgently. He agreed with Ms Schäfer that a response was needed on the Regulations.

In the meantime, however, Mr Jeffery suggested that the Committee should go through the Code, page by page, and asked if the document headed “Draft 2”, which was circulated on the previous day, was the latest version. He asked that all future drafts be correctly numbered and dated.

Mr Vhonani Ramaano, Committee Secretary, noted that the document he had received from the DOJ had been untitled, and he had inserted the title “Draft 2”. He confirmed that the document handed out was the latest from the Department.

Mr J van der Merwe (IFP) said that the Members had also asked that notes should be listed “under the lines”, and these did not appear in that way.

Mr Robbertse said that it was explained, in Article 3(4), that the notes were there to elucidate and provide explanation, and would not be binding as subordinate legislation.

Mr van der Merwe reiterated that they should appear under the line.

Mr Johan de Lange, Principal State Law Advisor, DOJ, said that he was not quite sure what Members meant by “under the line”. Footnoting would become very complex. The format that the judges had used set out each article, then provided the notes relating to that article directly underneath.

The Chairperson said that the Committee had agreed to try not to deviate too much from what the judges had submitted.

Possible splitting of regulations
Ms Schäfer asked if it was possible to pass the Regulation on the Tribunal alone, and hold back on the regulations dealing with the registrable interests.

Mr Robbertse said that section 25 of the Judicial Matters Amendment Act required the Chief Justice to make rules relating to the Tribunal, within six months of commencement of that Act. These must merely be table, and there was not requirement for approval by Parliament.

Mr Skosana said that Mr Robbertse’s point related to the rules relating to conduct as drafted by the Chief Justice. The Regulations, which included regulations on the declaration of interest, and the mechanism for appointing the non-judicial member of the Tribunal, were tabled. If the Committee wanted to pass only one of the Regulations, it could do so, by excising it from the total document; this could be useful to get the Tribunal processes going, though it may not be ideal.
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Ms Schafer said Clause 6 of the Regulations provided for the drawing of a list of persons suitable to serve on the Tribunal, and she proposed that the Committee must deal with this only, excise it from the document, and hold over the registrable interests portion of the Regulation for further debate.

Mr Landers asked if there was anything else in section 22 of the JSC Act that required Parliamentary approval for the drawing of a list in Clause 6, as mentioned.

Mr Robbertse referred Members also to section 23 of that Act.

Ms Schäfer commented that the wording referred to “in the prescribed manner”, and that referred to the Regulations. She also added that any regulation must merely, in terms of section 35(2), be “tabled” in Parliament, before publication in the Gazette, so that it did not have to be approved. She suggested that that Regulation must therefore simply be tabled.

Adv Smit cautioned that there was another problem, relating to the chairing of the tribunals, where the Chief Justice was the referral and investigative mechanism. It was suggested that an amendment to the JSC Act was needed to deal with the anomalies.

Mr Landers pointed out that it would help this Committee if those kinds of decisions and problems were notified formally to the Committee. Adv Smit and the Chairperson were aware of discussions in the JSC because they sat as members of that body, but there was no formal noting of this.

Adv Smit agreed but said the referral should come either from the Chief Justice or JSC. He asked the Chairperson if he could check the minutes of the JSC meetings, to verify his recollection on this point, and then obtain suggested amendments from the JSC.

Mr Landers pointed out that section 13(7) of the JSC Act noted that the first regulations under this section would have to be tabled “for approval by Parliament”.

Ms Schäfer asked if this was referring to the Register of Registrable Interests.

Mr Skosana said that this was why some regulations should be excised. At the moment, there was one set of regulations to cater for everything. He agreed that it would be better to table them separately, leaving aside, for the moment, those under section 13(7).

Mr Robbertse said that if the Regulation relating to the Tribunal was drawn separately, it would merely need to be tabled in Parliament, then gazetted, and no approval under section 13 would be necessary.

Mr Koornhof asked if this meant that the meeting on the previous day had been a waste of time.

Members and the DOJ officials said it was not. It had dealt with registrable interests, whereas what was being discussed now had to do with the functioning of the Tribunal. It made sense to publish them separately.

Deliberations on Code
Preamble
Mr Robbertse said that some changes were being effected to the Preamble. At the top of page 2, the words “including such principles as set out in the Bangalore principles of judicial conduct” should be inserted.

He noted that in the part that commenced with the words “section 12(5) read with” the reference to section 14(4)(a) was incorrect and should read section 14(4)(b).

In the middle of the page, the sentence commencing “PARLIAMENT of the Republic” had been amended.

Definitions clause
Mr Robbertse pointed out that the previous version merely defined the Code. In this version, the definition of “Code” had been left out, and a definition of “the Act” and a new paragraph (b) were added.

Mr Jeffery complained that the level of precision of the drafters left a lot to be desired.

Mr de Lange said that this document reflected what the Committee had agreed upon at the last meeting. He noted that he himself had effected some of the amendments, after Mr Robbertse sent him a draft. There was nothing much that turned on the definitions. It made no sense to define “the Code”, as no other legislation attempted to define itself.

Mr Jeffery said that may be so, but from a procedural point of view, the DOJ officials should not unilaterally remove anything. The Committee had to be very careful in tampering too much with this, as it was a draft from the Chief Justice. Definitions should not merely be deleted by the drafters.

Mr de Lange said that the definition of the Code had not appeared in the Chief Justice’s wording, and that was why the decision was taken to remove it from the DOJ first draft.

Mr Jeffery accepted this, but said it should have been highlighted to the Committee.

Adv Smit asked if the original document tabled by the judges could be put before the Committee, together with the latest draft that should highlight the proposed amendments.

Mr de Lange agreed this could be done, and it could be made clearer on an electronic document.

Mr Robbertse clarified that this draft was a “clean-up” and contained some amendments “effected by” the Department.

Mr Jeffery said that the correct terminology was that the DOJ was “proposing” and not “effecting” amendments.

Mr Robbertse took the point. The DOJ was proposing that the definition of “this Code” be omitted.

Mr de Lange said that there would be a link to the principal Act, and the same meaning ascribed.

Article 2: Application
Mr Robbertse said that there were changes to the original subparagraph (5), by removal of a reference to wilful or grossly negligent breach. This was mentioned in section 14(4)(b) of the Act and there was no reason to repeat it in the Code.

Mr Jeffery again objected to this.

Mr Robbertse added that another reason for the omission of the previous (5) was that similar wording appeared in Article 2(3) that already covered those points.

Mr Jeffery asked for an explanation of the footnote.

Mr de Lange said he had added the footnotes to highlight issues on which further discussion was needed.

Mr Landers said that on the previous day the Committee had discussed the position of judges who were no longer in active service. He agreed that this should be flagged for further deliberations, as the outcome of the Committee’s deliberations on that class of judges may affect the Code. The JSC Act included judges who had been discharged from active service.

Mr de Lange said that Mr Landers' comment had answered some of his concerns, but also pointed out that, in the final result, the Act would trump the Code.

Mr de Lange also wanted to speak to the numbering. The Bangalore Principles referred to “principles”, although the judge’s version had used the term “rules”. Most legislation referred to “sections” but international agreements used “articles” although it was also possible to refer to “clauses” or merely to paragraphs by number. The Committee should decide which term it preferred.

Article 3: Objects and interpretation
Mr Robbertse said that Article 3(1) described the objects and 3(2) the interpretation of the Code. When it presented the previous document, the DOJ drafters ha explained the deletion of the originally-proposed Article 3(1). He pointed that that Note (4) explained what the notes were intended to do, and their status, in accordance with the original draft submitted by the judges.

Mr Jeffery wondered if “Notes appearing to” was grammatically correct.

Mr Landers said that the judges’ wording should be used, wherever possible.

Mr Jeffery said this had read “These notes are in elucidation”.

Ms Schäfer and Adv Smit suggested that this should read “Notes to articles of this Code are for the purpose of elucidation.”

Mr Jeffery added that the document should have been spell-checked, and pointed out some errors.

Mr Robbertse said that he had been given a day to prepare this document, instead of the week he had requested, and it was done hurriedly.

Mr De Lange asked if Article 3(2)(b) was considered to be necessary. If anything did impinge on constitutionally guaranteed independence it would be struck down in any event.

Members thought there was no harm in leaving this in.

Article 4: Judicial Independence
Mr Robbertse said that in the previous document, he had substituted “must” with “shall”. However, other State Law Advisors were of the opinion that “must” was in line with current drafting principles. He had made this substitution to ensure consistency.

Mr de Lange said that nothing really turned on it; he personally preferred “shall” but it was up to the Committee.

Mr Jeffery agreed with him, saying that the word “must” seemed overtly prescriptive.

Mr de Lange referred Members to note (4c). It was not possible to simply replace “must” throughout the document, but the drafters would require the consent of the Committee to change it where appropriate.

Mr Robbertse pointed out that the Notes used the same numbering as the Article, so that they commenced with (4a). If this would cause people to wonder why numbers 1 to 3 were missing, it might be easier to use alphabetical numbering only.

Mr Landers suggested use of Roman numerals.

Mr de Lange said that the judges had used this formatting, and it was easy to cross-reference.

Mr Jeffery also noted that the judges’ version had not used either “shall” or “must” but had opted to state broad principles, such as “A judge acts fearlessly” or “Judges do not appear…”

Mr Jeffery referred to Note (4c), which had at some stage been deleted, and then put back. It said that judges did not engage in public hearings or consultation with the Executive, or the legislative body, except on matters concerning the law, the legal system, or the administration of justice. He thought that the previous meetings were not properly termed as a consultation, but were hearings. Parliament also had not been “consulting” with judges on the Superior Courts Bill, but wanted to hear them. He asked the Department to indicate why this had been taken out.

At this point, Mr Koornhof expressed the view that there was no point in the Committee entering into such detailed debates. He suggested that the Committee give its general approval of the Code, and then the final wording should be approved by one or two people. It was surely not necessary for the full Committee to go through every clause, and this was not the procedure followed in other Committees. Far too much time was being spent on this.

Mr Jeffery had a problem with this proposal. He felt that every Member had a duty to go through everything.

Mr Koornhof said that he was happy with the broad principles in this Code.

Mr Jeffery asked him then which version was preferred.

Mr Koornhof said that the general emphasis was not being changed in the various versions. However, it was “nonsense” to spend endless time debating single words. If the Committee was concerned with sticking as closely as possible to the judges’ draft, it should simply return to it.

Ms Schäfer said that she had no problem sitting on the Committee and debating matters, but she was finding this procedure very difficult to follow.

Adv Smit proposed that Mr de Lange and Mr Robbertse should take the original judges’ version, and then mark it clearly with the Departmental input, so the Committee could decide what was acceptable. He pointed out that neither he nor the judges were experienced legislative drafters, and if there was a need for grammatical emphasis or changes, the drafters were best placed to determine this. He also agreed that there seemed little point in spending so much time debating single words.

Ms C Philane-Majake (ANC) said that she was not unhappy with these suggestions, but cautioned the DOJ drafters to ensure that the correct language was used.

Mr Jeffery still wanted comment from other Members on whether judges could appear at public hearings.

Mr Koornhof did not see why this should be a problem.

Mr Robbertse said that this concept had been re-inserted, after judges proposed that they could appear only in matters “concerning the law, the legal system or the administration of justice”. There seemed no problem in principle with this, although they should be protected if requested to appear at a public hearing relating to something else that may have an effect on the judicial independence, or to pronounce upon certain decisions or values. He submitted that the Code Note was correct.

Mr Landers noted Mr Koornhof’s views on the general acceptability of the draft, but said this was also about societal perceptions. He thought that it would be problematic for a judge to appear at a political rally, so it depended upon what was meant by a “public hearing”.  He repeated that a lot of this had to do with perceptions and once trust was lost it was hard to regain it.

Ms Schäfer agreed with Mr Landers. She would have no problem with something like the previous day’s hearing, but would have a problem with judges appearing at anything of a political nature. She thought that perhaps wording could be inserted to limit this to bodies like Tribunals or Parliamentary committees, and also to qualify that this should not interfere with the perception of independence.

The Chairperson, with the agreement of Members, asked the Department now to proceed along the lines suggested by Adv Smit, and produce another document, clearly marked.

The meeting was adjourned.