Judicial Service Commission Act: discussion

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
21 MAY 2003
JUDICIAL SERVICES COMMISSION ACT: DISCUSSION

Chairperson: Adv J H de Lange (ANC)

Documents handed out:
Draft of Judicial Services Commission Bill (document is not yet available publicly)

SUMMARY
The Committee met with a representative of the Department of Justice and informally discussed the Judicial Services Commission Act. Changes were made to specific clauses in the Draft Bill and it was targeted to be ready for final comment by the judiciary next week.

MINUTES
Establishment and objects of Committee
The Committee instructed Mr de Lange, legislative drafter from the Department of Justice to include the Minister in the definitions in Clause 7.

The Committee decided to amend Clause 8(a) so as to make the Deputy Chief Justice the Chairperson of the Judicial Conduct and Ethics Committee. The Chief Justice would be retained as a member.

The Chairperson stated that he was unsure if subsection (e) was necessary. The Committee decided to revisit the issue.

Clause 9(5) was changed from "unless the Committee on account of public interest/for good cause decides otherwise" to unless the Committee decides otherwise".

The Chairperson asked if the asset register should be added to Clause 10 "the objects of the Committee". He suggested they revisit the issue after reviewing the asset register.

Judicial Conduct
Mr J T Maseka (UDM) asked if acting judges are not allowed to hold any other office for profit, as regular judges are.

The Chairperson answered that this restriction did not apply to them.

Mr Maseka asked who would be responsible for dealing with an acting judge's misconduct.

The Chairperson asked Mr de Lange to look into this issue.

Mr B Magwanishe (ANC) asked if a judge's family members were allowed to make money.

The Chairperson responded that there is exclusion on family members making money.

The Chairperson stated that the Code of Judicial Conduct would be revisited every year by the Judicial Conduct and Ethics Committee.

The Chairperson noted that every judge would make a disclosure of all financial interests as stipulated by the code. The disclosed information will be recorded in the Register. Some of the information will be kept confidential.

The Chairperson suggested that the Register be processed and handled by the office of the Chief Justice.

Consideration of Complaints by Committee
Ms F I Chohan-Kota (ANC) asked whether non-compliance will be avoided.

The Chairperson stated that a register will be kept. He instructed Mr de Lange to make a provision that any complaint or query should be lodged with the Deputy Chief Justice.

Mr de Lange stated that every complaint received and action taken must be reported.

The Chairperson stated that a secretariat in the office of the Chief Justice should be set up to handle these matters. The secretariat would be governed by regulations. The Minister will make the regulations in consultation with the Chief Justice and the JSC.

Mr de Lange stated that while he approved of the idea, he was worried about costing.

The Chairperson stated that if the Committee is serious about accountability it will cost money.

Ms Camerer agreed with formalising the process of complaints.

The Chairperson reviewed the process as envisaged by the Committee. He explained that the Commission will decide, if the complaint is urgent and serious, to appoint a tribunal to consider serious disciplinary action, including removal of the judge. If the complaint is not that serious, it will be referred to the Judge President. If the complaint is commonplace, such as swearing in the courtroom, the complaint will dealt with by the disciplinary committee. Sanctions could be imposed in the latter two options.

Mr de Lange suggested changing "a member of the Committee" to "one or more members of the Committee" in Clause 13(1). He also pointed out that the phrase "complaint about a judge" is the wording used in the Constitution, not "complaint about the conduct of a judge".

Mr S N Swart (ACDP) pointed out that most of the complainants will be parties to litigation that they lost and would be making claims on the judge. It is important that Clause 14(1)(b) stipulates that the complaint must be outside of the merits of the case in order to be considered.

Mr de Lange stated that Clause 14(2) served as a safety valve for complainants because it specified that the Committee must reconsider a complaint if a dissatisfied complainant requests reconsideration within one month after the initial decision.

The Chairperson said the fact that the Committee must put into writing the reasons for dismissal also ensures that the complainant's rights are guaranteed. The one month the complainant has to appeal should be one month of the receipt of the decision.

The Chairperson decided to skip Clause 15 and review Clause 16, "Investigation by Chairperson or member of Commission."

The Chairperson clarified that a judge on the Committee becomes like a prosecutor because he must decide which complaints have merit, and what action to take if the complaint has merit.

The Chairperson asked who conducts the hearing if a judge on the Committee does not dismiss the complaint, and the disciplinary action needed is more severe than is specified in Clause 16(6)?

Mr de Lange answered that the judge on the Committee conducts it. It is simply an inquisitorial hearing.

Mr Swart explained that the difference between this hearing and the tribunal hearing is the gravity of the complaint.

The Committee discussed the sanctions enumerated in Clause 16(6). The Chairperson noted that a fine was considered at one point, but judges were opposed to that measure.

Ms Chohan-Kota was troubled that 16(6) did not include an apology to someone other than the complainant. The complaint might necessitate that the judge apologise to the public in general.

The Chairperson stated that they would allow the possibility of such a sanction. When it is a public issue, the judiciary has to apologise publicly.

Ms Camerer was concerned that disciplinary action taken against a judge would lessen public respect for the bench, which is important.

The Chairperson stated that this Bill will enhance public respect for the bench.

Ms Camerer suggested that the judge could become useless after being reprimanded.

The Chairperson stated that there was no reason to believe that would happen.

The Committee discussed what would happen if a complaint surfaced about a judge who has resigned.

The Chairperson stated that if the person is no longer a judge, the bar will discipline that person.

Mr de Lange stated that anyone performing judicial functions is a judge for the purposes of this Bill.

The Chairperson noted that if a judge is ordered to receive counselling as a result of a complaint, the counselling will be at state cost.

Mr de Lange stated that that did not necessarily have to be the case.

The Chairperson retorted that if the cost is R100 000, how could the judge be expected to pay. If the Committee decides that the state will pay for the programmes, the Department of Justice will need to compile a list of pre-approved programmes. The list will be compiled in co-ordination with the Chief Justice, the Minister, and the JSC.

Ms Chohan-Kota asked what would happen if a judge refuses to participate in a programme, or begins a programme and then stops.

Mr de Lange suggested that there should be some way to build up a service record.

The Chairperson asked what would happen if a judge swears once a week. Is there the possibility of a demerit system so that many smaller misdemeanours could add up to gross misconduct?

The Committee decided that the secretariat would keep a record of every finding, sanction, and compliance. It will be the duty for the Committee to oversee and monitor the compliance of sanctions.

The Chairperson inquired about the course of action available if a judge refuses to comply with the findings and recommendation of the Committee with respect to Clause 17.

Mr de Lange stated that the Bill needed a sort of reprimand for situations in which the Judge failed to comply. He suggested that to prevent frequent complaints over insignificant instances they could develop a system of demerits.

The Chairperson asked if the secretariat could keep a strict record of the findings, sanctions and the sentence imposed against a judge. He then asked what would happen if this failed and who should decide if the person has complied. He suggested that this should be the responsibility of the Committee. He offered that the secretariat should monitor compliance and report back to the Committee.

Ms Chohan-Kota wondered if it should be to the Committee or to the JSC.

The Chairperson asked what would the mechanism be if the tribunal refused, and wondered about criminal sanction. He noted that if there was no sanction then there was no guarantee that if the matter went to tribunal something would happen.

Mr de Lange noted that criminal sanction would not be applicable to this matter.

Ms Chohan-Kota added that the matter would then be referred to the JSC for further action, but that the problem was that this did not give you much recourse.

Ms I Mutsila (ANC) noted that non-compliance is a serious matter, which would undermine the system and put it in disrepute. He recommended that failure to comply should result in removal.

The Chairperson noted that this was not possible because of the Constitution, which provided the grounds for removal.

Ms Mutsila then added that failure to comply should be gross misconduct.

The Chairperson stated that they needed to find a way to legally state this. He suggested that, "the failure to comply is regarded in a serious light by the Committee and referred to the Commission who must decide on further action and perhaps referral to the tribunal to assess incompetence or gross negligence" be added to the clause.

Ms Chohan-Kota added that this must be intentional non-compliance.

The Chairperson then moved to the next controversial issue. He noted that there should be a clause which stated that the proceedings are closed but the findings are public. He felt that this was necessary to avoid unduly affecting a person's career. He suggested that the specific wording should be that when all the steps are finalised the Commission or the Committee, as the case may be, would make all the proceedings available to the pubic.

Ms Camerer submitted that the process would be tidier if there was only one body instead of the Commission or the Committee.

The Chairperson suggested that sometimes the Committee has no role in the proceedings. He noted that each body must exhaust all of its remedies and it was a question of where the authority lied.

Ms Camerer again suggested the need for one body.

The Chairperson noted that the JSC was only an appeal body.

Ms Camerer wondered how advisable this was.

The Chairperson noted that if it did not work it would be revisited.

A Member asked if the proceedings must be made public or was it at their discretion.

The Chairperson said that it was necessary but only after exhausting all remedies. He asked who must make this available to the public. He suggested that there were two options. The first option was either the committee or the commission, depending on the circumstances. The second one was the Chief Justice.

Mr de Lange suggested that the JAC should do this, as everything must be reported to them.

The Chairperson noted that if this were done it would happen much later.

Mr de Lange then suggested that the Committee do this.

The Chairperson wondered what would happen if there was an appeal.

Ms Camerer suggested the Chief Justice should do this, as they are already keeping a list of all matters.

The Chairperson agreed and noted that it should be done as soon as possible once all the remedies were exhausted. He then read aloud Clause 17. With respect to subsection (ii) he suggested replacing "findings and other appropriate steps". He noted that if the action was automatically dismissed you would not go to the Committee but straight to the Commission.

The Chairperson then directed the Committee back to Clause 15. He asked why this Clause granted the Judge another chance to respond to the complaint.

Mr J de Lange noted that this may be over-cautious, however their aim was to provide the judge with an opportunity to respond after every decision was made.

The Chairperson suggested that the complainant also be given the same opportunity to respond whenever it was given to the Judge. He then asked why 15 (2)(b) was necessary and suggested that (a) include that they must consider all information before them.

Mr de Lange stated his agreement and then asked if subsection 4 should only include a written response.

The Chairperson submitted that they should be given the option of an oral argument.

Consideration of Appeals to Commission, and Appointment of Tribunals by Commission
He then moved to Part IV of the Bill and suggested that they also give the complainant a right to respond in subsection (3). He then moved to Part V, noting that the complainant should also be added to subsection 20 (1)(b). He suggested that subsection 5 needed a 'catch-all' statement, so any other relevant materials should be included with the report. He suggested that the Bill needed a regulations clause and commented that this as it stood it was a wonderful piece of work, which would only improve with the amendments.

He then went through the Bill offering his comments. He stated his concerns that any precedence must be made available to the public, so they might know what is considered unacceptable. He noted that within the clause covering tribunal conduct they needed to add that the proceeding were inquisitorial and there was no onus on the judge to prove their innocence. He then suggested that Clause 8, regarding the composition of the Committee should provide for the inclusion of one layperson.

The meeting was adjourned.