Mr Speaker, the judges' code of conduct which we are approving here today is a very long time coming. It should have been approved within four months of the coming into operation of the Judicial Services Commission Amendment Act of 2008. Nevertheless, we welcome the approval of the judges' code of conduct today, which will, hopefully, bring more certainty to the process of disciplinary action against judges for misconduct.
The separation by the justice committee of the code from the judges' declaration of interests will allow us more time to consider the submissions of judges in that regard and the implications it has for the disclosure of interest of spouses of judges, as well as retired judges in particular.
The code is necessary in terms of Section 12(1) of the Judicial Services Commission Amendment Act, in order to define what amounts to misconduct for which judges can be removed in terms of Section 177(1) of the Constitution. There has been much said about the necessity of this code being approved prior to the Judicial Services Commission being able to take action against a judge. We have been quite mystified by this as it is trite that legislation cannot be retrospective. How then are complaints lodged before the approval of this code to be dealt with?
One of the most obvious examples is Judge Motata. Judge Motata thought that he would exploit this perceived gap to apply to court for an order that he cannot face the disciplinary hearing because the code has not been passed and cannot operate retrospectively. We are delighted at Judge Nepgen's ruling about a week ago, that it is ludicrous to suggest that because there is no code of conduct defining gross misconduct, no disciplinary action can be taken against the judge until such time as the code is approved.
He said that this contention is so contrary to the expressed provision of Section 177(1) of the Constitution that it cannot be upheld. We sincerely trust that the JSC will now expedite the hearing of this matter in particular, which has been dragging on since 2008.
Recent reports suggest that this code is prohibiting judges from accepting remuneration other than their salary as a judge. This is incorrect. The Judicial Service Commission Amendment Act already provides for this, except in the event of royalties for books written or edited by judges and with the expressed permission of the Minister, in consultation with the Chief Justice; it is not new in terms of this code.
The DA is particularly pleased that, despite some lively discussion on this matter, it was agreed by the committee that acting judges should, like judges, also not belong to a political party. We are strongly of the view that the same considerations apply to acting judges as to judges and if judges are not permitted to be members of political parties, neither should acting judges. Acting judges are fulfilling the same role as a judge and we believe that it is in the interest of justice that the perception of their independence must be maintained. The DA therefore supports this code of conduct. [Applause.]