Quote of the week
Universal adult suffrage on a common voters roll is one of the foundational values of our entire constitutional order. The achievement of the franchise has historically been important both for the acquisition of the rights of full and effective citizenship by all South Africans regardless of race, and for the accomplishment of an all-embracing nationhood. The universality of the franchise is important not only for nationhood and democracy. The vote of each and every citizen is a badge of dignity and of personhood. Quite literally, it says that everybody counts. In a country of great disparities of wealth and power it declares that whoever we are, whether rich or poor, exalted or disgraced, we all belong to the same democratic South African nation; that our destinies are intertwined in a single interactive polity.
August and Another v Electoral Commission and Others (CCT8/99) [1999] ZACC 3
Parliamentary briefing on Code of Judicial Conduct
The Code of Judicial Conduct was as a result of stipulations within the Constitution that there be a complaints handling mechanism for the judiciary. The Code provided a clear framework for complaints to be lodged against judges by members of the public and had been drafted by the Chief Justice of the Constitutional Court. The underlying principles that were part of the Code were derived from the Constitution. The Constitution required the appointment of judges that were fit and proper as well as appropriately qualified. The Code would serve to prescribe the necessary expectations for a person serving as a judicial officer. Impartiality and independence were crucial factors that permeated throughout the Code. The Judicial Service Commission Amendment Act of 2008 and the Code served to strike a balance between the independence and dignity of the judiciary. A breach of the Code would warrant a complaint against a judge. Any person who felt that the Judicial Code of Conduct had been breached by a judge would be entitled to lay a complaint against that judge at a police station. Judges were expected to give reasons for all decisions taken in all matters that they adjudicated on. Judgments written by judges had to be accessible to the persons to whom they applied. The Code would also serve to ensure an onus on Acting Judges, drawn from the advocate and attorney ranks, to complete all their work before their period of work came to an end. All reserved judgments should be delivered before the end of term or early next term.
The Code provided that a judge should not belong to a political party or secret organisation. A judge should also not be involved in any political controversy or activity. The judges had felt that they would be less compromised if they were not involved in any political party. In other international jurisdictions there were similar provisions but the wording was different as it provided that judges could vote and belong to a political party provided that they did not participate in one. The Department of Justice and Constitutional Development held the same view as it did not want to take away judges’ civil rights. The conditions of service of judges had been designed in a manner that enhanced the independence, accountability and impartiality of judicial officers. This was why it was imperative that judges continued to conduct themselves in a manner that befitted a judicial officer even after retirement.
The Committee was concerned about the ability of judges, who were affiliated to political parties, to be impartial. The Committee was also concerned about retired judges serving as arbitrators. The Committee posed several questions on extra-judicial income of judges in instances where they had retired or were still in active service.
Presentation
Code of Judicial Conduct: briefing by Department of Justice and Constitutional Development
Adv Jacob Skosana, Chief Director: Policy Development Unity, Department of Justice and Constitutional Development (DOJ&CD), explained that the Code were a national instrument. The Code was as a result of stipulations in the Constitution that there be a complaints handling mechanism for the judiciary. He pointed out that in the absence of a complaints handling mechanism, it had been very difficult for the Judicial Service Commission (JSC) to handle judicial misconduct. The Code would also serve to provide a clear framework for complaints to be lodged against judges by members of the pubic as well.
There were fundamental principles that provided guidance for the Code. The Union Banglor Principle of Judicial Conduct provided for the establishment of principles that regulated the standard of judges. The Constitution required the appointment of judges that were fit and proper as well as appropriately qualified. The Code of Conduct would serve to prescribe the necessary expectations for a person serving as a judicial officer. Impartiality and independence were crucial factors that permeated throughout the Code. The Judicial Service Commission Amendment Act of 2008 and the Code served to strike a balance between the independence and dignity of the judiciary. The Code tabled before Parliament had been drafted by the Chief Justice of the Constitutional Court.
The Preamble within the Code reflected constitutional values and principles. Any breach of the Code would warrant and justify a complaint against a judge. Any person who felt that the Judicial Code of Conduct had been breached by a judge would be entitled to lay a complaint against that judge at a police station. There were important guidelines in the form of notes within the Code which provided an interpretation of the rules. The rules in the Judicial Code of Conduct provided that a judge must act with impartiality, must not act in a manner that suggests favoritism for a particular side and must act fearlessly. Honesty and integrity were fundamental for a judge – it was expected that judges would act with honesty and abide by the law. Judges were expected to give reasons for all decisions taken in all matters that they adjudicated. Judgments written by judges had to be accessible to the persons to whom they applied. A judge was not allowed to write derogatory comments actuated by personal spite. This was important because there was no recourse where a judge had written derogatory comments but also applied the law correctly. It was important that judges performed their duties diligently because legal proceedings were very costly. Judges had to be sensitive of the time taken by litigants to appear before court and had to dispose of proceedings expeditiously.
The Code would also serve to ensure that it was the onus of Acting Judges, drawn from the advocate and attorney ranks, to complete all their work before their period of work came to an end. All reserve judgments should be delivered before the end of term or early the next term. The DOJ&CD was of the view that this was a critical part of the rules. In some instances judgments would be delayed for up to three years despite evidence having been given from both sides.
Restraint was expected of judges and they should not show emotion. The Code provided that a judge should not belong to a political party or secret organisation. The Code provided that a judge should not belong to a political party or secret organisation. It went even further and specified that except insofar as was necessary for the discharge of judicial office, judges should also not be involved in any political controversy or activity. Judges welcomed this provision due to the growing trend of political disputes being resolved in courts and no longer through party structures. More frequently, judges found themselves in a position where they had to adjudicate over disputes of a political nature. As a result, they felt that they would be less compromised if they were not affiliated to any of the political parties that appeared before them. This issue was debated thoroughly with the Chief Justice. There was a similar prohibition in other international jurisdictions, however it was worded differently. For instance, many countries did not preclude judges from belonging to a political party, instead they specified that judges were not allowed to participate in political activity including addressing and attending public meetings or campaigns. It was Parliament’s duty to debate and decide the merits of barring political membership or participation by judges.
It was envisaged that Magistrates would also be subjected to the provisions of the Code at a later stage. The conditions of service for judges had been designed to enhance the independence, accountability and impartiality of judicial officers. Judges continued to receive remuneration after their term of office had expired. After they passed away their spouses received 75% of their original salary. This was why it was imperative that judges continued to conduct themselves in a manner that befitted a judicial officer even after retirement.
It was important that the Code should not be an unnecessary intrusion upon the lives of retired judges and magistrates. The rules for extra-judicial service included that a judge could be a director of a Section 21 company, a family-run business or close corporation; provided that they did not serve in any executive function. It was important to ensure that the Code did not make provision for what was not contained in legislation. It should be borne in mind that the Code had been drafted by the judiciary itself. The Judicial Service Commission Amendment Act of 2008 provided for the amendment of the Code at any time provided that the amendments were tabled in and approved by Parliament.
Discussion
Mr G Ndabandaba (ANC) asked how certain one could be that a judge who belonged to a particular political party would not be prejudicial in the discharge of their duties.
Ms D Rantho (ANC) commented that a judge might be influenced by those around him such as family members who belonged to a political party.
Mr N Koornhof (COPE) asked if Acting Judges fell under the scope of the Code. The Code provided that a judge could not sit as an arbitrator. Why was a retired judge allowed to be an arbitrator given that this had been criticised in a previous case by a judge?
Mr L Landers (ANC) referred to the Code under extra-judicial activities and asked what financial and business dealings that a judge might be involved in, that would not be perceived as possibly compromising a judge’s position. Could more clarity be given on the section of the Code that prohibited judges from performing an executive function where they participated in a close corporation or family-run business?
Adv Skosana replied that his response would be a reflection of the clarity provided by the judiciary when it interacted with the Department on the Code. The issue of judges belonging to a political party was very sensitive. It was important that when judges dealt with a matter in front of them they had to apply the law with a clear mind. A judge had to act independently and also apply the law. There were laws that provided for the recusal of judges and the Code had to be read together with these. The issue of judges serving as arbitrators was a contentious one. The matter could not be resolved via a judicial code of conduct, it had to be looked at holistically and all concerned parties had to be consulted.
Ms S Sithole S (ANC) asked why it was not included in the Code that a judge could not be presented with gifts by a litigant in a case adjudicated by that judge, once he or she had retired.
Adv Skosana replied that the matter of extra-judicial income had to be dealt with very delicately. It would create serious problems where a judge even though he/she applied the law correctly, did not disclose an interest such as shares in a company that belonged to one of the litigants.
Meeting adjourned.
