Judging the Judges
The parliamentary committee tasked with processing the regulations concerning the disclosure of judges financial interests found itself faced with a mighty phalanx of retired and sitting judges when it met recently.The judges were there to express their misgivings about facets of the regulations that did not meet with their approval. While some press reports have tended to exaggerate both the tone and the extent of the objections to the draft regulations, more considered responses to the exchange of views that occurred during the judges' submissions to the committee suggest that the interaction is likely to be mutually beneficial and that its end product will be a set of regulations that is effective and constitutionally compliant. The argument that judges are only answerable to the law and the Constitution and that the regulations are therefore inappropriate was not raised by the judges. This will not prevent anyone else dissatisfied with the final regulations from doing so.
Before moving on to a consideration of the points the judges raised it is as well to consider the mischief at which the regulations will be aimed when they are eventually adopted and put into force.
Our constitutional democracy demands, as foundational values, that the affairs of state be conducted in a manner that is transparent, accountable and responsive to the needs of ordinary people. Obviously, the judiciary is one of the branches of the state and there is no reason for judges to escape the strictures of the law which they are bound to uphold and enforce.
The mischief which the regulations seek to address is the phenomenon of judges who "go feral" and engage in activities that do not behove persons who occupy high office that involves great responsibilities. Judges are constitutionally required to act impartially and to judge the matters in which they adjudicate "without fear, favour or prejudice". Their independence must, in order to achieve the high standards laid down for them, be beyond reproach.
It sometimes happens that judges have an interest in one or other litigant whose case is allocated to them. A shareholding in a company, a social relationship with a party, a previous professional connection with one of the litigants - all of these and many more examples give rise to a situation in which judges may feel constrained to recuse themselves, or at least give the other party the option of requesting a recusal on the grounds of the conflict of interests involved that could have the effect of compromising the independence of the judge in question.
An example of this occurred in the Western Cape High Court when the Oasis Group sought permission to sue a sitting judge for alleged defamation of its character. To do this, normally the permission of the Judge President is required. This permission is necessary in order to protect the dignity of the judiciary and prevent frivolous litigants from tying up judges in vexatious litigation. The difficulty in the Oasis case was that the Judge President was on its payroll, moonlighting as a non-executive director. Quite apart from the propriety of this relationship, its very existence ought to have been disclosed to the judge being sued, but was not - leading to much wailing and gnashing of teeth when the connection emerged and the failure to recuse was highlighted after permission to sue was given by the Judge President.
Another feature of this example which is of relevance to the new regulations is that instead of accepting his emoluments himself, the Judge President arranged with Oasis that they be paid into a family trust named after his children.
The mischief that the regulations seek to address is that there ought not to be financial irregularities or "ill gotten gains" in the affairs of our judges. By requiring disclosure of their finances, even if only to those with a legal interest in having insight into them, the legislature hopes to nip in the bud the type of activities that the example given reveals. The independence of the judiciary is a necessary element of the separation of powers and is a cornerstone of democracy.
With the zeal of the avid reformer, the regulations go much further than requiring sitting judges to make the necessary disclosures. Acting judges and retired judges are also covered and the families of all judges are expected to join in the orgy of disclosure contemplated by the draft.
Why retired judges should be required to make disclosure is hard to divine. Surely, if they earn income in their retirement, that is their business and no one else's. Certainly, those retired judges who are required to return to active service, a phenomenon that the rush to transform the Bench does not encourage, should, like any other sitting judge, be required to disclose their finances.
As regards acting judges, the Judge President of Gauteng, Bernard Ngoepe, raised a very practical objection to the regulations being applicable to practitioners who take time off from their practices to act as judges for a short period in order to help out in times of crisis when the sitting judges are sick, swamped or enjoying their hard earned long leave. He expressed the fear that it would become even more difficult to persuade senior practitioners to make the onerous disclosures required prior to taking a short acting appointment on the Bench. If the pool of persons willing to serve the public in this way is drained by the regulations' requirements, then the public's access to justice will be prejudiced and the "responsiveness" value of the Constitution will be violated in this way.
[Whether the institution of acting judges is one that is desirable and conducive to the proper adjudication of disputes in an independent way is another topic for another day.]
The final main objection was to the requirement that the close families of judges should also be required to make disclosure of their finances. Judge of Appeal Robert Nugent pointed out that it is irrational to require this of people who are constitutionally entitled to the protection of their privacy and dignity.
As can be seen from the Oasis example, a disclosure of the finances of the Judge President and his family would not have revealed the income stream from Oasis because it was channelled to a trust with a made up name consisting of parts of the children's names. It is exceeding naïve of the drafters of the regulations to imagine that a crooked judge would be so stupid as to simply put ill gotten gains into the name of a family member and then see to it that the family member discloses them in terms of the regulations. Past experience and common sense suggest that no good purpose can be served by asking judges' close family to disclose their finances.
The main thrust of the regulations does however serve the good purpose of bolstering public confidence in the judiciary and thereby enhancing its legitimacy. It is a valuable aid to transparency, accountability and responsiveness to have available to interested parties the type of information the regulations envisage. The values of transparency, accountability and responsiveness will be well served if the judges' objections are taken into consideration appropriately before the final version of the regulations is presented to the public. Should the objections be disregarded, surely an unlikely eventuality when their cogency is properly pondered, it can be anticipated that judges will be asked to judge the legality, rationality and constitutionality of the regulations affecting them. This is an outcome to be avoided, preferably without resort to applications for recusal.
Paul Hoffman SC
2 February 2012
