The Institute for Accountability in Southern Africa

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Submissions by Ifaisa to the parliamentary committee on the Code of Conduct and Regulations concerning disclosure of interests by Judges

Thank you for making the draft code and regulations available. The Institute for Accountability in Southern Africa welcomes the opportunity to comment on them and would appreciate the opportunity of making oral submissions on 19 January at such time as is mutually convenient.

As regards the regulations:

  1. The rationale for disclosure of registrable interests of retired judges, and in particular those judges who retired many years prior to the promulgation of the regulations, is not apparent. It is submitted that no good purpose can be served by requiring retired judges to register interests as there is no prospect of a conflict of interests arising (because they no longer preside in court) and any proceeds of corruption can easily be kept out of the categories of interests required to be declared. In all deliberations on the regulations it is important to draw a clear distinction between the position of retired judges and those who are still in active service. Different considerations apply, notwithstanding the "judge for life" concept which was introduced to attract high-earning practitioners to the Bench, not to punish them in their retirement years.

  2. The categories of interests that are required to be declared are not sufficiently broad. For example, the amounts paid by Oasis in respect of the services of Hlophe JP were channelled into a family trust named after his offspring (and sometimes mis-described in accounting records) - Hlophe JP could have argued that he did not derive any "financial income" (category 7) from this source were it not for the tax dispensation then in place and could, had he set up the trust more carefully, have avoided disclosure altogether had the regulations as framed at present been in place when he moonlighted with Oasis. A fair conspectus of the evidence given by Hlophe JP to the Judicial Service Commission concerning the receipt of monies from Oasis reveals that he did not timeously declare the income for tax purposes and may not have done so at all had the complaints against him not been laid. For an analysis click here. Indirect payments of the kind made by Oasis to the Hlophe children's trust do not appear to be covered by the seven categories of interests to be declared by judges in active service. They ought to be, perhaps by adding at the end of the seventh category " whether or not it is directly payable to the judge" or by including income of trust entities in which judges have indirect interests or which are able to swell their coffers through the efforts of judges.

  3. The position of acting judges is somewhat anomalous. Many acting judges serve for short periods, some as short as a day per term ( in criminal appeals in the Western Cape High Court) or for a week or two (as is the practice in the Gauteng South High Court). Others seem to roll over their appointments again and again as "permanent acting judges". It seems unnecessarily onerous to require short term acting judges to shoulder the responsibility of disclosure equivalent to that of sitting judges. The procedures and timing of disclosure are also obscure as far as acting judges are concerned, especially those who take frequent short appointments. The whole institution of acting judges is, according to research conducted by Adv J Trengove, open to abuse and requires transformation of a kind which is probably beyond the scope of the present exercise. The Judicial Service Commission should be asked to look into the occurrence of the phenomena of permanent acting judges and of those who serve for exceedingly brief periods, it should be asked to make recommendations for the reform of the system so as to better serve the public weal, having regard to the true purposes for which acting judges ought to be appointed.

  4. The "application for consent" provisions of Regulation 4, insofar as they relate to retired judges, are of questionable constitutionality. Retired judges are entitled to freedom of association and to pursue a dignified retirement by augmenting their income by means of professional activities of their choice that are consonant with their station in life. It is neither reasonable nor justifiable to subject their guaranteed human rights of this nature to the consent of the Minister. The precariousness of the dispensation in place for retired judges is such that the Minister is all but obliged to give consent. The risk of litigation at the instance of an aggrieved retired judge who is refused consent does not seem to be worthwhile in the larger scheme of the code and regulations. The restrictions implicit in the requirement that retired judges should obtain consent from the Minister should be scrapped. They unnecessarily fetter the freedom of persons who have made considerable financial sacrifices in order to serve their country as judges. No rational basis for requiring ministerial consent exists. There is no need to have executive control of retired judges' professional activities, it undermines the separation of powers.

  5. In Regulation 5, which concerns access to the confidential part of the register, it is unclear where the onus of proof lies in any contested application for access. Does the applicant for access bear an onus, having regard to the foundational values in section 1 of the Constitution, or does the objecting judge bear an onus to show that his family's rights of privacy ought to be respected and protected? It is foreseeable that in difficult matters the incidence of the onus may be decisive. There is no guidance in the regulations as to where that onus lies. The public interest referred to in Regulation 5(10)(a) is supported by notions of openness, transparency and accountability, while the privacy of the judge objecting may justify a finding that "there is insufficient justification for access" as contemplated in Regulation 5(10)(b). As the judiciary is an organ of state and all judges hold public office, it is submitted that the foundational values of section 1 of the Constitution should trump the privacy considerations that would ordinarily inform an objection to access to the confidential register. The onus, on a balance of probabilities test, should accordingly be on the judge objecting to giving access. The regulations should expressly say so. Once again there is no warrant for including the immediate family of retired judges in the ambit of the regulations. This amounts to an improper and unjustifiable infringement of their right to privacy.

  6. In Annexure A to the Regulations the categories of interests to be declared are set out. There does not appear to be adequate justification for drawing the distinctions made and omitting various categories of interests which the various parts of the annexure reveal. The position of judges in active service and acting judges is identical with seven categories of interests each. Why gifts and immovables should be omitted for retired judges is not apparent. Indeed, it is not apparent why retired judges should be required to declare interests at all after their retirement.

  7. In Annexure B to the Regulations the word "transport" in note 4 should read "transfer".

  8. In Form 3 note 5 stipulates that "no copies of any information will be made available." Does this mean that an applicant for access has to make her or his own copies? May photographs be taken or is the intention that access to confidential information is by way of a peep in the presence of the Executive Secretary? Surely copies required should be made available in the spirit of openness and transparency that ought to inform the public administration, as re-iterated in the preamble to the Code of Judicial Conduct for Judges.

As regards the draft Code:
  1. In the penultimate paragraph of the preamble the word "of" has been omitted in the phrase "standard of judicial conduct"

  2. In note 3C "fro" should read "for"

  3. In note 4A substituting the phrase "enhances the public trust in and respect for..." for the existing mangled text should be considered.

  4. In note 4B consider substituting "functioning" for "business" in order to emphasize the professionalism of the judiciary.

  5. In clause 6(1) consider "discrimination proscribed by the provisions of section 9 of the Constitution" in place of the words after "discrimination".

  6. In note 6A substitute "functioning" for "business" for the same reason as set out in 4 above.

  7. The meaning of note 8D would be enhanced if the word "disciplinary" were inserted into the phrase "cannot give rise to valid complaints" before the word "complaints".

  8. In clause 9(6) insert "be" between "to" and "on" in the first line and substitute "and" for "as" in the third.

  9. In note 10B it is essential to add at the end "nor should any judge not seized of a case initiate discussions with, or volunteer any unsolicited views on the issues in the case to, the judge or judges who are seized of it". This addition would obviate at least part of the type of dispute in which the Justices of the Constitutional Court became embroiled when Hlophe JP came visiting in 2008.

  10. In note 11B the second "not" should read "nor".

  11. In clause 12(1) "it" should read "if".

  12. In clause 16 (2) "not" should read "no".

Paul Hoffman SC
January 2011

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