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A reply (attached) from the Minister of Justice to my question when the JSC Amendment Act will come into effect indicates that the proposed commencement date is now likely to be October or November, pending finalisation of inter alia the Code of Conduct for judges.

The DA said nearly two years ago, in October 2007, that the lack of legislation regulating the conduct of judges had contributed to Cape High Court Judge President John Hlophe getting away with a slap on the wrist. At that time, the JSC decided by majority not to proceed with its inquiry and not to summon the judge for further examination despite the fact that it found his explanations for receiving money form the Oasis Group "unsatisfactory in some respects", and his failure to disclose his relationship with Oasis when giving it permission to sue a fellow judge "inappropriate".

Judge Johann Kriegler said at the time that "on his own showing, Judge Hlophe was guilty of grossly improper conduct... No judge dare receive any surreptitious payment of money from any financial institution carrying on business within that judge's area of jurisdiction. It is inherently improper."

It is regrettable that the JSC Amendment Act is still not in place, two years on. But we do not believe its absence should have any effect on a JSC decision whether or not to proceed to a full inquiry, with cross-examination, to test two competing versions of what occurred between Judge Hlophe and Constitutional Court Judge Bess Nkabinde.

Its absence has however had an effect on the way the JSC has conducted itself on this complaint. The sequence of full sittings, reverting to preliminary hearings despite the fact that the South Gauteng High Court ordered only those hearings affected by Judge Hlophe's flu to be reheard, has been puzzling. Once the Amendment Act is in place, there will be a clear progression from complaints laid, considered by the judges-only Judicial Conduct Committee and/or referred directly to a tribunal (two judges, one non-judicial appointment) in impeachable cases, and then back to the JSC for its finding and a decision whether to recommend impeachment to Parliament. From that point of view, the sooner the Amendment Act is in place, the better.

It will also prevent a recurrence of the ravages wrought by the influenza virus (see statement below, issued when the Parliamentary question was posed).

PARLIAMENTARY REPLY:
QUESTION FOR WRITTEN REPLY
QUESTION NO.: 666
DATE OF PUBLICATION: 5 August 2009
Ms M Smuts (DA) to ask the Minister of Justice and Constitutional Development:
Whether the President has proclaimed a date for the commencement of the Judicial Service Commission Amendment Act, Act 20 of 2008; if not, what is the position in this regard; if so, (a) when and (b) what is the preferred date of commencement?
NW753E

REPLY
No, the President has not yet proclaimed a date for the commencement of the Judicial Service Commission Amendment Act, 2008 (Act No. 20 of 2008). In order for the Act to be implemented effectively the following should be in place:
(i) Guidelines to be developed by the Minister of Justice and Constitutional Development, acting after consultation with the Chief Justice, regarding the criteria to be applied by the Minister of Justice and Constitutional Development when considering the granting of consent to a judge who has been discharged from active service to hold or perform any other office of profit (section 11(3) (b)).
(ii) A Code of Judicial Conduct to be compiled by the Chief Justice, acting in consultation with the Minister of Justice and Constitutional Development (section 12(1)).
(iii) Regulations to be made by the Minister of Justice and Constitutional Development, acting in consultation with the Chief Justice, regarding the content and management of the Register of Judges' Registrable Interests (section 13(5)).
(iv) Rules to be made by the Chief Justice regulating the procedures before a Judicial Conduct Tribunal (section 25(1)).
The Code of Judicial Conduct and the regulations regarding the Register of Judges' Registrable Interests must be tabled in Parliament within 4 months after the commencement of the Act, while the rules regulating the procedures before a Judicial Conduct Tribunal must be made within six months of the commencement of the section. Consultation has commenced with regard to the Code of Judicial Conduct and the regulations pertaining to the Register of Judges' Registrable Interests. The Judges Conference held from 6 to 9 July 2009 considered some of the Minister's views regarding the Code and the regulations. The Report of the Conference, which is expected soon, will contain the judicial input in this regard and these matters will be finalized soon after receipt of the Report.
(a) Falls away.
(b) Based on the need for consultation regarding the matters referred to above, it is envisaged that the Act will be put into operation during October or November 2009.