Address by Ms Brigitte Mabandla, MP, Minister for Justice and Constitutional Development, on the Second Reading: Judicial Service Commission Amendment Bill [B 50 - 2007], In the National Assembly, Parliament, Cape Town

Madam Speaker;
Honourable Ministers and Members;
Comrades and friends;
Ladies and gentlemen;

This Bill concludes Parliament's processing of the Judicial Officers Amendment Bill that was introduced by my predecessor, Dr P M Maduna. The Bill is the result of a thorough process of deliberations, consultations and redrafting of the original provisions. Hence it has been submitted, by the Portfolio Committee on Justice and Constitutional Development, as the Judicial Service Commission Amendment Bill. It is also one of two Bills being considered by this House today that formed part of the subject-matter discussed at the consultative Colloquium, hosted by me during 2005. The other Bill, of course, being the South African Judicial Education Institute Bill.

The provisions of the Bill relate to judicial conduct and ethics and, particularly, a mechanism for dealing with complaints about judges.

Madame Speaker,
The introduced version of the Judicial Officers Amendment Bill proposed the insertion of a new Chapter in the Judges' Remuneration and Conditions of Employment Act in order to create a mechanism for dealing with complaints about judges. This would entail the establishment of a new institution, namely a Judicial Council comprising five judges, which could entertain complaints about judges. The Council would have limited powers in that it could either "dismiss" a complaint or, following an investigation, it could "reprimand" the judge or refer the matter to the Judicial Service Commission.

However, during the deliberations on the "complaints provisions" a number of concerns were raised, the most noteworthy being the following:
1. In terms of the Constitution, judges are appointed on the advice of the Judicial Service Commission (section 174) and they can only be removed from office upon a finding of incapacity, gross misconduct or gross incompetence by the Judicial Service Commission (section 177(1)). The National Assembly has to call for such removal (with a supporting vote of two thirds).
2. The scheme of the Constitution therefore indicates that issues regarding incapacity, misconduct and incompetence of judges fall within the province of the Judicial Service Commission, and the Judicial Service Commission Act, 1994 should therefore contain the legislative framework relating to standards for judicial conduct and ethics, including any envisaged complaints mechanisms and inquiry procedures.
3. The Bill as introduced did not make provision for a procedure leading up to a finding of incapacity, gross incompetence or gross misconduct by the Judicial Service Commission. To date this has not been a problem, as no judge has yet been "impeached" in South Africa. However, recent controversial incidents regarding alleged indiscretions by members of the judiciary have highlighted the lack of a credible legal framework in terms of which such matters could be dealt with.
4. The Bill as introduced did not deal with the disclosure of assets by judges, which is an established practice in a number of developed countries. The rationale for such a procedure is that it serves to promote the perceived independence of judges from undue influences and it also provides a framework for regulating the financial interests that, in accordance with contemporary norms, is acceptable for judges to maintain. Again, recent controversies have underscored the value of a system of registering judges' financial interests.

Honourable Members,
All of the above aspects are now being addressed in the Judicial Service Commission Amendment Bill, 2007. The main focus points of the Bill are the following:

Firstly, a Judicial Conduct Committee is established as a committee of the Judicial Service Commission. This Conduct Committee will be chaired by the Chief Justice and will comprise only judges. The Committee will, in terms of the procedures provided in the Bill, deal with complaints against judges. The Chairperson will be the first port of call for the lodging of a complaint about a judge. When a complaint against a judge is received, one of three processes can be followed. Firstly, if a complaint is related to a judgment (a matter that can be taken on appeal or review), or is frivolous or hypothetical, that complaint will be rejected out of hand. Secondly, if there is substance to a complaint, the Chairperson or a member of the Conduct Committee may conduct an investigation and, if necessary, a hearing, and dispose of the matter. But, thirdly, if a valid complaint could lead to a finding of incapacity, gross misconduct or gross incompetence, the Conduct Committee must refer the matter to the Judicial Service Commission along with a recommendation that the appointment of a Judicial Conduct Tribunal must be considered to investigate the matter formally and report to the Commission on its investigation. An appeal mechanism is also provided for in respect of the first two processes.

Secondly, provision is made that a judge, whether on active service or discharged from active service, may not hold any other office of profit or receive payment for any service that is not payable in his or her capacity as a judge, subject to the following exceptions. With regard to serving judges, the Minister, acting in consultation with the Chief Justice, may grant written consent for a judge to receive royalties for legal books written or edited by that judge. Discharged judges may, with the written consent of the Minister acting after consultation with the Chief Justice, hold another office of profit or do other remunerated work, but such consent may only be granted if the Minister is satisfied that the granting thereof would not?
(i) adversely affect the efficiency and effectiveness of the administration of justice, including the undermining of any aspect of the administration of justice, especially the civil justice system;
(ii) adversely affect the image or reputation of the administration of justice in the Republic;
(iii) in any manner undermine the legal framework which underpins the judge for life concept;
(iv) result in any judge engaging in any activity that is in conflict with the vocation of a judge; and
(v) bring the judiciary into disrepute or have the potential to do so.

In addition, the Minister may, by notice in the Gazette, issue guidelines regarding any other criteria to be applied when considering the granting of consent to discharged judges.

Thirdly, provision is made for a Code of Judicial Conduct, to be made by the Chief Justice acting in consultation with the Minister, which must be approved by Parliament and which shall serve as the prevailing standard of judicial conduct that judges must adhere to.

In the fourth instance, provision is made for the establishment of a Register of Judges' Registrable Interests, in which judges must disclose such financial or other interests as to be defined in regulations made by the Minister acting in consultation with the Chief Justice.

Finally, provision is made for the establishment, by the Chief Justice, of Judicial Conduct Tribunals to inquire into and report to the Judicial Service Commission on allegations of incapacity, gross incompetence or gross misconduct against judges.

Madam Speaker,
I do not think that one could overestimate the importance of the provisions contained in this Bill. It goes to the heart of protecting the independence, impartiality and dignity of the courts. It is squarely aimed at building and enhancing public confidence in the integrity of our judiciary whilst also introducing an essential component of judicial accountability, underscoring the fact that the courts and the judiciary are not on a distant pedestal but are, in fact, an integral and inseparable part of South African Society.

I commend the Portfolio Committee on their thoroughly deserving work on this Bill. This Bill happens to be the last piece of legislation that was processed by the Portfolio Committee under the chair of the honourable Fatima Chohan, and I would like to thank her for her tireless efforts in dealing with this and all other Bills during her period in office as Chair of the Committee. I am confident that I speak for everybody when conveying our best wishes to her in her new capacity as Chair of the Portfolio Committee on Public Enterprises.

I thank you.

Issued by: Ministry of Justice and Constitutional Development
20 November 2007