fury over new bid to control judges
16 April 2007

The Chief Justice and Parliament will have to step into the fray caused by draft legislation intended to rein in moonlighting and misconduct by judges.

The draft bill has angered members of the judiciary, particularly retired judges, who claim it goes to the heart of the constitutional guarantee of an independent judiciary.

In one of several memos submitted to parliament by groups of judges, 16 retired judges said the bill, if enacted, would contradict labour law, was "grossly unfair" and would force them to give up their right to take up an occupation of their choice after retirement.

They said that giving the minister of justice the power to rule on what they might or might not do in their own time, as the bill envisages, would be a "breach of their contractual and constitutional rights".

The bill was drafted last year after a series of allegations was made against judges - including John Hlophe, the Cape judge president - of moonlighting and misconduct. And there has been criticism that the informal code of conduct issued by senior judges in 2000 did not contain legally binding sanctions.

Due to come before parliament this year, the Judicial Service Commission Amendment Bill introduces a more formalised code of conduct, along with a complaints mechanism and a schedule of sanctions for breaches of protocol.

But its provisions, including more powers for the minister of justice, have angered some judges.

Under the sub-heading "Judge not to hold other office of profit", the draft bill states that a judge in active service may not hold or perform any other office of profit or receive in respect of any service any fees, emoluments or other remuneration apart from his or her salary and any other amount that may be payable "in his capacity as a judge". A retired judge would be able to work for profit, with the permission of the minister of justice, who would consult the chief justice.

The retired judges are questioning the powers that would be given to the minister and ask whether she will publicly exercise her discretion, whether she will keep a record of applications for permission to work and how she will maintain confidentiality.

"It is respectfully suggested that a superficial review of these realistic questions demonstrates the minefield into which the proposed provision will lead the minister.

"Which, in turn, demonstrates that the minister has no business getting involved in such matters."

The 16 retired judges, including Joos Hefer, Johann Kriegler and Gerald Friedman, also believe it would be "constitutionally offensive" for the minister to take powers above those of the chief justice, whom they regard as the "final arbiter of judicial propriety".

In another memorandum, written by members of the Supreme Court of Appeal, judges express their concern about the powers the minister of justice would be given in determining the standards to be observed by judges and the activities they may engage in.

They say the bill "conflicts with the principle that the judiciary sets such standards themselves" and therefore infringes on the constitutional guarantee of an independent judiciary. The appeal court judges say that though most of the provisions of the draft bill are not controversial, there were "very considerable matters of principle" that were of "deep concern" to the judiciary.

"They are matters that go to the heart of the constitutional guarantee of an independent judiciary", the judges say.

Parliament will now have to deal with the hot potato, but the separation of powers that creates the independence of the judiciary might give rise to "a serious conflict of interest" in parliament's and the judges' attempts to resolve the problem, said Fatima Chohan-Khota, the chairwoman of parliament's justice portfolio committee.
 

christelle terreblanche, www.iol.co.za