One of South Africa’s most senior judges, KwaZulu-Natal Judge President Vuka Tshabalala, has warned that some judges will consider returning to private practice if the government’s proposed Bills aimed at reining in errant judges becomes law.
Judge Tshabalala told the Mail & Guardian that colleagues told him they would quit the Bench if the draft laws were enacted in their current form.
The government has been circulating copies of the Superior Courts Bill, the Judicial Conduct Tribunals Bill, the Judicial Service Commission Amendment Bill and the National Justice College Draft Bill to members of the judiciary, among others.
The Superior Courts Bill aims, among other things, to consolidate legislation governing the superior courts — the Constitutional Court, Supreme Court of Appeal and high courts — so that advocates registered at one superior court will not have to register at every other superior court in order to practise at them. It would also repeal a Supreme Court Act and the corresponding legislation relating to former Bantustan high courts.
The Judicial Service Commission Amendment Bill would create procedures to deal with complaints against judges, while the Judicial Conduct Tribunal Bill would establish tribunals to inquire into and report on allegations of incapacity, gross incompetence or gross misconduct.
A fourth draft law, the National Justice College Draft Bill, aims to extend training at a state institution to include schooling for new judges. No training is currently available for new appointees to the Bench.
Among other criticisms, some judges have reportedly complained that being trained at a state-funded institution would compromise their independence and oath of office.
Said Judge Tshabalala: “Can you imagine what is going to happen to the economy if judges resign? Our judiciary is respected all over the world and one of the reasons businesses invest here is that they know that we are stable and have an independent judiciary.
“If judges resign, as they did in Swaziland, it will create a perception of instability and a lack of judicial independence. That would not be good for [business] confidence.”
The judge said he could not understand why the government thought it necessary to change “our conditions of service”. He added that he would not step down if the proposals became law.
Judge President of the Transvaal division, Bernard Ngoepe, said he was unable to comment because he had only recently received copies of the draft Bills. “We will make our views known in due course through the appropriate channels,” he said.
The judges president of the Free State and the Cape divisions were not available as the two courts are in recess.
However, the Department of Justice said judges were overreacting, as the legislation was by no means finalised.
Department spokesperson Kaizer Kganyago said a judges’ colloquium would be held between April 14 and 16 to allow judges to express their views on matters affecting them, including the draft Bills.
He denied suggestions that the department was pandering to the African National Congress, following a complaint in January that “many within our judiciary do not see themselves as being part of these masses, accountable to them and inspired by their dreams and value systems”.
Kganyago said the draft Bills were changing on daily basis. Some of the concerns judges have could lead to amendments when the judges meet.