Judge Sisi Khampepe has her work cut out. Any process of deciding on the future institutional location of the Scorpions is going to be a difficult one. By most accounts she is well-suited to the task and all the complexities, both legal and political, which it brings. However, recent reports that Judge Khampepe’s businessman husband, Siza Khampepe, is a director of Kgorong Investment Holdings, a company that benefited from the arms deal, has raised the spectre of a possible conflict of interest.
While it is natural to focus on the National Intelligence Agency’s failure to pick this up, the issue needs to be viewed through a wider lens. For, alongside the fire and brimstone that is the furore about racism in the judiciary, there sits an unresolved issue of perhaps even greater importance for the future integrity of the rule of law in South Africa.
Certain judges have acquired significant business interests. Some of them give rise to potential conflicts of interest that are alarming. Last month this newspaper broke the story that in his latest (professional) incarnation, Reverend Allan Boesak is helping to sell golf courses. I have been told that two members of the Cape High Court are involved in the commercial entity Boesak was representing. If this information is accurate, am I alone in my sense of outrage? It is self-evident that such a commercial enterprise may give rise to all manner of litigation, which might end up in front of the judges.
The current system for managing outside financial interests held by members of the Bench is clearly inadequate. The only requirement is that the individual judge must declare his or her interest in a matter. The system is a type of “honour system”, which places the onus on the judge concerned to report and recuse him/herself should there be a potential conflict of interest.
The question of principle is whether it is appropriate that judges should hold such outside financial interests at all. With MPs there is a reason why the Ethics Committee back in 1995/96, when it was considering this very same issue in respect of MPs, decided that the instrument for regulation should be disclosure. The life of an MP is more precarious. They may or may not remain in Parliament. They accrue a pension for the years they serve in Parliament, but no longer.
In contrast, judges earn a pension for life. It is a central component in their financial security and in ensuring the independence of the judiciary, who effectively acquire jobs for life once appointed. Moreover, they are by any standards well-paid.
In a modern world, it is probably unrealistic to expect members of the judiciary to not have some outside interests, whether shares in companies or suchlike. If we are willing to succumb to this realist argument, then the question is not whether there should be some rules governing disclosure of judges’ financial interests, but rather: how should such interests be managed and regulated to protect the public interest? And, more crucially, how does one balance the need for accountability and the need to prevent conflicts of interest, with the imperative of judicial independence?
As always, the devil is in the detail. The model, and the standard, for the regulation of outside financial interests is and has been set by the system of public disclosure established first by the National Assembly in 1996, with its Register of Members’ Interests. This was subsequently emulated by the Executive Ethics Act for members of national and provincial Cabinets, and also at local government level, where senior public servants as well as local councillors are bound by even stricter rules.
Admittedly, members of Parliament have not exactly covered themselves in glory recently with the fiasco of the “Travelgate” charges and several other high-profile breaches of the parliamentary code.
Yet, although it is ripe for refinement and strengthening in certain aspects, by and large the parliamentary code has served Parliament and the public well, establishing a clear procedure for enabling the public to scrutinise outside interests. By such scrutiny, the public interest can be protected; wise, honest and diligent MPs will modify their conduct accordingly.
Judges, however, have no such intermediary procedure to assist them. Save for the protocol of disclosing to the minister of justice, members of the Bench are largely permitted to pursue financial interests at their discretion. Currently, only a few countries have specific legislation that expressly governs judges’ financial interests. The solution will need to be practical and suited to South Africa’s socio-political environment. The Judicial Services Commission ought to apply its mind to the issue, extending its inquiry to cover the following additional questions: Do disclosure obligations apply only to judges or also to other judicial employees? Should the judge have to report the interests of his/her family members? What are the criteria used to define “family members”? Which kind of interests must be disclosed and what information, if any, should remain confidential? (Will there be a public and private part of the register?) What is the procedure to access the information? Is it narrowly or broadly conceived? Who will be responsible for “policing” this? Is “policing” appropriate? Is there any sanction for those who do comply with the disclosure requirements? How often are the judges obligated to present the information (annually, pre-appointment, pre-retirement and so on)?
The draft Judicial Services Amendment Bill, already the subject of controversy, could in fact provide an opportunity for finding a balance between independence and accountability that all parties find palatable. Because clearly something is not right with the system as it is. Reform is an urgent necessity, as is a considered debate about whether judges should be free to pursue commercial interests while sitting on the Bench.