Questions over possible conflicts of interest involving acting members of the judiciary have been raised by the disclosure this week that advocate Dumisa Ntsebeza has not declared his business involvement since assuming the position of acting judge.
In 1999, Ntsebeza, a former Truth and Reconciliation Commission commissioner, was appointed to the board of Barlow World and is currently a non-executive director of the company.
Ntsebeza said he has served several stints as an acting judge in the Cape High Court, most recently this year, but did not declare his interests in Barlow World. He said he would re-cuse himself if a case came before him involving the company.
He added that he did not consider the position of acting judge to be a permanent appointment. The Department of Justice would not be able to attract acting judges if they required them to give up their outside business interests, he added.
Department of Justice spokesperson Zolile Nqayi said he believed that acting judges are not bound by the legislation affecting permanent judiciary members.
Judges must apply for and receive permission from the minister of justice to hold an office of profit outside their judicial position, according to the Judges’ Remuneration and Condition of Employment Act.
‘Most of them come and go as they are appointed on short terms and thus cannot be expected to leave their outside interests or request permission to continue with them,†he said.
‘However, if they are appointed as permanent judges, they are expected to give up these interests and to apply for and receive permission from the minister for justice in terms of the relevant legislation.â€
Meanwhile, months after the disclosure that Western Cape Judge President John Hlophe was being paid a retainer by a private company, the Department of Justice refuses to publicise the private interests of the judiciary.
In response to a Mail & Guardian request, the Department of Justice has compiled a list of all judges who have applied for and received permission between 1994 and 2006 from the minister to hold positions of profit.
The department has confirmed that about 90% of the judges applied for permission to conduct arbitrations, while a minority of judges applied to hold directorships.
Reports that Hlophe received a retainer from the Oasis Group initiated public scrutiny into private interests of the judiciary.
Legislation to create a public register that would list judges’ private interests is currently under discussion in Parliament.
This week, a month after the M&G first submitted the request, the department refused to release the information, saying that it is ‘privilegedâ€.
Nqayi said the department is concerned about a blanket disclosure of the information.
The Minister of Justice Brigitte Mabandla will be meeting with the chief justice and Judicial Service Commission to discuss releasing the list, Nqayi said.