The General Council of the Bar of South Africa (GCB) has questioned the purpose of a Bill that, if enacted, would require retired judges to obtain permission from the justice minister to undertake paid work.
It is in the public interest that issues related to this clause of the Judicial Service Commission Amendment Bill be highlighted, the GCB said on Friday.
”Stringent statutory restrictions, the Bar believes, should apply to serving judges. Their position demands that in principle they do no other remunerated work. But retired judges, who no longer perform judicial functions, are in a very different position.”
The GCB has expressed its concerns to Parliament about the proposal, which appears to be at odds with the fundamental constitutional right of every citizen to choose his or her trade, occupation or profession freely.
”Any limitation on that right must, in terms of section 36 of the Constitution, be rigorously justified,” it said.
More crucial, however, is the effects of the proposed provision on the principle of judicial independence.
”It is undesirable that any statutory provision should be enacted that might create even the slightest potential that judges might have reason to consider that their judging of particular cases while on the Bench could notionally affect their ability upon retirement from office to obtain ministerial permission to supplement their income by undertaking remunerated work.
”Powerful considerations in the public interest would need to be demonstrated to justify any legislative provision that might give any incentive to judicial officers to look to earn favour from the executive branch of government in order to be more likely to be permitted to use their talents remuneratively after retirement.”
The GCB said no plausible policy objective has been identified by the government to justify the proposed provision.
There is no historical basis for any concern that the unrestricted ability of retired — in contrast to serving — judges to undertake paid work had in any way adversely affected on the integrity or status of the judiciary.
”On the contrary, the evidence is that many retired judges have given sterling service serving, for example, as part-time judges of appeal in neighbouring countries, ombudsmen for the insurance industry, as commissioners of inquiry or as chairpersons of statutory bodies within South Africa.”
It is therefore not clear what it is that is sought to be achieved by the proposed regulation, the GCB said. — Sapa