Chief Justice Mogoeng Mogoeng believes it is important that judges disclose their interest to ensure transparency and accountability and that they remain free from influence.
A plan to establish a register of judges’ interests got off to a rocky start. Earlier this year 15 judges looked set to be called before the Judicial Services Commission (JSC) to explain why they had failed to declare their interests by March as required. This number has now been whittled down to four.
In an unexpected turn of events a successful legal challenge to the new regulations has seen retired judges exempted from having to declare their interests, despite still being eligible to be called to serve on the Bench.
This means two of the judges are temporarily off the hook, while government mulls over whether to appeal the finding.
Free State High Court Judge Shamin Ebrahim and Western Cape High Court Judge Bennie Griesel, who are still on the Bench, are being investigated by the JSC, the commission confirmed this week.
The new Register of Judges’ Registrable Interests, which came into effect in January last year, requires some 263 judges to disclose their shares, directorships, business interests and the properties they own. The idea is to promote transparency and, in turn, bolster judicial independence by eliminating any questions about whether their financial interests would play a role in their judicial decision.
A legal challenge was brought this year by retired Supreme Court of Appeal Judge Louis Harms in which the North Gauteng High Court found that the regulations requiring retired judges to disclose their interests were unconstitutional and should be struck off.
This means that — for the time being and unless the judgment is overturned on appeal — retired judges no longer need to disclose their financial interests.
There is an exception: according to the order sought by Harms, if a retired judge is called on to serve as a judge, he may be required to disclose his financial interests if one of the parties to the case asks for it.
Justice spokesperson Mthunzi Mhaga said the justice minister had yet to decide whether he would appeal the judgment.
However, in his court papers, Harms said the ministry was on record as saying the regulations were unlawful.
Before they were struck down, the regulations differentiated between retired judges who could, in terms of the Judges’ Remuneration and Conditions of Employment Act, still be called upon to serve and those who could not. Those who could still be called upon had a duty to submit to the registrar. But Harms argued that the basis of the differentiation — found in section 7 of the Act — was irrational.
The Act says judges who retire at 70 can be called on to serve until they are 75. But those who retire at 65 and who have done 15 years’ service could not be called on to serve after retirement.
About 115 judges were excluded, in terms of this requirement, from having to declare their interests.
This meant judges in Harms’s position, who retired at 70 but had served much longer than 15 years — 25 years in Harms’s case — still had to submit to the registrar.
Harms said this amounted to “discrimination on the grounds of race. It is further irrational. In addition, it is arbitrary and hence in conflict with the principle of legality”.
Harms said he did not mind being recalled for duty but did not understand why his private life needed to be made public when the rules did not apply to some of his colleagues.
Harms was not alone in his objections. Former Constitutional Court Justice Zak Yacoob also wrote to the JSC saying that he did not believe the regulations as they currently stood required him to declare his interests. He did, however, allegedly disclose his interests to the JSC.
Unlike politicians, judges have previously not been required to declare their financial interests, gifts or any money they earned over and above their judges’ salary or their family’s interests.
The regulations exclude acting judges. As of November last year there were about 28, some of whom had held acting positions for some time, which some legal authorities approached by Law Report believed was a problem. One judge has held his acting position for more than four years.
A review by Law Report of the submissions by judges to the registrar showed that some judges simply stated that they had “nothing to declare” whereas others provided detailed lists of their finances.
In terms of the Judicial Service Commission Act, the documents must be kept by the registrar in the office of the chief justice and must be publicly available. Content relating to family members can be listed as confidential.
Office of the chief justice spokesperson Nathi Mncube said that, by November, there were only two outstanding declarations — the same two that are now before the JSC.
Secretary of the JSC Sello Chiloane confirmed that the conduct committee had received complaints on this score about Griesel and Ebrahim. He said the investigations were still ongoing and the JSC’s decisions would be announced in “due course”.
The Judicial Service Commission Act sets out the process to be followed by the conduct committee when it receives a complaint. In cases of serious, but not impeachable, misconduct, the committee can require a recalcitrant judge to apologise, give him a reprimand, a written warning or some other “appropriate corrective measure”.
A judge is entitled to appeal if found guilty of contraventions.
The delays and the recent court decision must be frustrating for Chief Justice Moegeng Moegeng at a time when the judiciary is being exposed to political pressure.
He told the Mail & Guardian at the end of last year that he believed it was important for judges to be seen to be complying with the law and to be seen to be “accountable and transparent”.
Among the reasons he cited for judges to be required to declare their interests was to ensure that judges are free from influence of undisclosed private or business interests and to encourage accountability in the judiciary by permitting public access to information. This is necessary to assess the performance of judges with regard to matters of professional conduct.