Sunday, May 27, 2007

Judges a little bit above the law?

A reader asks:

Pierre, won't you tell us what the difference is in principle between a judge accepting BEE shares and a judge accepting a financial retainer from a company. As law or practice now stands is either judge acting unlawfully? Will the proposed new legislation allow judges to own shares or to receive income from retainers?
At the moment judges must get permission from the Minister of Justice if they want to do any outside work. It is not illegal to receive a retainer but one must get permission from the Minister. That is why Judge Hlophe claimed to have permission from the now dead Dullah Omar for the Oasis "work".

It is not illegal or against existing rules to receive BEE shares or any other gifts either. Judges also do not have to declare their financial interests or any gifts or shares they receive. We are supposed to trust them to do the right thing. That is why the present system is in need of change.

It is difficult to know whether in the past judges abused this system, which was essentially based on trust. We had always assumed judges would do the right thing and not take gifts or shares that would create an apprehension of bias, but we would not have known whether this was the case because we did not really have a free press before 1994.

In terms of the new proposed legislation, judges would have to declare their interests - including whether they had received any gifts or shares. Judges would also not be allowed to do any outside work without permission. I think the proposed legislation - although a bit overcomplicated - will be a good thing because it will force judges to declare their financial interests and allow for scrutiny of their finances.

Transparency is always a good thing.

UPDATE: Section 23 of the Judges Code of Conduct states: ‘A judge should not directly or indirectly accept any gift, advantage or privilege that can reasonably be perceived as being intended to influence the judge in the performance of judicial duties or to serve as a reward thereof’.

Judge Tshabalala would argue that the gift of the shares could not be reasonably perceived as being intended to influence a judge. Not all South Africans would agree with him. That is why, in my opinion, it was unwise of him to take the shares: it cast suspicion where no suspicion should be.



Anonymous said...

Well prof, i agree with everything you have mentioneed, because of the objectivity inherent in it. Perhaps there is nothing wrong with so accepting the shares.If i have red the article correctly, the shares was donated to the judge, worth of R7m. That should make any person become worried. What i gather from the remark of the judge saying there is nothing wrong with accepting a donation, i suppose. Is tantamount to saying that, is was given to me in my personal capacity and there was no infringement of any rights.What he forgets however is, that when push comes to shove effectively the entire South African community are drawn into and inevitably affected by this mess.Moreover, that it is actions such as this that cast doubt as to the credibility and the legitimacy of our courts.I am patiently awaiting front page coverage, reading, Judges Corrupt. As you said prof he had acted extremely unethical and should give those share to those who need it most. Judges are subject to the constitution only and should apply the law without fear, favour or prejudice. That is why he was elected to the bench and why he should get rid of those shares.Or he can quit venture into commerce and we will not accuse him of being unethical. Are judges also guided be greed, well i suppose they are just human after all.

Anonymous said...

Recent studies in Canada and the US indicate that a systemic bias in the judiciary might be a valid concern.

See for details.