Quote of the week

[Venezuelan President Nicolás Maduro] possesses, however, few of his predecessor’s resources, lacking not just oil revenue but Chávez’s surplus of charisma, humour and political skill. Maduro, unable to end the crisis, has increasingly sided with the privileged classes against the masses; his security forces are regularly dispatched into barrios to repress militants under the guise of fighting crime. Having lost its majority in Congress, the government, fearing it can’t win at the polls the way Chávez did, cancelled gubernatorial elections that had been set for December last year (though they now appear to be on again). Maduro has convened an assembly to write a new constitution, supposedly with the objective of institutionalising the power of social movements, though it is unlikely to lessen the country’s polarisation.

Greg Grandin
London Review of Books
27 May 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.

SEE ALSO THE ORIGINAL POST BELOW.

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