Quote of the week

Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.

L'Heureux-Dube and McLachlin JJ
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
4 June 2012

In “The Time of the Vulture” we need to pay our judges well

We live in the “Time of the Vulture”, a time in which cowboy capitalists – who have been with us since the discovery of gold and diamonds in South Africa in the nineteenth century – are becoming ever more rapacious and immoral (if that is at all possible), a time in which the Ministerial Handbook has become a Bible of sorts for some people (to justify the self-important and ostentatious lifestyles of Ministers and government officials), a time in which the bribing of state officials and politicians are taken for granted by members of the old and new business elites – all in the service of securing humongous bonuses for executives.

It is a time in which the 50 million South Africans who pay some form of tax are required to subsidise the lavish spending habits and the lifestyles of the few rich and famous individuals who are milking the state dry, all in the name of either respect for the free market or for the need to restore the dignity of those who were cruelly oppressed during apartheid (as if a person’s dignity can ever be measured in money terms and can be bought and sold like designer trinkets at a Houghton flea market).

It is a time in which voters are increasingly becoming more disillusioned with corrupt and greedy councillors; dithering, self-righteous demagogues masquerading as politicians; and smarmy, rapacious and often incompetent captains of big business.

In these times it is perhaps understandable that a politician languishing in the political wilderness in the National Council of Provinces (NCOP) – the sad and ineffectual second house of Parliament where many political has-beens languish in pristine obscurity, secure in the knowledge that they have been rewarded for showing a special talent for mediocrity, blandness and the ability (so prized by politicians) never to allow an original thought to enter their brains, let alone to pass over their lips – that such a politician would take a stab at saying something he or she believes might be popular with voters.

It is understandable, yes, but not wise. Enters the esteemed Denis Joseph, DA MP in the NCOP, who told an ad hoc committee of that august institution during a debate on a draft code of conduct for judges that a strong message needed to be sent out to the members of the judiciary that they were not untouchable.

Nothing stops this parliament reviewing whatever is on the table and coming up with a new package … I get the impression that the judges feel that, because there was such an agreement, it should not be touched, it should be for life…. I think it’s important we tell these judges [that there are] many other laws we are changing, many systems we are changing. The judges must also realise that this new parliament is going to deal with them in terms of fairness and equality [for] all people who work for the state.

The danger is that this populist statement might find favour with the public. After all, are we not wasting money on salaries for judges, money that could be better spent on paying for textbooks and antiretroviral drugs, for houses for the homeless and more free water for those who cannot afford to pay for it?

But in my view this is a dangerous and irresponsible statement. I say so not because I am particularly fond of judges or that I think judges are beyond criticism. When judges act in ways that conflict with the values enshrined in the Constitution, when serving judges resist attempts to force them to declare their financial interests, for example, or when they interpret and enforce legislation, common law or customary law as if the Bill of Rights was never passed, when they apply the law as if male domination and heterosexism is not only accepted but required, they need to be lambasted in a vigorous manner.

But there are very good reasons why the Judges Remuneration and Conditions of Employment Act provides for the continued payment of judges after their retirement, using a complicated formula to determine the exact amount of such a payment. Simply put: without the financial security provided by these provisions in the Act, the independence and impartiality of the judiciary will be seriously threatened. This is why section 76(3) of the Constitution states that: “The salaries, allowances and benefits of judges may not be reduced”.

In De Lange v Smuts the Constitutional Court confirmed that “a basic degree of financial security free from arbitrary interference by the executive in a manner that could affect judicial independence” was an absolute requirement for an independent and impartial judiciary. Quoting from a relevant Canadian judgment, the Court stated that:

The word ‘impartial’ . . . connotes absence of bias, actual or perceived. The word ‘independent’… reflects or embodies the traditional constitutional value of judicial independence. As such, it connotes not merely a state of mind or attitude in the actual exercise of judicial functions, but a status or relationship to others, particularly the Executive Branch of government, that rests on objective conditions or guarantees. Although judicial independence is a status or relationship resting on objective conditions or guarantees, as well as a state of mind or attitude in the actual exercise of judicial functions, it is sound, I think, that the test for independence… should be, as for impartiality, whether the tribunal may be reasonably perceived as independent. Both independence and impartiality are fundamental not only to the capacity to do justice in a particular case but also to individual and public confidence in the administration of justice. Without that confidence the system cannot command the respect and acceptance that are essential to its effective operation. It is, therefore, important that a tribunal should be perceived as independent, as well as impartial, and that the test for independence should include that perception. The perception must, however, as I have suggested, be a perception of whether the tribunal enjoys the essential objective conditions or guarantees of judicial independence, and not a perception of how it will in fact act, regardless of whether it enjoys such conditions or guarantees.

First, where Parliament is legally entitled to reduce the salaries or benefits of judges, the judiciary can never be independent or impartial because the absence of financial security for judges would, at the very least, create the reasonable apprehension on the part of the public that judges will be fearful to hand down judgments that might upset the legislature or executive for fear of having their salaries and benefits cut.

In a dominant party system like ours, this problem will be exacerbated because the perception might become a reality and the majority in Parliament might in fact reduce the salaries and benefits of judges to whip them into line, which would automatically bring an end to the independence and impartiality of the judiciary as judges would then be intimidated into making decisions that would not further upset the other branches of government in order to retain their salaries and benefits at a reasonable level.

Amending the Constitution to scrap section 76(3) – something that would be necessary before the honourable Joseph’s threats could be carried out in a constitutionally valid manner – would therefore destroy the independence and impartiality of the judiciary and would bring an end to constitutional democracy with a supreme Constitution as we have come to know it in the past 18 years.

But even leaving this crucial issue aside, I would argue that it was imperative that judges be paid what in effect amounts to a generous pension in order to safeguard the independence and impartiality of the judiciary and secure public trust in the institution. Where no provision is made for the payment of some salary to retired judges, judges would have to provide themselves for their retirement. They would have to do so either by doing extensive consulting work after their retirement or by building up a pension during their service as judges.

In the first instance, the need to quickly make lots of money to finance their retirement after they end their term as judges would leave judges wide open to conflicts of interests during their service as they might well act cautiously so as not to alienate either the government or those in big business for whom they would hope to do lucrative consulting work on their retirement. If a perception were to arise that judges were widely influenced by commercial considerations when they had to decide a case in which a big corporation or the state were involved, it would entirely subvert the system and fatally compromise the independence and impartiality of the judiciary. If a perception were to arise that one would not have a great chance of ever winning a case against a big company or against the government, the independence and impartiality of the judiciary would have come to an end.

Where judges are required to fund their pension from their income as sitting judges, there is a real danger that they would be vulnerable to bribes and to corruption. As the financial pressures mount and as their monthly salaries appear insufficient to fund their lives as well as a generous pension plan, the less scrupulous litigants would perceive judges as vulnerable to corruption and would offer direct or indirect incentives to judges to make decisions favourable to them. Before one were able to say “Oasis” – and even if no or very few judges succumb to offers of bribery – the perception that might arise amongst members of the public would itself fatally undermine respect for the judiciary and with it the ability of the judiciary to act impartially and independently.

In the “Time of the Vulture” I am loath to endorse an expensive and wasteful pension scheme for anyone being paid from the public coffers (in other words for anyone being paid by the 50 million people who pay taxes). But for members of the judiciary I happily make an exception. We need to pay our judges well and look after them in their retirement. It is our insurance policy against widespread corruption, nepotism, the flaunting of the Rule of Law and the abuse of power.

In the absence of competitive party political contestation of elections, approaching an independent judiciary to challenge these inherently undemocratic and unlawful actions by the greedy Vultures remains a last resort. Given the South African context, honest, impartial and independent judges may therefore be a prerequisite for safeguarding the democratic space within which active citizens can enforce their rights and fight back against the Vultures. At the price tag, the paying of pensions for life to judges is a huge bargain.

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