As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
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?
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.