An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
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.