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.
As the Judicial Services Commission (JSC) grapples with its duty to enforce judicial ethics, there seems to be much misaprehension about this topic. Of course, one does not know whether the JSC will deal in an appropriate, open, transparent and fair manner with the complaint lodged against controversial Judge President John Hlophe by the judges of the Constitutional Court or whether the JSC will run away from its responsibilities in this regard and will avoid dealing with the issue speedily and fairly.
But while we wait to see if the JSC does the right thing, it might be good to remind ourselves that any determination of whether a judge is guilty of gross misconduct must take place against the background of the rules of judicial ethics. In March 2000 the Chief Justice, the President of the Constitutional Court (as he then was) and the Judges President of the different high courts issued guidelines on judicial ethics, binding all judges in South Africa.
These guidelines are being redrafted and are in the final stages of fine-tuning before it will be approved by all parties concerned,. Because the new guidelines are not yet in place, I will not touch on them here. However, the original guidelines which still apply to all judges should give us a good idea of how judges are supposed to behave. Some of the pertinent guidelines are reprinted below.
Guideline 1 states: “A judge should uphold the independence of the judiciary and the authority of the courts, and should maintain an independence of mind in the performance of judicial duties. A judge should also take all reasonable steps to ensure that no person or organ of state interferes with the functioning of the courts.” As an explanatory note makes clear, this requirement is fundamental to the independence of the judiciary and is in conformity with “the right of every judge not to have his or her independence of mind disturbed by any person [including a fellow judge!] or organ of state.”
Guideline 2 states: “A judge should always, not only in the discharge of official duties, act honourably and in a manner befitting the judicial office.” This means that the “actions of a judge in a private capacity should not be such as to create any substantial risk of disorder, violation of law, public misunderstanding, or future embarrasment in performing judicial duties.”
Guideline 9 states: “A judge should recuse him/herself from a case if there is a conflict of interest or if there is a reasonable suspicion of bias based upon objective facts.” This means that even where a judge does not recuse himself but believes there might be a perception problem he or she has a duty timeously to make known the facts that might give cause for concern to the parties.
Guideline 18: “A judge should in respect of judicial activity refrain from any conduct that may be interpreted as personal advancement.”
Guideline 22: “A judge may not, without the consent of the Minister of Justice, accept, hold or perform any other office for profit, or receive in respect of any service any fees, emoluments or other remuneration apart from the salary and any allowances payable to the judge in a judicial capacity.”
Guideline 23: “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 a sa reward therefore.”
These guidelines, one presumes, are provided to all new judges. I leave it up to my readers to decide whether every single judge in South Africa has always strictly adhered to them.BACK TO TOP