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.
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
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
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