REGULATIONS the chief justice has used to compel retired judges into disclosing their financial interests have been found unconstitutional.

This follows a case heard in the high court earlier this week, brought by retired former deputy president of the Supreme Court of Appeal, Judge Louis Harms.

Judge Harms was forced to go to court after a number of attempts over at least a year to settle the matter with the chief justice’s office failed. And while officials of the ministry of justice conceded to Judge Harms in correspondence with him that the law would have to be changed because it was unconstitutional in the respects he claimed, this seems to have carried no weight with the chief justice.

Judge Harms tried repeatedly, as documented in his court papers, to have the chief justice’s office engage with him on his claims that sections of the Judges’ Remuneration Act are unconstitutional, as are regulations made in terms of this law.

This the chief justice’s office refused to do, saying in effect, that the judge has to obey the law as it stands. While he was still trying to discuss the matter with officials, a disciplinary committee was appointed to inquire into Judge Harms’s failure to disclose his financial interests.

Once Judge Harms launched his high court litigation, the chief justice’s office and the minister gave notice that they would oppose his application. But they filed no affidavits as required to do, explaining the grounds of their opposition. And when the case was called in the high court, Pretoria, on Monday their legal representative simply requested that the matter be postponed for ‘settlement’.

The court refused to do so, with Judge Mahomed Ismail saying it was unheard of for one side to ask for a postponement after refusing for a year all attempts to get the matter settled. He also asked how it was possible to ‘settle’ a regulation.

The case was therefore heard as an unopposed matter, with Jeremy Gauntlett SC arguing on behalf of Judge Harms.

The point made by Judge Harms to the chief justice’s office and again to the high court, is that there can be no valid constitutional reason to differentiate between two groups of retired judges as happens in the law, nor in the different way they are treated after retirement by way of the further service they are obliged to offer.

Judge Harms also says there can be no rational reason to differentiate between the two groups of retired judges in terms of the duty to disclose personal information.

The Judges’ Remuneration Act treats judges who retire before 70, but after a minimum of 15 years’ service, differently from those who retire after 70, regardless of how many years they have served on the bench.

Judges who retire before 70, after at least 15 years of service, may inform the Minister that they do not want to be available to perform active service thereafter. Without any negative consequences to the judge concerned, the President must then release such a judge from any further post-retirement obligation to serve.

Judges who retire after 70, on the other hand, regardless of how long their service in office, are obliged to perform three months service annually after retirement if called on to do so and if they are physically and mentally fit. Judges in this category may to refuse to serve, but then they are penalised by way of a two percent reduction in salary for every year that they refuse to serve.

Judge Harms takes the position that there is no rational basis for this distinction. If he had retired the day before he turned 70, for example, he could have requested to be discharged from all further service and that would have been the end of the matter.

Just because a judge stays on even a day after his or her 70th birthday, that judge is required to be available for further service, or pay penalties.

The constitution requires all legislation to be rational, and there can be no justification of the distinction in this issue. He also says the provision amounts to discrimination on the grounds of age.

Regulations compelling judges to make financial discloses are equally irrational and reflect a similar constitutional invalidity, he says.

The regulations make it clear that they are intended to serve a public interest: to determine whether a judge has any financial interests that might ‘prejudice the integrity of court proceedings’. In other words, would a judge be biased, or be seen to be biased, because of his or her financial interests?

The regulations also make special provision for when retired judges who are not obliged to perform service, agree to do so. If that happens, and if parties involved in a case being heard by such a judge specially request it, the judge concerned could be asked in chambers – not in public – to disclose to the head of court and to the requesting party whether the judge has interests that might prejudice the integrity of the proceedings.

Gauntlett argued there is no rational basis for forcing a retired judge to make a financial statement if the judge is not in fact hearing any cases. The need for such a declaration only arises if the judge actually hears a case and if the parties demand the information for some reason.

If the retired judge concerned was not hearing any case there was no public interest in the judge’s financial affairs. If the judge was hearing a case where no party requested a declaration, there was also no need to make a declaration.

For retired judges to be compelled to declare their financial interests when it served no legitimate purpose was an unconstitutional breach of privacy, he said.

According to Judge Harms the regulations also demanded that retired judges provide more personal financial information for the publicly-accessible register of assets than sitting judges, which served no legitimate purpose and further violated a retired judge’s privacy for no good reason.

Judge Ismail declared that these aspects of the regulations were indeed invalid and ordered that the offending sections be struck out.

As the regulations now stand, after Judge Harms’s litigation, no retired judges have to declare their financial interests.

If however such a judge is asked to hear a case after retirement, and if a party in the case applies for it, the judge would be asked to disclose to the parties and the head of court whether he or she has any interests that may prejudice or be perceived to prejudice the integrity of the proceedings.

The court also awarded costs against the minister and the chief justice’s office. Gauntlett asked for costs because the chief justice and the minister had been given the opportunity to deal with the problem out of court but failed to do so over a significant period.

They took no steps to resolve the situation before the matter went to court and they gave notice that they would oppose the matter when it was argued. They were given time extensions and their attorney even made a special written undertaking to make sure there would be no need for the matter to go to court. In the end however there was no word from the minister and the chief justice’s office.

It is an extraordinary case from many points of view.

The issue raised by Judge Harms is perfectly obvious, and you have to wonder why no other judge, similarly placed, has not raised it before. His argument tore the legislation and regulations to shreds, pointing out exactly how illogical and unfair they both are.

Even more puzzling is the attitude of the authorities involved. It appears that officials of the ministry of justice agree that the law is not constitutional in the respects raised by Judge Harms, and yet nothing was done officially to prevent the matter from having to go to court.

Most puzzling of all however is the stance of the chief justice’s office. The unconstitutionality of the regulations disputed by Judge Harms, never mind the legislation itself, is obvious, and he pointed out the problem to them via detailed letters. But though you would imagine the chief justice’s office would have at the very least a great sensitivity to questions of constitutional unfairness and invalidity, there was no effort whatsoever to engage with Judge Harms over the issue.

Instead he was told to obey the law, and an inquiry was set up to discipline him. It’s a scandal that the office of the chief justice can’t handle a simple dispute, based on clear breaches of the constitution, any better than this. And that the public must now pay the legal fees resulting from this intransigence.