Introduction for trainers

  1. Introduction to justice and ethics
  2. Overall goals of this programme
  3. How this manual works
    4. 3.1 Contents of the manual
    3.2 Planning for a training programme in judicial ethics
    3.3 Contents of each module
    3.4 Trainer’s preparation using this manual

1.    Introduction to justice and ethics

“I have never doubted one crucial truth about the administration of justice in South Africa. It is this. The coal-face of justice is in the Magistrates Courts. ... In literally thousands of cases every day... the poorest of the poor and the richest of the rich, the most empowered and the most disadvantaged ... often make their first contact with the judicial arena ... The continuous struggle for the legitimacy and the efficacy of the instruments of justice is substantially won or lost in the Magistrates Courts.”1

Judge Mahomed goes on to describe justice as, “that quality in our civilisation which seeks to regulate conflicts between humans by solutions which are demonstrably just by procedures which are manifestly fair.”2 In doing so the courts play a “therapeutic and prophylactic role” in our society. In order to fulfil this role effectively, judicial officers must adhere to certain values and principles which represent morality. Plato described justice and morality as “inseparable companions ...the bonds of society.”3 In his letter on the duties of a magistrate, Cicero identified the following values as essential for a magistrate: affability, dignity, diligence, deliberation, integrity, impartiality, propriety, moderation and self-restraint.4

The situation in South Africa is cause for concern. In 2003 alone, 251 complaints were made to the Magistrates Commission. The types of allegations against magistrates, to mention some of them, include drunken driving, rape, corruption, murder, failure to complete trials and working under the influence of alcohol.5

Judicial misconduct is not easy to define and at times even more difficult to detect. It presents itself in different forms. These range from practices which are illegal to behaviour which may not be illegal but which is nonetheless unfitting for a judicial officer because it is in conflict with the ethical principles and values of the profession.

 Judicial misconduct is not a problem that is specific to South Africa and recently the international community has focused its attention on these issues. South Africa has been among the countries at the forefront of the initiatives taken to ensure best practices and accountability. The most important of these initiatives have been summed up in three sets of international guidelines for judicial officers: the Latimer House Principles and Guidelines, the Limassol Conclusions, and the Bangalore Principles of Judicial Conduct. South Africa has developed its own codes: The Code of Conduct for Magistrates and Judicial Ethics in South Africa (Guidelines for Judges).

International codes:

The Latimer House Principles and Guidelines

In June 1998 South Africa participated in the “Joint Colloquium on Parliamentary Supremacy and Judicial Independence: Towards a Commonwealth Model.” The Latimer House Principles and Guidelines were the result of this colloquium.6 Appendix 1:4 reproduces the complete document.

The Limassol Conclusions

In June 2002, South Africa participated in the in the Commonwealth Judicial Colloquium on Combating Corruption Within the Judiciary which resulted in the Limassol Conclusions. The Conclusions are not currently publicly available7, but can be read in Appendix 1:6.

The Bangalore Principles of Judicial Conduct

 In February 2001 a meeting of the Judicial Integrity Group took place in Bangalore, India. At that meeting the Bangalore Principles of Judicial Conduct were drawn up; they were finalised at a meeting of Chief Justices from civil law countries held in the Hague in November 2002 and were later endorsed by the United Nations Commission on Human Rights on 25 April 2003 in Geneva. The Principles are intended to be used as model code for countries that do not have an ethical code of conduct and for those that do, as an improvement or reference for the codes already in existence.8 Appendix 1:5 documents the values of the Bangalore principles.

South African Codes 

Code of Conduct for Magistrates

This code of conduct which binds all magistrates in South Africa encapsulates the same general values and principles as stated in the international codes above.

Judicial Ethics in South Africa: Guidelines for Judges

More recently, South African judges have sought to articulate principles applicable to their conduct.9 This initiative which has produced a more detailed document than the Code of Conduct for Magistrates, seeks to address contemporary local problems.10 A committee of seven judges chaired by Justice of Appeal, Louis Harms, produced “Proposals for Mechanisms for Dealing with complaints against Judges” and a code of ethics for judges. This has not yet been promulgated, but the document is reproduced in Appendix 1:3

Cicero’s values are reflected with the actual or similar wording in all the above contemporary codes, including the South African Code of Conduct for Magistrates. Therefore in order for justice to be done the judiciary must act in accordance with the values and the ethical principles identified above that have been developed in written and unwritten codes over centuries. These principles are constantly changing with time and in some situations may be specific to a certain place, but the basic underlying values, as we have seen, have remained the same since the time of Cicero.

The international initiatives have acknowledged the need for judicial education programmes with training on ethical issues to attempt to prevent misconduct. In joining these ventures, South Africa has committed itself to the eradication of misconduct within its judiciary and to training judicial officers on the ethical issues and values involved.11

These values are important not only in ensuring that justice is done, but also in ensuring that justice is seen to be done. “Having no constituency, no purse and no sword, the Judiciary must rely on moral authority” to win the support and trust of the public.12 Without such support, the courts would, in the words of Chief Justice Mahomed, be ‘reduced to paper tigers with a ferocious capacity to roar ... but no teeth to bite and no sanctions to execute their judgements.”13

 The public will judge the judge by his or her conduct both in and out of court. It is only fitting that this is so. When judges and magistrates take their oath of office, they bind themselves to a life dedicated to the administration of justice, which has implications beyond the bench. A magistrate must be careful not to do anything, even in his or her private capacity, which may have an impact upon his or her functions as a magistrate or which may generally be regarded as bringing the good name and esteem of the judiciary into disrepute. Just like a politician, a judicial officer is a public figure and is accountable to the public. As Kriegler J explained in S v Mamabolo (E TV and Others Intervening):

“[It is] a constitutional imperative that public office-bearers such as judges [and magistrates] who wield great power...should be accountable to the public who appoint them and pay them. Indeed, if one takes into account that the Judiciary, unlike the other two pillars of state are not elected and are not subject to dismissal if the voters are unhappy with them, should not judges pre-eminently be subjected to continuous and searching public scrutiny and criticism?”14

 It is for this reason that so much more is expected of a magistrate than of the lay person. Not only must he or she exemplify certain morals and norms, but he or she must able to balance them in a way that ensures that his or her conduct both on and off the bench is at all times beyond reproach. In doing so he or she must be able to:
This is not an easy task, especially when faced with the dilemmas of conflicting values and interests. It is therefore necessary for magistrates to receive training in ethics in order to prepare them for the ethical dilemmas which they are certain to face during the course of their careers.

Footnotes

1 I Mahomed, “Address by the Chief Justice I Mahomed to the Second Annual General Conference of the Judicial Officer’s Association of South Africa in Pretoria on 26 June 1998” (1998) vol 1, No 2, The Judicial Officer 47- 48.
2 Ibid.
3 Cicero de Officiusp 67.
4 Ibid.
5 C Musi, “Magisterial Ethics? A Critical Appraisal” Address delivered 4 October 2002 at LRG workshop Robben Island.
6 See Appendix I 1.4 at the end of the manual; Pierre Olivier “The Latimer House Principles and Guidelines” (2000) 1 Advocate 23.
7 See Appendix I 1.6 at the end of the manual. The Conclusions have not yet been formally published. They were drafted in Limassol, Cyprus 27 June 2002.
8 See Appendix I 1.5 at the end of the manual; “Developing Judicial Codes of Ethics” (2002) 46 Journal of African Law 111; Transparency International “Judges welcome UN endorsement of Judicial Code of Conduct” 25 April 2003.
9 “In relation to the integrity of judicial officers, the symposium endorsed the adoption of a code of conduct by judges for judges, noted the existence of the code of conduct for magistrates...” Press release from the National Judges Symposium held at Boksburg on 16 July 2003.
10 See Appendix 1.5 at the end of the manual.
11 Art9(vii) of the Limassol Conclusions calls for judicial training programmes on corruption issues; Latimer House Principles and Guidelines contain a similar provision in art3.
12 S v Mamabolo (E TV and Others Intervening) 2001 (3) SA 409 (CC) at 421.
13 (n1).
14 (n12) at 421.

2.    Overall goals of this programme

The programme has been designed with the basic premise that magistrates exercise public power, which implies that they have a responsibility to exercise that power with the greatest respect and adherence to ethical principles. The manner in which magistrates exercise their power and conduct their affairs affects the public’s confidence and respect for the justice system.

The purpose of this course, therefore, is to offer participants support and training in ethics in such a way that will facilitate understanding of the issues involved, an ability to assess situations critically and apply what has been learnt.

The course is divided into sections which cover aspects of values and integrity, corruption, recusal, extra-judicial activities and conduct in court. These sections deal with issues that have come up repeatedly across the spectrum of local and foreign jurisprudence and case law on judicial ethics.
Specifically, the overall objectives of the programme are as follows:

Increased knowledge

Changed attitudes

New skills

3.    How this manual works

It is important to realise that the manual is designed for the use of the trainer, who is given sequential instructions for running the programme. Within the manual are handouts which are to be handed to participants at relevant times during the training. Readings and any notes chosen can also be copied for participants. However, the process sections and explanations of how to do exercises are for the trainer only.

3.1 Contents of the manual

The manual consists of six training modules and an introductory chapter. The latter is designed to provide the trainer with the background necessary for an understanding of the project and the rationale for the training.

A brief overview of the contents of each section follows:
Introduction for trainers Ethics and its importance in the magistracy
How to use the manual
Module 1
Values and decisions
 Self-awareness
An exploration of individual values
The importance of values and
integrity in the application of judicial ethics
Module 2
Corruption: gifts and favours		 Corruption as a criminal offence.
Misconduct in ethical terms
Module 3
Recusal and disclosure		 Integrity and impartiality
The test for recusal and bias
Module 4
Extra-judicial activities		 Judicial activism
Memberships of clubs and organisations
Holding other positions and receiving remuneration
Social behaviour
Module 5
Conduct in court		 Appropriate and inappropriate conduct:
Controlling proceedings
Seeing that justice is done
Adversarial v inquisitorial systems
Module 6
Personal learning and change		 Reflection on learning on the programme
Process of change
Plans for the future

3.2 Planning for a training programme in judicial ethics

There is flexibility in how a trainer chooses to use this manual. Ideally, the entire programme of all six modules would be used in the order given. This is because all major areas have been covered in a manner which develops the topic.

However, each module is also designed to be used as a separate discrete entity if required. It is understood that restraints of time, geography and finances, will probably mean that participants will often be unable to attend for the three or so days that the entire programme would require. There is also the possibility that only certain areas need to be addressed for a particular constituency of magistrates.

Shortened versions of the modules could also be used. In this case, the trainer should ensure that there is a balance between background given in a lecture-style presentation, and the practical exercises that accompany the information given. To use either the lecture on its own, or the exercises on their own, will result in incomplete learning.

Trainers, therefore, have the following options before them:

3.2.1 Important recommendation

 It may be tempting for the trainer to omit Modules 1 and 6, as they do not seem to cover the substantive issues of judicial ethics. They are crucial, however, for a number of reasons.

Module 1 serves to introduce magistrates to the notions of self-awareness and how this affects an understanding of one’s behaviour. There is emphasis on personal values and ethical considerations that impact one’s judicial integrity. For this reason, trainers should ensure that they include, if not the entire module, at least some aspects of it before they approach the more concrete-based modules dealing with ethical behaviour.

Module 6 is necessary, if not at the end of each module used in the programme, then at the completion of the course as a whole. This encourages participants to think about what they have learnt and how to apply it in the courtroom. Without this part of the process, there is a risk that the time spent on being trained will have few if any results.

3.2.2 Teaching and learning principles

To put this philosophy into practice, the teaching in the manual is based on the following principles appropriate for adult education:
For more details on teaching and learning see Appendix 2: LRG training notes for facilitators

3.3 Contents of each module

Each module consists of background notes and practical exercises. The following are the section headings, with an explanation of what to expect in each section:
  1. Introduction
    2. The introduction covers, in a few paragraphs, the key issues that are dealt with in the module.

  2. Objectives
    3. These are grouped under the following headings:
  3. Reading or readings
    4. This section comprises background notes which form the basis of the trainer’s lecture within the module. They provide the trainer and participants with an in-depth knowledge of the substantive law governing the issues. The information contained in these notes has been taken from various sources. There is a thorough and comprehensive analysis of the ethical issues and the generally accepted principles that are applicable. The lecture outline given as one of the module’s activities is a summary of the main points covered in the reading. The outline includes overhead transparencies which are mentioned when they are to be shown.

    The law governing magisterial ethics is not limited to the Code of Conduct and, in fact, in many situations it is inadequate in providing an in-depth exploration of the applicable principles. It is for this reason that the sources used in this manual cover local case law and academic writing as well as foreign jurisprudence on the issues. Many of the case studies mentioned have been taken from LRG workshops, interviews with judges, magistrates and members of the Commission. All of this has enriched the academic material already at hand, as it reflects actual experiences and concerns.

  4. Training activities
    5. The practical exercises included in each module are designed to allow the participants to engage with the subject matter, to facilitate discussion and apply what has been learnt.

    The Training activities section has the following sub­sections:

    Brief to trainer
    This is an overall summary and outline of all the training activities in the section. It includes the following:
    1. A list of handouts for participants for the entire module 
    2. The total time necessary for training of the entire module 
    3. Each activity in the module, the time it takes, a brief description of key aspects of the activity, and anything special that needs to be noted
    4. Pre-course readings if relevant 

    Training activities
    Each activity is numbered as a separate entity, and includes the following:
    1. Goals
      2. Outcomes expected for that particular activity
    2. Group size
    3. Time required
      4. This is a total for all the time estimates for different stages of the activity. It should be remembered that these times are approximate, and trainers, if they wish, can spend longer on discussion or less if they wish to hurry through a certain aspect. This should be decided at the planning stage for the training programme as a whole. Some flexibility is also required if a trainer believes during the presentation of an activity that is worthwhile to continue longer than anticipated.
    4. Materials
      5. This is a list of materials for the trainer, such as background notes, cases, lecture outlines and overhead transparencies. It also includes materials for the participants, such as handouts, flipchart sheets, pens.
    5. Process
      6. This is a chronologically numbered set of instructions for the trainer going through all the stages of the activity in the order that they should occur. It tells the trainer:
    6. If further explanatory notes, handouts and overhead transparencies are part of the activity, they will be included after Process.

3.4 Trainer’s preparation using this manual