Lecture outline: Extra-judicial activities

1. Introduction OHT 1

2. Key categories of extra-judicial activities OHT 2

2.1 Judicial activism

Taking a stand on political or controversial matters
Could mean that the magistrate is demonstrating partiality with a particular cause or grouping
Contrary view: Principle of “detachment” is not always the most appropriate way to preserve the integrity and independence of the judiciary e.g. South Africa during apartheid

Judicial activism: political causes OHT 3

Code: “A magistrate shall refrain from expressing support of any political party or grouping”
Principle of preserving judicial independence through silence in the political arena can be inappropriate and has violated the integrity of the judiciary in the past and could still do so in certain circumstances
Quotes: Judge Goldstone, Judge Edwin Cameron
Judicial officers, as guardians of civil liberties and freedoms, have a duty to speak out

Judicial activism: non-political causes OHT 4

For example: to address various interest groups and schools on domestic violence and rape
The public perception could be one of bias but also applying and promoting the law
Magistrates swear to apply the law and the Constitution:
1. Domestic violence and rape raise all sorts of issues relating to dignity, bodily integrity and equal protection under the law
2. Not contentious as harmful to our society
3. Educating the members of the community
Enhance the service in the family courts.
Judiciary needs to demystify what they do to win the confidence of the society they serve
Magistrates Commission: community outreach should be encouraged to a certain extent
For example: R v Milne and Erleigh: judicial officer not considered to be ineligible for office simply because he had expressed certain views on a matter
For example: SACCAWU held that “absolute neutrality is unachievable ... judicial officers are the products of their own life experiences.”
For example: S v Van Heerden en ander sake magistrate went too far.

2.2. Membership of clubs and organisations and fundraising OHT 5

Code: disallows magistrates from associating with any group “to the extent that he or she becomes obligated to such body in the execution of his or her official duties or creates the semblance thereof”
A judicial officer has a duty to sit in every case to which he or she is assigned
Test for recusal as established by the Constitutional Court in SARFU.
For example: Pinochet
Each situation considered on its merits: the surrounding circumstances, general ethical principles such as dignity, integrity and impartiality
For example: Membership of the Freemasons
For example: South African Women Lawyers Organisation (SAWLO): gender based

Fundraising

Fundraising raises ethical problems: OHT 6

To solicit favours - danger that this may create a perception that people can try to “gain an edge” with the magistrate by contributing to his or her cause
Not in keeping with the dignity of office that a magistrate should put him- or herself in the vulnerable position of having to ask for money

2.3 Holding other positions and receiving remuneration OHT 7

Service on the boards of charities, hospitals, civic, educational and religious institutions

Magistrates Commission not opposed provided that organisation uncontroversial.

Hospital boards problematic
University councils may be same due to issue of government funding
But entire administration of justice depends on government funding

Commissions of enquiry and non-judicial tribunals

Subject of much debate
To perform such tasks as may be required of them to the best of their abilities should be available to use their judicial skill and impartiality to further the public interest but mindful of the separations of powers and the independence of the judiciary

Teaching, writing and other academic work

Uncontroversial
Generally accepted
Expectation to do so
For example: R v Milne and Erleigh

Receiving remuneration

The Magistrates Act prohibits “performing any paid work outside [the] duties of office”, without the consent of the Minister. Gifts and Favours: as corruption?
Acting as legal advisor, as an executor or in any other fiduciary capacity
Problems:

Partiality
No protection for either party by Fidelity Fund Insurance
Potential litigation

2.4 Social behaviour OHT 8

Personal nature.
Code: “A magistrate acts at all times (also in his or her private capacity) in a manner which upholds and promotes the good name, dignity and esteem of the office of magistrate and the administration of justice.”

3. Concluding remarks OHT 9

Consider the ethical principles:

A magistrate must understand society’s needs and concerns; but
Never show prejudice or bias to any group or point of view.
Magistrates are expected to have lived and bring life experience to the bench; but
Put aside their preconceived opinions and sympathies; and
Must open their minds to the arguments of counsel.