“You are being paid by the government as a judge of the Supreme Court, and then you sit as arbitrator in the private sector. I think there is a conflict. (…) No, arbitration is not for sitting judges”, former South African Supreme Court judge Mervyn King told weekly Le Capital on Wednesday.

King himself resigned from the South African judiciary in 1980 to “enter commerce”. From then on, he went on to become a most successful corporate attorney, arbitrator, mediator, corporate director, commission chair, author and speaker. He is currently the director of the Global Reporting Initiative and is visiting Mauritius in this respect, to speak of good corporate governance.

As such, his comments on sitting judges acting privately as arbitrators are highly persuasive. Or so they should be. For this serious issue still hasn’t been resolved, more than three months after l’express first raised it. In August, l’express spoke to a number of lawyers who privately expressed their growing unease with a situation very few of them felt they could raise in the open, for fear of repercussions the practice of private arbitration by sitting judges. In spite of their heavy workload.

This practice poses a four-fold problem. It delays further court cases as judges are busy with their private practice it gives lawyers who refer cases to judges for private arbitration an edge over lawyers not involved in arbitration it challenges the sacrosanct principle that sitting judges - who have the power of the law behind them and who are, to all intents and purposes involved in public service - shouldn’t be hired for private work. But, most importantly, it breaks the law. Section 7 of the Court Act says that “except with the approval of the President, no Judge, shall, with or without remuneration, undertake any other work or hold any other office”. 

“Sitting judges can’t be arbitrators. It’s retired judges who can be arbitrators”, insists Mervyn King.

Yet, the denunciations and the public outcry have done nothing to change the situation. The Bar Council finding itself in the hot seat, seeing as the denunciations came from it members, announced a committee chaired by former Chief Justice Sir Victor Glover. The committee is supposed to gather barristers’ views regarding the judges’ private practice. Not once did any official of the Bar Council make reference to the fact that the judges were actually in contempt of the Courts Act.

The President of the Republic, without whose approval the sitting judges can’t practice arbitration, has remained suspiciously silent on the matter. After saying that he has received no request for approval from the judges, thus suggesting that the Chief justice hasn’t bothered with the President’s approval.

“Yet, no one dares call the judges to order. The only authority that can – Parliament - has turned a blind eye and a blind ear to the debate surrounding this issue. Opposition leader Paul Bérenger has timidly broached the subject, asking government to legislate. But that request hasn’t gone any further”, reacts a disgruntled lawyer. 

“If I was a judge, I wouldn’t do it”, says Mervin King. He does after all promote good corporate governance and transparency.