Trawling through the financial declarations of just over 200 judges, shares are widely held, but range from just a few empowerment shares to a few multimillion-rand Johannesburg Stock Exchange (JSE) and offshore portfolios. A predilection for property emerges, although not necessarily for investment, and retirement saving instruments.
Such future-proofing is curious as judges get paid for life – that’s currently an average R1.8-million annual income for a high court judge, up to R2.8-million for the chief justice. And yet, retirement annuities and living annuities seem to be a favourite among South Africa’s judiciary, many of whom hold more than one such post-work life policy.
Perhaps it is because judges’ salaries are set to stay at where they are currently pegged. On Tuesday 17 March the National Assembly is due to consider the 0% salary increases for judges, as President Cyril Ramaphosa recommended in his letter to Parliament against the recommendations of the Independent Commission for the Remuneration of Public Office Bearers, which had recommended 3%, backdated to 1 April 2019.
The National Council of Provinces (NCOP) already last week approved the presidential pay freeze for judges, while magistrates will receive between 2.8% and 4.5% more.
The latest available Register of Judges’ Interests – two thick ring-bound sets of declaration for the 2018/19 financial years, including shares, unit trusts and investments, directorships, gifts and additional non-judicial income – can be viewed by appointment at the Office of the Chief Justice in Midrand. No laptops; it’s strictly old-school pen and paper.
Some broad-sweep trends emerge.
Women judges are more likely to state: “Nothing to disclose” in most sections bar the property one, where at least one residential home is declared. Of course, there are exceptions.
While the bench has transformed – more so in terms of race than gender as male judges still dominate – the socio-economic inequality indicators across race and gender remain. Those who declared multimillion-rand share and investment portfolios were, by and large, white male judges. Again, there are exceptions.
No one is really giving gifts to judges, although the University of KwaZulu-Natal gifted Juta and Lexis Nexis vouchers valued from R750 to R1,500 to several judges in the province.
And few judges are authoring legal texts: just a handful declared royalties. Only two judges declared incomes from university external examiners’ fees, from Rhodes University and UKZN respectively.
Like the declarations of MPs, members of the national and provincial executives and councils, the judges’ financial disclosures are meant to underscore accountability – and boost public trust.
This is the seventh year in which judges must declare their financial interests. The process is currently underway and an updated register should be available soon.
For now, the public record for judges’ financial interests shows a number own Yebo Yethu, Phuthuma Nathi, and Sasol Inzalo shares. Also popular are Vodacom, MTN and Telkom shares. Naspers was also cited across the board.
Rainbow Chicken shares were held by at least two judges: Western Cape High Court Judge Nathan Erasmus and Gauteng High Court Judge Hendrick de Vos. Shares in the collapsed international retailer Steinhoff were disclosed by Gauteng High Court Judge David Unterhalter as part of his meticulously detailed shareholdings of over R7-million, and by KwaZulu-Natal Judge Dhaya Pillay.
On the retirement and living annuities front, Sanlam, Allan Gray and PPS seem to dominate, with several judges paying monthly premiums, often to more than one annuity.
Judges’ investment portfolios are often managed by Investec, Stanlib, Allan Gray, Sanlam and Old Mutual – or their respective offshore vehicles like Fairbairn – while also widely declared are unit trust offerings by Absa, Nedbank and First National Bank.
Competitions Appeal Court President Judge Dennis Davis has declared a R6.2-million share portfolio and another R1.7-million managed by Fairbairn Capital.
KwaZulu-Natal Judge Petrus Koen listed various managed investments, including offshore, totalling R7.7-million.
Supreme Court of Appeal Judge Azar Cachalia declared a R7.4-million share portfolio under Zaina Wealth Management, adding those shares he holds with his wife, and her own interests, were disclosed as required in the confidential section of the register.
Gauteng Judge Hans-Joachim Fabricius disclosed a JSE portfolio worth approximately R6.4-million, as he put it, and German stock exchange investments of €170,000.
Western Cape Judge Ashley Ward-Binns has several offshore investments managed by Old Mutual amounting to R4.3-million aside from domestic investments. And Labour Court President Basheer Wagley disclosed a R3-million Investec-managed investment and a further R1.25-million under Altius Investment Holdings.
KwaZulu-Natal Judge Dhaya Pillay breaks both gender and race moulds, listing shares, investments and cash amounting to R31-million, including shares worth R6.3-million in Satrix, the JSE-traded financial instrument.
Not everyone’s investments are fruitful. Western Cape Judge Taswell Papier disclosed amid his multimillion-rand offshore and retirement investments, losses of $5,000 a quarter on what he described as “stainless steel tank containers investment – offshore”.
His disclosure form indicates “application to minister to be submitted” regarding his role in “Imvula Trust and IT II management” and Kagiso Asset Management. That was in April 2019.
It’s not clear from the disclosure rules how the sequencing of ministerial permission must unfold. This is potentially one area of potential obfuscation.
Another potential clouding arises when a judge informs the registrar there were no material updates on his disclosures, as Judge Neil Tuchten has done, referencing supporting documents, which were outdated. This led to potential incongruences, including that supporting documents reflected two properties, rather than one as was declared, and a R3-million five-year endowment which, depending on its maturity date, would have had to be declared in the year of maturity. If it matured before the disclosure regimen came into effect in 2014, the supporting documents reflecting it should not have been submitted.
Judiciary spokesperson Nathi Mncube told Daily Maverick: “The registrar has noted the inconsistency in the information disclosed by Judge Tuchten… and will raise it with the judge concerned in a manner contemplated [by the regulations]”.
The regulations in terms of the 1994 Judicial Service Act stipulate the registrar invites the judge to correct the information and, if the registrar believes the disclosure remains misleading, to lodge a complaint for a tribunal to consider.
Only one judge ever refused to declare, as it was put to Daily Maverick, but the retirement date came amid pending complaints proceedings.
While there was some judicial grumbling about disclosures, once it was done, everyone got behind it. And many judges today seem to err on the side of transparency.
Free State Judge Mpina Mathebula disclosed a R15,000 discount in transfer fees. Western Cape High Court Judge Siraj Desai disclosed investing his R1.5-million gratuity for 20 years’ service on the bench had boosted this to R1.8-million.
Fellow Western Cape Judge Eduard Wille has no property to disclose, but a 5% stake in the Cape Town coffee shop House of Machines. And while a handful of judges disclosed royalties, Gauteng Judge Malcolm Wallis disclosed his 2016 maritime law book although he’s not yet received royalties.
Gifts are far and few between in the judiciary. Aside from a pen set valued at R750 and two judges’ honorary membership at the Durban Club, the disclosures show a couple of ties and two sets of boxes of wine and a “basket of biltong and chocolates”.
Constitutional Court Justice Mbuyiseli Madlanga disclosed an “unsolicited ticket for Standard Bank Joy of Jazz” and an “unsolicited gift of a clock made by inmates at Correctional Services”.
Supreme Court of Appeal Judge Baratang Connie Mocumie declared what seems the largest gift – six head of cattle each valued at R6,000.
But multiple properties feature large across judges’ disclosures. Not all declared rental income – it’s possible relatives are accommodated free of charge, or the properties stand empty – but most did.
KwaZulu-Natal Judge Jacqueline Henriques owns a home, four flats and a parking bay, which generate a total of R22,000 a month. North West Judge Festus Gura declared an annual rental income of R207,122.97 and Gauteng Judge Mmonoa Teffo, R170,000 a year from three properties.
Gauteng Judge Ronel Gertruida Tolmay owns a third of an Italian villa, while Labour Court Judge David Gush declared “the residential property belongs to wife”. KwaZulu-Natal Judge Themba Sishi’s declaration states “Nothing to disclose”.
There is an incredible amount of detail in these judicial disclosures of financial interests. The aim is not to police wealth, but to ensure accountability, transparency and good conduct in public office.
In these days of whispering and smear campaigns, that’s important. DM