BRIEFING NOTE
SOUTH AFRICAN JUDICIAL EDUCATION INSTITUTE BILL
[B 4─2007]
1. The Bill emanates from the
recommendations of a committee set up some years ago by a previous Minister
under the auspices of the Canada-South Africa Linkage Project dealing with
judicial education. In short, the
committee recohmmended as follows:
"We believe the best would
be to convert the (Justice) College into an independent statutory institution,
publicly funded but controlled by a prestigious council chaired by the Chief
Justice or his nominee and with members drawn from all the main interested
bodies: the higher and lower judiciary,
the Judicial Service Commission, the
Magistrates’ Commission, the Ministry, the advocates' and attorneys'
professions, the Department, university teachers of law and the National
Prosecuting Authority."
2. The committee's above recommendation
was ultimately not followed at that stage, but instead, the SANJTAC Bill was
drafted which proposed that Justice College should remain in the
Department.
3. Following deliberations at the
Colloquium in April 2005, Advisory Committee on Judicial Education put the
matter on its agenda. On the Advisory
Committee are represented judges, magistrates, the Judicial Service Commission,
the Magistrates’ Commission, the Justice Ministry, the Director-General: Justice
and Constitutional Development, the General Council of the Bar, the Association
of Law Societies of South Africa, the National Prosecuting Authority,
magistrates’ organisations (JOASA, ARMSA and LCMC), the Justice College and the
Society of Law Deans of South Africa.
4. After several meetings of this
Advisory Committee, a draft Bill was decided upon and submitted to the Minister
for consideration. This draft Bill was
subsequently refined during the consultation process into the Bill currently before
Parliament.
5. The Bill makes provision for
the South African Judicial Education Institute to be established as a juristic
person with the mandate for the judicial education and training of judicial
officers and aspiring judicial officers.
6. The governance of the Institute
will vest in the Council of the Institute, which will consist of
representatives of all the interested parties and role players, as well as two
persons from the public not involved in the administration of justice. The objects of the Institute will be to─
(a)
provide proper, appropriate and transformational judicial education and
training, having due regard to both our inherited legacy and our new
constitutional dispensation; and
(b) to offer judicial education and
training to aspiring and newly appointed judicial officers as well as continued
training for experienced judicial officers.
7. The Bill contains the following:
(a) A long title: a short
description of the purpose and contents of the Bill.
(b) A preamble: setting out, inter
alia, the value of, and need for, education and training, in general, and
for members of the judiciary in particular, in promoting the independence,
impartiality, dignity, accessibility and effectiveness of the courts.
(c) Clause 1: contains definitions.
(d) Clause 2: contains the objects
of the Bill with special reference to the transformation of the judiciary and
judicial accountability, in order to promote the values mentioned in section 1
of the Constitution.
(e) Clause 3: the establishment of
the Institute.
(f) Clause 4: the seat of the
Institute.
(g) Clause 5: the objects,
functions and powers of the Institute.
Extensive
powers are conferred on the
Institute in order to empower it to realise
the objects of the Bill. The Institute must further appoint a
Director to
head the Institute, a
Registrar to head the administration of the Institute
and an Operations Officer who
must prepare and provide quarterly
management reports to the
Director-General.
(h) Clause 6: the appointment of
the Director of the Institute as the head and chief executive officer of the
Institute.
(i) Clause 7: the Council of the Institute responsible for
the governance of the Institute and its composition. All interested parties are to be represented.
(j) Clause 8: the meetings of the
Council and proceedings thereat.
(k) Clause 9: committees of the
Council.
(l) Clause 10: the powers,
functions and duties of the Council.
(m) Clause 11: the finances and
accountability. Expenditure in connection
with the administration and functioning of the Institute must be defrayed from
monies appropriated by Parliament for this purpose to the Departmental
vote. Such monies will constitute
earmarked funds on the Departmental vote and may not be used by the Department
for any other purpose, without approval of the National Treasury. The Institute may also receive donations and
contributions from other sources approved by the Council in accordance with
National Treasury regulations. The
Director-General will, subject to the Public Finance Management Act, 1999, be
responsible for accounting for monies received or paid out on account of the
Institute, and must cause the necessary accounting and other related records to
be kept, which must be audited by the Auditor-General. The usual financial statements must be
prepared within six months of the end of each financial year, which must
likewise be audited.
(n) Clause 12: remuneration of the
staff of the Institute. The Council
may, with the concurrence of the Minister and after consultation with the
Minister of Finance, determine the remuneration, allowances, benefits, and
other terms and conditions of appointment of each member of staff.
(o) Clause 13: annual report. Within six months of the end of each financial
year, the Council must prepare and submit to the Minister an annual report in
the form prescribed by the Minister.
The audited financial statements, the auditor’s report, a report of the
activities undertaken and a statement of progress achieved during the preceding
year towards the realisation of the objects of the Bill must accompany the
report. The Minister must table in the
National Assembly each annual report received.
(p) Clause 14: guidelines. The Chief Justice may issue guidelines, with
the concurrence of the Minister, in respect of any matter concerning the
exercise of any power and the performance of any function of the Institute.
(q) Clause 15: remuneration of
members of the Council. Members of the
Council may be reimbursed for their expenses incurred in their service as
members, but not remunerated. The two
members of the public may be remunerated for their service.
(r) Clause 16: seal of the Institute. The seal of the Institute must be determined
by the Council with the concurrence of the Minister. The President must approve the seal and it
must be published in the Gazette.
(s) Clause 17: transitional
provisions. The Institute must commence
with its training functions as from a date fixed by the Minister by notice in
the Gazette. Before the date so
fixed, the necessary arrangements must be made for the Institute to be
accommodated, equipped and staffed in order to perform its functions properly.
(t) Clause 18: short title and
commencement.
8. The principle underlying the Bill
is sanctioned by section 180 of the Constitution, which provides that national
legislation may provide for any matter concerning the administration of justice
that is not dealt with in the Constitution, including “training programmes for
judicial officers”.