SOUTHERN AFRICAN CATHOLIC BISHOPS’ CONFERENCE

PARLIAMENTARY LIAISON OFFICE

 

 

Submission to the Portfolio Committee for Justice and Constitutional Development

 

on the

 

Judicial Education Institute Bill

(B4 -2007)

 

1.       Introduction

 

1.1     The Southern African Catholic Bishops’ Conference welcomes the opportunity to make a submission on the Judicial Education Institute Bill (B4-2007). 

 

1.2     The transformation of our society has been the subject of much debate.  There have been many positive changes since 1994, and yet there remain areas of concern when it comes to the transformation of the judiciary. 

 

1.3     It is not the intention of this submission to go into the technicalities of what steps are necessary to achieve transformation.  Rather, we will seek to affirm some of the principles contained in the Bill as well as to highlight certain aspects that we would ask the Portfolio Committee to consider when deliberating on the legislation.

 

 

2.       Background

 

2.1     Transformation in the judiciary is an issue that has occupied some attention in the public domain[1].  Transformation is a controversial subject at the best of times and made more so in the context of the judiciary.  While recognising the need to redress the imbalances of the past, it is at the same time necessary to balance this with judicial independence. 

 

2.2     Ongoing judicial education is an important way of not only transforming the judiciary as a state institution, but it is also a means of keeping the judiciary in touch with the community that it serves.  Just what form this education will take is of the utmost importance because while educating the judiciary, the institution must at the same time be protected from government interference and populist sentiment.

 

 

 

 

 

3.       Concerns

 

There are some specific concerns about the Bill that we have and it is to these that we now turn.

 

Clause 7 (2) ‘any nominee …’

The Bill refers to ‘any nominee’.  We would propose that it needs to be specified that the person who is nominated should be suitably qualified person from the department who has the authority to make decisions.  It is important that the nominee is able to participate in and take decisions on behalf of the member of the council.

 

Clause 9 (2): Executive Committee

The Bill mentions an ‘executive committee’ but it does not elaborate on what the purpose is.  The Bill should elucidate what its powers and duties are.

 

Clause 12: Finances and accountability

As mentioned above, there is a need to ensure that legislation takes into account the principle of the separation of powers.  We would ask that the members of the Committee look at the proposals contained in the Bill and make certain that the measures in the Bill will be sufficient to provide the Institute with sufficient financial independence from the Minister and the Department.

 

Clause 16 (2): ‘Members may be reimbursed for their expenses incurred during their service as members of the Council’

While we appreciate that the need to reimburse members for the expenses that they incur, it is important that the wording is made more specific to avoid possible abuses by inserting the word ‘reasonable’ so that it reads:

‘Members may be reimbursed for their reasonable expenses incurred during their service as members of the Council’.

 

Typographic errors

There are two typographic errors.  In the Definitions clause, (ix) ‘this Act’ should read ‘section 15’ and not section 14.

 

In Clause 16(1), the reference should be to section 7 (1) (n); and not (2) as is currently the case.

 

 

4.       Conclusion

 

While we are not unique in trying to maintain the separation of powers between the legislature and the judiciary, the situation is complicated by our history and the need to transform our society.  We thus welcome this legislation as an attempt to rectify the inequalities created by Apartheid while affirming the need to maintain the separation of powers.

 

 

 

For further information, please contact

Ms Felicity Harrison

Researcher



[1] See Briefing Paper 149: Transformation in the Judiciary, December 2005.