SOUTH AFRICAN JUDICIAL EDUCATION
INSTITUTE BILL
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(As
introduced in the National Assembly (proposed as a section 75 Bill); explanatory summary of Bill published in
Government Gazette No. 29625 of 9 February
2007) (The English text is the official
text of the Bill)
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(MINISTER FOR JUSTICE AND
CONSTITUTIONAL DEVELOPMENT)
[B 4─2007]
BILL
To
establish a South African Judicial
Education Institute in order to promote the independence, impartiality,
dignity, accessibility and effectiveness of the courts by providing judicial
education for judicial officers; to provide for the
administration and control of the affairs of that Institute and for the
regulation of its activities; and to provide for matters connected therewith.
PREAMBLE
WHEREAS the need for education and training
of judicial officers, whether aspirant, newly appointed or experienced, has
long been recognised and that principle is practiced and entrenched in most
judicial systems around the world;
AND WHEREAS education and training of judicial
officers are necessary to uphold judicial
independence, on the one hand, and to facilitate judicial accountability, on
the other, and both are indispensable requirements of a judiciary in a
functioning democracy;
AND WHEREAS, it is desirable that the education
and training of judicial officers should primarily be directed and controlled by the
judiciary,
BE IT
THEREFORE ENACTED by
the Parliament of the
Definitions
1. In this Act, unless the context
indicates otherwise—
(i) p"Constitution" means the Constitution of the
(ii) p"Council" means the Council of the Institute
established by section 6;
(iii) p"Department" means the Department of Justice and
Constitutional Development;
(iv) p"Director" means the Director appointed in
terms of section 12(1);
(v) p"Director-General" means the head of the Department;
(vi) p"Institute" means the South African Judicial
Education Institute established by section 3;
(vii) "judicial
officer" means any judicial officer referred
to in section 174(1) of the Consitution, and "aspiring judicial officer"
includes any person who has applied for, or intends applying for, appointment
as a judicial officer;
(viii) "Minister" means the Cabinet member
responsible for the administration of justice;
(ix) "this
Act"
includes any guidelines issued under section 15.
pObjects
of Act
2. The main objects of this Act are to
establish a national education and training institution for the judiciary so as
to enhance the transformation of the judiciary and judicial accountability, in
order to promote the implementation of the values mentioned in section 1 of the
Constitution, and for that purpose 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) offer judicial education and
training to aspiring and newly appointed judicial officers as well as continued
training for experienced judicial officers.
pEstablishment
of Institute
3. There is hereby established a body
to be known as the South African Judicial Education Institute, which―
(a) is
a juristic person; and
(b) is
responsible for the judicial education and training of judicial officers and
aspiring judicial officers.
pSeat
of Institute
4. The seat of the Institute is at a
place to be determined by the Council with the concurrence of the
Minister: Provided that the Institute
may, with the approval of the Minister, also conduct its activities away from
its seat.
Functions
of Institute
5. The functions of the Institute
are―
p(a) to establish, develop, maintain and provide
judicial education and professional training for judicial officers;
p(b) to
provide entry level education and training for aspirant judicial officers to
enhance their suitability for appointment to judicial office;
p(c) to conduct research into judicial
education and professional training and to liaise with other judicial education
and professional training institutions, persons and organisations in connection
with the performance of its functions;
p(d) to promote, through education and
training, the quality and efficiency of services provided in the administration
of justice of the Republic;
p(e) to promomote the independence,
impartiality, dignity, accessibility and effectiveness of the courts; and
(f) to render
such assistance to foreign judicial institutions
and courts as may be agreed upon by the Council.
pEstablishment
of Council
6. There
is hereby established a Council responsible for the governance of the
Institute.
Composition of Council
7. (1) The
Council comprises the Chief Justice,as chairperson, and
the following members:
(a) pThe
Deputy-Chief Justice as deputy chairperson;
(b) pthe
Minister or her or his nominee;
(c) a judge of the Constitutional Court,
designated by the Chief Justice after consultation with the judges of the
Constitutional Court;
(d) a person or a judge designated by
the Judicial Service Commission from among its ranks;
(e) pthe
President of the Supreme Court of Appeal;
(f) two judges president and two other
judges, at least one of whom must be a woman, designated by
the Chief Justice after consultation with the judges president;
(g) five
magistrates, designated by the Magistrates
Commission, and of whom─
(i) at least two
must be women; and
(ii) two
must be Regional Court Magistrates;
(h) a judge
who had been discharged from active service as contemplated in the Judges'
Remuneration and Conditions of Employment Act, 2001 (Act No. 47 of 2001),
designated by the Chief Justice after consultation with the Minister;
(i) pthe
Director;
(j) one advocate designated by
the General Council of the Bar of South Africa;
(k) one attorney designated by
the Law Society of South Africa;
(l) two university teachers of law designated by
the South African Law Deans Association;
and
(m) two persons
who are not ordinarily
involved in the administration of justice
and who are not public office-bearers as contemplated in section 1 of the
Independent Commission for the Remuneration of Public Office-Bearers Act, 1997,
(Act No. 92 of 1997), or public servants, designated by the Minister after
consultation with the Chief Justice.
(2) A
member designated in terms of subsection (1)(c), (d), (f), (g), (h), (j), (k), (l) or
(m)
holds office as such a member for a period of five years but such
a member may be replaced─
(i) in the case of a member designated in
terms of subsection (1)(d), (g), (j), (k), (l) or
(m) by
the designating person or body on
written notice to the Chief
Justice; or
(ii) in the case of a member designated in terms
of subsection (1)(c), (f) or
(h), by
the Chief Justice after consultation with the persons required to be consulted in respect
of the designation in question.
(3) Any member referred
to in subsection(2) whose term of office has expired,
may be re-designated.
(4) A vacancy in the membership of
the Council will not affect the validity of the
proceedings or the decisions of the Council.
p(5) Due consideration must be given in the
composition of the Council to demographic and gender representivity.
Meetings
of Council
8. p(1) Meetings of the Council must be held at the
times and places determined by the Chief Justice, but at least every six
months.
p(2) The majority of the members of the Council
constitutes a quorum.
p(3) If the Chief Justice is absent from a
meeting, the Deputy-Chief Justice must act as chairperson, and if both are
absent, the members must elect one of their number to preside at that meeting.
(4) Council may regulate the proceedings at
its meetings as it considers fit and must keep
minutes of the proceedings.
p(5) (a) Every member of the Council has one
vote.
(b) In the event of an equality of votes the
person presiding will have both a deliberative and a casting vote.
Committees of Council
9. (1) The Council must establish a standing
committee to take responsibility for each of the following areas of the
Institute's activities―
p(a) curriculum planning and development;
(b) oversight over
judicial education;
p(c) budget and finance;
p(d) personnel management; and
p(e) general administration.
p(2) Council may further appoint―
(a) an executive committee from its
ranks, which must be chaired by the Deputy Chief Justice;
(b) such further standing committee or
other committees for a particular purpose as may become necessary;
(3) The members of a
standing or other committee may be members of Council
or may be co-opted for that purpose by Council, but
the majority of the members of any committee must be members of the Council.
(4) Decisions of any committee are subject
to the approval of the Council.
Powers and duties of Council
10. p(1) The Council may do all that is necessary or
expedient to achieve the objects of this Act.
(2) Without derogating from the generality
of subsection (1), but subject to section 13,
the Council—
(a) may—
(i) acquire and alienate movable and
immovable property;
(ii) hire
and let movable and immovable property;
(b) must—
(i) oversee
the appointment of
temporary and permanent professional staff;
(ii) engage in research into matters
affecting the Institute and its functions and engage suitably qualified persons
or institutions to conduct such research on its behalf.
(iii) establish and maintain contact with
the Judicial Service Commission, the Magistrates'
Commission, Heads of Courts, the organised legal profession, academics and
other individuals and entities with an interest in judicial education.
Administration of Institute
11. In order to perform its functions the
Institute must, amongst other things─
(a) employ
a Director to head the Institute;
(b) employ academic staff and procure
the services of suitably qualified judicial educators;
(c) employ such administrative staff as may
be necessary; and
(d) enter into contracts with service
providers and accept liability for the expenses incurred as a result of such services being rendered.
Appointment
of Director
12. p(1) The Council must appoint the Director for a
determined term and on such conditions as the Council may determine.
p(2) The Council may re-appoint a Director at
the end of the term.
p(3) The Director, as the head and chief
executive officer of the Institute, is responsible for the general
administration of the Institute, and must―
(a) manage and direct the activities of
the Institute subject to the direction of the Council; and
(b) appoint
and supervise
the administrative staff of the Institute.
p(4) (a) The Minister must, with the concurrence
of the Council and after consultation with the Minister of Finance, determine
the Director’s remuneration, allowances, benefits, and other terms and
conditions of employment.
(b) If the Director is a
judge who had been discharged from active service as contemplated in the
Judges' Remuneration and Conditions of Employment Act, 2001 (Act No. 47 of
2001), his or her service as Director constitutes service as contemplated in
paragraph (c) of the definition of "service" contained in
section 1 of that Act[D1] .
Finances and accountability
13. p(1) Expenditure in connection with the
administration and functioning of the Institute must be defrayed from monies
appropriated by Parliament for this purpose.
p(2) Monies appropriated by Parliament for this purpose―
(a) constitute earmarked funds on the
Departmental vote; and
(b) may not be used by the Department
for any other purpose, without the approval of the National Treasury and after consultation with the
Council.
p(3) The
Institute may receive funds from donations and contributions and from other
sources approved by Council in accordance with National Treasury regulations.
p(4) Subject
to the Public Finance Management Act, 1999, the Director-General―
(a) is
charged with the responsibility of accounting for monies received or paid out
for or on account of the administration and functioning of the Institute and
for donations, contributions or gifts from contributors in accordance with
National Treasury regulations; and
(b) must
cause the necessary accounting and other related records to be kept, which
records must be audited by the Auditor-General.
p
(5) The
Institute must utilise the donations and contributions to advance the objects
of the Institute as contained in this Act or any other law.
p(6) The
financial year of the Institute is the period of 1 April in any year to 31
March in the following year, except that the first financial year of the
Institute begins on the date on which this Act comes into operation, and ends
on 31 March of the next following year.
(7) The
Institute may invest or deposit money that is not immediately required for
contingencies or current expenditure―
(a) on a call or short term fixed
deposit with any registered bank or financial institution in the Republic; or
(b) in an investment account with a
Corporation for Public Deposits established by section 2 of the Corporation for
Public Deposits Act, 1984 (Act No. 46 of 1984).
p (8) Within
six months after the end of each financial year, the Director must prepare
financial statements in accordance with established accounting practice,
principles and procedures, comprising―
(a) a statement reflecting, with
suitable and sufficient particulars, the income and expenditure of the
Institute during the preceding financial year; and
(b) a balance sheet showing the state of
its assets, liabilities and financial position as at the end of that financial
year.
p(9) The
Auditor-General must audit the financial statements of the Institute each year.
Remuneration
of staff of Institute
14. 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.
pAnnual
report
15. (1) The
Council must prepare and submit to the Minister an annual report in the form
prescribed by the Minister within six months after the end of the Institute’s
financial year.
(2) The annual report referred to in
subsection (1) must include the following documents:
(a) the audited financial statements
prepared in terms of this Act;
(b) the auditor’s report prepared in
terms of this Act;
(c) a report of the activities
undertaken in terms of the Institute’s functions set out in this Act; and
(d) a statement of the progress achieved
during the preceding year towards the realisation of the objects of this Act.
(3) The Minister must table in the National
Assembly each annual report submitted in terms of this Act.
pGuidelines
16. 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.
Reimbursement of
members of Council
17. p(1) No
member of the Council, other than the members referred to in section 7(1)(m) may be remunerated for her or his
services on the Council.
(2) Members may be reimbursed for their reasonable expenses incurred in the course of their service as members of the
Council.
pSeal
of Institute
18. (1) The
seal of the Institute must be determined by Council with the concurrence of the
Minister.
(2) The President must approve the seal of
the Institute.
(3) The seal of the Institute must be
published in the Gazette on approval by the President.
pTransitional
provisions
19. (1) The Institute must commence with its
training functions as from a date fixed by the Minister by notice in the Gazette.
(2) 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.
pShort
title and commencement
20. This Act is called the South African
Judicial Education Institute Act, 2007, and comes into operation on a date
fixed by the President by proclamation in the Gazette.
[D1]The Committee was strongly of the view that the provision should be amended so as to leave no room for the appointment of a judicial officer as Director. The Committee has grave doubts as to the the compatability of a Chief Executive Officer of the Institute (Subsection (3)) with that of a judicial officer, with the potential of damaging the image of the judiciary.