6 November 2007
SOUTH AFRICAN JUDICIAL
EDUCATION INSTITUTE BILL
-----------------------
(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 management of the affairs of
that Institute and for the regulation of its activities; and to provide for
matters connected therewith.
PREAMBLE
SINCE 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 SINCE there is a need for
the education and training of judicial officers in a quest for enhanced service
delivery and the rapid transformation of the judiciary;
AND SINCE the law has become
much more complex and varied, develops rapidly and is increasingly influenced
by the globalisation of legal systems,
trade, technology, new insights and
challenges;
AND SINCE 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 SINCE it is desirable
that the education and training of judicial officers should primarily be
directed and controlled by the judiciary;
AND SINCE section 180(a) of
the Constitution provides that national legislation may provide for training
programmes for judicial officers,
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) "Minister" means the Cabinet
member responsible for the administration of justice;
(viii) "this
Act" includes any guidelines issued under section 16.
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 judicial accountability and the transformation of
the judiciary, and, 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 aspiring
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 promote
the independence, impartiality, dignity, accessibility and effectiveness of the
courts; and
p (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, the Deputy Chief Justice as deputy chairperson and the following
other members:
(a) pthe
Minister or her or his nominee;
(b) a judge of the Constitutional
Court, designated by the Chief Justice after consultation with
the judges of the Constitutional Court;
(c) a person or
a judge designated by
the Judicial Service Commission from among its ranks;
(d) pthe
President of the Supreme Court of Appeal;
(e) ptwo
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;
(f) pfive magistrates, designated by the Magistrates
Commission, and of whom─
(i) at
least two must be women; and
(ii) two must be Regional Court Magistrates;
(g) a judge
who has 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 in
consultation with the Minister;
(h) pthe
Director;
(i) pone
advocate designated by the General Council of the Bar
of South Africa;
(j) pone
attorney designated by the Law
Society of South Africa;
(k) ptwo
university teachers of
law designated by the South African Law Deans Association; and
(l) two
other members who must be members of the public not involved in the
administration of justice, designated by the Minister after consultation with
the Chief Justice.
p(2) A member designated in terms
of subsection (1)(b),
(c), (e),
(f),
(g),
(i),
(j),
(k)
or (l)
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)(c), (f), (i), (j), (k) or
(l) 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)(b), (e) or
(g), by
the Chief Justice after consultation with the persons required to be consulted in respect
of the designation in question.
p(3) Any member referred
to in subsection (2)
whose term of office has expired, may be designated
again.
p(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) A
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.
p(4) The 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 standing committees[D1] to take responsibility for each of the following areas
of the Institute's activities―
p(a) curriculum planning and development;
(b) oversight of
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
committee for a particular purpose
as may become necessary;
(3) (a) The members of a
standing or other committee
may be members of Council or
may be co-opted for that purpose by Council.
(b) The
majority of the members of any such committee
must be members of the Council.
(4) The
Council─
(a) is not divested of any function
entrusted to any of its committees by virtue of subsection (1) or (2); and
(b) may set aside or vary any decision taken
by such committee, subject to any rights that may have accrued to a person as a
result of the decision.
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.
p(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;
(b) appoint
and supervise
the administrative staff of the Institute; and
(c) provide
quarterly management reports to the Director-General.
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 has
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[D2] .
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.
(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, unless the Council has been consulted and
the National Treasury has approved.
p(3) The Institute may receive funds from donations, contributions or
gifts 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 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, contributions or gifts 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 following year.
(7) The Institute may invest or deposit
money that is not immediately required for contingencies or current expenditure―
(a) in a call account or short term fixed deposit with
any registered bank or financial institution in the Republic; or
(b) in an investment account with the 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, with suitable and
sufficient particulars, reflecting
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, who must consult 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)(l) may be remunerated
for her or his services on the Council.
p(2) Members may be reimbursed for their reasonable expenses incurred
in the course ofduring 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 Dept and the State Law Advisers are proposing this change.
[D2]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.