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JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
16 March 2007
SOUTH AFRICAN JUDICIAL EDUCATION INSTITUTE BILL [B4- 2007]; JUDICIAL SERVICE COMMISSION DRAFT AMENDMENT BILL: BRIEFING
Chairperson: Ms F Chohan (ANC)
Documents handed out:
Briefing notes on the South African Judicial Education Institute Bill
South African Judicial Education Institute Bill [B4- 2007]
Briefing notes on Judicial Service Commission Amendment Bill
Judicial Service Commission Amendment Draft Bill
The Committee was briefed on the South African Judicial Institute Bill. The Bill made provision for the establishment of the South African Judicial Education Institute to educate and train judicial officers and aspiring judicial officers. The education and training should be appropriate and transformational given the inherited legacy and the new constitutional dispensation.
The Committee was also briefed on the Judicial Service Commission Amendment Bill. This Bill formed part of the package of legislation on the transformation of the judiciary that was discussed at the Colloquium hosted by the Minister in 2005. The Bill envisaged the establishment of a committee of the Judicial Service Commission, to be known as the "Judicial Conduct and Ethics Committee". The Committee's objects would be to consider complaints about judges, and when appropriate, dispose of such complaints or recommend to the Commission that a Judicial Conduct Tribunal should hold a formal inquiry.
The Committee would accept submissions on both Bills even beyond the formal closing dates for submissions. It would be interesting to get the submissions of people who had in the past complained about the conduct of the judiciary.
The Committee raised the following questions and suggestions:
- Who were the members of the Advisory Committee on Judicial Education?
- Retired judges should also undergo judicial training and education.
- Whether a judge in active service must seek permission from the Minister, acting in consultation with the Chief Justice, for the activities listed in clause 11 of the Judicial Service Commission Amendment Bill.
The Court Services representative noted the involvement of retired judges in arbitration and expressed the opinion that this was unethical.
South African Judicial Education Institute Bill [B4- 2007] briefing
Mr Johan de Lange (Principal State Law Adviser), accompanied by Mr Jacob Skhosana (Chief Director: Policy Advice, Court Services), gave the briefing (see document attached). The Institute would be a juristic person mandated to carry out judicial education and training of judicial officers and aspiring judicial officers. The objects of the institute would be:
- to provide proper, appropriate and transformational judicial education and training, having due regard to both the inherited legacy and new constitutional dispensation.
- to offer judicial education and training to aspiring and newly appointed judicial officers as well as continued training for experienced judicial officers.
Mr de Lange noted that the Committee Clerk had informed him that the Committee had not yet received any public comment on the Bill.
The Chairperson pointed out that there would be a clause by clause briefing at a later stage.
Mr S Swart (ACDP) said that the memorandum to the Bill stated that all the role players were now satisfied with the Bill in its current form. This was a significant statement.
The Chairperson asked who were the members of the Advisory Committee on Judicial Education.
Mr Skhosana replied that the composition of the Committee included judges, magistrates, the Ministry of Justice, the Judicial Service Commission, the General Council of the Bar and the Justice College. The Chief Justice also attended the meetings of the Committee. Judge Kriegler was also a member but he had since resigned.
Mr B Magwanishe (ANC) suggested that people who were judges for life should also undergo judicial training and education. He could not understand why the Bill legislated for the organogram of the Institute. The representation of women on the Advisory Committee was disappointing.
The Chairperson said that there was no definition of 'judicial officer'. Questions could be raised about the extent to which the Bill would regulate magistrates.
Mr de Lange said that retired judges could also attend the training. People who had resigned from being judges and who would not be called up to adjudicate, would not be expected to undergo judicial education and training.
Judicial Service Commission Amendment Bill briefing
Mr J de Lange made the briefing (see document attached). The Bill emanated from the obsolete Judicial Officers Amendment Bill, 2001. This Bill formed part of the package of legislation on the transformation of the judiciary that was discussed at the Colloquium hosted by the Minister in 2005. He said that the Committee Clerk had informed him that no submission had been received on the Bill.
The Chairperson said that the Committee would accept submissions on both Bills beyond the formal closing dates for submission. It would be interesting to get the submissions of people who had in the past complained about the conduct of the judiciary.
Mr Swart said that clause 11 was very important given the Judge Hlophe issue. He asked what was the link between clause 11 and the previous legislation. He asked if a judge would not have to seek permission even if the work he or she wanted to undertake, was listed in the clause.
The Chairperson said that the clause would lead to transparency and credibility. It would eliminate the possibility of the Minister giving permission to one judge and refusing it to another. Members of the public would also know what judicial officers were allowed to do.
Mr Swart said that the Committee should look at the issue of whether the judge should seek the permission of the Minister, acting in consultation with the Chief Justice, for the activities listed in clause 11 ["to hold or perform any other office of profit or receive in respect of any service any fees, emoluments or other remuneration apart from his or her salary and any other amount which may be payable to him or her in his or her capacity as a judge even if the activity was listed in clause 11 of the Judicial Service Commission Amendment Bill". .
The Chairperson felt that somebody would have to be notified of the decision to be engaged in the listed activity.
Mr Swart said that this would ensure that there were records of what judges were doing. The problem with the Judge Hlophe issue was that there was no record of permission having been granted. He recalled that the Judicial Service Commission's response to the Hlophe issue was that a framework needed to be in place and asked if one could assume that this was the framework. Would this satisfy the JSC? The JSC had indicated that there was a lacuna and that there should be a framework to regulate when judges could get permission to do outside work.
Mr de Lange thought that this would satisfy the JSC. This framework had not been formally approved by the JSC.
Mr Swart said that the Committee might get a submission by the JSC if it was not satisfied with the framework.
Mr L Joubert (DA) asked what other work the Department had in mind when compiling the list.
Mr de Lange replied that the list applied to judges who were in active service. Judges discharged from active service would still need the consent of the Minister. There was a strong feeling in the judiciary against a blanket prohibition.
Mr Skhosana said that the biggest challenge would be arbitration. Some judges retired between the ages of 65 and 70 and became independent arbitrators. The arbitration market was lucrative and deprived the country of an opportunity to develop its jurisprudence. Cases were being taken out of the formal justice system into a private system. Large, rich companies could afford private justice systems. It was unethical to have judges involved in arbitration because government was paying them.
The meeting was adjourned.
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