Judicial Education Institute Bill [B4-2007]: consideration

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
16 October 2007
JUDICIAL EDUCATION INSTITUTE BILL [B4-2007]: CONSIDERATION

Chairperson: Mr Y Carrim (ANC)

Documents handed out:
Summary of Public Submissions on the Bill
South African Judicial Education Institute Bill [B4-2007]
Research opinion on Transformation of the Judiciary on the Bill by the Parliamentary Law Advisors

Audio recording of meeting

SUMMARY
The Department of Justice summarised the main purpose of the Judicial Education Institute Bill, noting that it allowed for development of an Institute for judicial training, encompassing both lower and higher level training, as well as specialist training of judicial officers. The current Bill was agreed upon between the Department and judges, and no public submissions had been received from judicial officers on the Bill. The Ministry would facilitate procedures, and the Director General of Department of Justice was the accounting officer, as the Institute would receive ring-fenced funding through the Department, but the independent Institute would control its curriculum. The Institute would have a further education role, and might include some sensitivity training. The Committee discussed some concerns raised by the Parliamentary Legal Researcher on perceptions of independence, reporting to Parliament, and the line of accounting. It was agreed that in its report to Parliament, the Committee would comment on lines of accountability and refer to the provisions of the Public Finance Management Act. The failure to address the issue of costing was a recurrent problem, that would also be raised in the report. The drafters would report back to the Committee on the details of the practical planning and infrastructure. It was noted that the Institute was intended to train aspiring and experienced judges, and would build on foundations laid by Justice College.

The Committee then discussed Clauses 1 to 8 of the Bill. The long title would substitute the word “control” with “management”. The clauses of the preamble would be discussed by the drafters and the Chairperson; firstly in relation to the archaic “whereas” and secondly in relation to the value added by each paragraph. The matter would also be discussed in the Study Group. The Committee did not yet consider Clause 1, but would revert to these definitions. It was noted that if the preamble was to be changed, it might be necessary also to revisit Clause 2. It was agreed that there should be definition of “aspiring judicial officer” as mentioned in Clause 2, but that the clause was generally approved. Members agreed with Clauses 3 and 4. In relation to Clause 5, it was suggested that 5(1)(f) should be moved to sub-clause (2). Clause 5(1)(g) was unclear, and would be worded more appropriately, including a reference to consultation with the Minister. Clause 5(1)(h) would be removed, as it was not necessary. Clause 5(2) would, firstly, be redrafted to include 5(1)(f) and secondly would be redrafted in line with concerns that it was not necessary to legislate the full organogram, to reflect that the Operations Officer should report to the Director, rather than the Director General. Clause 6 was approved. Clause 7 would be re-drafted, to reflect who would make appointments, to better describe the “retired judge” in clause 7(1)(i), to increase the proportion of magistrates on the Council, and to improve the reference to women in sub-clause 7(1)(h). Although submissions had been made in relation to Clause 7(2) the Committee did not agree with the submissions and approved the clause as drafted. Sub-clauses 7(3) to (5) were approved. Clause 8 was approved, subject to the substitution of “keep minutes” for “cause minutes to be kept”.

MINUTES
Judicial Education Institute Bill
Mr Johan de Lange, Principal State Law Advisor: Department of Justice, noted that amendments were being proposed to the Bill. He had briefed the Committee previously but at the request of the Chairperson he took Members through the Bill again.

As background, Mr de Lange explained that during 2005 there was a colloquium that had dealt with the Superior Courts Bill, and had included this Bill. An advisory Committee consisting of various representations from law sectors had been set up to consider the matter. The Bill was submitted to the Minister for consideration and was subsequently refined, developing into this Bill now before the Committee. In brief, the Bill provided for the establishment of the Judicial Education Institute, gave the mandate for judicial education and training, and provided for the governance and related matters. The establishment of such an Institute was sanctioned by Section 180 of the Constitution.

Discussion
The Chairperson asked what was the relationship between the executive and the judiciary, in regard to the role of judicial training elsewhere in the world.

Mr de Lange noted that this Bill was in line with international practice, and noted that the Ministry was facilitating the procedures but had limited control, because the Council would be governing the Institute. It would therefore be in a similar position to universities in South Africa.

Adv C Johnson (ANC) noted that originally there was some unhappiness about who would set the curriculum and ensure that judges would be going for training. She asked if there had been any feedback from judicial officers.

Mr de Lange noted that this was intensively discussed at the colloquium. The Bill as now tabled was largely drafted in consensus with interested sectors. The Committee had advertised the Bill for comment, and nothing was received from the judiciary.

Mr G Magwanishe (ANC) asked why the organogram was to be legislated.

Mr de Lange said because the Institute was to be established outside the department, so all the details did need to be spelt out, including the infrastructure. This would also enable a budget to be drafted for the Institute.

Imam G Solomons (ANC) felt that the title was perhaps misleading, and the words "judicial education" seemed to indicate that judges were being trained in their jobs. The type of training would rather be geared to sensitivity training. He did not have any suggestions for improvement immediately, but would think further.

Mr de Lange agreed that when the idea of judicial training was first mooted, there was some resistance from long-serving judges. Traditionally, judges elevated to the Bench from the ranks of senior advocates or attorneys were already endowed with qualities needed for good judicial officers. However, since 1994 the judicial dispensation and all associated with it had changed. Even the Court rolls had been changed. Nobody was trained in interpreting the legislation against the Constitution. However, more importantly, there had then been recognition from the Bench itself that there were areas needing improvement. The South African jurisdiction was very different from Continental jurisdictions, in that there was no separate study programme for judicial officers, but only a general law training. Justice College, in its training, did not actually teach people how to become magistrates, but sought to improve existing magisterial skills, or to train for regional promotions. This Institute would have a further education role. Some sensitivity training might be included (if defined by the Council). From the Department's side, the main focus would be to sharpen the instincts and expertise of the judicial officers.

Mr C Burgess (ANC) asked how the judges would be taken into the Institute, what criteria would apply and who would determine the appropriate candidates.

Mr J Jeffery (ANC) commented that the Bill seemed to establish and set the rules for running the Institute, but it would need to determine its own rules and regulations.

Mr Burgess noted that point, and understood the history behind the Bill. He commented that it still seemed not to be appropriate to set up the Institute before knowing how to get the candidates there.

Mr de Lange noted that the judiciary had expressed a desire to have a formal mechanism to institutionalise what had taken place thus far (for instance, Canadian funding for a judicial orientation programme). This was set out in Clause 5(1) of the Bill. Once the Council was appointed they would meet to set out the guidelines.

Mr Jeffery noted that the Bill had been available for some time. He asked for confirmation that there were no public hearings, as only a few written submissions had been received. He queried whether the Prof. de Vos making the submissions was from Rhodes University or UWC. He would like to be assured that judges would not complain that they were not given an opportunity to comment.

Mr de Lange noted that Wouter de Vos of Rhodes University had commented. At the time of the public hearings on the Judicial Service Commission Amendment Bill, only Rhodes University had put through any comment. The SA Catholic Bishops' Conference had submitted comments later.

The Chairperson noted that Ms Chohan (former Chairperson of this Committee) had commented to him that the judges seemed to be satisfied. If there were to be amendments then it would be easy enough for the Department to refer these to the judges for their comment before passing the Bill.

He added that there was a need for judicial education and training, not limited to sensitivity training. There was no reason why judges, like medical and other professionals, should not have to undergo further education and training. The main issue was who had control over the substantive issues and who provided the funding. There should be no crossing over the line between Executive and Judiciary in this regard.

The Chairperson tabled an opinion from the Parliamentary Legal Researcher, Ms Christine Silkstone, on the Bill. She had raised comments on the independence of the new Institute. She noted that it would be funded by ring-fenced allocations through the Department of Justice, but that this might create misperceptions as to the independence of the new Institute. The Chairperson asked if it was possible for the funding to flow in another direction. Ms Silkstone had also noted that the Director General of Department of Justice was the accounting officer, and that the reports must be submitted through the Minister, and not directly, to Parliament.

Mr Jeffery did not think this was a problem. This was merely a training institute, and could not be equated to a Chapter 9 Institution. Independence related to the content of the training, rather than the running of the Institute. If the funding were to be cut, and the Institute closed, the independence of the judiciary would not be affected. However, it was necessary to ensure that the curriculum was independent, and that was covered in the Bill. The financial accountability would ensure consistency with the Public Finance Management Act (PFMA) and proper accounting.

Mr Magwanishe said that budgeting was an executive, not a judicial function. He agreed that independence was related to the curriculum, and the way in which judges performed their work.

Mr de Lange agreed with these comments.

Ms Christine Silkstone, Parliamentary Legal Researcher, said that she had raised the points in the context of recent discussions on the Chapter 9 Institutes, but that she noted the comments.

Mr Jeffery commented that he did not see that there was a problem with the report not coming directly to Parliament. He reiterated that this was a training college, with government being the prime mover behind it. If it was included in the Minister's budget, then it was correct that she should table the report.

Adv Burgess pointed out that in the United Kingdom the judicial training institute followed a similar path.

Imam Solomon noted that this Bill was part of the path to transformation of the judiciary. The Minister was responsible for accounting to parliament on transformation. He believed that this Bill emphasised transformation rather than independence issues.

Ms Silkstone reverted to the question of the accounting officer. There was a line of authority between Director and Council and accounting officer. She wondered if there could be a problem.

The Chairperson noted that the relationship between a Statutory Institute and Department was not unique. State Owned Enterprises would need to report to the Minister, who would forward the report without adding or subtracting anything. He believed this Bill was consistent. He did not think it likely that there would be a problem between Director and Council, but perhaps the Committee, in its report, could raise the concern that there could be a possibility of conflict.

Mr Jeffery noted that Clause 12(4) covered the accountability by the Director General. Clause 9 noted that the Director was to prepare the financial statements. It was not clear whether the Director General could delegate any functions to the Director.

Adv Johnson noted that the details would be covered in the PFMA.

The Chairperson noted that the comments of Ms Johnson and Jeffery could be included in the report to Parliament.

Mr de Lange noted, in response to a query raised in the research report, that the salaries and conditions of employment would be covered by Clause 13.

In respect of the query raised in the report on costing, Mr de Lange said that this was not correct in the Objects memorandum, because the Bill was introduced a while ago. He would check up on the costing, and revert to the Committee before final deliberations on the Bill.

The Chairperson noted that the failure to address the issue of costing was a perennial problem for all committees. It should be raised in the report.

Mr de Lange noted that Ms Silkstone had asked what was envisaged by the Chief Justice making guidelines, as this would require the concurrence of the Minister, and this might lead to delays. Although he had not had a chance to consider this, he thought it might have to do with the development of protocols. It was covered by Clause 15.

The Chairperson said that he personally did not see a problem with this clause. The concurrence of the Minister was included because the overall transformation of the judiciary should not be left to judges alone. It seemed to be consistent, and would not necessarily interfere with independence.

Mr Jeffery noted that this body must work. The Chief Justice could not be summoned to Parliament to explain if the Institute was not working, but the Director General and Minister could be called to explain. This was merely a way to ensure public accountability. It reflected again on the roles of the judiciary and the executive.

The Chairperson asked if there was any idea as to how the Institute would be set up, whether it would be a separate campus, and how many people would be trained.

Mr de Lange noted that a site had been identified close to the Constitutional Court. It was separate from any university. He would obtain and convey the information to the Committee.

The Chairperson summarised that before approving the Bill the Committee needed clarification on the roles of the Director and the Institute, the costing and the practical planning and infrastructure.

Mr Burgess noted that judicial officers all held legal qualifications already, coupled with practical expertise. It was important to know exactly what type of training was required, as it was linked to the process of quality. It should not be necessary to put up an expensive university, when training courses might only run for a week or two at a time.

The Chairperson asked if the Institute was intended only for experienced judges, or would be training potential judges too.

Mr de Lange said that the Institute would cover both. It would be building on foundations laid by Justice College for a number of years. It determined curricula and courses in advance. There would be programmes throughout the year. Justice College would remain, as there was a need in the broader civil service for its training, which was very course-specific. Justice College would, for instance, be running a course for magistrates on the new sentencing legislation.

Mr Burgess noted that prosecutors were also trained at Justice College, and it had had a different focus. Z

The Committee proceeded to go through the Bill, clause by clause.

Long Title
Mr de Lange noted that there was nothing specific he wished to raise.

The Chairperson asked whether the reference to "control of the affairs" was correct.

Mr de Lange said this word was used in the sense of management.

It was agreed to substitute the word "control" with "management".

Preamble
The Chairperson firstly indicated that he was opposed to the archaic use of “Whereas”. He asked, in relation to the first paragraph of the preamble, whether value and benefits of education were indeed commonly accepted. If so, then he asked what the point was of including this statement.

Mr de Lange noted that the preamble must be looked at in the broader context. It was not part of the law, but preambles had been considered, in various cases since 1994, to assist the Courts in determining the intention of the legislature. Originally there had been resistance to making provision for formal education. The preamble therefore was probably intended to set out some of the history. Whether it was useful was not for him to decide.

Adv Johan Bruwer, Deputy Chief State Law Advisor: Department of Justice, said that this was intended to be a general explanation of the whole process leading to the drafting of the Bill.

The Chairperson said that this explanation had not actually answered the question as to what value was added by this paragraph.

Mr Jeffery agreed, stating that he had raised the issue of preambles before. "Whereas" was not a word in common use any more. Clause 2 set out the objectives of the Bill, and much of what was listed under the preamble paragraphs was quite trite. It was useful for a Bill to be explained, but this was included in the memorandum, although of course this fell away once the Bill was passed. The key question was not simply to scrap the preamble, but to ensure that each paragraph added value. Many stated the obvious

The Chairperson noted that some drafters were now using the word "since" in place of “whereas”. He suggested that he should discuss the matter with the drafters, and agree which clauses should be dropped or condensed. He noted that this version of the Bill had been drafted in conjunction with the judges, and it was necessary to be sensitive to that.

Mr de Lange noted that this Committee had previously insisted that “whereas” be maintained.

The Chairperson suggested that this should be discussed during the study group and a formal letter be written to the Department.

Mr de Lange added that the State Law Advisors, in deciding whether to certify the Bill, would accept certain words as acceptable and consistent. He personally was not in favour of preambles, as the objects clause was much stronger, and formed part of the law.

Definitions
This would be considered later.

Clause 2: Objects of Act
Mr de Lange noted how the Act should be interpreted and applied. The transformation of the judiciary was mentioned, as also the promotion of the values of the Constitution, linked to the offering of judicial education and training. No comment had been received from the public on this clause.

Imam Solomon noted that there was a reference to "appropriate and transformational" judicial education. This highlighted the specialised nature of the training.

Mr Jeffery said that if the decision was made to delete the preamble or some of its paragraphs, then it might be necessary to revisit this clause.

Mr Burgess wondered why there was a reference to "experienced judicial officer". He wondered if there was a need to specify who was regarded as experienced. He wondered if it would not be sufficient simply to refer to "other judges".

Mr de Lange said that the wording was used to make it clear that even those who had been judges for a number of years could be required to attend training.

The Chairperson and other Members agreed that "other" could be open to interpretation, whereas "experienced" was more specific.

Mr de Lange said that the training was not intended only for "old guard" judges. Courses could be specified for training of Equality Court judges, or those to deal with administrative justice matters. This was a way of ensuring that certain judicial officers, with proven expertise, were appointed to the specialist courts. The draft Superior Courts Bill referred to “panels” of labour law judges, who should be qualified in that field.

Adv Johnson asked when a person could properly be described as "an aspiring judicial officer". This could apply to every candidate attorney.

Mr Jeffery noted that the specific courses were aimed at those who were interested in becoming judges. He suggested that perhaps there should be a definition.

Mr de Lange agreed that there could be a definition. He noted that in practice magistrates - and judges were given acting appointments before a final appointment. This training was probably intended for those with acting appointments. He would attend to drafting a definition.

Members agreed to adopt the clause.

Clause 3: Establishment of Institute
Mr de Lange noted that this was fairly straightforward.

Members agreed to adopt this clause.

Clause 4: Seat of Institute
Members agreed with this clause.

Clause 5: Functions
Members had no comments on clauses 5(1)(a) and (c to e)
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The Chairperson indicated that clause 5(1)(b) already contained elements of the definition of aspiring judicial officers.

Mr de Lange suggested that 5(1)(f) should move to subclause (2) as it was really a function of the Institute.

Mr Jeffery and the Chairperson asked what 5(1)(g) meant.

Mr de Lange agreed that this clause was not clear, and that noted that the “services” should be stated. He noted that if this sub-clause were to be deleted, then this might suggest that no services could be provided in terms of protocols. If it was to be retained, he suggested that the services should be clarified.

Mr Burgess noted that there was an Institute to train military intelligence officers, and that it had been training officers from neighbouring states, although it did not seem official power to do so.

The Chairperson said that this clause was included to assist neighbouring countries with training, and this was an important function.

Mr de Lange noted that this was more an empowering provision than a function. He suggested that it could possibly be re-worded to provide for assistance, rather than specific services.

The Chairperson thought that even if it was excluded, the services could be provided. He felt that it should probably be included, but worded more appropriately.

Mr Jeffery said that perhaps the concurrence of the Minister should be required. The Institute should clearly be primarily to train own judges, not to concentrate on foreign training.

Mr Burgess noted that in the intelligence sector, the Minister would enter into agreements with bodies and the Institute would give effect to those agreements.

Imam Solomons pointed out that already foreign judicial officers were being trained at the Justice College.

It was agreed that the drafters would reword Clause 5(1)(g), so that there was provision for consultation with the Minister.

Mr Jeffery thought that Clause 5(1)(h) was not necessary.

Ms Johnson agreed; educational institutes would always be publishing material.

Members agreed that 5(1)(h) could be removed, and noted that this would not prevent the Institute from putting out any publications.

Adv Bruwer noted that this wording had been agreed upon between the judges and the Department.

The Chairperson said that it was not changing the content. It was not disallowing the publication; merely removing an unnecessary clause.

Mr de Lange noted that Clause 5(2) set out matters in relation to the performance of the function of the Institute.

Mr Magwanishe agreed with the concept, but did not agree with the organogram being legislated in the Bill. The Director was named as head of administration in Clause 11. He did not believe it was necessary to make reference to other administrative staff.

The Chairperson agreed with his concerns. He added that the Operations Officer was to report to the Director General, whereas the line of reporting should surely be through the Director.

Mr Jeffery agreed that it should not be necessary to specify that the Operations Officer should prepare a management report, as this raised the possibility of conflict. He said that he agreed that the Director’s appointment be in the legislation, and suggested that the Bill should state something to the effect of “appointment of a Director and such other staff as may be necessary". It was up to the Council to determine staff employment. He added that the position of Operations Officer was currently fashionable, but this might not apply in a few years time.

Mr de Lange noted that there would not be any problem with merely naming the Director. However, there was a strong view expressed earlier that loose provisions such as "as may be required" should be avoided, as apparently there had been some problems in the past in determining who was responsible for what. Therefore a decision had been made that it was better to spell out who should account to the Director General (the accounting officer). Perhaps the Registrar warranted a mention as head of the Council.

The Committee agreed that the Operations Officer could prepare the report, but should report to the Director, and not to the Director General.

Mr de Lange noted that the Director was a member of the Council, and was effectively a CEO, who was a full time employee.

The Chairperson thought that it was appropriate for the reporting to the Director, provided that he or she filled an executive role.

It was agreed that the drafters would re-draft Clause 5(2) to incorporate these discussions, and would also include the provisions of clause 5(1)(f) under this sub-clause.

Clause 6: establishment of Council
The Committee approved this clause.

Clause 7: Composition of Council
Mr de Lange noted that the Council would consist of 21 members, 9 (or 10) of whom could be judges, and there would be three magistrates. He wondered if this was not a correct balance, and if this should not be corrected by re-shuffling the numbers under (g).

Mr Jeffery noted that judges were senior to magistrates, in the sense that in the court hierarchy they could overrule magistrates. This reflected the hierarchical structure. The judges mentioned were included in their capacity as heads of their profession.

Mr de Lange noted that Clause 7(1)(i) referred to "a retired judge". Because of recent confusion, he suggested that this person should rather be described as one who was or was not on active service, and include references to other legislation.

Mr Magwanishe noted that this was defined.

Mr Burgess agreed that the definition was not good enough; there was a distinction between judges in active service, and the two categories of discharged judges. He also wondered whether an "aspiring judge" should could be better defined.

Mr de Lange agreed that there could be an improvement to the definition. He noted that a retired judge would be in a good position to make a contribution and should not be on active service.

Mr de Lange noted that there was no reference to who appointed such a judge. Rhodes University had also raised a lacuna in connection with the appointment of university teachers of law.

Mr Jeffery noted that there was no note of who should appoint the other judges; perhaps the Minister or Chief Justice should appoint. The Chief Justice had no political accountability to the public, whereas the Minister did. He suggested that the Constitutional Court judges be appointed by the head of the Constitutional Court, the members of the public by the Minister, and retired judge perhaps by the chief Justice (although he did not feel strongly about it).

Mr Burgess asked for the thinking behind including an advocate and an attorney. He understood that the Judicial Service Commission had encompassed broader thinking.

Mr de Lange indicated that this was to get input from the practising professions, from which the acting appointments would be made.

The Chairperson noted again that this wording had been negotiated with the judges. He agreed with Mr Jeffery but suggested that perhaps magistrates should be asked for their input on the composition. He suggested that Members should forward suggestions on a redraft.

Mr de Lange noted that he had been approached by a magistrate, during the recent Magistrate's Conference, who indicated the unhappiness of the magistrates with the composition of the Council in the Bill. He noted that there were more magistrates than judges in the country. Raising the number of magistrates would not have any financial implications.

Imam Solomons noted that there was already tension between judges and magistrates. Education was probably more prevalent at the level of magistrates worldwide. He saw no reason to emphasis the hierarchy of judges over magistrates, although he agreed there was a hierarchy of courts, and indicated that in any event there was a move to a singe judiciary.

Mr de Lange then noted that (h) should be reworded, in regard to the reference to women, to note that "at least two" should be women.

It was agreed that Mr de Lange would re-draft Clause 7(1), to incorporate the suggestions made.

Under Clause 7(2), Mr de Lange stated that the Catholic Bishops Conference had suggested that the nominee should have the same powers. He said that there seemed to be confusion that this was an alternate member. The Committee did not agree with their view, and endorsed the current wording of this sub-clause.

Mr de Lange said that many other pieces of legislation dealt with Councils and their composition, and wondered if there should be provision in this clause as to a quorum.

Mr Jeffery thought that this was covered in Clause 8(2) and could remain under that clause.

Members agreed with Clause 7(3).

Mr Jeffery noted the comment of Rhodes University about appointment. He queried where this should appear.

Mr de Lange said that there was some confusion as to appointments, and he would do a re-draft.

Clause 8: Meetings of Council
The Chairperson noted that clause 8(4) referred to "cause minutes to be kept". He asked whether this should not simply be "keep minutes".

Mr de Lange agreed that "keep minutes" or "keep a record of the proceedings" would be acceptable.

Adv Johnson asked about subsistence and travelling.

The Chairperson indicated that this was covered in Clause 16.

The Members agreed with the clause, as amended in relation to the Minutes.

Other Committee Business
The Chairperson noted that there might be two short other Bills introduced into the programme.

A letter from the Open Society Foundation would be circulated to Members, for formal agreement on collaboration on the Department's budget.

The Chairperson note that there was a forthcoming report on the visit to Awaiting Trial Prisoners, and asked that a report be prepared.

The meeting was adjourned.