South African Judicial Education Institute Bill: deliberations

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
30 October 2007
SOUTH AFRICAN JUDICIAL EDUCATION INSTITUTE BILL: DELIBERATIONS

Chairperson: Mr Y Carrim (ANC)

Documents handed out:
SA Judicial Education Institute Bill version of 30 October 2007
South African Judicial Education Institute Bill [B 4-2007] as introduced 26 February 2007

Audio recording of meeting

SUMMARY
The Committee continued to deliberate the new version of the South African Judicial Education Institute Bill. The Long Title was to replace “administration and control” with “management”. It was agreed that, given the history of this Bill, the preamble would be retained, as it did contain some useful concepts. However, “Whereas” would be replaced with “since” and the wording of the paragraphs would be agreed between the Chairperson and the drafters. The new definition of “judicial officer” would be removed, as the ordinary dictionary meaning would apply.

There would be a technical amendment to clarify that judges did not apply for their posts. Dr Delport’s objection, in Clause 2, to inclusion of the words “transformation of the judiciary” would be noted in the Committee Report. Clauses 3 and 4 were approved. Clause 5 was approved, subject to correction of the typographical error in 5(e). Clause 6 was approved. Clause 7(1) would be reworded so that the reference to the Chief Justice and Deputy Chief Justice as, respectively, Chairperson and Deputy Chairperson, were in the same line, and the members listed thereafter. Members discussed the judicial and magisterial representation and agreed to leave the wording as in the draft. The drafters would look at the wording in relation to members of the public again. Clauses 7(2) to (5) were approved. Clause 8 was approved, subject to the grammatical correctness of 8(2) being confirmed. Clauses 9 (1) and (2) were approved, subject to the language advisor’s comment on oversight. Clause 9(3) would be divided into two sentences. Clause 9(4) would be re-worded so that it was less prescriptive. Clause 10 was approved. It was clarified why the National Prosecuting Authority was not included in those to be consulted under this Bill. Clause 11 was approved. Clauses 12(1) to (3) were approved. Some preliminary observations were made as to whether a judge could be appointed to the position of Director, but discussions would resume on this point the next day.

MINUTES
South African Judicial Education Institute Bill (the Bill): Deliberations
Mr Johan de Lange, Principal State Law Advisor, Department of Justice, noted that there was a new version of the Bill.

The Chairperson asked that in future any new versions must be sent to Members by the Friday preceding the Tuesday meeting, and that any changes made after Friday simply be contained and tabled on one amending sheet.

He also suggested that any new amendments inserted by the drafters as suggestions to the Committee should be highlighted in italics.

The Chairperson further noted that he thought it was not ideal for different members of the Office of the State Law Adviser to attend meetings on Bills, as this hindered consistency.

Long Title
Mr de Lange agreed with the Chairperson that "administration and control" should have been changed to "management". This meant that the objects should also be amended.

Preamble
Mr J Jeffery (ANC) repeated his concerns that "whereas" should not be used. He felt that “since” was a word in common usage and was far clearer. Furthermore, he was not sure that the paragraphs in the preamble were saying anything of value that was not already contained in the main body of the Bill.

Dr T Delport (DA) said that a preamble could be useful to put the Bill in context, but in this particular case he did not see the need for it. He agreed that the paragraphs were not adding anything, and that there was probably no need for them.

The Chairperson commented that there could not be a hard and fast rule and that the nature of the Bill would determine whether there was a need for a preamble. This Bill had resulted from protracted negotiations between the judiciary and the Department. There were many issues being raised and debated, and for political and tactical reasons he suggested that the preamble not be dropped altogether. Some of the matters raised in the Preamble around the intentions were not in fact reflected directly in clauses of the Bill.

The Chairperson noted the reference to the Constitution, and wondered in passing why the word "may" was used. This paragraph he considered to be useful. He also thought the paragraph dealing with constant change in the law, thus necessitating ongoing education, was also useful. He liked the references to globalisation, which were not reflected elsewhere in the Bill. The transformation of the judiciary was a broad issue deserving mention. He thought that the Preamble should encompass at least these four points. He suggested that the broader issue of preambles be discussed at a later stage by the Committee.

Dr Delport wanted to stress that the Preamble had no legal effect, other than to permit a court to understand what was the objective and broad intention of Parliament, if this was not clear from the Bill itself.

In principle the Committee agreed that the preamble would remain, and the Chairperson and Mr de Lange would discuss and settle the wording.

Clause 1: Definitions
The Chairperson reminded the Committee that it had accepted definitions (i) to (vi).

Mr de Lange indicated that the reference to "judicial officer" had been inserted, because there was not originally a definition. Section 174(1) of the Constitution referred to "other judicial officer", but magistrate was nowhere defined in terms in the Constitution. He had used similar wording.

Mr G Magwanishe asked why "aspiring judicial officer" was defined within the definition of “judicial officer”.

Mr Jeffery was not sure that the reference to the Constitution was correct. Section 174 dealt with appointments. He understood the problem, but did not think that the definition was clear enough.

Dr Delport thought that the reference should merely be to Section 174. Section 174(7) contained the reference to "other judicial officers" but related to the appointments. These sub clauses were not entirely relevant.

Dr Delport further noted that the wording "who has applied for" was incorrect, as he said that judges were nominated and appointed, but did not apply for their posts.

Mr de Lange noted that Section 174 referred to "judicial officer". The Constitution set out the various judicial positions, specifying judges (such as the Judges President) and "other judicial officers". He said that judicial officer had probably not been initially defined because it was not to have any meaning other than the ordinary dictionary definition. This definition was inserted at the request of the Committee at a previous meeting.

On the question of the application, he said that magistrates must apply for appointment. Judges were indeed nominated, but they must surely accept the nomination before being interviewed; he was not sure whether this would amount to them having “applied”. Nothing much turned on it, and he would be happy to change the wording.

Mr Jeffery wondered if the Committee had been correct in wanting to define "aspiring judicial officer". The section relating to training should not be seen as granting any person the right to demand training. It was rather to be seen as empowering the Institute to train a wide range of existing and future judicial officers, and also to target specific groups. He also thought that perhaps there was no need for a definition of judicial officer. This current definition was not of assistance, as it required a cross reference to the Constitution, and the section quoted was not quite in point.

Mr de Lange agreed that it was not necessary. If there was any doubt, the dictionary meaning would apply.

It was agreed to delete the definition of “judicial officer”.

Mr de Lange noted that in definition (ix) the words "under Section 15" had been added for clarity

Clause 2
The Chairperson thought there was no problem with this clause.

Dr Delport did not like the reference to "transformation of the judiciary". This was a policy, not a judicial or constitutional term and he did know what it meant.

Adv C Johnson (ANC) pointed out that the Constitution in its entirety was a transformative constitution.

Mr de Lange said that the Schedule to the Constitution noted that the legislation should be “rationalised” with a view to establishing courts as envisaged in Chapter 8. There was no specific reference in the Constitution to “transformation”.

The Chairperson noted that the policy of the government encompassed transformation, it was in the public domain, and was about ensuring representivity of gender and demographics, and that all judges, whether long serving or newly appointed, must uphold the values of the constitution. Dr Delport’s concern could be noted in the Committee report, but was not supported by the majority of the Committee.

Clauses 3 and 4
These clauses were approved.

Clause 5
Clauses 5 (1)(a) to (c) were adopted.

Clause 5(1)(d) and (e) were queried by the Chairperson, who wondered if the correct wording was not “improve” rather than “promote”.

Mr de Lange noted that the word “promote” translated more accurately into Afrikaans, and it implied doing more than merely improving; it implied taking active steps.

Members agreed to leave the wording as it appeared in the draft.

The typographical error in 5(e) would be corrected.

Mr de Lange noted that 5(f) had been amended to curb misuse of the function of the Institute.

Mr de Lange noted that the reference to contracts and publications had been removed from this clause and inserted in the later clause dealing with the functions of the Institute.

Clause 6
This clause was approved.

Clause 7
The Chairperson noted that changes had been made; the composition of the Council in relation to number of magistrates and gender had been altered, and it was agreed that the Minister must act "in consultation with” the Chief Justice.

The Chairperson wondered why the reference to the Chief Justice as Chairperson and the Deputy Chief Justice as Deputy Chairperson were not included together in the first line of clause 7(1), with the ordinary members being listed under that.

Mr Magwanishe noted that the legislation setting out the constitution of the Courts was done in this way.

Mr de Lange agreed to redraft the clause.

The Chairperson, in respect of 7(1)(e), asked why "designated" had replaced "nominated"

Mr de Lange noted that this was to cover both processes nomination and appointment.

Mr C Burgess (ANC) asked why, under clause 7(1)(f) only two of the judges president were included. He indicated that there were five magistrates represented.

Mr de Lange noted that it was really a question of numbers. In answer to a question from the Chairperson, he said that he thought there were between fifteen and twenty Judges President, when taking into account the Labour Court, the Land Claims Court and other special courts.

The Chairperson reminded Mr Burgess that the number of magistrates had been increased as the result of their lobbying, as they were proportionately far greater in number than judges.

Mr de Lange added that if the number of judges was to be increased, then there would have to be a proportionate increase also in the number of magistrates, and this would result in a very unwieldy Council. If all judges president were included, then an argument could be advanced for inclusion of all heads of magistrates’ courts.

Mr Burgess indicated that there was a representative body entitled Heads of Court, and perhaps they should be consulted.

Mr de Lange replied that the judges president were the heads of the Court, and the Chief Justice would in any event have to consult with them.

Clause 7(f) was approved in its current form.

Mr de Lange noted that the wording of Clause (7)(1) (g) had again changed. The Committee agreed with the new wording.

The Chairperson indicated, in respect of clause (7)(1)(h), that the reason for the change in wording was that a judge discharged from active service would, in terms of the Judicial Service Commission legislation, be answerable to the Minister.

Ms Johnson wondered if it should be "in consultation" or "after consultation". It was agreed that "in consultation" would be used.

The Committee agreed with subclauses 7 (1)(h) to (l).

Mr de Lange indicated that sub clause 7 (1)(m) had originally been worded as “two other members of the public”, with no indication as to how they should be chosen or from which sectors they could be chosen. The current wording specified that no members of legislatures, municipal councils, or public servants, or those involved in the administration of justice could be appointed under this sub clause. He had considered whether the President should appoint these members, but had decided that this appointment was an administrative position and this was not necessary. “The public” was almost impossible to define. A public representative would generally be understood as being an elected representative, such as a member of parliament. The Minister was an elected representative of the people and would be the correct person to make the appointment.

Mr de Lange had asked Mr J B Skosana of the Department of Justice, who had been involved in the initial negotiations with the judiciary on this Bill, what was the intention, and in particular whether it was envisaged that the appointments would relate to particular areas of expertise. Mr de Lange had asked him whether it was envisaged that these people would be appointed because of particular areas of expertise. They were not watchdogs, but were there to make a contribution. Mr Skosana would check up on this and revert to him.

The Chairperson pointed out that the "public" as used in other legislation was generally understood as meaning someone who was not an office bearer. He wondered why therefore this was being specifically defined. He could not recall any occasions where there had been a problem with the Minister’s appointments. If it was intended that a person should be chosen for his business expertise then this should have been specified. He said that the "whys" of the Bill should have been explained during the initial briefings on the Bill.

Ms N Mahlawe (ANC) asked if retired public officials would be able to be appointed.

Mr de Lange was not sure that "public" would always exclude civil servants and retired MPs, who, as he pointed out, could still be a party official.

The Chairperson stressed the need for consistency. "Public" had been understood in a certain sense in other legislation.

Adv Joubert was not sure what the Department was trying to achieve. He asked why these nominees should be limited to those not involved in the administration of justice. This would imply that no lawyer could be appointed.

Mr Magwanishe, expressing agreement with Ms Mahlawe, said that the legal profession, in its broad sense, was already well represented and it was important to include the non-lawyer public. Clearly the Minister should not be allowed to appoint his or her staff. The appointees would need to come from the broader civil society. He wondered if the Committee might want to consider consultation with National Economic Development and Labour Council (NEDLAC) on appointments.

Mr Burgess asked if the wording "not involved in the administration of justice" would exclude an attorney, who had not been nominated by his Law Society, from being appointed by the Minister.

The Chairperson said that it would. All those working in the legal profession - whether in high powered posts or as paralegals, were already adequately catered for. Judges were accountable to the public and the public should have some say.

The Chairperson summarised the policy issues. He personally thought the word "public" was acceptable, but he was not going to pursue the point if the Committee felt otherwise. He would however like to point out that if this wording was used, the Committee could well be bound to this definition instead of the simpler “members of the public" in future legislation.

The Chairperson asked the drafters if there had been any case where the Minister had appointed a civil servant or member of the department instead of the public.

Mr Herman Smuts, Principal State Law Advisor, Department of Justice, said that he had never come across such a case.

The Committee agreed that the wording should be simplified.

Mr de Lange agreed to look again at the wording. The appointments were made by the Minister, after consultation with the Chief Justice.

Mr de Lange pointed out that the wording of subclause 7(2) was the result of the method of designation.

Clauses 7(2) and 7(3) were approved.

Mr de Lange said Clause 7(4) had been amended to include the words "of the Council" for clarity.

Clauses 7(4) and (5) were approved.

Clause 8
Clauses 8(1) to (3) were approved, subject to Mr Smuts checking with his language advisors whether sub-clause (2) was grammatically correct. Members had disagreed whether "the majority" would take the singular or plural form of the verb.

Mr de Lange pointed out that (4) had been changed to note that the Council must "keep" minutes of the proceedings.

Clauses 8(4) and (5) were approved.

Clause 9
The Chairperson wondered if 9(1)(b) should read "oversight of" or "oversight over". He requested Mr Smuts to check this also with the language advisers.

Clauses 9(1) (a) to (e) were accepted, subject to clarity on clause (b)

Clause 9(2) was accepted.

In respect of Clause 9(3), Mr de Lange and Mr Smuts agreed that it would be clearer if the sentence were to be split into two, with the second sentence starting "Provided that..."

Under Clause 9(4) the Chairperson queried whether the decisions of the subcommittees should be ratified by the Council, or by the Executive. He asked what the hierarchy was as he thought it was Council, then the Executive Committee, then sub committees.

Mr de Lange said that this was debated at the last meeting. There were other examples in legislation where a caveat had been inserted that any decisions could be set aside by the Council. It would defeat the purpose if the Council were to appoint committees to do the work, but then have to take the decisions itself. He suggested that the present wording was perhaps too strong.

Ms M Meruti (ANC) indicated that the Council appointed the committees.

Mr L Landers (ANC) asked what the executive committee was to do. He was worried that the Council might complain later that the Executive had taken powers upon itself, but it might be difficult to decide what it should have been doing if the Executive’s powers were not defined.

The Chairperson noted that the Committee had agreed that the Bill should not be prescriptive in this regard.

Mr de Lange agreed that he and Mr Smuts would look at the wording, as it was perhaps a little too strong.

Clause 10
The Chairperson still felt that "may" was not correct in sub-clause (1) as he thought it was nonsensical to set out the objects, but leave it up to the Council Member to decide whether he wished to achieve those objects. He would not pursue the point, but would leave it to history to prove him correct.

Ms Meruti agreed.

Mr Burgess indicated that under the rules and conventions of interpretation "may" was sometimes used where it actually meant "must". While in principle he agreed that perhaps the Committee should try to move away from conventions, to make the legislation more understandable, he reluctantly must accept that the word “may” was used correctly in this instance.

Mr Jeffery noted that the powers and functions of municipalities were worded as "may".

The Chairperson said that was a good example of where "may" was correct, because this sought not to be too prescriptive. That had hamstrung the Committee on Provincial and Local Government.

Dr Delport indicated that if "must" were to be used, then the Council could not be forced to "achieve" objects, and he suggested that if the word was changed, then the word "pursue" should be used instead.

The Committee agreed to clause 10(2).

Mr de Lange pointed out that that the reference to publication had been removed.

Imam G Solomon (ANC) wondered why the clause had included a reference to consultation with the listed bodies, as they were all already represented on the Council.

The Chairperson noted that this was really an institutional relationships that was complementary, covered the possibility where there was not a report-back, and had examples in a number of other pieces of legislation.

The Chairperson noted that the Memorandum had included a reference to the National Prosecuting Authority (NPA). However, they did not appear in the section dealing with composition of the council, and asked why not.

Mr de Lange explained that the reference in the Memorandum was a remnant of the original legislation. The drafters accepted the policy issue that the NPA would be consulted. However, when the old Bill dealing with both Justice College and the Judicial Education Institute was split into two separate Bills, the NPA was included under the Justice College portions.

Clause 11
Mr de Lange indicated that this was a new clause, and contained the functions of the Council that had originally been placed under the old Clause 5.

The Chairperson said it was much neater. He asked why (d) was necessary.

Mr de Lange thought that it was probably not necessary. It had been moved out of another clause, but there was no harm in including it.

Members agreed to the Clause

Clause 12
The Chairperson noted that Clauses 12(1), (2) and (3) had been accepted by Members.

Under Clause 12 (4) Mr de Lange referred Members to the comment on the formulation of the wording around the Director.

The Chairperson noted that this would be discussed in more detail the next day. The problem with the original formulation was it had not excluded serving judicial officers from being appointed as the Director. If the Director did not perform properly, even if there was no misappropriation of funding, he or she could be called to appear before a parliamentary committee for non-performance, and this would reflect badly on the dignity of a judicial officer.

Mr Magwanishe indicated that credibility was the main point, but in addition he wondered if a judge should be permitted in principle to take leave from serving as a judge, to take on a directorship, and then return to his serving position.

Dr Delport noted that judges were already in their 70s when they were discharged, and he thought they were too old to take on the Director’s functions.

Mr Jeffery thought the Committee had already agreed on the principle that a serving judge or magistrate should not be appointed. He asked whether there was a need to provide that a judge or magistrate could accept an appointment for a fixed term, whereafter he or she would return to active service.

The Chairperson said that this was not the view of the majority of the Committee. He pointed out that there was a difference between appointment to the Council, and appointment as an executive officer.

Mr Magwanishe noted that whatever was in this Bill must be consistent with the Judicial Service Commission Amendment Bill, which specified that a serving judge should not be accepting any other office.

The matter would be discussed again on the following day.

The meeting was adjourned.