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JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
31 October 2007
SOUTH AFRICAN JUDICIAL EDUCATION INSTITUTE BILL; OUTSTANDING BILLS
Chairperson: Mr Y Carrim (ANC)
Document handed out:
Judicial Education Institute Bill: Substitution of page 1 of version of 30 October
Judicial Education Institute Bill: Version of 30 October
Audio recording of meeting
The Committee continued with its deliberations on the Bill, starting at Clause 12(4). The majority of the Committee agreed that a serving magistrate or judge should not be permitted to be a Director of the Institute. The Committee would include all arguments put forward in its Report and the drafters would discuss the issue with the judges. The principles would be finalised during the voting. The drafters were also asked to include a reference to the preparation of a quarterly report, which had originally appeared under Clause 5, under the functions of the Director, in clause 12. Clause 13 was approved, save that the reference to the financial years in 13(6) would be clarified by the Chairperson, and 13(7)(a) would be altered from “on” to “in a call investment account”. Clause 14 would be redrafted to reflect clearly that the Minister of Justice should consult with the Minister of Finance. Clauses 15, 16, 19 and 20 were adopted. The references in Clause 17 would be altered, but the clause was otherwise approved. The drafters would check whether there was a need to redraft Clause 18 to reflect the Heraldry Act. The Committee then reconsidered clauses that had been discussed the previous day. The preamble had been redrafted, and was approved. Clause 8(2) was to be reworded to reflect the wording “A majority of the members of the Council...constitutes a quorum..” Clause 9(1)(b) would be changed to “oversight of judicial education”. It was noted that the Judicial Service Commission Amendment Bill and this Bill would be finalised, with Ms Chohan as Chairperson, on 9 November.
A progress report was given on the legislation presently under discussion by the NCOP Select Committee. The NCOP changes to the Criminal Law (Sexual Offences and Related Matters) Amendment Bill and the Regulation of Interception and Monitoring of Communications (RICA) Amendment Bill would be approved by the NCOP Chamber on 15 November. It was agreed that Ms Chohan would act as Chairperson when these Bills reverted with their amendments to this Committee.
The Committee discussed the best way to proceed with the Child Justice Bill that had been introduced some years back. The Chairperson and Mr Magwanishe would report back on their discussions on this Bill with the Minister. The Committee discussed the programme for the forthcoming visit to the Cape Town Magistrate’s Court. It would need to hold a joint meeting with the Portfolio Committee on Safety and Security to discuss issues around case management and the linkages between the law enforcement agencies arising from the Department of Justice’s Annual Report. The Chairperson would also be discussing the appearance of the Department before the Standing Committee on Public Accounts with that Committee’s Chairperson.
South African Judicial Education Institute Bill (the Bill): Continuation of deliberations
The Chairperson indicated that the amendments made by the Committee should be referred to the judges for their comment.
The Chairperson noted that a view had been raised the previous day that a serving magistrate or judge should not be permitted to be a Director of the Institute.
Mr L Joubert (DA) said that the system of "judges for life" and retention of salaries for life could be problematic.
Mr Johan de Lange, Principal State Law Advisor, Department of Justice, said that if a judge in active service was appointed as a director, he would receive a double salary. That would be the case, even without Clause 12(4), The Canadian example that was used as a model for this drafting indicated that in Canada the CEO was a judge, but the Canadian dispensation for judges was different from the South African. The drafters felt that if a judge wanted to be a director, he would have to resign.
The Chairperson asked if this was the view of the judges.
Mr de Lange noted that the judges in fact had wanted it both ways, and the original wording provided for the option for the Director to be a judge or magistrate, either serving or retired. The drafters from the Department had narrowed this down to only a "retired" (discharged) judge. No serving judge or magistrate would be allowed to serve.
Mr G Magwanishe (ANC) thought that this was still not correct. He pointed out that the position of Director would require administrative and managerial skills. He agreed with Dr Delport that it would be ridiculous to appoint a person over 70 years of age, which was the age at which judges were “discharged” from active service. Even then, a discharged judge was still a judge. The issue was about protecting the Institute and the status of judges. He pointed out that the Director of the Institute would be an employee.
The Chairperson asked whether the international Institutes did allow for serving judicial officers to take the post.
Mr de Lange indicated that he would have to look into that issue.
Mr Magwanishe felt that the Judicial Service Commission Bill was closely linked to this, and the prohibition of extra remuneration was contained in that Bill.
Mr de Lange agreed, but said that under the present legislation, judges were allowed to accept appointment on to bodies such as a commission of enquiry.
Mr Magwanishe pointed out there was a difference between the functions. Commissions of enquiry involved administrative functions; the executive appointment involved far more.
Dr T Delport (DA) suggested that perhaps if it was intended that a serving judge should sit, then it should be specified that he be "seconded", and this would cut out the double salary. However, he still thought that it was inconsistent for a judge to be appointed as far better skills in this field could be found in other people.
The Committee agreed to spell out, in its Report, the arguments advanced, and Mr de Lange would discuss the issue with the judges. If necessary, he would also speak to them. The matter would be considered again during the voting.
Clauses 13(1) to (4) were approved by the Committee.
In respect of clause 13(5), the Chairperson asked what was the intention.
Imam G Solomon (ANC) made the point that the reference to donations should also include a reference to "gift".
Mr de Lange pointed out that there was a later draft, in which he had made the changes suggested previously.
In respect of the dates in clause 13(6), the Chairperson indicated that there was no need to include the words "the next following year". He suggested that the reference to the first financial year should merely be reflected as "ends on 31 March". This would cover the possibility that the first financial year could only run from January to March. He thought that the Public Finance Management Act (PFMA) would specify this. He would clarify the issue with Mr Nene, Chairperson of the Portfolio Committee on Finance, and then discuss the wording with Mr de Lange.
Clauses 13(8) and (9) were accepted by the Committee.
The Chairperson indicated that a question had been raised as to who should consult with the Minister of Finance.
Mr de Lange indicated that a comma should appear after "the Minister", but conceded that it was still not clear whether the Minister of Justice or the Council should consult with the Minister of Finance.
The Chairperson noted that the Minister of Justice should be consulting with the Minister of Finance. He asked Mr de Lange to attend to a re-draft of this sentence.
This clause was adopted.
Imam G Solomon (ANC)noted that the Annual Report must come six months after the end of the financial year.
The Chairperson noted that this was acceptable and would follow the dictates of the PFMA.
This clause was adopted.
The Chairperson indicated that the reference to section 7(1)(m) must be altered.
The Chairperson noted that the Department had inserted the word "reasonable" before expenses, to narrow the issue.
Mr S Swart (ACDP) wondered how the Heraldry Act would apply to the seal of the Institute.
Mr de Lange noted that similar instances appeared elsewhere.
Mr Herman Smuts, Principal State Law Advisor, Department of Justice, indicated that the drafters would check on this and do a redraft incorporating references to the Heraldry Act if necessary.
Clauses 19 and 20
Clauses 19 and 20 were approved.
The Chairperson noted that on the previous day it was agreed that "Whereas" would be changed to "Since" and he suggested that this should become the norm with Bills that this Committee would consider.
The paragraphs had been truncated, so that only six concepts now appeared. He thought that the drafting was good, and embraced the concepts of the need for training in a quest for enhanced service delivery, the globalisation, changes to the law, judicial independence, and the principle that training of judges should be controlled by the judiciary. He wondered if there should be reference to Section 180 of the Constitution.
Mr Joubert wondered if the reference to "may" in the final paragraph of the Preamble should be "must".
Mr de Lange stated that nothing would turn on it from a legal point of view.
Mr Smuts said that Members had differed in their opinions as to whether "the majority” was singular or plural, and would therefore need to be followed by “constitute” or “constitutes". The language advisers would prefer the words "A majority of the members of the Council...constitutes a quorum… ". He also suggested that the words "at any meeting of the Council" should also be added.
The Chairperson pointed out that the subheading already referred to "meetings of the Council". He did not think that this addition was necessary.
It was agreed to use the words "A majority....constitutes".
Mr Smuts suggested that "oversight of judicial education" was the correct grammatical wording.
The Chairperson noted that there had been discussion at a previous meeting of the staffing hierarchy, and the references to a Chief Operational Officer had been taken out. The original wording had included reference to a quarterly report being prepared by the Chief Operational Officer, but this had also been removed. He felt that reference to a quarterly report being prepared must be included in Clause 12, under the functions of the Director.
Clause 13 (7)(a)
Ms Christine Silkstone, Committee Researcher, noted that the wording of this clause should reflect “in” (not “on”) a call investment account.
Process for finalisation of the Bill
The Chair noted that the Judicial Service Commission Amendment Bill would be finalised, with Ms F Chohan in the Chair, on the following Friday. It would be useful if this Bill could be dealt with also on that date.
Mr de Lange indicated that Ms Chohan had the final draft of the Judicial Service Commission Amendment Bill. He could get the final draft of this Bill prepared by then.
Bills in the NCOP
The Chairperson indicated that there had been some amendments made by the NCOP to the Criminal Law (Sexual Offences and Related matters) Amendment Bill, and to the Regulation of Interception and Monitoring of Communications (RICA) Amendment Bill. The voting on both was scheduled for next Wednesday. Until there had been a vote in the NCOP, this Committee could not proceed. He suggested that Ms Chohan should also deal with those matters, as she had done so much work on both.
The Chairperson noted that the Judicial Officers Amendment Bill, the Child Justice Bill and the Superior Courts Bill had still not come to this Committee for deliberations. He had addressed a letter to the National Assembly House Chairperson, Mr Doidge on the issue, and this would be discussed by the Committee next week. He however wished to suggest that the Committee should give consideration at those discussions to writing to the Minister asking her to withdraw the Bills, and then re-introduce them early in the new year. The Child Justice Bill was particularly important and should be prioritised in the new year.
Mr Swart was worried that this might result in the Bills not being processed at all. He pointed out that he had spoken on the Child Justice Bill at a conference in Vienna in 2001, when he expressed his pleasure that it was at last introducing certain concepts of justice. The expedition of the Bill had been raised in the Budget Speech, when the Committee was assured that only the issue of costing remained. He was worried about the perceptions that would result from withdrawing the Bills. He would prefer the Committee to urge the Minister to reprioritise the Bill, in the light of its importance.
The Chairperson indicated that he and Mr Magwanishe would be meeting the Minister that evening. They would report back. He suggested that whatever proposal be finalised, it should ensure that the Child Justice Bill would reach this Committee in January at the latest.
Mr Magwanishe thought that the Judicial Officers Bill was broken down into two Bills.
Mr de Lange noted that the Judicial Service Commission Bill was in fact the third leg of the Judicial Officers Bill, and once that was passed, then the need for the Judicial Officers Bill would fall away, so it could be withdrawn.
The proposed programme for the visit to the Magistrate's Court was tabled. Mr Magwanishe suggested that the starting date should be 09:00 to fit in with the parliamentary transport.
SCOPA interrogation of Department of Justice
The Chairperson indicated that SCOPA was considering the report of the Department of Justice today. A letter was addressed on Friday, but he had only in fact become aware of it when Ms Johnson had apologised for not being able to attend this meeting. He would raise the issue with Mr Godi, Chairperson of the SCOPA Committee, and suggest that the notification for interrogation of a particular Committee’s own department be sent out further in advance, so that the meetings did not clash.
Annual Report of Department of Justice: media reports
The Chairperson said that the media had asked what this Committee was intending to do about the 70% of dockets that were not followed through to finality. He indicated that it was not the task of this Committee alone. He suggested that this Committee sit jointly with the Portfolio Committee on Safety and Security, perhaps also inviting the National Prosecuting Authority, and NGOs, with a view to reaching a reasonable indicator of what should be done. Perhaps quarterly meetings should also be held. He suggested that case management could be a central focus of this Committee.
Imam Solomon noted that the conviction rates were not the issue; but the process was important.
Mr S Swart (ACDP) believed it would be useful to meet with the SAPS, who had targets for arrests and opening of dockets. That put pressure on the prosecutors, and if arrests were not substantiated, then cases would be withdrawn. He agreed that the Committee needed to look at how the police were setting their targets. A number of the withdrawals were due to lack of evidence. An interesting booklet had been produced last year giving guidelines to the different departments, and it would be useful to see to what extent the guidelines had been effected, and how departments could be bound to comply. A prisoner not being brought to court on time would have an effect on everyone else.
The Chairperson said that with the cluster approach, the departments were supposed to be working together. He asked Mr Swart to try to get a copy of the booklet and give it to the Committee Secretary. Crime was a major issue, not only in South Africa but in the worldwide media. He felt that steps should be taken to meet also with the media.
The meeting was adjourned. The Committee would sit again on the following Tuesday.
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