SA Judicial Education Institute Bill: adoption; Judicial Service Commission Amd Bill: deliberations

Meeting report

South African Judicial Education Institute Bill ((the Bill)
The Chairperson indicated that there had been some discussion the previous day around clause 15(3).

Mr Johan de Lange, Principal State Law Advisor, DOJ, indicated that a formal draft wording had been sent through to the Committee Secretary. The change would be to omit "the National Assembly" and to substitute it with "Parliament". The practical effect would be that the Select Committee would also interrogate the report especially around budgets and the like.

Mr Z Ntuli (ANC, Kwazulu Natal) noted that on the previous day he had raised the question why the traditional leaders had not been consulted as one of the stakeholders. They were part of the adjudication team.

Mr de Lange noted that the proposed Bill on traditional courts was ready for certification by the State Law Advisors. The Department had engaged extensively with them, and a programme for training of traditional leaders would be implemented shortly. However, from a strictly legal point of view, the judicial officers contemplated in this Bill were those contemplated in Chapter 8 of the Constitution. Section 174(1) said "any appropriately qualified woman or man may be appointed as a judicial officer". The judicial authority and officers referred to in Chapter 8 related to the independent branch of government. The functions of traditional leaders did not extend to bringing them within the ambit of judicial officers, although they did have a quasi-judicial function. He added that the Bill contemplated that assistance would be given by the Department, such as procedural assistance, and a proper infrastructure.

The Chairperson asked for clarity on clause 15(1) and the submission of the Annual Report.

Mr de Lange noted that clause 13(8) referred to the same period, within the end of the financial year. The financial year end was contained in clause 13(6). Within six months after 31 March the report would have to be made. In practice the report would generally be submitted sooner.

The Chairperson asked why there was not a statement that the report should simply be submitted "annually".

Mr de Lange noted that this clause was trying to ensure that the report should be submitted timeously. There was no offence involved if there was non- compliance.

Mr J le Roux (Eastern Cape, DA) asked what was meant by "rapid transformation of the judiciary".

Mr de Lange said that if the legislation was not passed, there would be an evolutionary development of new adjudication skills. However, the legislation was anticipating that it would force more than a natural evolution, and an accelerated process of transformation. He could not really take it much further. He noted that there were limited legal implications introduced by a preamble. This was merely a broad indication of what the legislature had in mind and the preamble did not form part of the Bill.

Mr N Mack (ANC, Western Cape) asked for clarity on the reimbursement of Members of Council in clause 17. He asked what would be "reasonable expenses".

Mr de Lange noted that this was a frequently used expression, and there were precedents. However, it was intended that a member of the Council must only incur the normal expenses, not be extravagant. He or she would not, for instance, be permitted to stay in 5-star hotels, or expect always to fly first class.

Mr S Shiceka (ANC, Gauteng) noted that the Bill was quite straightforward. However, it did involve questions of constitutionality. Parliament must be involved. The traditional authorities' involvement was also pertinent. He felt that the composition of the Council needed to be looked at. Some people who were not practising were included. He felt that the House of Traditional Leaders should appoint a person to sit on this structure.

Mr Ntuli commented that the current practice seemed to continue the assumption that there was no justice until the introduction of Western cultures. He agreed that there should be traditional leaders involved, as they were well qualified to be part of the institution. He recommended an amendment to Clause 7.

Mr A Manyosi (ANC, Eastern Cape) noted that he had raised a question the previous day on  Clause 7(1)(l), dealing with representation of the public. It was stated that the attorneys and advocates were members of the public. He submitted that this was a matter for argument. An attorney was appointed by and remained a part of the High Court, which set him slightly apart from the general public. Attorneys could represent the public, but equally could represent the State or government. He did not believe that this clause was sufficient, and would like there to be greater public representation than the two members currently listed.

Mr de Lange noted that the Council already consisted of 21 members and was quite large. He did not feel that it was appropriate for him to comment further on this policy issue, as the Committee must decide who it wanted to serve on the Council. However, he wanted to raise his own subjective viewpoint. He had always wondered why members of the public should be included, and who those members of the public would account to. Clearly they did not give any feedback to a formal structure in the same sense as did the professionals. The framework of this Bill was the product of a task team under the Deputy Chief Justice. The Department had been on the task team but had not made any changes.

Mr Manyosi wondered if there should not then be a statement in relation to accountability. He would assume that the drafters thought the public was represented in one way or another, in the context of parliament. Perhaps the nomination of the two members of the public needed to be worked out, so that they were representative of public structures, in the same way as advocates would be nominated by the Bar. He did not think the drafter had in mind that any member of the public would be appointed at random.

Mr Herman Smuts, State Law Advisor, Office of the Chief State Law Advisor, suggested that if there were to be representatives of the House of Traditional Leaders, they could perhaps be named as additional members of Council. Alternatively, perhaps if the Council was to consider matters of training on traditional law, it must co-opt traditional leaders. The Committee would have to make the final policy decision.

Ms Ntombe Mnyikiso, State Law Advisor, Office of the Chief State Law Advisor, suggested that if there were concerns about increasing the size of the Council too much, then perhaps members of the National House of Traditional Leaders be the representatives take the place of the public representatives, as at least they did report back to a structure.

Ms Refilwe Mathabathe, Parliamentary Legal Advisor, noted that there was nothing to preclude this Committee from including more members in the Council. However, she would like to draw the attention of the Committee to the long title, which indicated that the Council was to provide judicial education to judicial officers. The question was what input the members of the public would bring to the actions of the Council. Traditional leaders could at least bring input on customary law.

Mr Mack indicated that sub paragraph (g) included a judge that had been discharged. He wondered why this should be included. That judge would also not be reporting to anyone. He asked whether such a discharged judge would have to apply for permission to take this appointment.

Mr Ntuli thought that sub paragraph (l), referring to two members of the public, opened the way for the unions to put people in.

Mr Shiceka thought that perhaps lay assessors might be useful members of the public. However, he would like to see there to be some criteria laid down. He was inclined to the view that the members of the public should be drawn from some constituency. He agreed that the House of Traditional Leaders was an important institution and could not be ignored. The traditional leaders would dispense justice and that relationship would be important for the development.

Mr Shiceka made a formal proposal that clause 7(1) be amended to state that one member should be designated by the National House of Traditional Leaders.

Dr F van Heerden (FF+, Free State) supported the inclusion of traditional leaders.

Mr Manyosi agreed that traditional leaders, in practising a law that was part of the legal system, should be included. In regard to the members of the public, he agreed that there were several structures - such as faith-based organisations, business organisations, labour organisations and the like. There should not be the perception that the members of the public would be simply plucked from the street.

Mr Shiceka commented that it would be useful still to include a discharged judge, as he pointed out that such judicial officers had a wealth of experience and could give useful input.

The Chairperson pointed out that these were decisions of policy. However the Committee must come up with the correct formulation.

Mr de Lange said that the composition of the Council was the Minister, judges, magistrates, attorneys, advocates, legal academics and two others. Those should be non-legal practitioners. Perhaps the wording referring to "who must be members of the public" should rather clarify that they " should not be in the legal fraternity". They would not outweigh the legal members in any event.

The Chairperson suggested wording of "two other members who are not involved in the administration of justice".

Mr Ntuli wondered if the two members should be from New Economic Development and Labour Council (NEDLAC).

The Chairperson pointed out that there were many other structures too and he thought this was a dangerous route to follow.

Mr de Lange added that NEDLAC was always problematic because it involved three parties - government, business and labour. Taking two members from there would be missing one of the arms.

Mr Shiceka agreed that NEDLAC should not be used, adding further that this was a structure that might well disappear in future. He suggested that the wording simply refer to selection of “two people”, thus omitting the words "who must be members of the public".

Mr Manyosi said he would not pursue his argument, but he did not necessarily agree.

Mr de Lange noted that the public ultimately also had their say through parliament. That was why the report was annually submitted to both houses. The public, through their elected Members, could call the whole Council to account, and that was truly the way in which the public would speak.

It was resolved that the legal drafters would re-formulate subparagraph 7(1)(l) to reflect the discussions.

The Chairperson commented that clause 20 should be amended to reflect this Act as one of 2008, not 2007.

Mr de Lange noted that if the Bill was passed it would automatically become an Act of 2008, but there would be no harm in effecting this change.

Mr Herman Smuts, State Law Advisor, noted that there was no formal amendment necessary in practice. If there were not other amendments to the Bill, then this date would simply be changed as part of the administrative process. If, however, there were to be other amendments effected, then he would agree that it would do no harm also to change the date. 
 
The Committee then proceeded to a clause by clause deliberation.

Clauses 1, 2, 3, 4, 5, and 6 were approved.

Clause 7 was approved, subject to two amendments. A new subclause (m) would be included, to provide that there should also be inclusion on the Council of one representative from the National House of Traditional Leaders. Subclause (l) would be redrafted without the words “members of the public”.

Clauses 8, 9, 10, 11, 12, 13, 14 and 15 were approved.

Clause 15 was approved, subject to the substitution of "National Assembly" in subclause 15(3) with "Parliament".

Clause 16, 17, 18, 19 were approved.

Clause 20 was approved, subject to substitution of the date of 2008 for the previously stated 2007.

The Report of the Committee was adopted, as amended.

Judicial Service Commission Amendment Bill (JSC Bill) Deliberations
The Chairperson noted that on the previous day there had been some discussions around the impeachment proceedings, and whether the disciplinary proceedings should be open to members of the public, as well as the principle whether the same procedures should apply to judges as to magistrates, in respect of disciplinary matters.

Mr Shiceka proposed that the Chairperson should interact further, particularly with the Portfolio Committee members. There were still different views among members. The decisions of this Committee should be endorsed by the Portfolio Committee, and he felt that it would be preferable to try to get consensus on Clause 11. He also wondered whether there was any urgency. Parliament would not be sitting again for the next six weeks, and he considered that this matter warranted proper consideration and could stand over until the next term.

Mr Shiceka noted that Dr Milo had made various submissions on the constitutionality of some of the provisions, and he considered that there were some good points raised. Most committees and proceedings were open to the public. He thought that there was no justification for the proceedings to be automatically closed. The proposed amendments should be further discussed, but he did support the principle. He would recommend further engagement and advice on the points Dr Milo had raised.

Mr le Roux supported Mr Shiceka. Other input had been given from senior jurists, who had warned the Committee that some provisions of the Bill were probably not constitutional. This must be sorted out.

Mr Ntuli also agreed. He added that the judges had also made certain statements that were not yet justified, including the concept of "judge for life". Their salaries on retirement should also be considered, and whether these did indeed represent remuneration for work done during their working days.

Mr Manyosi agreed that there were contentious issues in Clause 11, and this needed to be debated further. There were issues of constitutionality. He also agreed that the principles of openness, transparency and accountability permeated throughout he whole constitution and he would not lightly tamper with that. There would need to be an extensive debate on whether these were being affected by the Bill’s current wording.

Mr D Worth (Free State, DA) noted that there were a number of references to "the National Assembly" in Clause 12. He wondered if that should not be changed to "Parliament".

Mr Worth added that the dispute in regard to Clause 11, Mr Worth indicated that the real reason was really revolved around the fact that retired judges did not wish to have to seek written permission from the Minister to do other work. Certain compromise proposals had been made by the judges themselves. He wondered if there might not be another way around this. He agreed that there would have to be consultation with other parties. There was no likelihood of this Bill being passed in this quarter.

The Chairperson noted that the ANC supported the DA’s suggestion of the change to "Parliament" in clause 12.

Mr Mack said that he was above all concerned around constitutionality. He thought that Judge Friedman's proposed amendment should be examined in depth. He had been concerned with the question of written consent in 11(3). However, in protecting the integrity of the judiciary, he conceded that perhaps the consent would have to be written.

The Chairperson noted that there had been reference to Section 2 of the Constitution, read with Section 22 and 36. He noted the consensus by all Members that further consultation was warranted.

Mr Smuts said that he had only been consulted yesterday on this Bill. He suggested that he could prepare a document for the Committee to consider at its next meeting.

Ms Mathabathe indicated that the Parliamentary legal advisors had been asked to advise also on these important and contentious matters, and would have to go through the limitations clause to decide whether the provisions were a reasonable and justifiable limitation in terms of section 36. An opinion would be available only in the following week.

Mr Shiceka suggested that perhaps that should be communicated to the Chairperson, who could then use it as the basis for consultation with others.

The Chairperson asked his researcher also to conduct some further work on clauses 11, 17, 29 and 38.

Mr de Lange noted that he did not have the written input from Dr Milo, but he had the impression that most of the concerns revolved around clause 39. He noted that he had circulated a memorandum on the position in Canada.

The Chairperson said that concerns were definitely also raised around public information in clause 38.

The Chairperson ruled that the matter stand over for further discussion in the next term.

The meeting was adjourned.