BRIEFING
NOTE: SOUTH AFRICAN JUDICIAL EDUCATION INSTITUTE BILL [B 4-2007]
1. The Bill emanates from the
recommendations of a committee set up some years ago by a previous Minister
under the auspices of the Canada-South Africa Linkage Project dealing with judicial
education. In short, the committee recommended as follows:
"We believe the best would be to convert the (Justice) College into an
independent statutory institution, publicly funded but controlled by a
prestigious council chaired by the Chief Justice or his nominee and with
members drawn from all the main interested bodies: the higher and lower
judiciary, the Judicial Service Commission, the Magistrates' Commission, the
Ministry, the advocates' and attorneys' professions, the Department, university
teachers of law and the National Prosecuting Authority."
2. The committee's above recommendation
was ultimately not followed at that stage, but instead, the SANJTAC Bill was
drafted which proposed that Justice College should remain in the Department.
3. Following deliberations at the
Colloquium in April 2005, an Advisory Committee on Judicial Education put the
matter on its agenda. On the Advisory Committee are represented judges,
magistrates, the Judicial Service Commission, the Magistrates' Commission, the
Justice Ministry, the Director-General: Justice and Constitutional Development,
the General Council of the Bar, the Association of Law Societies of South
Africa, the National Prosecuting Authority, magistrates' organisations (JOASA,
ARMSA and LCMC), the Justice College and the Society of Law Deans of South
Africa.
4. After several meetings of this Advisory
Committee, a draft Bill was decided upon and submitted to the Minister for
consideration. This draft Bill was subsequently refined during the consultation
process into the Bill currently before Parliament.
5. The Bill makes provision for the South African Judicial Education Institute
to be established as a juristic person with the mandate for the judicial
education and training of judicial officers and aspiring judicial officers.
6. The governance of the Institute will
vest in the Council of the Institute, which will consist of representatives of
all the interested parties and role players, as well as two persons from the
public not involved in the administration of justice. The objects of the
Institute will be to-
(a) provide proper, appropriate and transformational judicial education and
training, having due regard to both our inherited legacy and our new
constitutional dispensation; and
(b) to offer judicial education and training to aspiring and newly appointed
judicial officers as well as continued training for experienced judicial
officers.
7. The Bill contains the following:
(a) A long title: A short description of the purpose and contents of the Bill.
(b) A preamble: Setting out, inter alia, the value of, and need for, judicial
education and training.
(c) Clause 1 Contains definitions.
(d) Clause 2: Contains the objects of the Bill with special reference to the transformation
of the judiciary and judicial accountability, in order to promote the values
mentioned in section I of the Constitution.
(e) Clause 3: The establishment of the Institute.
(t) Clause 4: The seat of the Institute.
(g) Clause 5: The functions of the Institute. Extensive powers are conferred on
the Institute in order to empower it to realise the objects of the Bill.
(h) Clause 6: The establishment of the Council of the Institute.
(i) Clause 7: The composition of the Council of the Institute. All interested
parties are to be represented.
G) Clause 8: The meetings of the Council and proceedings thereat.
(k) Clause 9: Committees of the Council.
(I) Clause 10: The powers and duties of the Council. (m) Clause 11:
Administration of Institute.
(n) Clause 12: Appointment of Director.
(o) Clause 13: The finances and accountability. Expenditure in connection with
the administration and functioning of the Institute must be defrayed from monies
appropriated by Parliament for this purpose to the Departmental vote. Such
monies will constitute earmarked funds on the Departmental vote and may not be
used by the Department for any other purpose, without approval of the National
Treasury. Tile Institute may also receive donations and contributions from
other sources approved by the Council in accordance with National Treasury regulations.
The Director-General will, subject to the Public Finance Management Act, 1999,
be responsible for accounting for monies received or paid out on account of the
Institute, and must cause the necessary accounting and other related records to
be kept, which must be audited by the Auditor-General. The usual financial
statements must be prepared within six months of the end of each financial
year, which must likewise be audited.
(p) Clause 14: Remuneration of the staff of the Institute. The Council may,
with the concurrence of the Minister and after consultation with the Minister
of Finance, determine the remuneration, allowances, benefits, and other terms
and conditions of appointment of each member of staff.
(q) Clause 15: Annual report. Within six months of the end of each financial
year, the Council Must prepare and submit to the Minister an annual repc:1 in
the form prescribed by the Minister. The audited financial statements, the
auditor's report, a report of the activities undertaken and a statement of
progress achieved during the preceding year towards the realisation of the
objects of the Bill must accompany the report. The Minister must table in the
National Assembly each annual report received.
(r) Clause 16: Guidelines. The Chief Justice may issue guidelines, with the
concurrence of the Minister, in respect of any matter concerning the exercise
of any power and the performance of any function of the Institute.
(s) Clause 17: Remuneration of members of the Council. Members of the Council
may be reimbursed for their expenses incurred in their service as members, but
not remunerated. The two members of the public may be remunerated for their service.
(t) Clause 18: Seal of the Institute. The seal of the Institute must be
determined by the Council with the concurrence of the Minister. The President
must approve the seal and it must be published in the Gazette.
(u) Clause 19: Transitional provisions. The Institute must commence with its
training functions as from a date fixed by the Minister by notice in the
Gazette. Before the date so fixed, the necessary arrangements must be made for
the Institute to be accommodated, equipped and staffed in order to perform its
functions properly.
(v) Clause 20: Snort title and commencement.
8. The principle underlying the Bill is
sanctioned by section 180 of the Constitution, which provides that national
legislation may provide for any matter concerning the administration of justice
that is not dealt with in the Constitution, including "training programmes
for judicial officers".