6 November 2007
SOUTH AFRICAN JUDICIAL EDUCATION INSTITUTE BILL
(As introduced in the National Assembly (proposed as a section 75 Bill); explanatory summary of Bill published in Government Gazette No. 29625 of 9 February 2007) (The English text is the official text of the Bill)
(MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT)
To establish a South African Judicial Education Institute in order to promote the independence, impartiality, dignity, accessibility and effectiveness of the courts by providing judicial education for judicial officers; to provide for the administration and management of the affairs of that Institute and for the regulation of its activities; and to provide for matters connected therewith.
SINCE the need for education and training of judicial officers, whether aspirant, newly appointed or experienced, has long been recognised and that principle is practiced and entrenched in most judicial systems around the world;
AND SINCE there is a need for the education and training of judicial officers in a quest for enhanced service delivery and the rapid transformation of the judiciary;
AND SINCE the law has become much more complex and varied, develops rapidly and is increasingly influenced by the globalisation of legal systems, trade, technology, new insights and challenges;
AND SINCE education and training of judicial officers are necessary to uphold judicial independence, on the one hand, and to facilitate judicial accountability, on the other, and both are indispensable requirements of a judiciary in a functioning democracy;
AND SINCE it is desirable that the education and training of judicial officers should primarily be directed and controlled by the judiciary;
AND SINCE section 180(a) of the Constitution provides that national legislation may provide for training programmes for judicial officers,
BE IT THEREFORE ENACTED by the Parliament
1. In this Act, unless the context indicates otherwise—
(i) p"Constitution" means the Constitution of the
(ii) p"Council" means the Council of the Institute established by section 6;
(iii) p"Department" means the Department of Justice and Constitutional Development;
(iv) p"Director" means the Director appointed in terms of section 12(1);
(v) p"Director-General" means the head of the Department;
(vi) p"Institute" means the South African Judicial Education Institute established by section 3;
(vii) "Minister" means the Cabinet member responsible for the administration of justice;
(viii) "this Act" includes any guidelines issued under section 16.
pObjects of Act
2. The main objects of this Act are to establish a national education and training institution for the judiciary so as to enhance judicial accountability and the transformation of the judiciary and, in order to promote the implementation of the values mentioned in section 1 of the Constitution, and for that purpose 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) offer judicial education and training to aspiring and newly appointed judicial officers as well as continued training for experienced judicial officers.
pEstablishment of Institute
3. There is hereby established a body to be known as the South African Judicial Education Institute, which―
(a) is a juristic person; and
(b) is responsible for the judicial education and training of judicial officers and aspiring judicial officers.
pSeat of Institute
4. The seat of the Institute is at a place to be determined by the Council with the concurrence of the Minister: Provided that the Institute may, with the approval of the Minister, also conduct its activities away from its seat.
Functions of Institute
5. The functions of the Institute are―
p(a) to establish, develop, maintain and provide judicial education and professional training for judicial officers;
p(b) to provide entry level education and training for aspiring judicial officers to enhance their suitability for appointment to judicial office;
p(c) to conduct research into judicial education and professional training and to liaise with other judicial education and professional training institutions, persons and organisations in connection with the performance of its functions;
p(d) to promote, through education and training, the quality and efficiency of services provided in the administration of justice of the Republic;
p(e) to promote the independence, impartiality, dignity, accessibility and effectiveness of the courts; and
p (f) to render such assistance to foreign judicial institutions and courts as may be agreed upon by the Council.
pEstablishment of Council
6. There is hereby established a Council responsible for the governance of the Institute.
Composition of Council
7. (1) The Council comprises the Chief Justice,as chairperson, the Deputy Chief Justice as deputy chairperson and the following other members:
(a) pthe Minister or her or his nominee;
(b) a judge of the Constitutional Court, designated by the Chief Justice after consultation with the judges of the Constitutional Court;
(c) a person or a judge designated by the Judicial Service Commission from among its ranks;
(d) pthe President of the Supreme Court of Appeal;
(e) ptwo judges president and two other judges, at least one of whom must be a woman, designated by the Chief Justice after consultation with the judges president;
(f) pfive magistrates, designated by the Magistrates Commission, and of whom─
(i) at least two must be women; and
(ii) two must be Regional Court Magistrates;
(g) a judge who has been discharged from active service as contemplated in the Judges' Remuneration and Conditions of Employment Act, 2001 (Act No. 47 of 2001), designated by the Chief Justice in consultation with the Minister;
(h) pthe Director;
(i) pone advocate designated by the General Council of the Bar of South Africa;
(j) pone attorney designated by the Law Society of South Africa;
(k) ptwo university teachers of law designated by the South African Law Deans Association; and
(l) two other members who must be members of the public not involved in the administration of justice, designated by the Minister after consultation with the Chief Justice.
p(2) A member designated in terms of subsection (1)(b), (c), (e), (f), (g), (i), (j), (k) or (l) holds office as such a member for a period of five years but such a member may be replaced─
(i) in the case of a member designated in terms of subsection (1)(c), (f), (i), (j), (k) or (l) by the designating person or body on written notice to the Chief Justice; or
(ii) in the case of a member designated in terms of subsection (1)(b), (e) or (g), by the Chief Justice after consultation with the persons required to be consulted in respect of the designation in question.
p(3) Any member referred to in subsection (2) whose term of office has expired, may be designated again.
p(4) A vacancy in the membership of the Council will not affect the validity of the proceedings or the decisions of the Council.
p(5) Due consideration must be given in the composition of the Council to demographic and gender representivity.
Meetings of Council
8. p(1) Meetings of the Council must be held at the times and places determined by the Chief Justice, but at least every six months.
p(2) A majority of the members of the Council constitutes a quorum.
p(3) If the
Chief Justice is absent from a meeting, the Deputy
-Chief Justice must
act as chairperson, and if both are absent, the members must elect one of their
number to preside at that meeting.
p(4) The Council may regulate the proceedings at its meetings as it considers fit and must keep minutes of the proceedings.
p(5) (a) Every member of the Council has one vote.
(b) In the event of an equality of votes the person presiding will have both a deliberative and a casting vote.
Committees of Council
p(a) curriculum planning and development;
(b) oversight of judicial education;
p(c) budget and finance;
p(d) personnel management; and
p(e) general administration.
p(2) Council may further appoint―
(a) an executive committee from its ranks, which must be chaired by the Deputy Chief Justice;
(b) such further standing committee or other committee for a particular purpose as may become necessary;
(3) (a) The members of a standing or other committee may be members of Council or may be co-opted for that purpose by Council.
(b) The majority of the members of any such committee must be members of the Council.
(4) The Council─
(a) is not divested of any function entrusted to any of its committees by virtue of subsection (1) or (2); and
(b) may set aside or vary any decision taken by such committee, subject to any rights that may have accrued to a person as a result of the decision.
Powers and duties of Council
10. p(1) The Council may do all that is necessary or expedient to achieve the objects of this Act.
p(2) Without derogating from the generality of subsection (1), but subject to section 13, the Council—
(i) acquire and alienate movable and immovable property;
(ii) hire and let movable and immovable property;
(i) oversee the appointment of temporary and permanent professional staff;
(ii) engage in research into matters affecting the Institute and its functions and engage suitably qualified persons or institutions to conduct such research on its behalf.
(iii) establish and maintain contact with the Judicial Service Commission, the Magistrates Commission, Heads of Courts, the organised legal profession, academics and other individuals and entities with an interest in judicial education.
Administration of Institute
11. In order to perform its functions the Institute must, amongst other things─
(a) employ a Director to head the Institute;
(b) employ academic staff and procure the services of suitably qualified judicial educators;
(c) employ such administrative staff as may be necessary; and
(d) enter into contracts with service providers and accept liability for the expenses incurred as a result of such services being rendered.
Appointment of Director
12. p(1) The Council must appoint the Director for a determined term and on such conditions as the Council may determine.
p(2) The Council may re-appoint a Director at the end of the term.
p(3) The Director, as the head and chief executive officer of the Institute, is responsible for the general administration of the Institute, and must―
(a) manage and direct the activities of the Institute subject to the direction of the Council;
(b) appoint and supervise the administrative staff of the Institute; and
(c) provide quarterly management reports to the Director-General.
p(4) (a) The Minister must, with the concurrence of the Council and after consultation with the Minister of Finance, determine the Director’s remuneration, allowances, benefits, and other terms and conditions of employment.
(b) If the Director is a judge who has been discharged from active service as contemplated in the Judges' Remuneration and Conditions of Employment Act, 2001 (Act No. 47 of 2001), his or her service as Director constitutes service as contemplated in paragraph (c) of the definition of "service" contained in section 1 of that Act[D2] .
Finances and accountability
13. p(1) Expenditure in connection with the administration and functioning of the Institute must be defrayed from monies appropriated by Parliament for this purpose.
(2) Monies appropriated by Parliament for this purpose―
(a) constitute earmarked funds on the Departmental vote; and
(b) may not be used by the Department for any other purpose, unless the Council has been consulted and the National Treasury has approved.
p(3) The Institute may receive funds from donations, contributions or gifts and from other sources approved by Council in accordance with National Treasury regulations.
p(4) Subject to the Public Finance Management Act, 1999, the Director-General―
(a) is charged with the responsibility of accounting for monies received or paid out for or on account of the administration and functioning of the Institute and for donations, contributions or gifts in accordance with National Treasury regulations; and
(b) must cause the necessary accounting and other related records to be kept, which records must be audited by the Auditor-General.
p (5) The Institute must utilise the donations, contributions or gifts to advance the objects of the Institute as contained in this Act or any other law.
p(6) The financial year of the Institute is the period of 1 April in any year to 31 March in the following year, except that the first financial year of the Institute begins on the date on which this Act comes into operation, and ends on 31 March of the following year.
(7) The Institute may invest or deposit money that is not immediately required for contingencies or current expenditure―
(a) in a call account or short term fixed deposit with any registered bank or financial institution in the Republic; or
(b) in an investment account with the Corporation for Public Deposits established by section 2 of the Corporation for Public Deposits Act, 1984 (Act No. 46 of 1984).
p (8) Within six months after the end of each financial year, the Director must prepare financial statements in accordance with established accounting practice, principles and procedures, comprising―
(a) a statement, with suitable and sufficient particulars, reflecting the income and expenditure of the Institute during the preceding financial year; and
(b) a balance sheet showing the state of its assets, liabilities and financial position as at the end of that financial year.
p(9) The Auditor-General must audit the financial statements of the Institute each year.
Remuneration of staff of Institute
14. The Council may, with the concurrence of the
Minister, who must consult
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.
15. (1) The Council must prepare and submit to the Minister an annual report in the form prescribed by the Minister within six months after the end of the Institute’s financial year.
(2) The annual report referred to in subsection (1) must include the following documents:
(a) the audited financial statements prepared in terms of this Act;
(b) the auditor’s report prepared in terms of this Act;
(c) a report of the activities undertaken in terms of the Institute’s functions set out in this Act; and
(d) a statement of the progress achieved during the preceding year towards the realisation of the objects of this Act.
(3) The Minister must table in the National Assembly each annual report submitted in terms of this Act.
16. 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.
Reimbursement of members of Council
17. p(1) No member of the Council, other than the members referred to in section 7(1)(l) may be remunerated for her or his services on the Council.
p(2) Members may be reimbursed for their reasonable expenses incurred
in the course of
during their service as members of the
pSeal of Institute
18. (1) The seal of the Institute must be determined by Council with the concurrence of the Minister.
(2) The President must approve the seal of the Institute.
(3) The seal of the Institute must be published in the Gazette on approval by the President.
19. (1) The Institute must commence with its training functions as from a date fixed by the Minister by notice in the Gazette.
(2) 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.
pShort title and commencement
20. This Act is called the South African Judicial Education Institute Act, 2007, and comes into operation on a date fixed by the President by proclamation in the Gazette.
[D1]The Dept and the State Law Advisers are proposing this change.
[D2]The Committee was strongly of the view that the provision should be amended so as to leave no room for the appointment of a judicial officer as Director. The Committee has grave doubts as to the the compatability of a Chief Executive Officer of the Institute (Subsection (3)) with that of a judicial officer, with the potential of damaging the image of the judiciary.