I have been asked to comment on media reports of the colloquium held on 14-15 April to discuss draft Bills dealing with the structure and functioning of the superior courts, the establishment of a complaints system to deal with complaints against judges, the restructuring of Justice College, and related matters.
There is a need for the existing Supreme Court Act, which was adopted in 1959, to be brought into line with the Constitution. There is also a need for the establishment of a complaints system to deal with complaints against judges and for an institution to deal with the continuing education of judges as well as the education and training of aspirant judges. The judiciary supports the adoption of such measures and has in fact been pressing for some years now for this to be done. These matters were issues discussed with Minster Maduna during his term of office. A Bill making provision for a complaints system, which had the approval of the judiciary, was introduced into Parliament in September 2001. After full consultation with the judiciary, a Superior Courts Bill, was introduced into Parliament in the latter part of 2003. Because material changes were subsequently made to these Bills, the present Minister withdrew them from Parliament, and brought the amended Bills to the attentio of the Heads of Courts for their comments.
At a meeting with the Minister on 10 February 2005 the Heads of Courts raised concerns about certain of the provisions of the draft legislation dealing with Justice College and the complaints system. The amended Superior Courts Bill was then not yet available. The Minister undertook to make the amended Superior Courts Bill available as soon as it was ready, and said that she would convene a colloquium to be held in April 2005 to discuss the drafts. The amended Superior Courts Bill was in fact made available to the Heads of Courts less than a week before 3 April 2005 when they were scheduled to meet to discuss the colloquium and other matters.
After their meeting on 3 April, the Heads of Courts met the Minister on 4 April 2005. They had not then had time to consult with the judiciary on the amended Superior Courts Bill but it was clear that there were material provisions of that Bill that would be contentious. The Minster suggested then that discussions should be held with the judiciary on the entire package of the proposed legislation after the issues had been aired at the colloquium, and it was agreed that the colloquium scheduled for 14-16 April 2005 would go ahead.
The colloquium was in fact held on 14-15 April. It was attended not only by representatives of the judiciary and the department of justice, but also by representatives of Parliament, the legal profession, academics and others.
During the colloquium representatives of the judiciary made it clear that they supported, and regarded as urgent, the establishment of an institution for judicial education, and the passing of legislation to make provision for a formal complaints system and the rationalization of the Superior Courts. However, they, raised concerns about certain provisions of the draft legislation, including provisions that which they considered to be inconsistent with the separation of powers and the independence of the judiciary mandated by the Constitution. The Minister said that she would have regard to the concerns that had been raised, and it was agreed that further discussions would be held with the leadership of the judiciary in an attempt to resolve the differences that exist.
It had been agreed that the discussions at the colloquium would take place in closed session to enable the participants to speak freely. It would be inconsistent with that agreement to refer to the details of the discussions. The matter will, however, be taken further at discussions between the leadership of the judiciary and the Minister, and hopefully we will be able to resolve our differences during those discussions.
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