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6,4mm SOUTH AFRICAN JUDICIAL EDUCATION JOURNAL SOUTH AFRICAN JUDICIAL EDUCATION SOUTH AFRICAN JUDICIAL EDUCATION JOURNAL VOLUME 1, ISSUE 1, 2018 VOLUME 1, ISSUE 2018 SOUTH AFRICAN JUDICIAL EDUCATION JOURNAL VOLUME 1, ISSUE 1, 2018 SAJEI Vol 1_Issue 1 (8pp).indd 1 2018/04/11 12:36 PM This journal is published under the auspices of the South African Judicial Education Institute. Published: April 2018 ISSN: 2616-7999 © South African Judicial Education Institute Office of the Chief Justice, 188 14th Road, Noordwyk, Midrand, 1687 This book is copyright under the Berne Convention. In terms of the Copyright Act, No. 98 of 1978, no part of this book may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording or by any information storage and retrieval system, without permission in writing from the SAJEI. SAJEI Vol 1_Issue 1 (8pp).indd 2 2018/05/02 9:06 AM CONTENTS ARTICLES SAJEI: A vehicle for the speedy delivery of quality justice to all our people by Mogoeng Mogoeng................................................................................... 1 Judicial training and the role of judges in a constitutional democracy by Heinz Klug ................................................................................................. 11 Judicial education in a transformative context by DM Davis ................................ 25 To give and to gain: Judicial involvement in advocacy training by OL Rogers ..... 31 Judicial social context education in South Africa by N Dambuza ........................ 39 Judging according to personal attributes, outlook on life and life experience: Any practical value? by Mbuyiseli R Madlanga .............................................. 48 Political parties: The missing link in our Constitution? by Kate O’Regan ............. 61 The rule of law: The role of the judiciary and legal practitioners by Frank Kroon .............................................................................................. 81 A dead horse need not be flogged: The duty not to pursue unmeritorious causes by SM Mbenenge ............................................................................. 89 Do we need deference? by Malcom Wallis .......................................................... 97 SAJEI Vol 1_Issue 1 (8pp).indd 3 2018/04/11 12:36 PM SAJEI Vol 1_Issue 1 (8pp).indd 4 2018/04/11 12:36 PM 188 14th Road, Noordwyk, Midrand, 1687 Private Bag X10, Marshalltown, 2000 The South African Judicial Education Journal is published by the South African Judicial Education Institute (SAJEI), Office of the Chief Justice. The mandate of SAJEI is to provide judicial education to aspiring and serving Judicial officers in order to enhance judicial accountability and transformation of the Judiciary. The Journal is intended to consist of contributions, articles, case notes and book reviews. The views expressed by the authors or contributors do not reflect the views of SAJEI and Editorial Board. The Editorial Board invites unsolicited articles on topical issues relating to judicial education and the Judiciary. The Editorial Board reserves the right to edit articles and circulate for double blind peer review. Request for PDF electronic copy should be sent to [email protected]. Currently, the journal is not for sale. SAJEI Vol 1_Issue 1 (8pp).indd 5 2018/04/11 12:36 PM SAJEI Vol 1_Issue 1 (8pp).indd 6 2018/04/11 12:36 PM MANUSCRIPT SUBMISSION GUIDELINES The Editorial Board welcomes original manuscript submission written in English. The articles should be on topical issues relating to Judicial education and the Judiciary that are between 3000 and 5000 words in length including footnotes. The format of the article should be 1.5 spacing, font Arial 11, justify and in MS Word. All submissions should be made online to [email protected]. za. Articles must be original in content. Any idea or quotation from another source must be fully acknowledged. All articles will be checked for originality through the use of a software. Details of the author/s: title, name, institutional affiliation, email address, postal address and telephone number should be included. Prospective author/s are requested to read Notes for Author/s and Contributors found in http://www.judiciary.org.za/, open link to SAJEI. SAJEI Vol 1_Issue 1 (8pp).indd 7 2018/04/11 12:36 PM SAJEI Vol 1_Issue 1 (8pp).indd 8 2018/04/11 12:36 PM EDITORIAL BOARD Editor-in-chief Mbuyiseli R Madlanga, Justice of the Constitutional Court Managing editor Cagney Musi, Deputy Judge President, Free State Division of the High Court of South Africa Production editor Dr Azwinndini C Tshivhase, Director: Curriculum Development & E-Learning (South African Judicial Education Institute) Tanya Golden SC, Member of the Cape and Johannesburg Bars Mpopelele Bruce Langa, Regional Court President, Western Cape Tati Makgoka, Judge of the High Court of South Africa, Gauteng Letlhokwa George Mpedi, Professor of Law and Executive Dean, Faculty of Law, University of Johannesburg Mohammed Randera, Attorney of the High Court, Republic of South Africa Managay Reddi, Professor of Law and Dean of the Faculty of Law, University of KwaZulu-Natal Gerhard van Rooyen, Magistrate, Emlazi ADVISORY PANEL C ALBERTYN, Professor of Law, University of the Witwatersrand PE ANDREWS, Professor of Law, University of Cape Town E CAMERON, Justice of the Constitutional Court of South Africa A GOVINDJEE, Professor of Law, Nelson Mandela University R KRUGER, Professor of Law, Rhodes University A LANSINK, Professor of Law, University of Venda N LUBISI (Dr), Dean of Law, University of Fort Hare SM MBENENGE, Judge President, Eastern Cape Division of the High Court MB MOLEMELA, Judge President, Free State Division of the High Court CMA NICHOLSON, Professor of Law, University of the Free State N NTLAMA, Professor of Law, University of Fort Hare CME O’REGAN, Retired Justice of the Constitutional Court OL ROGERS, Judge of the High Court, Western Cape Division OS SIBANDA, Professor of Law, University of South Africa SAJEJ Vol 1_Issue 1.indb 1 2018/03/09 10:19 AM SAJEJ Vol 1_Issue 1.indb 2 2018/03/09 10:19 AM THE SOUTH AFRICAN JUDICIAL VOLUME 1 EDUCATION ISSUE 1 2018 JOURNAL SAJEI: A VEHICLE FOR THE SPEEDY DELIVERY OF QUALITY JUSTICE TO ALL OUR PEOPLE MOGOENG MOGOENG Chief Justice of the Republic of South Africa I INTRODUCTION The vision of the South African judiciary is the speedy delivery of quality justice to all our people, rich and poor. This assumes that the South African judiciary administers justice with the independence required of it by the Constitution. And that assumption extends to a comfortable grasp, by judicial officers, of constitutional and legal concepts and a commitment to uphold acceptable professional and ethical standards. A well-developed judgment-writing skill is also an essential for the efficient and effective functioning of this justice- dispensing machinery. Also crucial is a properly adapted case-management system bench-marked on those that are known to have enhanced court- performance immensely in the best performing jurisdictions around the world. Coming from an era where a substandard teaching of law to most of us was as institutionalised as the frustration of the effective development of some practitioners’ forensic skills, the imperatives of judicial transformation demand that education and training be offered to South African judges and magistrates much more than is the case in many western jurisdictions. And that explains why the establishment of the South African Judicial Education Institute (SAJEI) was an absolute necessity. 1 SAJEJ Vol 1_Issue 1.indb 1 2018/03/09 10:19 AM 2 (2018) 1 (1) SOUTH AFRICAN JUDICIAL EDUCATION JOURNAL II THE ESTABLISHMENT OF SAJEI When I became a High Court judge a little over twenty years ago, judicial education was offered through a somewhat loose arrangement. Judges did not have a judicial academy. The Canadian government provided funding that enabled our judiciary to provide training for aspirant, newly appointed and long-serving judges. In anticipation of the drying up of this fixed- term funding, negotiations commenced in earnest between the judiciary and the executive about the establishment of a statutory and state-funded training institute for judges and magistrates. It is that collaborative exercise that gave birth to the South African Judicial Education Institute. This was meant to also end the undesirable practice of magistrates being trained under the auspices of Justice College which was and is still run by the Department of Justice and Constitutional Development. The need for the judiciary to handle all its educational responsibilities became apparent to all arms of the state. This necessity is foreshadowed in s 180(a) of the Constitution, which provides: National legislation may provide for any matter concerning the administration of justice that is not dealt with in the Constitution including— (a) Training programmes for judicial officers. And the Act envisaged in this section is the South African Judicial Education Institute Act1 (the Act). III THE PURPOSE Both the Act’s long title and preamble capture the essence of what is sought to be achieved through the establishment of the Institute. They do so crisply, admirably and almost completely. The long title records the purpose as being: 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
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