Justice and Constitutional Development: Minister's Budget Speech


29 May 2008



29 MAY 2008

Honourable Members;
Distinguished Guests;
Comrades and Friends;
Ladies and Gentlemen;

Today I present to this house of Parliament, the budget of the Department of Justice and Constitutional Development. As I do so, I would like to assure South Africans that we remain committed to the ideals contained in our Constitution. Notwithstanding the challenges we are facing as a country in transition, we are committed to building a safe and secure country providing the basic needs of our people to best of our ability.

In these trying times, it is important to understand that the Constitution is an important contract amongst ourselves as South Africans. It entrenched ideals to which we all agreed. It is a product of consensus reached about the principles that unite us in our diversity. But for many in our country the principles entrenched in our Constitution can be traced back as ideals dearly held by the forebearers of our struggle for democracy and equality. It is said that the ANC’s founder, Pixley Ka Isaka Seme attempted to formulate a Bill of Rights as early as 1923. The Africans’ Claims in South Africa was a document adopted by the Annual Conference of the ANC on the 16th December 1943. The Legacy of Freedom, a book on the ANC’s human rights tradition, notes that Africans’ Claims in South Africa asserted human rights, including socio-economic rights, women’s rights, and other rights, in ways that were far ahead of international developments.”

It further states that the: “Africans’ Claims in South African grew out of the ANC’s tradition to advance human dignity, equality, and opportunity for all the people of South Africa.” It became one of important documents in shaping South Africa ANC policy towards social justice. In fact the Africans’ Claims, the Women’s Charter of 1954 and the Freedom Charter of 1955, as well as the Harare Declaration were important references for the drafting of the Constitutional Principles which informed the ANC’s position during the negotiations. We should therefore spare no effort in advancing the principles enshrined in our Constitution; of non-discrimination, human dignity and freedom. So too with the socio-economic rights contained in the constitution!

We must however, discuss what there rights entail. We must try and find a common understanding of what was intended by crafting the kind of Constitution that we have. The noble ideal of socio-economic rights in our Bill of Rights was really to define a context in which the state will be interventionist or what some today call a developmental state. These rights are to be provided to the extent that resources are available.

In the context of our constitutional dispensation, we need to define the role of the Executive, Parliament and the Judiciary. Through practical means we must find a way of developing the principle of cooperative governance among the three organs of government. Traditionally, the role of the Executive is to make policy, Parliament makes laws and the role of the Judiciary is to interprete the law. In our case, the Judiciary, because of the entrenched socio-economic rights in our Constitution, has had to pronounce on matters of policy. Whilst government has always respected the decisions of the courts, there have been concerns about the application of the principle of separation of powers in South Africa. I am confident, however, that in time we will find the balance. The decision to have socio-economic rights and thus enable the state to intervene for the good of society is a correct approach.  It provides a framework for social transformation which is an imperative in order to address the systemic institutional distortions borne of apartheid.

The recent acts of violence and inhumane and degrading treatment against foreign nationals seeking refuge in our country are a painful reminder of our ugly past and the tragic realities that still exist in South Africa today. I believe that racism, tribalism, ethnic chauvinism and religious intolerance are prejudices that exist in many countries. Effort must be made all the time to root out prejudice and promote human solidarity, non-discrimination and equality. Prejudice and intolerance are as old as mankind, hence the community of nations has over decades been seized with the task of addressing these intolerances. There is a plethora of human rights instruments which are pertinent to the promotion of equality and justice. South Africa has acceded to these instruments. (Among these instruments are: the Human Rights Declaration, Convention of the Rights of the Child and CEDAW). It was not surprising that racial intolerance was discussed as recent as 2001 during the World Conference Against Racism held in Durban. The Durban Declaration and Programme of Action enjoins us all to, amongst others, combat the scourge of racism, racial discrimination, xenophobia and related intolerance fully and effectively as a matter of priority, while drawing lessons from manifestations and past experiences of racism in all parts of the world with a view to avoiding their recurrence. The ANC since its founding has preached non-discrimination.
Regarding the xenophobic attacks, we do not know the root cause of the problem at this stage, despite different suggestions that have been reported. Where there has been a contravention of the law, however, the Department, the NPA and SAPS have the responsibility of apprehending the wrong doers. Of the seven provinces where incidences of xenophobia were reported, Gauteng and the Western Cape have the most cases. In order to expedite all the cases, we will provide dedicated courts in the affected areas where such a need exists. We will work with the judiciary in this regard. In dealing with these cases, however, we will not only consider punitive measures, but all necessary measures will be taken to address the concerns of our people. We will strengthen our outreach programme to ensure that people understand their rights and responsibilities. An Inter-departmental Task Team has been set up on an urgent basis by Cabinet to investigate all the causes of these attacks and to make recommendations about action that needs to be taken to prevent the recurrence of this negative tendency. This Task Team includes the departments of Safety and Security, Social Development, Health, Education and The Presidency. 

Honourable Members,
Let us all, in the spirit of the Freedom Charter strive together, sparing nothing of our strength and courage to promote our constitutional legacy, social cohesion and human solidarity.  

The Department continues to create an enabling environment for the promotion of constitutionalism and the rule of law. We do this by ensuring an effective and efficient administration of justice, including sound management of courts, provision of quality legal services and the promotion of human rights education and awareness.

The strategic goals of the department are: access to justice, transformation of the state and society and organisational efficiency. A total budget of R9,7 billion is allocated to the Department for the 2008/9 financial year in order to achieve these goals. The allocation covers the following per programmes:
R3,4billion for Court Services
R2,1 billion for the National Prosecuting Authority
R1, 4 billion for judges and magistrates (statutory allocation)
R191 million for the South Human Rights Commission, Commission on Gender Equality and the Public Protector
R941 million for administration
R660 million for the Legal Aid Board
R503 million for State Legal Services

The allocation reflects an 11% increase from the previous allocation. The increase in the MTEF include an allocation for major policy priorities such as building new court infrastructure in areas of need; the maintenance and the upgrading of existing infrastructure (R140 million); reduction of case backlogs (R98 million); implementation of legislation envisaged to be promulgated during the term of this parliament, namely the Regional Court Jurisdiction Amendment Act, the Judicial Education Institute Bill and the Child Justice Bill (R74 million); increasing the legal research capacity (R45 million); implementation of the Victims Charter (R10 million); transformation of the Judiciary (R15 million); review of the criminal justice system (R10 million); and improving the management of cases (R10 million).

I am pleased to report that the Department has managed to substantially increase its financial performance with a 5% increase in overall spending.  Spending increased from 92, 7% to 97, 7 %. In the last financial year one of the
primary focuses was to provide the much needed human resource capacity in all the sections of the Department in order to improve efficiency. In that period we were able to reduce our vacancy rate from 23% to 12%.

We have introduced an Internship Programme to give our graduates opportunities to acquire the required skills in law. In this financial year, the Department has put aside R15 million to sustain this programme. We have in the past year also placed over one hundred and thirty (130) legal graduates in the various areas of the legal profession as part of the National Youth Service Programme. At least eighty (80) are presently placed with University Law Clinics, whilst another forty five (45) are placed with the Offices of the State Attorney countrywide. Through the Office of the Chief Litigation Officer, the Department, on behalf of Government, manages the risk to Government caused by a high level of litigation against Government.  The costs incurred as a result of legal claims against the State continue to increase rapidly. In the 2005/6 financial year the State paid R259,3 million to claimants in civil suits. The amount increased to R334,4 in the 2006/7 financial year. In the 2007/8 financial year the cost to the State stood at R355,7 million.

Honourable Members,
The digital court recording system has been rolled out to all courts to replace the outdated analog recording machines. A total of two thousand four hundred and thirty (2 430) recorders have been installed in the courts. To protect court records the Department has established a Central Archive Record Storage for the High Courts to provide a back-up for valuable court information. The system will be extended to the Regional Courts during the current financial year. Through the JDAS system, we have improve the maintenance payment system. The increase in efficiency levels has enabled the Department to reduce queues in the courts. We are also continuing with the Operation Isondlo campaign to create greater awareness about maintenance.

Access to justice
Honourable members,
To give effect to our undertaking to improve access to justice we have continued to commit a substantial amount of our budget towards building additional courts and provide facilities to deliver services in order to ensure that we reach out to rural and remote communities. We continue to build, in numbers, court buildings where there were none before. Not only have we built twenty three (23) new courts and refurbished and upgraded fifty eight (58) courts in the past fourteen (14) years, we have also improved the architecture and design of these courts to meet the service level standards befitting our constitutional era. These courts are more accessible to the people including people with disability and have in-built facilities commensurate with the work of the courts such as archives to safeguard court information and libraries to provide adequate capacity for legal research.

Last year we emphasised the need to review the spatial distribution of our courts as part of removing the relic of the apartheid court system which perpetuates the denial of access to justice to the majority of our people. The process of correcting the situation has gained momentum and I am pleased to announce that in the last few months we have focused on creating the necessary infrastructure and human resource capacity in twenty three (23) of the ninety (90) Branch Courts which will, in the current financial year, be re-designated as self standing courts. By designating Branch Courts as main courts, the communities in the rural and former Black townships will enjoy equal access to justice as their counterparts in the towns and suburbs, and thereby will have their dignity and self worth restored.

We continue with the transformation of the Masters Offices. As part of this transformation we have launched Operation Sesifikile. Through this the services of the Office of the Master of the High Court have been expanded to rural and other remote areas to reach the vulnerable members of society. During the 2007/8 financial year 16 new service points were provided to extend services to the rural areas. As part of this programme, we have completed the right sizing of the Masters Offices through which we increased the appropriate capacity required to enable government to respond to the immediate needs of the people. In this regard, we have appointed at least, 600 legally qualified personnel to fill the posts of Master, Deputy Master and Assistant Master. A further 49 posts have been advertised and are in the process of being filled.

One other important area of work is the Review of the Criminal Justice System (CJS). In this regard there are two processes, one looking at solutions which are attainable in the short term, and the second focuses on long term solutions that require in-depth research. With regard to the first process, the focus will be identifying the necessary capacity required to enable government to fight crime by removing blockages in the investigation and court processes. In this regard President Thabo Mbeki has appointed the Deputy Minister, Adv. Johnny de Lange to coordinate the process for the review of the criminal justice system in order to strengthen its ability to respond to the imperatives of crime fighting. Let me use this opportunity to congratulate him and wish him well in the mammoth task.

The main purpose of the second process is to study and review those principles of our relevant laws and processes in our Criminal Justice System which require revision and possibly change. This is important as it will inform the manner in which our Criminal Justice System meets the needs of people, in particular the most vulnerable. The ultimate objective is to ensure that system responds to the challenges of a changing society.

In addition to these processes, government is strengthening the capacity to fight organised crime. Changes are proposed to be made to the institutions concerned. Parliament is dues to commence public hearings in this regard.
Legislative programme
Honourable members,
I would like you to understand that all the pieces of legislation that we have put before Parliament will have a profound impact on the transformation of our society. The Criminal Law (Sexual Offences and Related Matters) Amendment Bill, which was debated over a very long time, was finalised by Parliament at the end of 2007. This Bill revolutionises the outdated law relating to sexual offences. Most of its provisions came into operation on 16 December 2007.

The following Bills, which are intended to be finalised during this session of Parliament, require special mention:
the South African Judicial Education Institute Bill, which for the first time in our history, will provide an integrated judicial education framework for both judges and magistrates;
the Judicial Service Commission Amendment Act which introduces the long awaited complaints handling procedures for judges;
 the Jurisdiction of Regional Courts Amendment Bill, which confers civil jurisdiction on the Regional Courts. The Regional Courts, despite being the intermediate court between the district and the High Court was denied civil jurisdiction by apartheid legislation. The exclusion of civil jurisdiction to these courts results in the denial of access to justice to the majority of the citizens who would not afford to pursue legal redress at the High Courts. The immediate consequences of this intended legislation will ease the hardship and prejudices of the vulnerable poor members of society who are compelled by the current system to seek legal redress in remote courts, some times beyond the provinces where they reside. 
the Child Justice Bill, the Traditional Courts Bill and the Renaming of High Courts are presently being considered by Parliament.

The South African Law Reform Commission has undertaken an ambitious project to review pre 1994 legislation to evaluate their relevancy to and consistency with the Constitution.

I also want to congratulate the legal sector on the sterling work on the Legal Services Sector Charter which I will soon present to Cabinet and thereafter to Parliament.

The Department is the process of finalising the consolidated policy framework to address outstanding issues relating to the transformation of the judiciary. Various aspects of this policy are being discussed by the relevant stakeholders, hence it has taken some time to finalise this process.

Honourable Members,
Judge Craig Howie, President of the Supreme Court of Appeal, is retiring in August this year and I want to wish him well in his retirement. With the many challenges facing the judicial system, I am certain that he will be called upon to make a contribution.

I wish thank the chairperson of the Justice Portfolio Committee, Honourable Yunus Carrim. Through his leadership and stewardship, the Committee has continued with its oversight role in an outstanding and enthusiastic manner. I also convey my gratitude to the members of the Committee. I wish to thank the Deputy Minister, Advocate Johnny De Lange, for his continued support, the Chief Justice and the judiciary, Chairpersons and members of the Chapter 9 Institutions, Heads and members of Statutory bodies for their commitment to the cause of justice.

I want to thank the Director-General, Advocate Menzi Simelane, all the staff in the department and associate institutions and the thousands other people dedicated to the cause of justice.

Honourable Members I am indebted to this House to support this budget vote.
I thank you!


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