Minister of Justice and Constitutional Development 2013 Budget Speech & Responses by ANC and DA

Minister of Justice and Constitutional Development, Mr Andries Nel, gave his Budget Vote Speech on the 29 May 2013
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Chairperson,
Honourable Minister,
Honourable Cluster Colleagues,
Honourable Members of the Judiciary,
Honourable Members,
Distringuished guests,
Ladies and gentlemen,
Comrades and friends.

This year marks the centenary of the 1913 Land Act, one of the foundations of apartheid colonialism, the legacy of which we are today still grappling with.

It is interesting then to read what the Annual Report of the Department of Justice for 1912 says about land and labour.

The Magistrate of Lydenburg was of the view that: “The native was naturally a person of indolence and was pleasure-loving and until such time as kaffir farming was discontinued it would not be possible to instill into them the desire for progress and advance in civilization. A few months work on the mines was sufficient to keep a kraal going for some time and as long as women were there to till the ground and brew the beer the kaffir had attained his ideal. This evil of kaffir farming had in the Magistrate’s opinion to be expelled by legislation.”

The Magistrate for Heidelberg, on the other hand, observed that, “The cause for the scarcity, however, was undoubtedly the growing independence of the natives. This was brought about by so many of them working on the farms not as labourers, but on a share of the crops. Others paid rent for land and farmed entirely for themselves. The Rev. Muller of the Berliner Missions Gesellschaft was of the opinion that when natives were allowed to cultivate a limed number of acres in return for their services they showed a great care in the cultivation of the land, and where they worked for a certain portion of the harvest as their wages or where they hired land they often outstripped the white owner, as they spared neither care nor pains to gain the greatest possible harvest and procured the most modern agricultural machinery for the purpose.”

These quotes are not merely of academic interest. The legacy they speak of still impacts on how we live, where we live, with whom we live, where we go to school, and in the context of this debate - which court we use and what quality of justice we access.

Much of our Reconstruction and Development Plan, and now our National Development Plan are aimed at addressing this legacy in a manner outlined in the Freedom Charter and our Constitution.

After almost two decades of democracy it would be appropriate ask whether we are succeeding in doing so.

FW DE KLERK

In last year's debate I quoted some unfortunate remarks by former Deputy President de Klerk, this time around he has made more fortunate ones, it would only be just and fair quote him again.

Mr. de Klerk says:

“Unfortunately, a tendency has developed to be skeptical and often pessimistic about both South Africa - and Africa. I should like to address these Prophets of Doom and Afro-Pessimists in a balanced way.
[…] I believe that it is important to retain balance in one’s assessment of our complex society. In fact, South Africa has, on the whole, done pretty well since 1994.

After decades of isolation and criticism, the new South Africa has emerged as a respected member of the international community:

• We are regarded as an international model for democracy, constitutionalism, human rights and the rule of law;
• We have set an example for national reconciliation and multiculturalism;
• We have played a commendable role in promoting peace throughout our continent;
• We have become a member of BRICSA - the most dynamic group of global emerging economies;
• We play a leading role in international forums - in the UN Security Council and in the African Union.”

He goes on to say that:
“We have also made remarkable social progress in many areas:

• The percentage of the population living in absolute poverty has declined from 31% in 1995 to 23% in 2008 - largely because of social grants.
• 94% of households now have access to drinkable water;
• more than 3 million housing units have been built - enough to house almost a quarter of the population - with another million units in the pipeline;
• three quarters of the population now has access to electricity and sanitation compared with only half in 1994;”

He says that:

“I also remain an optimist about South Africa’s future because of the excellent foundation that our non-racial Constitution has created for present and long-term stability.

South Africa will succeed - provided that we can work together as South Africans to support our constitution; to demand the rights that it guarantees; and to achieve the vision of human dignity, equality and enjoyment of human rights and freedoms that it articulates. In the same manner I am increasingly confident about the future of Africa.”

I would like to share some stories that would suggest that this optimism is well-founded.

Legal aid South Africa

One such story is that of Legal Aid South Africa.

Twenty years ago, in 1993/4, the Legal Aid Board, as it was then known, was an organization on the precipice of disaster – a legal Titanic on a collision course with a constitutional, administrative and budgetary iceberg.

The Board handled only 79, 501 matters by paying private lawyers to represent indigent people, mainly in criminal matters.

It was an organization with a budget of R62, 467 million, a staff of 42 based in a national office and 58 based in 8 branch offices located mainly in white, urban areas.

The Board was unable to cope with the explosion in the demand for legal representation that followed the adoption of the interim Constitution. Its affairs were in chaos. Budget deficits and qualified audits were the order of the day.

The dedicated efforts of the parliamentary committee, academics, law clinics and a board under the leadership of Judge Mohammed Navsa, led to a dramatic turn-around with the implementation of a public defender model and sound organizational governance practices.

Eighteen years later, for the financial year 2012/13 Legal Aid SA, provided assistance in 736, 679 matters. This includes legal representation in 438, 844 criminal and civil matters and advice in a further 297, 835 matters, including through a national legal aid call-centre.

This sterling work is done by a dedicated, motivated and representative team of 183 staff at national office and 2 395 staff based at 128 justice centres nationally - comprising 64 main and 64 satellite offices. South Africa’s legal aid budget has increased to R1, 259 billion - at a time when a number of other countries are scaling back their legal aid budgets.

Indeed, Legal Aid SA has made a valuable contribution to the formulation of the recently adopted UN Guidelines for Legal Aid.

There are still many challenges but we know what needs to change, we know how to change it – and we are doing it faster than ever, including amendments to the Legal Aid Act of 1969 that will soon be brought to Parliament.

We thank the Chairperson, Judge President Dunstan Mlambo, and CEO Ms Vidu Videlankar for leading a team that continues to show that South Africa is a remarkable nation, with remarkable people - for whom no challenge is too great, especially when they unite and work together.

Public Protector

Another such story is that of the Public Protector.

The 1994 Election Manifesto of the ANC said that, “Government administration exists to serve the people. It must be answerable to them. The ANC will encourage private citizens to use the independent Public Protector to investigate corruption, dishonesty or violation of rules of conduct on the part of government officials - those found guilty will be dealt with.”

This is exactly what has happened.

When Adv Selby Baqwa, SC, as he then was, was appointed as the first Public Protector in 1995, the office had a budget of R1 630 000 and dealt with a total of 1989 new cases for the period October 1995 to September 1996.

By 2012/13 the third Public Protector, Adv Thuli Madonsela, was investigating 33 533 complaints per year, assisted by a staff of whom 160 are based at a national office and 238 at nine provincial and satellite offices through out the country. The budget of the Public Protector stood at R183,1 million (plus R15m for additional capacity). For 2013/14 an amount of R199 million has been budgeted.

Surveys have shown that 77% of the population is aware of the Office of the Public Protector.

The recently reported interaction between the Public Protector and the Portfolio Committee on Justice and Constitutional Development has, regrettably, been reported and commented upon as widely as it has been understood narrowly.

In our view the Constitution is clear about both the powers and the independence of the Public Protector as well as the powers and the oversight role of Parliament.

Interactions such as these are necessary catalysts for evolution of a deeper and stronger culture of constitutionalism.

We thank Public Protector Adv Thuli Madonsela, Deputy Public Protector Kevin Malunga and CEO Themba Mthethwa for leading another team of remarkable people dedicated to realizing the vision of our Constitution and creating a life better for all in South Africa.

South African Human Rights Commission

The story of South African Human Rights Commission is yet another.

Starting off in 1995 as a small organization with a staff of 60 and a budget of R6 million, the Commission has grown into an institution with a staff establishment of 165 and a national footprint through nine provincial offices. Its budget for 2012/13 was R100,74 million. An amount of R116m has been budgeted for 2013/14.

The Commission deals with a wide range of human rights complaints. For the 21012/13 financial year it finalized 7 033 out of 8 924 cases brought to it.

One of these cases was the referral by the Department of Justice and Constitutional Development of the case involving a training institute that excludes LGBTI persons.

Recognition for this work has taken the form an award from the African Commission on Human and Peoples’ Rights in October 2012 as well as the election of the Commission’s Chairperson, Adv. Lawrence Mushwana, as the Chair of the Network of African National Human Rights Institutions (NANHRI) in November 2011, and also as the Chairperson of the International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights (ICC) in May 2013. Adv. Mushwana is the first African to hold this position.

The amendment of the outdated Human Rights Act, is currently before Parliament.

Equality Courts

A story that is starting to be told but which must be elaborated it that of Equality Courts and the struggle to deal with out painful legacy of racism, sexism, xenophobia and related intolerances.

The Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (Act 4 of 2000), gives effect to our Constitution’s provisions against unfair discrimination.

By 2009 each and every High Court and Magistrates Court had been designated as an Equality Court.

Cases enrolled at these courts have increased substantially as these Courts become more accessible and public awareness of the remedies they offer increases.We commend the excellent work done by the Foundation for Human Rights as part of the Access to Justice and Constitutional Rights Programme conducted by the Department with the support of the European Union.

For the 2012/13 financial year, 619 matters were enrolled before equality courts.

Most of the complaints dealt with include hate speech, unfair discrimination and harassment.

The Department is preparing legislation that will criminalise hate speech.

Small Claims Courts

One of my favourite stories is the Small Claims Courts story.

These courts eliminate time-consuming adversarial procedures before and during the trial thereby providing speedy and cost effective justice, especially for the poor.

We are more than half-fast approaching our goal of having a functioning Small Claims Court in each of South Africa's now 393 magisterial districts.

In 1994 there were 120 Small Claims Courts, mostly in white and urban areas.

In 2013, as we speak, there are 268. A further 9 courts will be established during the first week of June when the necessary proclamations appear in the Government Gazette.

The vast majority of the new courts and places of sitting are in rural areas and former black group areas.

The goal of having a Small Claims Court in every magisterial district is in sight. Gauteng and Mpumalanga have already achieved this goal and we are working hard to ensure that others join them.

The number of people enjoying the benefits of access to justice through Small Claims Courts has increased steadily.

During 2008/9, 95 569 new cases were registered, 47 168 summons were issued resulting in 38 257 trials and 22 397 judgments and 9 405 out of court settlements.

Whilst the number of new cases for 2012/13 only increased by 5305 cases to 100 874, the number of summons issued increased by more than 21 137 to 68 305. The number of trials also increased by more than 11 788 to 50 045. But most significantly, the number of judgments jumped by 13 971 (62,3%) to 36 368 and the number of out of court settlements by 9 682 (102,9%) to 19 087.

Establishing these courts is partly dependent on the number of dedicated women and men who volunteer their services as Commissioners or as Advisory Board members.

The number of Commissioners who preside over Small Claims Court has almost doubled in the past four years, from 811 in 2009 to 1 546 currently - comprising of 1314 men and 232 women. Serious attention is being given to address this gender imbalance.

We thank all those who have volunteered and encourage others to following their commendable example. We also thank member of the Small Claims Court Steering Committee and the Swiss Government their partnership in this project.

Sheriffs Profession

One of the most dramatic stories of transformation comes from the sheriff’s profession.

Before 1994 this was an overwhelmingly white male profession with a “skiet, skop en donner” reputation, one that was not always undeserved.

Sheriffs had the power to arrest and imprison people, often the poorest of the poor, for their inability to settle civil debt.

In 1994 there were 475 sheriffs. The overwhelming majority, 399, were white men. There were also 40 African men, 4 coloured men, 15 white women, 4 African women, 1 coloured and 2 Indian women.

Furthermore, these few black sheriffs were located mainly in the so-called homelands and in economically non-viable offices.

By 2012 this picture had started to change significantly with the appointment of 124 new sheriffs. Of these appointees:  64 are African, 44 white, 12 coloured and 7 Indian. Women represents 40 (or 31,49%) of the new appointees and men 87(or 68,50%).

Significantly, many black and women sheriffs have been appointed to some of the most economically viable and lucrative areas. There is, however, still a long way to go. But the pace of change is accelerating.

A further 120 vacant sheriffs posts will be filled by the end of June. We are confident that by the end of this administration the Sheriff’s profession would have made a decisive break with the past.

We thank the South African Board for Sheriffs (SABFS) under the leadership of Mrs Charmaine Mabuza, for their good work.

The Sheriffs Amendment Act of 2012 (Act 14 of 2012) was assented to by the President on 11 December 2012, and will contribute to better governance of the profession.      

SAJEI

The work of the South African Judicial Education Institute (SAJEI) under the leadership of Chief Justice Mogoeng is another such story in the making.

After initial delays the Institute is now functioning. During the 2012/13 financial year, a total of 2187 Judges and Magistrates attended 56 seminars/workshops on a wide range of topical matters including sexual and gender based violence. The Aspirant Judges Training Course was attended by 71 participants.

Conclusion

These stories demonstrate that we are a remarkable nation with remarkable people who day by day prove that no challenge is too great to overcome, especially when we unite and work together.

Regrettably, honourable members, your chances of reading about these stories are negligible – the news is either simply too good to be profitable or too fundamentally at odds with the preconceived notions of the prophets of doom.

Those in the media who want to tell these stories, and they are there, are afraid to do so for fear of being branded as stooges of government who are not truly independent.

Thanks

My appreciation goes to the Minister for his leadership, guidance and support, and to the Director-General, Ms Nonkululeko Sindane, the leadership and staff of our departments and justice family institutions for their ongoing commitment and hard work to ensure access to justice for all. Members of the Portfolio Committee

Last but not least my special thanks to a special lawyer who is exempt from the Legal Practice Bill, my in-house counsel Ms Kim Robinson, who is a New Yorker by birth and proudly South African by marriage.

Conclusion

And in conclusion, Annual Report of the Department of Justice for 1912, contains this interesting observation by the Magistrate of Johannesburg -

Under the heading, Fortunetelling penalty too severe, it says: “Section 34 of Act No 26 of 1904 prescribed imprisonment only as a penalty for this offence. There were many cases, which would be met by a fine, and, as Magistrates are naturally loth in such cases to send the accused to prison, the effect was that he – or, more probably, she – got off with a warning.”

At the risk of being sent to prison, I want to do some fortunetelling and predict that Parliament will support Vote 24: Justice and Constitutional Development and I want to ask your support to make this prediction a reality.

I thank you.

Speech by Hon Gabriel Ndabandaba during the Budget Vote Debate on Justice and Constitutional Development

Hon Minister
Deputy Minister
Chairperson
Hon. Members
Fellow South Africans

My contribution in this Budget Debate will be entitled: The Role of Courts and the National Development Plan in crime prevention and fighting corruption.

Crime is as old as humanity itself. It is a complex problem facing society and there is no country which does not have the crime problem. The state spends a lot of money every year to combat and prevent crime. By the same token, crime generates feelings of anxiety and uncertainty in our society. The police to whom this extremely difficult task is entrusted are not able to control and prevent crime single-handedly. The courts, correctional services, individuals and society also have an obligation to fight, control and prevent crime. Reckless an American Criminologist contends that crime prevention is divided into the following phases:

PRIMARY PREVENTION aimed at the identification and elimination of conditions in the physical and social milieu Predisposing torward criminality.
SECONDARY PREVENTION aimed at the identification and elimination of potential offenders in order to eliminate future criminality.
TERTIARY PREVENTION aimed at corrective treatment of the offender in order to prevent further criminal behavior.
Then there is penal prevention emphasizing the deterrent effect of punishment corrective prevention is based on the treatment philosophy. Mechanical prevention refers to the placing of obstructions eliminating opportunities for committing crime. The classification put forward by Bennet and Wright is based on that of the British Home Office namely the improvement of the social environment and judicial prevention is based on the imposition of legal sanctions and punishment in order to prevent crime. Back home we need to emphasize the importance of the National Development Plan particularly Chapter 14 headed FIGHTING CORRUPTION which in my view is a Megacrime. The NDP correctly emphasizes that citizens and companies in the private sector should desist from offering brides to government officials such as the “COLD DRINK” to a traffic officer to avoid a fine. They should instead acquaint themselves with CORRUPTION WATCH.

Finally the NDP stresses that a strategy is needed to strengthen the independence of the JUDICIARY through improving the quality of judges and scaling up judicial training. In the crime prevention process, arrest is the first substantial contact between the state. The subsequent steps in the criminal procedure are therefore equally important aspects of crime prevention Jean Redpath’s monograph headed Failing To Prosecute, analyses aspects such as prosecutorial independence; prosecution performance prosecutors’ duties and decision to prosecute. The monograph finally emphasizes that the independent operation of a prosecuting authority is increasingly seen as crucial to the operation of Criminal Justice systems internationally. I submit therefore that all steps in the Criminal Justice are important aspects of the process of CRIME PREVENTION. Laws defining crimes must be clear and precise for the average citizen to understand in advance what conduct is prohibited or expected. Chapter 14 of the NDP correctly concludes that South Africa must develop a society with zero tolerance for corruption in order to achieve its development. By 2013 our language as a community should have shifted from fighting corruption and crime to increasing integrity.

The Justice and Constitutional Development Department has to cater for all the foregoing aspects and more in order to succeed in its task of crime prevention. There is no doubt therefore that our courts have a tremendous responsibility because they are charged inter alia, with the complex and stupendous responsibility of preventing and controlling crime and punishing offenders. The ANC supports the Budget.

I thank you, Hon Chairperson!!!!

Debbie Schafer, Shadow Deputy Minister of Justice and Constitutional Development
 

Highlights:

·         The DA welcomes the re-instatement of the Sexual Offences Courts;

·         The DA urges Minister Radebe to engage earnestly with the Chief Justice and the various fora of magistrates to resolve the magistrates concerns, as there are some legitimate issues that require attention and have been outstanding for far too long;

·         The Special Investigating Unit (SIU) remains without a permanent head for over 17 months. This is impacting on the performance of the SIU; and

·         The DA has laid 22 criminal charges with the police, and in not one case since 2006 have we had anybody brought to court or a satisfactory explanation why they have not been.

In the justice system this year we have seen the fulfilment of the Chinese curse – may you live in interesting times. 

In the management of the department, we have seen some improvements, and I would like to acknowledge the extreme hard work and dedication of the always pleasant and always professional Director General Nonkululeko Sindane.

The long awaited announcement earlier this year that the Sexual Offences Courts are to be reinstated is most welcome.  We do, however, have serious concerns that, with a budget increase in real terms of a mere 3.3% for the department as a whole, it will not be possible to roll them out in a manner in which they are satisfactorily resourced. This does not back up government’s stated commitment to combating crimes against the most vulnerable.

We have been calling for the reinstatement of these courts for a number of years now, and fully support a possible inclusion in the Judicial Matters Amendment Bill currently before our committee, that legislation provide for these courts. This should ensure that it will not again be possible for these courts to “disappear”, because magistrates do not wish to be confined to these specialised courts. If the very people tasked with upholding and enforcing the law have objections to staffing these courts, which have been proven by NPA statistics to result in higher conviction rates, what message does this send to the poor victims?

On the note of people upholding and enforcing the law, we have seen with extreme concern the illegal industrial action embarked upon by some magistrates. This unprofessional conduct has done nothing to engender sympathy for their cause, in fact quite the opposite.

This is most unfortunate for the many magistrates who are dedicated and who give of their best every day in a professional manner. Minister, for these people, I would urge you to engage earnestly with the Chief Justice and the various fora of magistrates, as there are some legitimate issues that require attention and have been outstanding for far too long.

Now to the Special Investigating Unit.

The fact that today we still have no announcement as to the appointment of a permanent head of the SIU is quite simply unforgiveable.

For seventeen months the SIU has been crippled by the mismanagement of Advocate Nomvula Mokhatla. Valuable experience has been lost as a result, and the performance of the SIU has undoubtedly deteriorated, as was quite evident at their recent briefing to the portfolio committee.

How much longer does the President need? And is the Nkandla proclamation one of the 15 SIU investigations to be finalised this year?

We announced last week that we shall be tabling a private member’s bill to limit the president’s powers in appointing and removing the head of the SIU, as well as limiting the period of time for which a person may act in the position.  We sincerely hope that we shall receive support in this regard from the other side of the house, to ensure that such a situation does not occur again.

When looking at the entire justice budget of R16.7 billion and comparing this with other departments such as the police, for example, which gets R60billion, we cannot escape the conclusion that this simply is not sufficient to carry out all the responsibilities falling under this budget vote. The R16.7 billion includes the amounts provided for the salaries of judges and magistrates. If we exclude this, it leaves R14billion for the five justice programmes, namely administration, court services, state legal services, the NPA and Auxiliary and Associated Services, which itself includes Legal Aid, the SIU, the Human Rights Commission and the Public Protector. This really needs to be reconsidered.    

The Public Protector has once again made the news recently in rather unfortunate circumstances. She quite rightly asserts that she is constitutionally independent. She is, however, in terms of that same Constitution, accountable to the National Assembly. Section 181(5) provides that the Public Protector must report on its activities and performance of its functions. It cannot possibly be that the purpose of the report is merely for us to note and nothing else. Section 182 (1) also provides that she is “subject to national legislation”. The Public Protector Act clearly provides in s6 that she may not investigate the performance of judicial functions by any court of law. Yet she reported to our committee that a number of complaints she dealt with relating to justice were in respect of outstanding judgments and appeals, which are clearly judicial functions.

The public attention that was generated thereafter shows just how much support the Public Protector has. And this is because she has done excellent work in dealing with investigations that the police and NPA have been unable or unwilling to investigate.

And herein lies the problem. I believe that the reality is that the Public Protector is seen by the majority of the population as the only institution we have left that deals with corruption without fear or favour. And the view that the system is failing is corroborated almost every day now.

When Mr J Arthur Brown receives a slap on the wrist and the judge castigates the NPA for the way they dealt with the matter, the public loses faith in the justice system.

When we as the DA lay 22 criminal charges with the police, and in not one case since 2006 have we had anybody brought to court or a satisfactory explanation why they have not been, we lose faith in the justice system. And we know that there are many more matters like this of which we do not have a record.

When the president makes completely inappropriate appointments to key positions such as the NDPP, (such as we have seen again today) people lose faith in the justice system.
When the president ignores the law and removes an SIU head without giving reasons, and leaves the position unfilled for 17 months, people lose faith in the justice system.

When the Department of Basic Education ignores three court orders to provide textbooks in Limpopo, people lose confidence in the justice system.  Never mind the departments of Home Affairs, Labour, Police and Agriculture all of which have blatantly failed to comply with court orders.

When the National Prosecuting Authority (or perhaps Glynnis Breytenbach may call it the National Persecuting Authority) fails to even charge two Vietnamese nationals arrested in possession of 12 Rhino horns, for nearly three years, so that the case is struck from the roll by the court, people lose faith in the justice system.

When a woman withdraws an application for a family violence interdict to try and protect her sexually molested daughter, because she can no longer handle the trauma, frustration and cost after 9 postponements, this shows that people are losing faith in the justice system.

We can allocate all the money in the world, but if there is no political will to fill crucial positions with fit and proper, suitably qualified people of integrity, the system will not succeed.

The National Development Plan recognizes that ‘the most efficient and effective deterrent to criminality is an efficient and effective criminal justice system”.

At this point, our system is neither, and Minister, you have a key role in restoring credibility to the system.

You would be well advised to spend less time on your role of head of the Damage Control Unit of Guptastan, and devote more energy and attention towards fixing the system of which you are the cluster head.

The future of our country depends on it.

Dene Smuts, Shadow Minister of Justice and Constitutional Development
 

Highlights:

·         We need to take the appointment of the National Director of Public Prosecutions out of the President’s hands and put it in Parliament’s hands, the DA will be submitting a Private Member’s Bill in this regard;

·         If the President makes another inappropriate appointment as NDPP, the DA will challenge this;

·         The legislative basis for the independent judicial arm of state is incomplete  and if there is any dispute between the judges and the Ministry on the composition of the policy and rule-setting Judicial Council, as with the Legal Practice Council, send it to Parliament to resolve;

·         Our new Director-General Sindane inherited a House of Justice as dilapidated as many of our courts, and it is a real concern that the Department has actually reduced its targets for catching in-house crooks;

·         The Judicial Service Commission should be sized down and restructured to function effectively and free from political interests and the DA will submit a Private Member’s Bill in this regard.

This is the last budget debate of this term and so it is a good time to look back at how far we have come, and what needs to be done in the very few functional months remaining in the life of this administration and this Parliament.

When this term started, the sitting Director-General of Justice was Advocate Menzi Simelane, and the new chairperson of the Justice Committee was the Honourable Ngoako Ramatlhodi.
Things would have been very different if both had remained, because neither had much tolerance for independent institutions.

It was precisely because of the things Director-General Simelane did to poor Adv. Vusi Pikoli that I argued he was not fit and proper for the post of National Director of Public Prosecutions (NDPP) to which the Hon. President appointed him. This case we eventually won in the highest courts. If Adv. Simelane was still the D-G of  Justice, the Department would not now be working on the National Prosecuting Authority Amendment Act, which gives the prosecuting authority the full institutional independence for which I argued in this debate two years or so ago. Alongside that amending Act, changes are necessary to section 179 (1), (4) and (6) of the Constitution, as I set out here before – above all to s 179 (1), which gives the President the sole power of appointment of the NDPP. To help the process, I will give you a Private Member’s Bill which the Justice Committee can consider alongside the amending Bill.

We need to take the appointment of the NDPP out of the President’s hands, as former President Mothlanthe suggested, former Justice Minister Enver Surty, and every MP on the Ad Hoc Committee which sealed Adv. Pikoli’s fate. We need to put the choice of NDPP in Parliament’s hands. If the Hon President makes another inappropriate appointment, the DA will challenge again. And then we need the new appointment provision to be in place.

As for the Hon Adv. Ramatlhodi, he moved on to a captive audience in the Prisons Ministry and an apparently equally captive audience on the Judicial Service Commission. It is interesting to reflect that he and I clashed on the subject of the transformed judiciary and the appointment provisions for judges in the very first Justice debate in 2009.

But the immediate point is that the independent judicial branch of State which we have been building, law by law, would never have got off the ground with the Hon. Ramatlhodi in the Portfolio Committee chair. He does not care for the power of judicial review of executive conduct or of the laws of Parliament, which he believes should be sovereign once more.

But the Ministry and the Justice committee are committed to the Constitution and do believe in the separation of the powers. Our main achievement as judicial, executive and legislative branches working together to give full effect to the Constitution has been the creation of a truly separate judicial arm of state.

The Constitutional 17th Amendment has laid the foundation.

The Superior Courts Bill constructs the pillars of the new edifice, and also the basis for its pediment. 

That pediment is the Office of the Chief Justice (OCJ), whose Secretary General appeared before the Portfolio Committee for the first time during this budget cycle. The OCJ will by next year’s pre-election Budget have its own Budget Vote. It will start receiving some real money when the biggest programme under Justice, Courts Services - at just short of R6 billion - starts moving across.

But the legislative basis for the independent judicial arm of state is incomplete. The work done by former Chief Justices Chaskalson and Langa on the independent administrative agency which will take the running of the courts out of the hands of the Department is by all accounts complete. If there is any dispute between the judges and the Ministry on the composition of the policy and rule-setting Judicial Council, as with the Legal Practice Council, send it to us to resolve. There are only twelve legislating weeks left in this year. The Hon Minister must move faster.

The Departmental or bureaucratic preparations for this change are moving at some speed.  But our new D-G Sindane inherited a House of Justice as dilapidated as many of our courts, and it is a real concern that the Department has actually reduced its targets for catching in-house crooks.

Transferring corrupt Justice personnel to the new agency is not good enough. I said last year that fraudulent court orders were being issued at Gauteng South High Court. They were still being sold last month.  I know the Hawks have been called in, but how is this tolerated for even one day?

I have no doubt that the judges will visit a terrible vengeance on these practitioners of a parallel judicial system once they are in charge. But the stables must be cleaned out now, no matter how Herculean the task.

Now, as to the the Judicial Service Commission. It is now no longer only the DA which asks for a change in the composition of that body. The Cabinet-approved National Development Plan proposes that the JSC should be sized down and restructured to function effectively and free from political interests.

It is clear where the composition went wrong: it went wrong in the final Constitution when the Interim Constitution’s four Senators were joined by six National Assembly members for a total of ten. That is ten out of 23 JSC members, or out of 25 when Provincial Premiers and Judges President sit in on matters relating to the relevant division. The Upper House in the old days when four Senators were included in the JSC was a House of wise persons. There is no particular argument for including NCOP MPs now that the upper House is a House of Provinces. Premiers already have automatic sitting when relevant. Moreover, Justice is a national competence.

In addition, we need to look afresh at the four Presidential appointees, who when political bring the total to 14 or 15 with the Minister.  My colleague the Hon Hendrik Schmidt who represents us on the JSC remarked at one point when the JSC sittings used to take place at the Twelve Apostles Hotel that the venue was all too symbolic. Four Presidential appointees, four National Council of Provinces (NCOP) MPs, three ANC NA MPs. Add the Justice Minister, who is already the President’s choice, and you have twelve.  Why have the Presidential appointees at all? They were created under the Interim Constitution to be chosen in consultation with the Cabinet, which you will remember included Mr FW de Klerk as leader of the biggest minority party.

The reason for their existence has fallen away. To take the NDP forward, we will do what the Hon Minister should be doing, and give you a Private Members’ Bill on this also.