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JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
11 May 2007
CHIEF JUSTICE'S BRIEFING
Chairperson: Ms F Chohan-Khota (ANC)
Documents handed out:
Audio Recording of the Meeting
The Hon. Mr Justice Pius Langa, Chief Justice, stated that there was now better interaction of courts, in particular to discuss human rights issues and share experiences and aspirations. The Judicial Service Commission had taken its work seriously and since 2004 there had been 206 appointments. The appointments fulfilled the mandate of judicial transformation and ensured quality of judges. An effective, competent and fully transformed judiciary should reflect transformation in terms of gender and mindset and a desire to uphold the values of the constitution. There had been attempts to improve the quality of magistrates and heavy emphasis was laid on judicial training and education, including race and gender sensitivity. Judges were now being exposed to leadership training. Women were being fast tracked. Courts would meet with the Departments of Correctional Services (DCS) and the South African Police Service (SAPS discuss issues of co-operation. Issues of service delivery were being discussed. . Under the current dispensation, the judges would meet with the Minister of Justice and her officials to discuss any difficulties that arose, such as the condition and security of the courts, and security of judicial officers. It urged that the pending legislation be passed as soon as possible, including the amendments in regard to civil jurisdiction of the magistrates' court. The system included checks and balances
Questions by Members related to the problems of evictions of farm workers, whether checks and balances were as strong under the increasingly large system, disciplinary measures, the allegations against judges reported in the press, details of the number of complaints received, whether the Judicial Service Commission should investigate matters, and at what stage, activism in the judiciary, the reorganisation of the office of the Chief Justice, the functions of the Magistrate's Commission, the need for a consultative process between all the three arms of government, and the transformation process, noting that some magistrates still refused to preside over some types of cases, and that case management remained a problem. Clarity was given on the concept of co-operative government
The Chairperson announced the sad death of a magistrate from a brain tumour. She also noted that the Director General, Department of Justice had undergone emergency surgery.
The Hon. Mr Justice Pius Langa, Chief Justice, offered his wishes to the Director General for a speedy recovery and his condolences to the family of the magistrate.
Mr Justice Langa appreciated the opportunity to appear before the Committee, whilst mindful of the principle of the separation of powers. The direction followed over the past thirteen years had included better interaction of courts, in particular to discuss human rights issues and share experiences and aspirations. The Judicial Service Commission (JSC) had taken its work seriously and since 2004 there had been 206 appointments, not including the last sitting.
The appointments were still ongoing and served to fulfill the mandate of judicial transformation and ensure quality of judges as envisioned in the Constitution. He summarised that the requirements set out that a judge should be a fit and proper person, a citizen of South Africa, who should sittings without fear, favour or prejudice. He stressed the independence of the judiciary. An effective, competent and fully transformed judiciary should reflect not only transformation in terms of gender but also of mindset and desire to uphold the values of the constitution, which was particularly important in a society which counted poverty and homelessness among its problems. The constitution with its clauses on socio-economic rights was fully upheld by the judiciary.
There was further an attempt to improve the quality of magistrates and heavy emphasis was laid on judicial training and education, including emphasis on race and gender sensitivity. Moreover, judges were now being exposed to leadership training. A fast track project to assist women practitioners to be ready for appointment as magistrates and judges had commenced, and the first intake was two women who would begin on 1 June in Gauteng. In a bid to make delivery of justice more efficient there was an undertaking that the Courts would meet with the Departments of Correctional Services (DCS) and the South African Police Service (SAPS). In order to pave the way, Mr Justice Langa had met with the Police Commissioner, the National Director of Public Prosecutions and the Acting Commissioner of Correctional Service to discuss issues of co-operation.
A judges’ conference would shortly be held where discussions would include issues of service delivery. Under the current dispensation, the judges would meet with the Minister of Justice and her officials to discuss any difficulties that arose, such as the condition and security of the courts, and security of judicial officers.
The judiciary was aware that it was still in the process of transition, and that there was legislation pending, but urged the Committee that any delays of pending legislation must be occasioned by good cause. Outstanding legislation affecting the judges was the proposed legislation on judicial conduct and the complaints mechanism procedure. Although there were areas of controversy, all were in agreement that that the legislation must proceed. Similar comments applied to the legislation governing the civil jurisdiction of the magistrates' court.
He noted that the system included checks and balances. He encouraged all to embrace all the processes that enhanced democracy and abandon those ideas from the past that were outmoded and futile. He suggested that the three organs of state should talk to each other as opposed to a government that argued over controls.
The Chairperson remarked that the Committee was concerned with bettering the lives of the judiciary so that judicial officers could function more effectively. the Committee was fully committed to effective delivery of justice and thanked the court for its role in maintaining the rule of law. The Committee was hoping to finalise budgetary matters by 29 May and would then be focusing on the legislative programme. Some high priority legislation set deadlines and would be dealt with first.
Mr J Sibanyoni (ANC) remarked that the Committee was aware of the protection given to the courts by the Constitution, but considered it tragic that, despite all the protections entrenched in the legislation, the lives of farm workers had not improved. They were still subject to arbitrary evictions, which took place in the very courts that had a mandate to uphold constitutional values. He enquired what could be done to alleviate such situations.
Mr Justice Langa replied that it was important that Section 33 of the Constitution broadened the scope of people who could approach the Court. There were indeed many problems in South Africa and the courts, on their own, were unable to find perfect solutions. There needed to be a concerted effort also involving other groups such as the Human Rights Commission. More use should be made of the Chapter 9 institutions and NGOs should also be involved in coming up with solutions. The courts could do nothing to help people until matters came to court and even then the courts were bound by the rules and had to operate within set principles. There was a need to get other institutions involved at an earlier stage. Mr Justice Langa added that he was not fully acquainted with the eviction legislation, but that some of the problems would have to be addressed through changes in the legislation.
Mr L Joubert (DA) commented that South Africa’s judicial history was strong and there had never been an instance of impeachment of a judge. The judiciary was increasing, with 241 recent new appointments. He asked whether the checks and balances still applied fully to the increased sector.
Mr Justice Langa replied that there were more checks and balances because the judicial officers went through an intense and rigorous process before appointment. The Judicial Service Commission included members of the executive and members of the public and the necessary steps did apply to ensure that the correct people for the job were appointed.
Mr L Landers (ANC) reiterated the Chairperson’s commitment to the service and delivery of justice. He noted that there was a recent incident involving magistrates, that had not been favourably received in parliament, where magistrates had commented, through the media, on legislation with which they disagreed. He asked whether the Chief Justice could institute disciplinary measures.
Mr Justice Langa replied that there were mechanisms in place to deal with misconduct and there was a code of conduct, which was clear on how judicial officers should act, even though the implementation of the code had been rather problematic. He thought that it would not be appropriate for the head of judiciary to institute an investigation into alleged misconduct; the Magistrate's Commission would be better suited to do so. He had nothing to do with such issues. He did not like the idea of the judiciary fighting through the media as more appropriate bodies existed to address problems.
Mr S Swart (ACDP) raised the question of the allegations against Judge Hlophe and Oasis. He believed that the Judicial Service Commission (JSC) had not commenced an enquiry because this would expose the Judge President to cross-examination on the Oasis allegations. As a matter of principle he enquired if this was the correct way to handle the matter, considering the delays that were occasioned, whether the allegations of misconduct did not warrant earlier investigation and whether such delays might compromise the court’s standing.
Mr Justice Langa replied that the Commission was not supposed to operate as a "one-man" institution, and the JSC could not investigate and effectively "pre-judge" a matter before the court was involved as the same issues were involved. Moreover witnesses might be reluctant to testify before the JSC as they would also testify in court over the same matter. Whatever developments there were with Oasis would be brought before the JSC in due course.
Mr Swart asked whether members of parliament, who were not members of the JSC, were entitled to have details of the number of complaints received.
Mr Justice Langa replied that this issue of transparency had been discussed with the members of the JSC. When a matter was concluded the JSC should forward a report containing all the relevant details to parliament so that all members could be made aware of complaints received. The JSC was streamlining its procedures. Specifically, in relation to Judge Motala, he noted that the Judge had indicated that he was prepared to answer to allegations in court.
Mr Justice Craig Howie, Judge President, Supreme Court of Appeal added that maybe the most important principle was to bear in mind that a person was entitled not to comment upon allegations if the comments would incriminate him, and thus any other investigations would be unwise prior to trial.
The Chairperson said that this was an area needing more discussion. It was problematic that a judge might be suspended on full salary pending investigations.
Imam G Solomon (ANC) asked if the there was any activism in the judiciary.
Mr Justice Langa replied that he came from an activist background, but could not define the full meaning of judicial activism. There could be good or bad connotations but he himself did not to attach labels. He did not consider himself a "judicial activist" although he believed that judicial officers should not isolate themselves in ivory towers. Judges must be impartial and their integrity beyond reproach, but they were part of the South African society and its realities. If judicial activism meant being alive to the realities of society, then he must say that it did exist.
Mr G Magwanishe (ANC) stated that parliament would not interfere in the work of any other arm of government, particularly the judiciary. He asked how the office of the Chief Justice would be organised.
Mr Justice Langa replied that on re-organisation to accommodate all matters it was obvious that his office should be given the resources commensurate with the tasks allocated. Such issues were still under discussion. The Magistrate's Commission exercised a disciplinary function over magistrates and judges had their own processes. A collective effort was needed to create the necessary structure to support the office. He was of the opinion that there should be an increase in the consciousness of the integrity among judicial officers and this should be an important component of the judicial training. Judges should be beyond reproach. He was not sure how far this should be taken. Judges might well be required to adjudicate a person they had met so they should not do anything that would compromise their integrity.
Mr Magwanishe asked who was involved in the broad agreements mentioned as these had not involved the Committee.
Mr Justice Langa replied that his reference to a broad agreement related to judicial training. He did not mean that the broad agreement must result from a consultative process between all the three arms of government but that there should rather be a culture of discussion. The views on judicial education and the direction it should take had been raised with the executive. However, this would clearly not take the place of the legislature. He had referred to non-controversial aspects.
Ms N Mahlawe (ANC) commended the work done so far in the judiciary in terms of gender and race representation. There was great progress in the current training of the judges.
Mr Justice Langa responded that the statistics were not yet satisfactory and transformation was ongoing. Many suitable candidates could not be included in the process as they were being poached away by corporates such as the banking sector. However, the judiciary was proceeding and looked also to the government to encourage the societal process.
The Chairperson remarked that the Committee was concerned about issues of training and had conducted studies in other countries. On a recent study visit to England the Committee had learned that there was focus on case management. The Committee had received a presentation a few days previously from the National Prosecuting Authority that noted that there was a reduction in the number of cases being finalised in the regional courts, largely due to case flow management. Many delays were caused by postponements and apparently some magistrates were now assigning less cases to the roll each day. She believed there was a need for serious discussions on these matters. Statistics from January to April showed a decrease in the number of new cases but an increase in backlogs as matters were not being finalised as they should.
Mr Justice Langa replied that he was well aware of good work being done by many legal officers from all branches of the profession. There was some training and a pilot project in case management. Cluster discussions were held between courts, Correctional Services and Police Services to try to alleviate blockages. There must be substantial reasons for postponements or for bail being granted or opposed. Certain problems could only be solved collectively and judicial officers should take control of their courts so that they were able to give fully reasoned and well-informed decisions to requests for postponement. It was a problem when courts were not beginning on time, or were finished early in the day. The situation of witnesses being required to attend court and then not called must also be considered. In summary, court rolls must do their job of rolling.
The Hon Dikgang Moseneki, Deputy Chief Justice, remarked that he held the Committee and parliament in high esteem. Institutional building was crucial, especially if it included lateral thinking, as there was much work to be done. It was an undisputed fact that the fundamental objective of judicial training was transformation and this training must be entrenched. Case management was important both for its own sake and to free the courts to attend to their core function. Indabas were the function of the legislature and not the judiciary.
The Chairperson was pleased that it had been made clear that transformation did not mean merely the demographics but also the mindset. She noted that case management was not a function that could be assigned to any one role-player but required a concerted combined effort. When asking the NPA if it had presented it statistics to the judiciary she was advised that it had, but the only queries raised related to the numbers, and perhaps the judiciary should then keep its own statistics. Lack of transformation of mindset was at the root of many problems. There were still some magistrates who refused to preside over sexual offences matters, despite the fact that resources had been allocated to their courts to ensure that problems were addressed. The ongoing issue of minimum sentencing was still generating much discussion, although the minimum sentence could be a way of showing society's outrage. This Committee had taken a hard line, in particular, against sexual offences against children.
Mr Justice Langa replied that statistics could be used in order to get to the root of the problem. Having identified the problem, the heads of courts should be asked to discuss a solution, and work out the specifics of action to be taken. He agreed that delivery of judgments was taking too long, and it had been decided that if a judgement was outstanding for more than three years the Judge President must investigate the matter and take responsibility for his court. The public was not interested in perfectly footnoted judgments but required sound reasoning and a swift decision. He believed that case backlogs should be handled by the respective heads of courts.
Mr Justice Langa could not answer for magistrates who refused to sit on sexual offences cases. He said that the independence of the court did not mean that judicial officers should refuse to preside over cases without valid reasons. He wondered if this matter could not be better handled by the Magistrate’s Commission. He did not understand why there was a problem with the minimum sentencing other than the fact that it reduced the discretion of the judges. He believed it was important to enforce the law, and not seek a way to side-step it. A law still in force must be followed.
Imam Solomon asked for an indication of how a co-operative government was envisaged, as the Constitution directed different jobs to different organs.
Mr Justice Langa replied that this was an area for debate.
Mr Sibanyoni asked if he would agree that transformation was moving slowly.
Mr Justice Langa replied that the systems in the former Transkei and Ciskei still needed to be sorted out, and language remained a debate that had not been settled. He conceded that transformation was slow in some areas.
The meeting was adjourned.