Political Overview by Minister of Justice and Constitutional Development before the budget vote

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Justice and Correctional Services

25 April 2012
Chairperson: Mr B Mnguni (ANC, Free State)
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Meeting Summary

The Minister of Justice and Constitutional Development was invited to appear before the Committee before the Budget Vote took place in May 2012. The Minister of Justice’s opening remarks updated the Committee on progress made in terms of legislation that would be ready for tabling soon. The Committee was informed that the policy framework document on the transformation of the judiciary was released in February 2012 and a lot of comment has been received. The assessment of the courts was necessary and desirable. This exercise would be accommodated in the baseline allocation of the Department. A document called Framework on the Transformation of State Legal Services would be released. The Department sought to improve state legal services in a revolutionary manner. The challenges facing the Office of the Chief Master were well known to the Department and it was hoped that more money would be appropriated from Treasury via the Committee in order to improve services. The Truth and Reconciliation Commission (TRC) victims have been paid compensation and this was 97% of beneficiaries. Measures were being put in place in cooperation with the judiciary to monitor court performance. There would be improvement in the case flow management system. Court infrastructure would receive funding to address the problems it faced. There would be an increased appointment of judicial officers, the training of judicial officers in specialised areas would ensue and this has been undertaken by the South African Judicial Education Institute. The Minister informed the Committee that there has been a R600 million budget cut which might have dire consequences for service delivery. The Department aimed at achieving a clean audit and the ministry was in close contact with the Auditor General and it seemed that there may be light at the end of the tunnel.

The Committee asked of the Minister of his role in the suspension of the Southern African Democratic Community Tribunal after its judgement in the Campbell case which Zimbabwe did not like. The Committee referred to the document on the transformation of the judiciary and asked what court decisions were not in line with the transformational purpose of the Constitution. It was asked of the Minister whether there was a political voting bloc in the Judicial Service Commission. The Minister was asked if there had been political interference in the work of the National Prosecuting Authority and the South African Police Service on the Richard Mdluli matter. The importance of the Special Investigations Unit was highlighted and the Committee asked if it was the Minister’s idea that Mr Willie Hofmeyr should be removed as Head of the SIU and did the Minister express any reservations to the President about removing him. The Minister was also asked if Mr Hofmeyr was given a choice between the AFU and the SIU. The Committee asked what the time frames were for the appointment of a permanent Head for the SIU. The Committee brought to the attention of the Minister the following words uttered by Mr Ngoako Ramatlhodi a Member of Parliament and member of the Judicial Service Commission when he referred to the Constitutional Court as a ‘shoddy compromise that should never have been agreed to’ and asked what he was going to do about this. The Minster was asked if he would support changes to the composition of the JSC to ensure that there were less political appointees in order to restore the confidence of the legal fraternity in this body

The Committee asked why the Supreme Court of Appeal was included in the assessment when initially it was only the Constitutional Court. It was pointed out to the Minister that there was a study of the World Bank on the performance of the courts in South Africa on socio economic rights which found that the judgments of the Constitutional Court were overwhelmingly pro poor, it was asked if this study had been considered and would this not result in redundancy with the government’s own similar initiative. The Committee expressed appreciation for the new Department of Justice and Constitutional Affairs office that was opened in Mpumalanga. The Committee pointed out that the disciplinary inquiries involving magistrates took too long and that they should be expedited and not await the outcome of any criminal trial proceedings in court. The Committee expressed concern with leases that ended up amounting to a figure that was enough to purchase or build a new building that would be permanently owned. The Committee also said that it found the R600 million budget cuts unacceptable.

Meeting report

Opening Remarks from the Minister of Justice and Constitutional Development
The Honourable Minister of Justice and Constitutional Development Mr Jeff Radebe addressed the Committee and outlined the important considerations of his Department’s budget vote. The Superior Courts Bill, 17th Constitution Amendment Bill and the Traditional Courts Bill had been in gestation for many years. The Legal Practice Bill was a complex bill and the certification process was at an advanced stage. The policy framework document on the transformation of the judiciary was released in February 2012 and a lot of comment had been received. The deadline for submissions had been extended to May. Attached to this document was the review of the Constitutional Court (CC) as well as the Supreme Court of Appeal (SCA), a move that had been welcomed by the judiciary. The assessment of the courts was necessary and desirable. This exercise would be accommodated in the baseline allocation of the Department. A document called Framework on the Transformation of State Legal Services would be released. The Department sought to improve state legal services in a revolutionary manner. The Justice Crime Prevention and Security (JCPS) cluster had accelerated programmes in the fight against crime and particularly corruption. The JCPS cluster was working together with the judiciary for purposes of improving the civil justice system. The challenges facing the Office of the Chief Master (OCM) were well known to the Department and it was hoped that more money would be appropriated from Treasury via the Committee in order to improve services. The Truth and Reconciliation Commission (TRC) victims had been paid compensation and this was 97% of beneficiaries. Measures were being put in place in cooperation with the judiciary to monitor court performance. There would be improvement in the case flow management system. Court infrastructure would receive funding to address the situation which the Committee witnessed for itself during oversight visits at the court. There would be an increased appointment of judicial officers, the training of judicial officers in specialised areas would ensue and this had been undertaken by the South African Judicial Education Institute (SAJEI).

Approved and funded posts would be filled particularly in the National Prosecuting Authority (NPA). The Ministry was aware of the vacancy that existed for the Head of the Special Investigations Unit (SIU) and this matter was being pursued together with the president and the post would be filled soon. An enabling environment was being created for the arms deal commission in terms of infrastructure, funding and staff. R15.4 billion has been allocated to the Department for 2012/13. Some of the budget allocations were as follows R2.5 billion was allocated to court services; R2.8 billion to the NPA; R1.8 billion was to Chapter 9 and other public institutions. There was a need for additional resources especially at district court and High Court level. The Committee’s assistance would be appreciated in this regard. The second major cost driver was the start up costs for the new high courts in Mpumalanga and Limpopo. The capacity for the creation of the Office of the Chief Justice (OCJ) was a another cost driver, inflationary prices linked to leased agreements added pressure on the Department’s budget and this resided within the remit of the Department of Public Works (DPW). Additional funding for court record management would be needed and the Committee’s assistance would be appreciated in this regard. There had been a R600 million budget cut which might have dire consequences for service delivery. The Department aimed at achieving a clean audit and the ministry was in close contact with the Auditor General (AG) and it seemed that there may be light at the end of the tunnel.

Discussion
Ms M Smuts (DA) said that it was two years since the Committee last saw the Minister of Justice. What was the Minister’s role in the suspension of the Southern African Democratic Community (SADC) Tribunal after its judgement in the Campbell case which Zimbabwe did not like? Had the SADC Tribunal been shut down and its judges sacked? The document on the transformation of the judiciary mentioned that there were instances where court decisions were not in line with the transformational purpose of the Constitution, what instances were these? It was a vote of no confidence in the Judicial Service Commission (JSC) when qualified candidates refused to come forward as they believed that the process was a foregone conclusion determined by a political voting bloc within the JSC. Was the Minister in charge of this voting block or was it Ngoako Ramatlhodi? The legislative reforms from the Minister were good and indicated that his heart was in the right place. The restructuring of the NPA was reversed by the Acting National Director of Public Prosecutions (NDPP). In light of what was happening in the Richard Mdluli case that there was political influence, was the Minister aware of any indirect or direct political pressure on NPA prosecutors in this case?

Ms D Schäfer (DA) said that the SIU played a vital role in fighting corruption particularly in the public service, it was essential that this body should function effectively and in a stable environment and it was with alarm that Mr Willie Hofmeyr had been unceremoniously dumped at the end of 2011. Was it the Minister’s idea that Mr Hofmeyr should be removed as Head of the SIU, if so why and if not then did the Minister express any reservations to the President about removing him and what was his reaction? Was Mr Hofmeyr given a choice between the AFU and the SIU if not then why not? If Mr Hofmeyr was removed on the basis that he could not hold two positions then on what basis was it safe to say that Adv Mokatle could do the same? What were the time frames for the appointment of a permanent Head for the SIU? It was concerning to hear that Adv Mogatle as the acting Head of the SIU had only four executive meetings whereas Mr Hofmeyr had them every week. She was in the process of re-appointing people who had been dismissed by Mr Hofmeyr, was the Minister aware of this and taken up this matter with Ms Mogatle? The issue of suitable candidates not appearing before the JSC was starting to become serious as the perception existed that political and not judicial appointments were being made. The Minister’s own action in 2009 to postpone a session of the JSC in order to replace the DA’s sole representative from the National Council of Provinces (NCOP) with an ANC Member of Parliament (MP) fit the perception of a JSC that appeared to be not independent. Mr Ngoako Ramatlhodi an MP and Member of the JSC had referred to the CC as a ‘shoddy compromise that should never have been agreed to’ and yet he sat on the very body that selected candidates to uphold the Constitution did the Minister not think that this was a very serious conflict of interest? How did the Minister propose that the matter of Mr Ramatlhodi’s comments be dealt with? In the JSC, for a SCA position there was a judge with 58 judgments and 9 years of experience who has been overlooked in preference to a judge with two years of experience and only three judgments. What possible reason could there be for this recommendation other than the fact that this was a political appointment.

Would the Minister support changes to the composition of the JSC to ensure that there were less political appointees in order to restore the confidence of the legal fraternity in this body? Did the Minister regard as unfavourable that Mr Sibanyoni who was a Member of the Committee as well as the JSC had availed himself for a position on the CC bench, what did the Minister intend to do about this? The grilling of Judge Mojapelo by the Minister last week for criticising the process in the JSC was of concern, was the Minister not concerned with what was raised by Judge Mojapelo i.e. that the JSC process had to be free, transparent, open and independent instead of criticising him?  It was not clear which judges the Minister was referring to as being favourable to the review of the SCA and CC because the ones we have been speaking to were not in favour of it at all. It was extraordinary that an executive arm of government was conducting a study on the performance of the judiciary. Why was it that the discussion document had originally applied to the CC yet after the Zuma judgment it also included the SCA, what was the reason for this? What was the point of having this study if the Committee was going to be seized with the Seventeenth Constitution Amendment Bill, Superior Courts Bill and Legal Practice Bill, was this not an exercise in obfuscation to simply bamboozle South Africa (SA) into thinking that the judiciary and or the Constitution were hindering transformation when in fact the real agenda was to take over the only arm of government that the ANC did not control namely the judiciary?

Mr S Swart (ACDP) asked to what degree had the study of the World Bank on the performance of the courts in South Africa on socio economic rights which found that the judgments of the CC were overwhelmingly pro poor  been considered and would this not amount to redundancy with the government taking a similar initiative? Judge Yacoob had said that he was in favour of an evaluation but issued a warning on the suggestion that there should be some cooperation between the judiciary and the two other arms of government in order to reach some common understanding on the needs of the country, could there be a comment from the Minister on this? What was the intention behind the assessment and what would the report be used for? The decreasing number of finalised cases by the NPA was a matter of concern; could the Minister comment on this?

Ms S Sithole (ANC) commended the Department of Justice and Constitutional Development (DoJ&CD) for opening an office in Mpumalanga in order to provide an access to justice portal for rural women and the poor.

The Minister replied that he did not invite himself to the Committee, he came when invited therefore no blame should be imparted on him for not appearing in the last two years. The matter of the SADC Tribunal was delegated to the Deputy Minister of Justice Mr Andries Nel therefore if the Committee wanted to have more detailed information they should invite him to appear before it. It was never the position of the Justice Ministry that the SADC Tribunal should be disbanded. There was a meeting of the Ministers of Justice in Namibia and Attorneys General and there was no decision taken for the SADC Tribunal to be disbanded. The Minister was not aware of a political voting bloc in the JSC as the vote process was by secret ballot. He was not in charge of a political voting bloc nor did he know that such a voting bloc existed. The members of the JSC representing Parliament from the NCOP and National Assembly were chosen by Parliament itself. The Committee should ask Deputy Judge President Mojapelo why advocates did not want to serve in his court. The restructuring of the NPA had been reversed because the ministry was not aware that this had been done and now this has been reversed with the authority of the Minister. The Minister said he did not know Mr Mdluli nor did he have any competency on the South African Police Services (SAPS), he had no knowledge of any political pressures both within the NPA and SAPS. Mr Hofmeyr was not unceremoniously removed as head of the SIU. Mr Hofmeyr admitted that it was not desirable for him to hold these two positions, he was happy in the NPA and AFU.

Ms Schäfer asked if he was given a choice.

The Minister said that Mr Hofmeyr did not appoint himself and thus it was not his choice. There were issues being dealt with in the SIU however he was not aware of people being reinstated. Mr Ramatlhodi was a Member of Parliament and the Committee could engage with him to hear his views and the ministry also not the appointing authority for his position on the JSC. Mr Sibanyoni could answer for himself as to why he availed himself for a position in the CC. The Minister said as a member of the JSC he was allowed to ask questions and he did not grill Judge Mojapelo, the questions asked were very relevant. The inclusion of the SCA was a result of the inputs received and had nothing to do with their decision in a case involving the President. The study from the World Bank proved that there was a need for such an assessment and it would be read. In addition to the information that the ministry had the judiciary saw nothing wrong with such an assessment. There was nothing wrong with cooperation between the three arms of government. There was nothing wrong with meetings between the judiciary and the other two arms of government where discussions on mutual issues ensued. Such meetings would ensure that there was access to justice. The finalisation of cases was not at a desirable level but there were improvements due to cooperation with the judiciary. 

The Chairperson briefed the Minister on the progress of the Committee on the Superior Courts Bill and the Seventeenth Constitution Amendment Bill. The Committee undertook a study tour to Germany and also engaged with the CC, SCA as well as other judges on the Bills. The engagements with the judges were fruitful. This also highlighted that there was no problem in meeting with judges and Chief Justice Mogoeng Mogoeng said that he did not see any reason why the Committee should not meet with the CC at least once a year. At this point in time it was not desirable to give time frames on the finalisation of the two Bills. To the Members, was it possible to conclude the two Bills before the current session ended and if not could they be finalised soon after the Committees return? The Committee had targeted four other bills for finalisation before the end of term; these were the Trafficking Bill, Protection of Personal Information Bill, The Sheriffs Amendment Bill, the Criminal Procedure Amendment Bill and the Judicial Matters Amendment Bill. 

Mr J Jeffery (ANC) said that the Committee interacted as individuals and not party members and this was good. Ms Schäfer’s point on Mr Ramatlhodi was concerning as it seemed to amount to censorship, was it being suggested that certain things were not up for debate? The JSC was in the Constitution and the Honourable colleagues were debating whether its format was the best format to have; now they were being contradictory if they then said that it could not be criticised. The Committee also had to look at what was its relationship with the JSC, if Members of the Committee were not on the JSC should the Committee be speculating on what went on there. There was nothing wrong with discussing broader issues such as transformation with the judiciary.

Adv S Holomisa (ANC) said that the public hearings for the Traditional Courts Bill should be in the rural areas and not towns. Those affected by the Bill should be afforded the opportunity to speak for themselves and not via politicians or civil society. It was strange that the Bill was in English and not in an indigenous language as it

Ms C Chaana-Majeke (ANC) welcomed the briefing from the Minister. It should be recalled that Mr Hofmeyr himself had said that he could not continue occupying two positions during the NPA’s meeting with the Committee.

The Chairperson said that several issues had arisen and one of them was the question of whether Mr Ngoako Ramatlhodi was entitled to his views. The Justice Committee had traditionally suffered in that it was always an afterthought insofar as representation in the JSC was concerned. This was why there was a representative now on the JSC from the Committee. The Committee should consider how it was going to have debates around the discussions in the JSC in future.

Ms Smuts pointed out that some of what the Chairperson had said was an ANC perspective. In the case of the DA it was at her request that Adv Hendrik Schmidt should sit on the JSC and the DA had no such approach. This was because Adv Schmidt was legally qualified. What the Chairperson had said was desirable and supported. Ms Smuts continued to say that she was devoted to freedom of speech, conscience and thought. What had been shocking about Mr Ramathlodi’s utterances was that he attacked the Constitution at its foundation, namely the supremacy of the Constitution and the power of the courts for judicial review.  

Ms Schäfer said that she supported free speech however if one was a MP and they swore to uphold the Constitution and then sat on the JSC and appointed judges who had to do the same task the big difference was that one could not equate making amendments to the Constitution which...

The Minister interrupted and raised a point of order stating that he was invited to deal with specific issues now he found himself in an invidious position discussion somebody who was not present. If the Committee wanted to continue with the discussion and what was to be dealt with by him was already exhausted then he should leave.

Ms Schäfer said that she was happy to leave the matter for later and she had further questions for the Minister.

The Minister continued addressing the points that had been raised and advised that the Committee should liaise with the NCOP as the Traditional Courts Bill process was there. It was awkward that the Traditional Courts Bill was not in any of the African languages.

Ms Smuts said that currently 80% of the budget went to staff and 20% towards operations. The ideal position was supposed to be 60% staff and 40% operations. The money was not being allocated correctly. The whole Occupation Specific Dispensation (OSD) was being incorrectly applied; it was supposed to be for legally qualified staff. The opposite was now happening where other officials were on a higher scale and legally qualified officials were worse off than before.  The 20% that went to administration was not enough, there was a real problem with the running of the courts and this was why there was a need for courts to be run independently as government was failing. When the Department tabled statistics to the effect that the SCA had under spent the Committee knew that this was not true as it had observed for itself how things really were during oversight visits to the courts. In addition there were people in the Department selling posts for R7000, this was reported to the Director General (DG) and a couple of people were appearing in court for this. Judge Mojapelo complained that amongst his staff there were criminals, he wanted staff from the Registrar arrested on the spot as some had been caught red handed. This was not tolerable.

Ms Schäfer asked what reasons were given as motivation for the SCA to be included in the assessment. Was the Minister aware that his Department had committed to attend a debate on the assessment and did not appear at Rhodes University on Tuesday evening? What was the Minister’s understanding of the difference between rationalisation and transformation, what still had to happen in the justice system for it to be rationalised and transformed? The issue of sexual offences being closed down has been troubling, has the Minister had any discussion on re-instating these courts?

Mr Jeffery addressed Ms Smuts through the Chairperson on the issue of the Department’s statistics on the SCA. He said that he could not say for sure that the Department had given the Committee wrong information. The Committee had received complaints from judges in the SCA during the oversight visit that some of the facilities were not in good shape. Mr Johnson then produced a graph that supported the statement that the SCA had under spent, this surprised the Committee however Ms Smuts could not say that Mr Johnson was incorrect. The understanding of the Committee was that magistrates did not want to sit in specialised sexual offences courts, the Minister could do what he could to roll out these specialised courts. The court in Bloemfontein where there was a one stop child justice centre should receive adequate resources. The Committee was worried about the length of time it took to finalise magisterial disciplinary cases and also the length of time it took for salaries to be suspended. It was not clear why the disciplinary inquiry had to wait for the criminal inquiry to be concluded first.

Mr Swart said that he had quoted Judge Yacoob. The issue of spending cuts in the Department was a concern.  The Committee would support the Department in applying for more funding and a list of priority areas would assist in this regard.

Ms L Adams (COPE) asked if there were enough security in place at courts. What was it that the Department did not need money for because what had been highlighted were seven areas that covered the whole Department which were in need for more funding? Why was the case involving a lesbian that was raped and killed in Khayelitsha postponed about 48 times, there was a no other case where the number of postponements were more than 50 times, why? During the soccer World Cup (WC) cases were finalised almost immediately but now cases seemed to drag again, why the same measures implemented during the WC could not be re-introduced now as well.

The Chairperson said that the Committee was on record for expressing unhappiness at the R600 million budget cuts as somewhere along the line it was the people of SA who would suffer. Leases were starting to cost as much as building a brand new building that could be state owned. Currently departments leased from individuals and companies who became enriched in the process, this was unacceptable. The Minister should engage with his counterpart in the Department of Public Works (DPW). The matter of the expenditure of the SCA was a matter that related to funds that should have been spent by the Department’s officials and not the judges.

The Minister commented that he would double check the implementation of OSD in the Department however the whole programme emanated from the Bargaining Chamber and not the Department.  The discrepancy between other staff and those legally qualified would be double checked as well. It would not be difficult to ascertain the truth behind the funding of the SCA and whether the money was under spent or not. Nothing more could be added to the issue of the inclusion of the SCA for assessment. The Minister said that he was unaware of invitation from Rhodes University.

Mr J Skosana, Chief Director (CD) for Policy Development in the DoJ&CD said that there was an invitation from Rhodes but this was during the JSC sitting.

The Minister continued to say that there was no decision to close down the soccer courts. The reasons forwarded by Mr Jeffery were most appropriate and it seemed that the presiding officers in specialised courts were the main ‘culprits’. They had indicated that their other colleagues were exposed to other branches of the law whilst they dealt with one issue. It was true that the conviction rate for sexual offences was high when the courts were there but was now at a decline. The Department was in the process of rolling out more One Stop Child Justice Centres. It was true that the disciplinary inquiries of magistrates were taking too long and this would be impressed upon the Department’s officials and the Magistrates Commission (MC).  The postponed matters up to 48 times would be looked into. The security at courts for presiding officers did not only fall on the shoulders of the Department but there were plans to address this and the police were involved. The Department would need the support of the Committee on the budget cuts. The issue of leases was a concern and this was shared by the Minister of DPW.

Ms Smuts said that the witness protection was in the remit of the NPA or go back to the DoJ&CD.

The Minister replied that the person who was in charge of witness protection was on their way out and the matter was further being looked into and would be corrected.

The meeting was adjourned.

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