The meeting was a continuation of the Department of Justice and Constitutional Development Department’s responses to Members’ questions at the previous day’s meeting.
The Department replied to the question about the transformation of the legal system and how it related to the principles of Ubuntu. It said the Constitution provided for the transformation of the legal system from Roman-Dutch law to a new identity which institutionalised the traditional justice system and the Alternative Dispute Resolution mechanism, with the aim of enhancing access to justice. A number of initiatives had been put in place to achieve this. The Department had presented work done by the Human Sciences Research Council (HSRC) and the University of Fort Hare to the Committee, and this work sought to look at the impact of jurisprudence in advancing the revolution of the legal system. This work -- the Constitutional Jurisprudence Project -- was on track and a progress report would be presented to the Committee by the end of June.
The Department needed to see to what extent traditional courts needed to be reformed. It was looking to develop new traditional law and how it could align traditional law to be consistent with the Constitution. The Traditional Courts Bill aimed to bring balance to infringed principles at the communal level. It was not intended that advocates would appear before headmen, while legal principles would still find space at the high courts. In 2011 a resolution had been adopted to promote access to justice through traditional courts and community courts. The policy framework of traditional courts would inform the community courts dispensation, as it provided a means of alternative dispute resolution.
The Department said only one clause was provided in the Legal Practice Act regarding paralegals because the Department felt the Minister, as a matter of policy, should determine the level of recognition of paralegals in court. The Department was processing regulations to identify paralegals as people who could be designated by the Minister to perform certain functions in the justice system, which could include appearance in equality and traditional courts. The conceptual framework for this had to be finalised and consultations had to be completed by August 2015, with a draft available by the end of this year.
On the question of the alignment of magisterial districts with municipalities, the Department said that in delineating magisterial districts, municipal demarcations would be noted firstly, but the Magistrates Courts Act provided for the Minister to allow a portion of a province to fall under an area in a different province. The same applied to the Small Claims Courts, which were being realigned. A basic principle should be that people should go to the nearest court. No person should have to drive more than 55km to reach a court.
A draft policy on the languages to be used in court would be published before the end of April. It would call for a minimum of five languages to be used for all documents and would extend to the recording of the proceedings of the trial.
On the question of what the Alternative Judicial Administration Framework sought to achieve, the Department said that it was intended that a judicial administration had to be created that spoke to the constitutional separation of powers. The Judiciary had made a submission which was based on the Attorney General model. The Minister had presented this document to Cabinet. The Chief Justice had already made a draft submission to Cabinet in August 2014. The Department had presented an alternative model and once a conceptual framework had been developed, it would present it to the Committee, accompanied by a draft bill within two years.
The Department also answered questions relating to the legal briefs given to the different race groups, the transformation of the law curriculum, on law reform and rule making, on the impact the Department was having on the people, and on the question of what the difference was between the National Directorate of Public Prosecutions (NDPP) and the Solicitor- General (SG). Other issues covered included magistrates’ complaints that they were paid less than prosecutors, the use of consultants, the Cyber Crime Bill, addressing the Kulumani complaint, the case of Mr Max Japhta, the premises of the Umtata Masters Office, job evaluation, the Foundation for Human Rights and how the Department dealt with children.
Members said legislative work should not be dependent on outside people, which would cause delays. They felt the processing of the bills had been very slow and should be speeded up. Did the Department have enough capacity to assist the Minister? Members asked how the distinction would be arrived at as to what five languages would be used in court in a particular area. They said the Traditional Courts Bill had been withdrawn mainly because of the women’s sector, which felt that Traditional Courts were abusive of women. Had this sector been engaged with? Members wanted clarification on the difference between a traditional court and a community court, and whether there would be community courts where there were traditional courts. They said that only when customary law was not in conflict with the Constitution could it be applied.
They asked what the status of the Black Administration Act was, and whether it was extended indefinitely or every year or two. Members debated whether it would be a new bill requiring a round of public participation again. The fact that the submissions had been mainly from urban groups was problematic, and the Department had to ensure that it received inputs from the rural areas where the bill would be most used.
Due to a lack of time, the rest of the Department’s responses would be made available electronically for Members to read and follow up.
Adv Jacob Skosana, Deputy Chief State Law Advisor: Policy Development, Department of Justice and Constitutional Development (DJCD) spoke about the transformation of the legal system and how it related to the principles of Ubuntu. He said the Chairperson had asked the previous day to what extent the Department was focusing on the transformation of the legal system from Roman-Dutch law to the Africanisation or localisation of the legal system, to allow it to talk to South African citizens.
He said the Constitution provided for the transformation of the legal system -- a movement away from Roman-Dutch law to a new identity. A number of initiatives had been put in place to achieve this. The National Development Plan (NDP) also spoke to having a restorative justice system which related to South African history and its particular circumstances. The institutionalisation of the traditional justice system and the Alternative Dispute Resolution mechanism aimed at enhancing access to justice.
The Department had presented work done by the Human Sciences Research Council (HSRC) and the University of Fort Hare to the Committee, and this work sought to look at the impact of jurisprudence in advancing a revolution of the legal system. This work -- the Constitutional Jurisprudence Project -- was on track and a progress report would be presented to the Committee by the end of June.
The report would look at what in the current legal system needed transformation -- for example, to identify archaic Roman-Dutch legal principles. The report would act as the basis for a reform of the whole justice system into one embodying Ubuntu, a caring justice system. The terms of reference of the report included how the Constitution should be interpreted to enhance access to justice, the establishment of an affordable legal system and public interest litigation. This document would be published and start a public discourse in which the end result would be a clear programme of action which identified aspects that required legislative reform.
Traditional Courts Bill
Adv Skosana said the Department needed to see to what extent traditional courts needed to be reformed. The Department was looking to develop new traditional law, and how it could align traditional law to be consistent with the Constitution. Before the Constitution, Customary Law was subject only to the policy preferences of the government of the day, but now customary law would be part of the legal system. The traditional courts were the bedrock of the traditional justice system which today still continued to function under the Black Administration Act of 1927, based on the now defunct apartheid system.
The key question was how the traditional courts could be aligned to the new constitutional order. The traditional courts existed not because of the Traditional Courts Bill, but because of the Constitution. The Traditional Courts Bill sought to provide a framework to regulate traditional courts in terms of the new order. The work was almost done, and by the end of May there would be a discussion document. A draft Bill was scheduled by November 2015. The Traditional Courts Bill aimed to bring balance to infringed principles at the communal level, and it was not intended that advocates would appear before headmen. Legal principles would still find space at the high courts.
He said the Chairperson had asked about community courts the previous day. In 2011, a resolution had been adopted to promote access to justice through traditional courts and community courts. The policy framework of traditional courts would inform the community courts dispensation, as it provided a means of alternative dispute resolution. All the pilot community courts started in 2008 had collapsed because there had been no framework, no legislation had been developed, with no clear policy on who would work in community courts and no clear budget to fund them.
Adv Skosana said only one clause was provided in the Legal Practice Act regarding paralegals because the Department felt the Minister, as a matter of policy, should determine the level of recognition of paralegals in court. He said paralegals were used, for example, in the labour court which worked well without the use of lawyers. If paralegals could be allowed to represent at the Equality Court, it would be beneficial. The Justice of the Peace and Commissioners of Oaths Act of 1963 could be used to appoint paralegals as justices of the peace to perform functions which the Minister may designate. The Department was processing regulations to identify paralegals as people who could be designated by the Minister to perform certain functions in the justice system, which could include appearance in equality and traditional courts. The conceptual framework for this had to be finalised and consultations had to be completed by August 2015, with a draft available by the end of this year.
Alignment of magisterial districts
On the question of the alignment of magisterial districts with municipalities, Adv Skosana said that in delineating magisterial districts, municipal demarcations would be noted firstly, but the Magistrates Courts Act allowed for the Minister to allow a portion of a province to fall under an area in a different province. For example, currently a person in Brits had to travel 275 km to Mafikeng, while Pretoria was only 45 km away. Proximity would be a basic principle. A similar situation existed with the Small Claims Courts, which were being realigned. A basic principle should be that people should be able to go to the nearest court. No person should have to drive more than 55km to reach a court.
Draft policy on language used in court
A draft policy on the languages to be used in court would be published before the end of April. It would call for a minimum of five languages to be used for all documents, and this would extend to the recording of the proceedings of the trial.
Alternative Judicial Administration Framework
On the question of what the Alternative Judicial Administration Framework sought to achieve, Adv Skosana said that it was intended that a judicial administration had to be created that spoke to the constitutional separation of powers. The Judiciary had made a submission which had been based on the Attorney General model. The Minister had presented this document to Cabinet. The Chief Justice had already made a draft submission to Cabinet in August 2014. The Department had presented an alternative model, and once a conceptual framework had been developed, it would present it to the Committee within two years, accompanied by a draft bill.
Regarding the pace at which government institutions had to work being dependent on outside bodies, the Chairperson said that it appeared that as far as the processing of bills was concerned, this term could be written off. Yet Parliament had agreed that something radically different had to be done, so he hoped the Department would look again at the issue of the speed at which the bills were being processed. The legislative work should not be dependent on outside people, which would cause delays, while in the meantime people were suffering. Was there a way to move more quickly? He suggested that Parliament conduct the public participation process.
Regarding community courts, the Chairperson said the University of Cape Town (UCT) and the University of South Africa (UNISA) had done a lot of work. Community courts, however, were an initiative of the people, not academics. It was not about the funding model, because non-lawyers would be operating in these courts, not lawyers.
He said the Minister had a lot of powers, but he questioned whether the Department had enough capacity to assist the Minister. The Department knew where it was going, but the processes were too slow.
It was his observation that making language a requirement at universities was the key issue.
Mr L Mpumlwana (ANC) said there was a distinction regarding procedural law when comparing Roman- Dutch and African traditional law. Roman-Dutch law found an individual guilty or not guilty, whereas in African law the family of the defendant questioned their own member and then accepted or rejected the guilt. How would this matter be approached? He also noted that paralegals would be involved, but elders would not be involved. On the issue of languages, he said English and Afrikaans would be used everywhere, so how had the distinction been arrived at as to what five languages would be used in a particular area?
The Chairperson said that there should be people-centred and driven transformation
Ms S Pilane-Majake (ANC) said the Traditional Courts Bill had been withdrawn mainly because of the women’s sector, which felt that traditional courts were abusive of women. Had this sector been engaged with? There should be a clear strategy to involve this sector to facilitate the finalisation of the bill. The bill had been present since the second Parliament, and it was now the fifth Parliament. Traditional courts were still operating, so the sooner this was finalised the better. She acknowledged that there had been lots of movement regarding the transformation of the courts. She echoed Mr Mpumlwana’s sentiments on what criteria were used to decide what languages were used in courts. The courts had not been transformed.
Ms M Mothapo (ANC) said the traditional law process was moving at a snails pace. Members could not be proud that over 1 800 traditional courts were still operating under an apartheid era law, the Black Administration Act. She appealed to the Department to expedite the process, because rural people depended on the traditional courts. This was the only bill that had been before Parliament for a long time. The majority of South Africans were Africans living in rural areas. She commended the Department for its use of multilingualism in courts. She said if people studied law, they should also have to learn one indigenous language. She wanted clarification on the difference between the traditional court and the community court -- would there be community Courts where there were traditional courts?
The Chairperson asked what the Department was doing that was radically different, so as to expedite the bill. He raised the issue of paralegals having no status in law. Legal justice was serving only the previously advantaged people, while democracy had to serve the majority of the people.
He said community courts were traditional courts in townships, as opposed to rural settings.
Regarding the traditional courts, Mr W Horn (DA) said that the Committee had to be reminded of the difficult task the Department faced in aligning the bill with the Constitution. Only when customary law was not in conflict with the Constitution could it be applied. He appreciated the comments that customary law was the bedrock of the alternative dispute resolution (ADR) system.
The Chairperson said that ADR had been imported from Canada, and SA must be able to develop its own ADR.
Mr B Bongo (ANC) said traditional law already existed. Law would be operating in a vacuum if it did not take cognisance of the existing way of operating. What was needed was to enhance the way traditional law operated, and these enhancements should be consistent with the Constitution. He said that the Department operated under budgetary constraints and would need to re-prioritise funds. He said the level that paralegals could access needed to be regulated.
Mr S Swart (ACDP) asked what the status of the Black Administration Act was. Was it extended indefinitely or every year or two?
Adv Skosana said that the Act remained in force until it was repealed in Parliament.
Ms Nonkululeko Sindane, Director-General of the Department, said there were issues the Department needed to resolve regarding time. She asked guidance from the Committee on the Traditional Law Bill. Was the Committee proposing that they should not consult and let Parliament consult through the public participation process, or should they consult only with the most vociferous and outspoken.
Ms Pilane-Majake said that Parliament did not conduct awareness programs.
Mr Swart said that when the bill was brought to Parliament, the Department had to consult. The Chairperson’s concern was only in the delay in the time needed for the consultation with stakeholders.
Mr Bongo said the bill had been before Parliament since the second Parliament, and that it should be finalised as soon as possible.
Mr Horn said that it was clear that there would be a redrafting of the bill. Therefore, if it was a new bill, there would have to be a public participation process.
Mr Bongo said that Mr Horn wanted to delay the introduction of the Bill.
Adv G Breytenbach (DA) said that they were not trying to delay the bill, and that Mr Bongo should consider withdrawing his remark.
Mr Swart said the bill had been withdrawn by the executive in the first place and that if it was substantially different, then a detailed public participation process was necessary. It was a new bill.
The Chairperson said the bill was withdrawn because of specific questions the Department needed to address, so it was not a new bill but an old bill with challenges which had to be addressed. Could the Department address the areas for which the bill had been withdrawn?
In answer to the DG’s question, he said the internal participation needed to be addressed, otherwise Parliament would need another ten years to process the bill.
Regarding Mr Swart’s question, Adv Skosana said the bill would be introduced to Parliament, not to the National Council of Provinces (NCOP). He said that internal participation could be reduced to three months.
Mr Swart said that when the bill was introduced to Parliament, perhaps it could immediately be introduced to the NCOP to reduce the time to process the bill.
Ms Pilane-Majake said the fact that the submissions were mainly from urban groups was problematic. The Department had to ensure that it received inputs from the rural areas, where the bill would be most used.
Ms Sindane said that with regard to legal briefs given to the different race groups, 75% of the value of the briefs went to, while 55% went to African counsel. What needed to be looked at, however, was that the spread of the briefs across previously disadvantaged individuals should be better. The data had been taken from the figures for quarter one to quarter three in 2014/15. The biggest clients were the Departments of Home Affairs, Police, Basic Education and Health.
Regarding the question on the transformation of the curriculum, she said there had been engagements with universities and deans on the issues around a curriculum. A timeline could not be given because they too had to go back and consult. The sourcing of a timeline would be followed up, as well as the inclusion of indigenous languages as a prerequisite for the completion of a qualification in law.
On law reform and rule making, Adv Skosana said that the SA Law Reform Commission recognised two kinds of rules. These were policy rules, all of which had to be tabled before Parliament, and access to justice rules, which was the domain of the judiciary.
Ms Sindane said they had been hurt by the Chairperson’s comments the previous day on the impact the Department was having on the people. She agreed that the Department had been the slowest in terms of transformation. The Department did, however, prioritise young people for the filling of vacant posts. It had learnerships, internships and a bursary programme which was focused on post-graduate studies in language qualifications, in line with the language policy and a broad language agenda. The Department was also looking at where it could procure goods and services from young people.
She said that xenophobia and attacks on non-nationals was another area where there were shortfalls. The Department had not done enough in being out among the people and educating them. The Department had developed a national development plan on racism, xenophobia and related intolerances. That work would go to Cabinet soon. The previous year, the Department had worked on developing a hate crimes policy which had been sent to Cabinet. More work needed to be done, and the Department was committed to sending it back to Cabinet. Hate crimes had been high on the Department’s agenda. The hate crimes would include racism, xenophobia, homophobia and related intolerances.
Regarding recent xenophobic attacks, she said the Department played a key role in the Justice, Crime Prevention and Security (JCPS) cluster, and that everybody should be included in community education programmes. The Department was also singling out Lesbian, Gay, Bisexual, and Transgender (LGBT) crimes, where there were killings purely because a person did not conform to a stereotype of what a man or woman was. The Department was meeting regularly with civil society bodies. The Department had an action plan, a communication plan and a case flow plan.
On the question of what the difference was between the National Directorate of Public Prosecutions (NDPP) and the Solicitor- General (SG), she said that the NDPP dealt with crime litigation while the Solicitor General dealt with civil litigation, and also public interest litigation. Currently the SG was not in place and the Department did public interest litigation. The first task of the SG would be to develop litigation policy, of which public interest litigation would be a part.
On the matter of magistrates complaining that they were paid less than prosecutors, she said magistrates’ remuneration was dealt with by the Magistrates Commission and the Public Office-Bearers Commission, while prosecutors might get more than magistrates because of the Occupation Specific Dispensation (OSD).
Regarding the national forum consultant, she said the Department had sought assistance from the Department of Trade and Industry (dti). The consultant worked for the dti, and was not an outside consultant. On the use of outside consultants, she said that the Department had reduced consultancy work by 40% and there were only a few instances they were used, such as in ICT.
The Cyber Crime Bill would be going to Cabinet within the next few weeks and then introduced to the House. The Department was a member of various structures introduced through the cyber security policy framework.
On the matter of addressing the Kulumani complaint, she said the Department had met with them several times but had not been able to reach agreement with them about the reopening of reparations with the Truth and Reconciliation Committee (TRC).
Regarding Mr Mpumlwana’s question, she said that Mr Max Japhta had been identified as a victim by the TRC and had verified that he had received benefits of R30 000 in reparations in 2004.
On the matter of the premises of the Umtata Masters Office, Mr Romeo Adams, Deputy Director-General: Corporate Services, said that the office was situated in an old convent that was rented. The Department was aware that there was a shortage of office space in Umtata and would get the landlord to improve the building’s condition. He said estates took long took long to wind up because of difficulties in the administration process.
Regarding a question on job evaluation, an official of the Department said that there were two categories of posts in the Masters Office. One category of post was that of Occupation Specific Dispensation (OSD) posts which were non-evaluated, and there were non-SD posts that were evaluated by the Department of Public Service, like administration clerks. Disparities had also been picked in other posts, like the post of messenger, and the Department had submitted a business case to the Department of Public Service and Administration to resolve these issues.
Ms Sindane then spoke about the Foundation for Human Rights (FHR), where the Department had one representative on the Board. The FHR was to all intents and purposes an NGO which had done programmes over the past five years solely on the matter of access to justice. In the next five years, its focus would be access to justice with an emphasis on socio-economic rights. The Foundation trained civil society organisations and the Department had looked at aligning the FHR’s work with that of the Department around issues of community education and mobilisation. The Department was committed to engaging in all nine provinces on educating on socio-economic rights issues, using the model of the Foundation. The question had been asked whether the Department had any control over the FHR. It did not, but it did have a very good relationship with them.
On the question of how the Department dealt with children, she said the Department submitted two separate reports, one on children and one on sexual offences. It had tried to ensure that all the forms for the maintenance court were in all languages and the Department had simplified the forms as well having them done in Braille. It had entered into an MOU with Legal Aid South Africa so that criminal and civil matters could be followed up by Legal Aid, and this had been extended to the Masters Office to assist households headed by a child.
The Department reported to the JCPS cluster in terms of LGBT and women’s issues on a quarterly basis.
Regarding the impact of workshops, the Chairperson asked how law students were involved. The board of the FHR comprised advocates and judges, when it should consist of lay people. Could a revision be done with the EU regarding the term of office of the board?
In this regard, Mr Swart said that there was a parliamentary representative at the EU.
The Chairperson said Members could read the rest of the Department’s responses and follow up on them at the next meeting with the Department.
The meeting was adjourned.
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