Justice and Correctional Services Budgetary Review and Recommendations Report; Courts of Law Amendment Bill: deliberations

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Justice and Correctional Services

26 October 2016
Chairperson: Dr M Motshekga (ANC)
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Meeting Summary

The Committee deliberated and approved the three Budgetary Review and Recommendations Reports. Democratic Alliance members objected to the framing of paragraph 8.1 concerning the Office of the Chief Judge and Judicial Administration because the inclusion of 'decolonisation' does not reflect the unanimous view of the Committee. After debate, members agreed to retain the impugned paragraph with a reference to the DA’s opposition. Members stressed the need to include transformation in the five programmes of the DoJ&CD. Some members suggested that the DoJ&CD’s programme and reporting focus should extend to the Master’s Office. Some members stressed the need for emphasis on combating racism because it will assist in building a racially cohesive and progressive South African society. Members expressed concern that budgetary constraints placed on Legal Aid South Africa’s ability to provide legal aid could have negative impacts on land claimants, and thus contribute to the perpetuation of poverty, unemployment, and inequality. If the underlying issues of land claims and invasions are not addressed, breakdown in law and order could result. They suggested a special fund in the Legal Aid SA to support people charged with land invasions and stressed the need to learn from the lessons drawn from the Marikana Commission. A member suggested a harmonisation of the budgets of Chapter Nine institutions to prevent disparities in their budgetary allocations.

The Committee then deliberated on the Courts of Law Amendment Bill. The Department of Justice and Constitutional Development Department explained the submissions, stakeholder engagements, and public hearings that have taken place on the Bill as contained in the Summary of Submissions and Response by Department based on these submissions and engagements. It also gave an analysis of the Constitutional Court’s judgment in the Stellenbosch case and summarised the effect of the Stellenbosch judgment on the Bill. Members sought clarity on the need for a physical appearance in court before the issuance of an emolument attachment order, whether the Stellenbosch judgment clarified the respective roles of the clerk and the magistrate, and the fairness of the 25% cap on attachable income in cases of more than one creditor.

Meeting report

Correctional Services Budgetary Review and Recommendations Report
The Committee went page by page through the Report. The only substantive changes suggestions were;

Ms C Pilane-Majake (ANC) pointed out in paragraph 9.10.1 that ‘clean audit’ should be changed to ‘unqualified audit.’

Ms G Breytenbach (DA) suggested paragraph 9.10.2 should contain a reference to worsening prison conditions and a request for increasing the budget for incarceration of prisoners.

The Committee adopted the report.

Office of Chief Justice (OCJ) Budgetary Review and Recommendations Report
The Committee went page by page through the Report. Substantive discussion on the report included:

Ms Pilane-Majake, who took over as Acting Chairperson, suggested that underspending should be mentioned.

Ms Breytenbach objected to the framing of paragraph 8.1, stating that it is not the view of the entire Committee.

Mr W Horn (DA) supported Ms Breytenbach, stating that section 8.1 does not apply to performance reports. He added that 8.4 should read that the OCJ received an unqualified audit, not ‘a qualified audit opinion with findings.’

Mr Maila said that paragraph 8.1 reflects the correct observation of the Committee.

Ms Mothapo agreed with Mr Maila that paragraph 8.1 is a true reflection of the OCJ’s budget presentation and subsequent Committee discussion.

Mr L Mpumlwana (ANC) agreed with Ms Mothapo and Mr Maila that paragraph 8.1 reflects the Committee’s discussion. He added that it will be unfair on the drafters of the report to deny that paragraph 8.1 is incorrect.

The Acting Chairperson stated that the paragraph is trying to say that the transformative agenda of South Africa’s legal system should be reflective of the justice needs of South Africans, especially people in rural areas.

Ms Breytenbach disagreed with the Acting Chairperson. She quoted paragraph 8.1 to restate her position that "decolonisation" was not part of the unanimous agreement of the Committee.

The Acting Chairperson asked Ms Breytenbach to suggest a reframe of the paragraph.

Mr Mpumlwana raised a point of order to clarify whether the paragraph is being debated to change it or to reflect what transpired in the OCJ discussion.

The Acting Chairperson replied that the paragraph is being considered with a view to possibly adjusting it to reflect the Committee’s discussion.

Mr Swart stated that the report should reflect the resolution of the Committee. He suggested that paragraph 8.1 could be reframed to state that ‘some members of the Committee stated that …’ although it would not be ideal for the Committee to project a disunited front'.

The Acting Chairperson agreed with Mr Swart.

Dr Motshekga agreed with Mr Swart that the outcome of the meeting must be reflected in the report.

Mr Mpumlwana read parts of paragraph 8.1. to support his complaint that the Committee is being frivolous with 8.1. because it is not framed in an incorrect manner.

Ms Christine Silkstone, Committee Content Adviser, suggested paragraphs 8.1 and 8.2 could be merged.

Dr Motshekga expressed support for Ms Silkstone’s suggestion.

Ms Mothapo asked for clarity on the proposed restructuring of paragraphs 8.1 and 8.2.

The Acting Chairperson explained the purpose of the merger of paragraphs 8.1 and 8.2.

Mr Maila stated that the Committee cannot change the report just because it does not like certain issues. He suggested that paragraph 8.1 should remain unaltered because there is a radical need for transformation.

Dr Motshekga stated that unless someone wants to challenge the integrity of Committee members, there is nothing in 8.1 that does not reflect the discussions that took place in the Committee. He stated that there is no controversy in 8.1 because South Africa’s past of injustice clearly demands radical transformation in the legal system.

The Acting Chairperson advised Ms Breytenbach and Mr Horn to pinpoint the sentences or phrases they want to restructure in paragraph 8.1.

In response to Ms Breytenbach complaining that the Acting Chairperson does not want to recognise her right to speak, she was given permission to speak.

Ms Breytenbach stated that if the Committee insists on retaining 8.1, it should reflect that some members of the Committee objected to it.

Mr Horn stated that the Chairperson’s assertion that 8.1 is not controversial is incorrect. He argued that African Customary law is recognised in the Constitution. He concluded that the inclusion of decolonisation in paragraph 8.1 is an ANC propaganda piece and not a unanimous Committee resolution.

Mr Mpumlwana restated that 8.1 reflects the discussions in the Committee. He advised Mr Horn to refrain from pinpointing whether African Customary law is well recognised or not because it is a very sensitive topic.

Dr Motshekga stated that the Committee is fighting over an issue that does not exist. He stated that African law was written by anthropologists, some of whom could not speak a single indigenous language. This language incapacity led to mistakes in the recording of African law. Today, indigenous Africans are restating African Customary law, and this forms part of the decolonisation project. He denied that decolonisation efforts through the Traditional Courts Bill and other efforts is politically motivated. Decolonisation is merely aimed at addressing the historical injustices of the past.

The Acting Chairperson suggested that paragraph 8.1 should be flagged and considered later before the report is adopted.

Mr Horn stated that the matter of indigenous languages should be included in the report.

Responding to paragraph 8.1, Prof Msimang stated that decolonisation does not relate to the application of the common law or Roman-Dutch law alone. Rather, it extends to proper application of indigenous law and African traditional practices in the legal system. Thus, paragraph 8.1 does not mean the removal of the common law or Roman-Dutch law from the legal system.

Mr Maila expressed his support for Prof Msimang’s views. The report does not seek the discontinuance of the Roman-Dutch law. It merely seeks to ensure a proper place for  African Customary law.

Dr Motshekga stated that the Constitution acknowledges that South Africa is culturally, religiously, and legally plural. He noted that the Committee has not said anything about Muslim marriages. He stated that transformation and decolonisation serve the same function.

With respect to the DA’s stance on paragraph 8.1, the Acting Chairperson stated that political leaders should not only seek the interests of the group they represent.

The DA members restated their objection to paragraph 8.1.

Dr Motshekga suggested that the ‘decolonisation’ should be deleted from paragraph 8.1 and replaced with the ‘transformation.’

Prof Msimang supported Dr Motshekga’s suggestion.

The Committee adopted the report.

Ms Breytenbach reserved the position of the DA until voting in the House.

Justice and Constitutional Development Budgetary Review and Recommendations Report
The Chairperson, Dr Motshekga, called for page by page deliberations on the report which included these DoJ&CD entities: National Prosecuting Authority, Legal Aid South Africa, Special Investigating Unit, South African Human Rights Commission and the Office of the Public Protector.

The Chairperson noted an anomaly in paragraph 1.3 on the absence of transformation in the five programmes. He asked Mr Basset to respond.

Mr Lawrence Basset, DoJ&CD Chief Director: Legislation, explained the ambit of the five programmes. DoJ&CD would have to reconsider the integration of transformation into the five programmes.

The Chairperson stated that ensuring justice requires certain fundamental issues be addressed. It is not only the judiciary that requires transformation. The entire legal system needs transformation and the DoJ&CD needs to understand this message.

The Chairperson asked whether the Master’s Office should not fall under these areas of focus.

He stated that the Committee should be apprised of what is going on in the Master’s Office, especially given that there was litigation concerning the office.

Ms Pilane-Majake remarked that Committee Report should be clear about the entities it is focussing on.

Ms Silkstone explained that the Master’s Office is part of the DoJ&CD. Accordingly, it does not have its own Annual Report.

The Chairperson stated that the Committee should be made aware of what is happening in the Master’s Office. The Committee should have statistics of work distribution in the Master’s Office because it is a transformation issue. This information could be included under the Legal Services programme.

The Chairperson asked Mr Basset whether the Hate Bill equates to a criminalisation of racism.

Mr Basset replied that the purpose of the Hate Speech Bill is to criminalise specific intentions, whereas racism is much broader than hate speech.

The Chairperson argued that the fundamental problems South Africa is grappling with concern racism, not hate speech. Accordingly, emphasis should be placed on combating racism.

Mr Basset stated that racism is mentioned in the Hate Speech Bill.

The Chairperson restated that South Africa’s problem is racism, which means that it cannot be dealt with indirectly. Hate speech is merely a manifestation of racism. Parliament cannot waste five years on hate speech instead of devoting time to combating racism.

Mr Basset replied that racism is dealt with prominently in the Hate Speech Bill.

The Chairperson replied that Parliament must address racism in order to build a society that is racially cohesive and progressive.

Ms Pilane-Majake stated that as long as focus is not placed on racism, South Africa's society cannot unite. Racism is about phobia, disrespect, and inequality. So long as racism is not addressed, there can be no social cohesion in South Africa. Indeed, racism is a new form of oppression. She said brutal honesty is needed in the quest to build a new democratic South Africa.

The Chairperson noted that the Forum against Racism has disappeared without submitting a report to South Africa. Rather, it reported to the United Nations.

The Chairperson pointed out that the Committee agreed that there was arbitrariness in the assessment of Independent Development Trust reconciliations in paragraph 3.3.3. He asked Mr Basset for a report on this.

Ms Pilane-Majake noted that the Magistrate’s Commission is coming up for the first time.

The Chairperson agreed that a report should also be submitted for the Magistrate’s Commission.

Mr Horn pointed out that the requests for the stated reports should be balanced against their budgetary implications.

Ms Pilane-Majake stated that Parliament requires reports on any financial projects it approves.

Mr Horn explained that a mechanism for reporting has yet to be adopted for the Magistrate’s Commission, of which he is a member.

The Chairperson noted that transformation is needed in the Master’s Office in the same way as it is needed in the provision of legal services.

The Chairperson pointed out an anomaly in the report on Legal Aid South Africa on page 31 on the state’s inability to provide legal aid to land claimants. This inability will contribute to perpetuation of the triple challenges of poverty, unemployment, and inequality. He suggested a special fund in Legal Aid SA to support people charged with land invasions. He stressed that poor people in the villages cannot be expected to pay lawyers for land claims running up to ten years. He warned against the danger of revolution if the underlying issues of land claims are not addressed.

Mr Maila advised the Committee to learn from the lessons of the Marikana Commission. He stated that Legal Aid SA can benefit from funds allocated to the Commission on Land Restitution.

Mr Horn suggested that the Committee can recommend special funding for Legal Aid SA to deal with land claims.

The Chairperson restated the danger of a breakdown in law and order because of neglect of land claims.

Ms Pilane-Majake stated that Parliament must not wait until a crisis breaks out over land claims and illegal occupation of land before it acts. She suggested public education campaigns on the human rights issues surrounding land claims.

The Chairperson suggested increased networking between Chapter Nine institutions on constitutional provisions on human rights. He stated that the agenda for the Foundation for Human Rights cannot be set by the directors of that institution. He expressed regret that only 46% of the population know about the Constitution’s Bill of Rights. He requested increased transparency in the establishment and operation of the Foundation.
Ms Pilane-Majake asked why the National Forum on the Legal Profession does not submit reports to Parliament.

Mr Basset and Ms Silkstone affirmed that the National Forum on the Legal Profession ought to, and indeed, have submitted reports to Parliament.

The Chairperson noted that there are several reports that are not brought to Parliament’s attention. He cited a report from the University of Fort Hare based on its research on jurisprudence. He wondered why the Committee is not informed about such reports.

Regarding page 41, Ms Pilane-Majake stated that the Committee expressed a sentiment for harmonising the budgets of Chapter Nine institutions.

The Chairperson stated that there is a Forum for Institutions Supporting Democracy. This Forum has overlapping mandates and does not seem to be active. Harmonising the said budgets should be the duty of this Forum. The Forum should report to the Committee or include a representative of the Committee in its sittings.

Regarding page 49, Mr Horn pointed out that the Committee expressed a desire to request Treasury to be mindful of budget cuts that will affect justice delivery.

Ms Pilane-Majake noted the need to stress the Justice Fund Bill in paragraph 13.7.

Mr Horn noted that the framing of paragraph 13.8.1 should better reflect the Committee’s views on case backlogs.

The Chairperson requested Mr Basset provide more information on the integrated justice system.

Ms Pilane-Majake noted that the Committee stressed the need to ensure that children are maintained by their fathers in cases of separated spouses.

Mr Horn asked why the report singles out fathers for maintenance.

The Chairperson explained that mothers take better care of children, which is why the report focused on fathers.

Ms Mothapo stated that the report’s recommendations should include the issues raised about security and filling of critical vacancies.

Ms Silkstone sought clarity in Ms Pilane Majake’s suggestion for harmonising the budgets of Chapter Nine institutions, which she explained.

The Report was adopted by the Committee. DA  noted its reservation.

Courts of Law Amendment Bill: deliberations
Ms Mothapo, Acting Chairperson, and asked for an update on the Courts of Law Amendment Bill.

Presenting, Mr Basset stated that there were two rounds of submissions on the Bill, several stakeholder engagements, and public hearings. DoJ&CD has submitted a 41-page document based on these submissions and engagements (see document).

Mr Basset said the Committee had asked it to analyse the Constitutional Court’s Stellenbosch judgment and submit a report to it. This analysis is also included in the report as Annexure A. He asked Ms Steyn to summarise the effect of the Stellenbosch judgment on the Bill.

Ms Angela Steyn, State Law Adviser: DoJ&CD, explained that the effect of the Stellenbosch judgment is to prevent the issuing of an emolument attachment order (EAO) unless the court has authorised it. For the court to authorise it, the magistrate must be satisfied that the requested order is just and equitable and that the amount sought to be attached is appropriate. Accordingly, the drafting team will amend the Bill to comply with the Stellenbosch judgment.

Mr Horn sought clarity on how the DoJ&CD will address the need for a physical appearance before a magistrate before an EAO can be issued.

Mr Maila asked if the Stellenbosch judgment clarified the respective roles of the clerk and the magistrate.

Ms Steyn explained that the court should have sufficient documentary evidence before it makes an EAO using the just and equitable principle. She affirmed that physical appearance is needed for the issuance of an EAO. The magistrate must authorise an EAO after the just and equitable principle is satisfied. However, the physical issuance of the order will be done by the court clerk.

Mr Basset added that the Stellenbosch judgment added the need for judicial oversight before the issuance of an EAO.

Mr Maila asked whether the plaintiffs in the case actually obtained a victory with the Judgment.

Mr Horn queried the late reception of the DoJ&CD document.

Mr Basset agreed that the report was only sent to Parliament the day before. He explained the implications of the Stellenbosch judgment on the issuance of EAOs to more than one creditor. The drafters propose that before a magistrate issues an EAO to a second creditor, s/he must consider the interests of the first creditor and consider how the 25% could be split between the creditors.

The Acting Chairperson asked how the 25% of attachable income is handled in cases of more than one creditor in foreign jurisdictions, which Ms Steyn explained.

Mr Horn noted that double EAOs is a thorny issue, especially where minimum wage rules and income disparities apply. It may be unfair to credit providers if EAOs are capped at 25% because of the uneven income earning capacities of debtors.

Mr Maila stated that the 25% cap fairly protects debtors because in cases of multiple loans, creditors have a responsibility to check the level of debt of potential debtors before giving them credit.

The Acting Chairperson asked Mr Basset to explain the pending issues in the Bill. On multiple creditors, she asked if preference is given to the South Africa Revenue Service in debt recovery.

Mr Basset suggested that the pending issues in the Bill are too many to be resolved in the remaining 20 minutes left for the Committee to deliberate.

Mr S Swart (ACDP) requested shifting the deliberation on appointments to the South African Human Rights Commission (SAHRC) to enable him attend the Finance Minister’s mini budget speech that afternoon.

The Committee agreed to shift this to Thursday 27 October 2017 and all political parties were requested to be represented.

The Acting Chairperson adjourned the meeting. 

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