Pilot projects on community courts & legislation to regulate paralegals: progress report

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Justice and Correctional Services

07 March 2017
Chairperson: Dr M Motshekga (ANC)
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Meeting Summary

Prior to the main agenda items, Members debated whether to accept an invitation from the Magistrates Commission for the Committee to visit the Commission in Pretoria. There was discussion whether this invitation was due to recent media reports about possible tension between the Committee and the Commission or if it emanated from a 2012 meeting. Some felt that the Commission should appear before the Committee in Parliament. Others were of the view that it is a courtesy call and the Committee should go to Pretoria as this will be an opportunity for the Committee to learn more about what the Commission does.


Last week the High Court in Pretoria ruled the executive’s decision to withdraw South Africa from the International Criminal Court (ICC) as “unconstitutional” and “invalid”. The Committee briefly discussed what impact this had on its call for submissions on the Implementation of the Rome Statute of the International Criminal Court Act Repeal Bill. People had asked the Committee for an extension to make the submissions. In light of the court ruling, the Committee decided not to consider any further submissions but await the Minister Masutha's guidance

 

The Department of Justice and Constitutional Development presented on the need to regulate the conduct of paralegals especially those who work in public who are bound to offer advice to communities.


Whilst legislation is being developed for the ultimate professionalisation of paralegals the Department has identified the following as areas where services of paralegals will advance access to justice:

-Appointment as mediation officers / mediators / represent parties in the Court Annexed Mediation which is being piloted in 12 sites and will be rolled-out to additional sites

-Within the new traditional courts dispensation (As clerks of the courts; Provincial Registrars; Justices of the Peace

-As designated practitioners in the Equality Courts in accordance with the Regulations to be made by Minister (will assist to enhance the significance of Equality Courts)

-To render general community-based legal services and quasi-judicial as may be prescribed in law (Commissioners of Oath/Peace Officers/ Statement takers)


Funding for the Paralegal pilots will be sourced from:

-Budget allocations for specific project (Court-Annexed Mediation Project)

-Donor-Funding (through access to justice programme of the FHR)

-Implementation of legislation that provide opportunity for use of paralegals (Equality Act, Traditional Courts)

-As Community legal services (in partnership with legal profession, business community, civil society)


The intention is to first develop a legislative framework to regulate Community-Based Paralegals.

The Department prepared a concept paper which outlined the key elements for the professionalisation of paralegals. These included standardised training requirements; definition of the term paralegal (i.e. who would be considered a paralegal); disciplinary processes and a governing body. In this regard, the funding of the governing body was crucial, bearing in mind that some paralegals work on a voluntary basis and may not be able to pay membership fees. Further, the span of those who would be affected is broad and careful consideration must be given to this field of work, as there is no regulation of this field. Research has been conducted and consultations have taken place with the stakeholders in the sector (including ACAOSA, NADCAO, Law Societies, LSSA, and FHR).


The Department explained that community courts were piloted from 2004 - 2007 to handle cases that arise in certain crime hotspots in communities. Although they are normal district courts, they are distinct from such courts in that they are established in areas which have a prevalence of petty crime, with a view to fast tracking the finalization of cases within the proximity of witnesses and allow opportunity for community participation. The objective was to institute at least two community courts in each province, modelled along the Hatfield Community Court in Tshwane, to meet the target announced by the President in the State of the Nation Address of 21 May 2004. At least 18 were operating at some point. Most have either been closed or reverted to being normal district criminal courts. The Minister wrote to the SALRC to consider the re-inclusion of the project on its programme. This request served before the SALRC on 17 September 2016

The Commission will shortly be approached by the Researcher dealing with the matter to consider the expansion of the project to incorporate the broader imperative of access to justice.

As far as the progress to date:

-The need has been identified to develop a proper framework for Community Courts which is aimed at promoting social justice and ensure inclusivity in matters relating to justice

- In its proper sense Community Court denotes a system that is based on the elements of community-based justice, problem solving, problem-solving and community quality of life.

- It is the form of justice that is closest to the people, that provide speedy resolution of disputes, uses the common language of the local community, in a participatory justice system which is free of charge

-Traditional Courts properly transformed, meet the description of Community Court proper and it is for that reason that it was mooted that the lessons learnt from the Traditional Courts should assist in defining the Community Courts proper

-Legislation based on the experiences garnered from the traditional courts will be developed for the institutionalisation of Community Courts proper

Members emphasised that access to justice is very important and that the paralegal sector, which has been treated as peripheral, will allow the government to achieve this. They asked if Community Development Officers are used, what is the distinction between public and private sector paralegals and which organisations were consulted on the policy. The Committee advised the Department to consider the history behind the establishment of Community courts which were mentioned by Oliver R Tambo in 1985. This history should inform the progress of re-establishment of the courts which will ensure participation by paralegals and communities who are affected by the inaccessibility of main stream courts. Members commented that there is a need for reform in the judicial system. Since the community courts deal directly with people, they should be equipped to handle matters where children are involved as children are often traumatised when exposed to the formal court system.

Meeting report

Opening remarks

The Chairperson welcomed all members present. He noted that the controversy that surrounded a letter issued by the Deputy Minister asking for a postponement of a meeting due to illness of the Minister was unnecessary and uncalled for. The Committee found nothing wrong with the letter and wished the Minister a speedy recovery.


He commented that Parliament is sent by people to make laws and therefore when Parliament is in a session; there should not be calls for referendum on matters that have not been debated by Parliament and sent back to the people. The issue is still in discussion at Committee level and there is no need to call for a Referendum. The Committee has a duty to make a decision on the subject as land claims fell within the Committee’s competence. Where something is outside the Committee’s mandate, it can refer the matter to other Committees for consultation.


The Committee must meet with the Departments of Rural Development and Land Reform, Agriculture, Forestry and Fisheries and Environmental Affairs as land issues touch on spirituality, access to resources and therefore the Committee will need to meet with the sister committees to resolve all the confusion emerging on the land matters.

The Chairperson noted that that there are two presentations before the Committee which have been merged into one and Advocate Skosana will guide the Committee on the presentation.


The Chairperson further informed the Committee of an invitation to a Symposium on land heritage and human rights organised by the University of Pretoria and Nelson Mandela Metropolitan University aimed at bringing stakeholders to discuss what could be done on land issues to proceed on consensus. The symposium will be held on 5 and 6 April 2017.


Further, Judge Francis Legodi who chairs the Magistrate Commission invited the Committee to visit the Commission in Pretoria as the members who sit on the Commission have not been updating the Committee on the Commission’s discussions. This has resulted in tensions between the Commission and the Committee and hence the invitation by the Judge to see what the Committee has been doing.


Lastly, the Committee had called for submissions on the Implementation of the Rome Statute of the International Criminal Court Act Repeal Bill. Last week the High Court in Pretoria ruled the executive’s decision to withdraw South Africa from the International Criminal Court (ICC) as “unconstitutional” and “invalid”. People are still approaching the Committee requesting for an extension to make the submissions. In light of the court ruling, the Committee will not consider any further submissions but await the Minister of Justice’s guidance.


Ms M Majake (ANC) asked whether the Committee was being invited to a mere visit to the Commission or if the Committee is going to appear before the Commission. On the ICC withdrawal, the Committee should indeed not take a position until the Minister briefs the Committee on the way forward.


The Chairperson advised the Committee to accept the invitation to meet the Commission in Pretoria.


Mr B Bongo (ANC) asked who between the legislature and the judiciary is above the other. The Judge must come and appear before Parliament despite the problems in the representation of the Committee at the Commission. Parliament should not go to Pretoria as the Committee represents the public.


Ms G Breytenbach (DA) noted that the Judge was inviting the Committee for a courtesy visit for the Committee to see how the Commission functions and not to take up issues. There is therefore no reason for the Committee to travel to Pretoria and visit the Commission.


Ms Majake stated that if there is a problem between the Committee and the Commission, based on the media statements, people will start creating tensions where there is none. The issues must be articulated and move forward, there is no tension now, the Committee is already represented on the Commission and there is no need to invite the Committee as that will create confusion.


The Chairperson acknowledged the concerns of the Members but clarified that the invitation was for a courtesy visit and before the Committee visits the Office of the Chief Justice, it will be good corporate governance to visit the Commission too. It should not appear however that the Committee is reacting to media reports on alleged conflict but only that the Committee is visiting as the members who represent the Committee at the Commission have failed to report on what has been discussed at the Commission and the visit is for the Committee to learn more on what the Commission does. The invitation from the Judge read that the invitation follows a meeting that occurred in 2012 and the Committee should visit the Commission as follow up to discuss and synergise on the challenges that were noted in 2012.


Mr W Horn (DA) said he found it interesting that some members are dishonouring the criticism that they raised against the Commission and this criticism forms the background of why the judge is seeking this meeting. Comments by some of members at a previous meeting on suspension of Magistrates alleged that there were sinister reasons for the suspension by the Commission. As a member of the Commission, he could confirm those comments were discussed in a meeting of the Commission hence the background to the invitation.


Mr M Mpumlwana (ANC) stated that the Committee needs to find out what is happening and call the Commission to Cape Town for the Judge to appear before the Committee. Otherwise anyone can just call the Committee to appear before them. This must be made clear to the Judge.


Ms M Mothapo (ANC) apologised for arriving late and asked for the documents of the meeting held in 2012 as the Judge’s invitation appears that it will be a follow up meeting. The Commission should come to Cape Town and appear before the Committee.


Ms Majake said what was tabled at the previous meeting was the suspension of 2 Magistrates: Hole and Monaledi. The Committee indicated a concern about the suspension of women magistrates when the target was to get women into the system. Media reports however stated that the Committee was defending women magistrates who had abused their authority which was inaccurate. Where there is wrong doing, Committee would not back the Magistrates but the Committee could not make the decision based on insufficient evidence. If the money was abused over sometime, why not call in the Auditor General to audit the Magistrates?


The Chairperson said the Committee can not blame the media because it understands things differently but the Committee can not chase the media for it to report accurately. So the majority is saying the meeting should be in Cape Town and get minutes of the 2012 meeting?


Mr M Maila (ANC) noted that a meeting and a courtesy visit are 2 different things. A courtesy visit should be done in Pretoria as the Committee will be looking at how the Commission works. But if it is a sequel to the 2012 meeting then it should be in Cape Town.


The Chairperson agreed with Honourable Maila that if it is a courtesy visit, it should be in Pretoria.


Mr N Matiase (EFF) said notwithstanding the principle of separation of powers, the Committee should go to Pretoria. The Judge probably wants to show the Committee the Commission’s projects in Pretoria.


Mr Mpulwama said that before the Committee knows the spirit of the letter, he would agree to the invitation to Pretoria but if the intention is related to what was discussed in 2012 and Honourable Horn as a member of the Commission knows what was discussed at the Commission, the Committee should be reluctant to accept the invitation.


The Chairperson said Honourable Horn has never brought a report from the Commission and what he has said in the meeting today is not the Commission’s official position on the invitation. Therefore the Committee will accept the invitation and in the meantime, the Committee should find the minutes of the 2012 meeting.


M Majake clarified that the invitation for submissions on the ICC Repeal Bill should be suspended until a briefing from the Minister of Justice.


The Chairperson confirmed that the Committee is not in a position to receive further submissions or extend the deadline due to the court ruling.


Briefng by Department of Justice

Adv Jacob Skosana, Deputy Director General: Court Services, Department of Justice and Constitutional Development, said the presentation today builds on the presentation that the Minister made to this honourable House on the Renaissance of the Legal system late in 2016. This seeks to provide the context on how the Department envisages this major reform in the sphere community court and paralegalism. The presentation focuses both on establishing a policy and legal basis for the community courts and paralegals both of which are central to access to social justice. The presentation looks at progress made with regard to policy and legal reform and pilots that are necessary to accelerate the transformation of this sector.


Whilst legislation is being developed for the ultimate professionalisation of paralegals the Department has identified the following as areas where services of paralegals will advance access to justice:

-Appointment as mediation officers / mediators / represent parties in the Court Annexed Mediation which is being piloted in 12 sites and will be rolled-out to additional sites

-Within the new traditional courts dispensation (As clerks of the courts; Provincial Registrars; Justices of the Peace

-As designated practitioners in the Equality Courts in accordance with the Regulations to be made by Minister (will assist to enhance the significance of Equality Courts)

-To render general community-based legal services and quasi-judicial as may be prescribed in law (Commissioners of Oath/Peace Officers/ Statement takers)


Funding for the Paralegal pilots will be sourced from:

-Budget allocations for specific project (Court-Annexed Mediation Project)

-Donor-Funding (through access to justice programme of the FHR)

-Implementation of legislation that provide opportunity for use of paralegals (Equality Act, Traditional Courts)

-As Community legal services (in partnership with legal profession, business community, civil society)


The intention is to first develop a legislative framework to regulate Community-Based Paralegals.

The Department prepared a concept paper which outlined the key elements for the professionalization of paralegals. These included standardised training requirements; definition of the term paralegal (i.e. who would be considered a paralegal); disciplinary processes and a governing body. In this regard, the funding of the governing body was crucial, bearing in mind that some paralegals work on a voluntary basis and may not be able to pay membership fees. Further, the span of those who would be affected is broad and careful consideration must be given to this field of work, as there is no regulation of this field. Research has been conducted and consultations have taken place with the stakeholders in the sector (including ACAOSA, NADCAO, Law Societies, LSSA, and FHR)


From the consultation the following outcomes emerged:

-The regulation of paralegals based at the Community Advice Centres must be promoted as a matter of urgency

-Paralegals employed by State entities (Legal Aid South Africa, Law Societies) need not be regulated as they do not pose any risk to the public

-The Department must interrogate the regulation of the paralegals in the private sector

-A task team comprising representative of the stakeholders has been mooted as Reference Group to discuss principles that must form the substance of the Bill

-The Paralegal Bill in in the Department’s Legislative Programme for 2017 - is earmarked for introduction in the second half of the year


Discussion

The Chairperson thanked Adv Skosana for the concise and well prepared document. He commended the Department for doing good work but noted that the good work is happening within the Department when access to justice is a societal matter. He asked the Department to consider organising a conference on community law and justice to look at the role of paralegals in community courts and how they can improve access to quality justice. The structures in Scotland are informed by the European experience, wouldn’t the Department benefit from a study tour within Africa for African solutions? There are funds that were made available to pay for people who had been evicted from farms, the study will be done in Johannesburg when the people affected live in far off areas like Mpumalanga. What is the progress in processing land claims when the funds were made available some time back but there are still people whose claims date as far back as 1998? Who has been given these funds and who do they account to? If there was a well-functioning legal aid function, why not give the money to Legal Aid South Africa to help all people who need funding to go to Legal Aid? The Committee should see the Memorandum of Understanding with the Foundation for Human Rights before it is finalised as the tendency is to fund test cases when the money was made available for ordinary people to access justice. Are the appointments at the Foundation permanent and who are the officers? Platforms should be created at the community law clinics to employ paralegals who are often out of work. There is a need to create a platform to share ideas and the conference is a good idea.


Mr Horn asked whether the Department will be ready to submit a policy to the Paralegal Bill which was supposed to be submitted to the Committee by end of March 2017. If it will not be submitted on time, why is there a delay?


Mr Maila thanked the Department for the clear presentation. He commented that access to justice is very important, however, there are Community Development Officers who are not being optimally utilised. They can be used to bring justice to communities at no further cost to the government since they are already employed by the Government.


The Chairperson agreed that this can be achieved within a short time as the people just need training.


Mr Matiase agreed with the presentation that that access to justice must be decentralised to give justice to people who live far. The regularisation of the paralegal sector which has been treated as peripheral will allow the government to achieve this. There are many people in South Africa who are engaged in some form of legal service who could not take their studies beyond the B Juris training. They work as clerks or administrators or are unemployed despite the diploma which universities have since discontinued. So they have a Juris degree but they can not practice. What does the government do with those people who now work as clerks or administrators when they have legal knowledge? The process should aim to integrate them. In addition, there must be a conference on access to justice and the invitation must be made directly to paralegals to develop a database of all paralegals and see what they are doing.


Mr Matiase asked about the distinction between public and private sector paralegals as the presentation seems to allege that those in the private sector will be regulated but not those who work in the public sector.


Ms Majake welcomed the presentation and asked if the Department had consulted with the paralegal association to have their full support. This sector needs to be regulated to extend access to justice to communities and the association must buy into the process. The department should fund programs made to ideas not people and empowering paralegals will reduce the number of people that are sent to prison due to lack of representation.


The Chairperson noted that the report shows that consultation took place with the Paralegal Association. The process should move to the conference to avoid protracted consultation. There is a Paralegal Bill so there should be results to show for the consultation.


Ms Mothapo asked what other groups were consulted and what is the criteria for identifying of Paralegal Associations to consult . Does it mean the paralegal groups will form part of the organisations funded by the government? The traditional court set up is different from the main stream court system as for instance hearsay evidence is admitted without further proof, how will the paralegals work then in such a system?


The Chairperson pointed out that as per page 6 of the presentation, there is a list of stakeholders that were consulted. He recommended that the Department should recognise the Community Law Centres which have existed since 1980s and university law clinics which have existed since the mid-1980s. The University of Cape Town had a Centre for access to justice. These bodies should be brought in to bring their experience on board to the process.


Ms Kalayvani Pillay, Deputy Director General: Legislative Development, Department of Justice and Cinstitutional Development, responded that the Department will look into other stakeholders to further consult with in addition to the ones listed in the presentation specifically law centres in universities which have not been consulted. On the role of paralegals within the Department, policy and funding issues, the Department has not costed all elements of the policy, this is the start of the engagements. The task team consulted with active organisations and hence organisations such as the Paralegal Association was left out. The database of all people with legal qualifications is important, there is a clause in the Legal Practice Act which requires everyone with a legal qualification to register and this can help with the database for the Department to know who is out there to improve access to justice. The Paralegals who work in the Insurance or banking industry are regulated by the industries where they work and are therefore not considered to be under the Department’s mandate unlike those who work in the public sector who advise communities and pose a danger to communities on the advice they give if they are not regulated when people act on their advice. The Department supports the idea of the conference which will bring together policy ideas.


Adv Skosana indicated that he had received an invitation to a meeting from the Forum for Human Rights in his capacity as an ex-official . He had requested for notes and minutes from the Forum and he will share the documents with the Committee. He will indicate to the Forum other issues that the Department needs to be added. The Department has engaged stakeholders like the EU to get funding for access to justice is guided by the PFMA on how funds are shared with entities for accountability.

Scotland has wide experience in the work done by their Legal Aid. To ensure accountability and transmission of funds to other functions, the Department can only fund access to justice programs. The Department is looking forward to present by the end of the financial year documents on the analogies and a plan for pilot projects with communities on access to justice and also look at undocumented migrants the issue was discussed at EXCO and there will be a conference in July on community justice, the law and language (to have Setswana interpreters in court). The Department will ensure that the programme is not convoluted so that the language and critical reforms conference can start. The Conference can be combined with the language as a package with other issues as a workshop. The Minister is of the view that there should not be a convoluted programme to avoid alienating stakeholders and work on critical reforms on issues mentioned by the Chairperson such as on land issue. On the matter raised by Honourable Maila about Community Development Workers, the Department will find ways to use them in the system and also work to integrate those who have legal training or juris diploma to integrate them into the access to justice system as a matter of national interest.


The Chairperson acknowledged that language and the law is connected to community and justice. The administration of funds for people evicted from lands should not wait, it must be investigated urgently as land is the bedrock of the country’s democracy.


Briefing on Community Courts

Advocate Skosana explained that the aim of these courts piloted from 2004 - 2007 was to handle cases that arise in certain crime hotspots in communities. Although they are normal district courts, they are distinct from such courts in that they are established in areas which have a prevalence of petty crime, with a view to fast tracking the finalization of cases within the proximity of witnesses and allow opportunity for community participation. The objective was to institute at least two community courts in each province, modelled along the Hatfield Community Court in Tshwane, to meet the target announced by the President in the State of the Nation Address of 21 May 2004. At least 18 were operating at some point. Most have either been closed or reverted to being normal district criminal courts. The Minister wrote to the SALRC to consider the re-inclusion of the project on its programme. This request served before the SALRC on 17 September 2016.

The Commission will shortly be approached by the Researcher dealing with the matter to consider the expansion of the project to incorporate the broader imperative of access to justice.


As far as the progress to date:

-The need has been identified to develop a proper framework for Community Courts which is aimed at promoting social justice and ensure inclusivity in matters relating to justice

- In its proper sense Community Court denotes a system that is based on the elements of community-based justice, problem solving, problem-solving and community quality of life.

- It is the form of justice that is closest to the people, that provide speedy resolution of disputes, uses the common language of the local community, in a participatory justice system which is free of charge

-Traditional Courts properly transformed, meet the description of Community Court proper and it is for that reason that it was mooted that the lessons learnt from the Traditional Courts should assist in defining the Community Courts proper

-Legislation based on the experiences garnered from the traditional courts will be developed for the institutionalisation of Community Courts proper


Discussion

The Chairperson said the constitutional dispensation was a struggle and the struggle must inform everything that people do. Community courts did not rise in 2004 or 2007. They arose in 1985 from Oliver R Tambo’s words that there should not be kangaroo courts but there should be people’s court. In 1986 UNISA had a pilot project Community court and the National Institute for Public Interest law received a document on a proposal for Community courts as far back as 1960s. In Zimbabwe, they have primary courts which came from the liberated zones, there is therefore a rich history and it is important to avoid reinvesting the idea as if it is something new. He advised the Department to go back to history and people’s struggles and work with the Human rights Commission on this. The Researchers must produce a document dating back from 1985 to the new dispensation to define what it is to have a community court. Advocate Counsel Masondo, Mayor of Khayalami Metropolitan centre worked with the police and municipality establish a model of community court. The Department should therefore work with the Committee to canvas all the factors into the community court proposal.


Mr Maila observed that the presentation shows that there is need for reform in the judicial system. He requested that since the community courts deal directly with people, they should be equipped to handle matters where children are involved as children are often traumatised when exposed to the formal court system.


The Chairperson noted that the Magistrates in children courts are at a disadvantage as culture plays a role in the lives of children and how they appear in the courts. He asked the Department consider incorporating community based experts versed in child justice and parents and community members to enhance the participation of children in the community courts.


Adv Thoko Majokweni, Special Director of Public Prosecutions. answered that the Department will focus on social issues surrounding children and courts so that the communities are part of the structure of the court. The consideration is to get to a point where children are dealt with without involving the criminal courts to ensure the children do not get criminal records.


The Chairperson agreed and said this could help to reduce the number of children in correctional centres by taking account the NPA(this is what he said). In addition, he asked who is convener in government in the Integrated Criminal Justice system (ICJS).


Adv Skosana answered that the Justice Department is in charge of the ICJS. The Department is working to strengthen coordination with other stakeholders to avoid creating silos. The aim is to know all cases that enter in the system and end up in prosecution from arrest, trial, evidence and prosecution with the Department of Justice as administrators of the whole value chain. .


The Chairperson expressed a concern that the Committee had received so many briefings from Department but never one on ICJS which is at the centre of the security in the country and Parliament must know what is happening at inter-departmental level. The Justice Department should present a report on this and the Committee will invite sister departments to avoid Members looking incompetent as they should not wait for the President to visit an area to understand the problems around justice in that area. The Members as foot soldiers must know the problems first. The ICJS can help in that to avoid doing things piecemeal. The Department must present a programme of action with time frames and implementable actions to ensure the Committee is not just used as an academic institution but implement action.


Lastly, he asked Advocate Skosana to wish the Minister a speedy recovery and reassure the Minister that the Department is functioning properly in his absence.


The meeting was adjourned.

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