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JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
9 June 2003
JUSTICE BUDGET: INPUT BY JUDICIARY AND MAGISTRACY
Documents handed out:
The Chief Justice and the Deputy Chief Justice of the Constitutional Court made a presentation on the state of the judiciary. They emphasised the need to work together with the various role players in the criminal justice system, such as correctional services and police services. They also emphasised the fact that more money and resources were necessary from the government in order to raise the standard of the judiciary.
Three representatives from the Magistracy presented issues pertinent to magistrates. The presentation focused on issues of personnel, acting appointments, maximum sentencing, and court efficiency. The Committee discussed possible ways of enabling the judiciary to address efficiency concerns, including enabling the Chief Justice to receive complaints from the entire judiciary.
The Chair stated that the Committee has gained vast amounts of knowledge within the last three years during oversight visits of the criminal justice system.
He explained that the budget hearings were switching gears this week since work with the Department has been completed. The Chair introduced the Chief Justice, Deputy Chief Justice, and the representatives from the Magistracy. He informed them that the Department has undergone large amounts of change during the last three or four years. The financial situation is much improved and a clear plan is beginning to take shape. He stated that the issue of productivity in the judiciary was important to the Committee.
Chief Justice: Presentation
Chief Justice Chaskalson thanked the Chair for the introduction. He was pleased with the opportunity to exchange with the Committee. He hoped this arrangement would be institutionalised.
The Chair said that the Chief Justice should feel free to approach the Committee with any issue.
The Chief Justice agreed with the importance for communication between the two spheres of government. He also agreed with the Chair's remarks on the Department of Justice. The Department is getting over obstacles that were a great hindrance in the past.
The Chief Justice chose to talk about three major issues affecting the judiciary: transformation, backlogs and the costs of litigation.
He placed the transformation of the judiciary into context. In 1994, there were roughly 180 judges with only one black judge and one woman judge. Ninety percent of the legal profession was white, with nearly all of the upper level positions held by white people. The Judicial Service Commission has facilitated the transformation of the judiciary's composition in order to more accurately represent the society. Currently, there are over 70 black judges that comprise approximately one-third of the entire judiciary. Between ten and fifteen percent of judges are now women. Six of seven permanent Judge Presidents are now black men, while seven of nine acting Judge Presidents are black men.
The Chief Justice discussed the regional and district court separation in the magistracy. He explained that more senior magistrates should deal with both criminal and civil cases in order to prepare them for movement into the judiciary. The distinction between junior and senior magistrates should be kept as the magistrates do different levels of work.
Ninety percent of criminal cases are handled in the magistracy. The cases must be dealt with in an efficient manner so that the accused realise their right to a speedy trial.
The causes of backlogs are complex. The Chief Justice used an analogy of a chain to illustrate his point. The links of the chain include prisons, witnesses, adequate security, the Legal Aid Board, interpreters, welfare officers, reports of previous convictions and judicial officers. If any one of the links of the chain fail, the chain breaks. Court delays and the ensuing backlogs, in other words, are a result of this chain. The judicial officer is responsible for running his or her courtroom, which is the most important responsibility. But when problems occur with other 'links in the chain' the judicial officer may not be able to rectify the situation. Every postponement is a problem because it leads to a duplication of work. Judicial officers must take a more active role in preventing the breakdown of the process at any level.
At each stage, someone must be responsible to ensure that these problems are dealt with. A system must be put in place to see that is done. Those responsible must be held accountable.
The Chief Justice further outlined some of the capacity problems that are experienced. These include: overworked police officers, the transportation of prisoners to and from court, management, and improperly trained interpreters.
Two issues stand out as problematic. The first is the delay by the state in bringing prisoners to trial. The courts have been patient in waiting for the state to bring the accused to trial but perhaps it is time they did something. Cases may be dismissed for too many delays. This would pose a serious threat to the maintenance of law and order.
The second serious issue was prison overcrowding. The infrastructure was historically not designed to cope with this. Enough time has passed, however, and something should have been done by now. This has led to increased inefficiency of the courts.
The Chair asked if the lengthy recesses taken by judges were necessary.
The Chief Justice responded that these were used by judges to prepare judgments. If these were to be removed, more judges would be needed in order to keep the courts running.
The Chair was unconvinced by this and pointed out that not all the judges use this time to actually do work. He suggested that research be done on this matter.
The Chief Justice said that this depended on the individual. Some people may use the time productively. This is time that must be used in keeping abreast with legal developments. He pointed out that in some big courts, life for judges is very stressful because of their workload.
The problem was not with court recesses but with the chain mentioned earlier. He said there was a need for statistics to be compiled by all the relevant departments. Money will have to be made available to deal with the capacity problems.
The Chair pointed out that the statistics were there but were not in a central database. Further, the available statistics are not correctly done and this would make analysis very difficult.
The Chief Justice conceded that this was a problem and something had to be done.
The next issue he raised was sentencing. The Chief Justice said Sections 51 and 52 of the Criminal Procedure Act had to be looked into. The fact that a case must be heard in a regional court and then sent to the high court for sentencing has created problems. This causes delay and duplication of process.
Another problem is that heavier sentences are having a serious impact on the prison population. Long term prison population has increased by between 200% and 300% over the last 7 years. If this is going to be the norm, more resources are needed.
Perhaps the greater tragedy is that 36% of the long term prisoners are young people of below the age of 35. It is difficult to ensure rehabilitation if people are going to spend between 25 and 35 years behind bars.
The Chair pointed out that some of these are people that would have been on death row.
The Chief Justice said the lack of death row does not explain the large number as they did not execute that many people anyway. Of the current 46 000 long-term prisoners, only a few would have been on death row. He pointed out that this is because of the current emphasis on sentencing and that alternatives have to be found. Investing money in community issues such as joblessness, gangs, social attitudes, complicated as that might be, would be more productive than building more prisons.
He went on to say that each new piece of legislation created capacity problems. He emphasized the need to invest in dealing with the issue of capacity. Further, there must be transparency in the way these issues are handled.
He said some of the problems experienced are because of the adversarial system employed by South African courts. He pointed out that he was not advocating for change in the system but trying to find out what was the best way of doing things. Having grown up in the system one is comfortable with it and unwilling to change.
The Chief Justice made the following recommendations:
1. A body be set up that will give ongoing feedback regarding necessary changes.
2. An electronic library that will service all high courts to make information and judgements more easily accessible and efficient. He pointed out that one was currently running as a trial.
3. Close work between related departments, such as correctional services and police services.
4. An examination of the long-term structure of the courts. An inventory of each court's needs is necessary.
5. An examination of the appointment of judges from lower to higher courts.
6. A programme to outline the direction that must be taken and to highlight outstanding issues.
7. Finally, he encouraged openness about these issues and how they were being dealt with.
The Chief Justice acknowledged that it was a long process but said it was encouraging to see that the problem was being acknowledged and discussed. He said the judiciary, for its part, was taking the issues very seriously.
The Chair pointed out that, unless a solid business plan was put forward, justice would never get the money they sought to deal with these issues. He acknowledged that all these were real issues but talking about it and not proposing a plan of action was fruitless.
Deputy Chief Justice: Presentation
As a starting point, Deputy Chief Justice Langa made an observation that the problem with the courts and judicial officers was that they were worried about their public perception. They wanted people to have a correct perception of them. In order for this to be so, however, they must accept responsibility for putting their house in order. He also said it was important to keep the morale of the judiciary high so that they could perform better and to this end, the judiciary needed more incentives.
The Deputy Chief Justice said that everything that detracts from a competent judiciary is a source of worry such as delays, prison overcrowding and incarcerated juveniles. He said a joint solution between the Department of Correctional Services and the police was necessary.
The Deputy Chief Justice made the following recommendations:
1. Magistrates and Judges at all levels need to take responsibility and be accountable for what happens in their own jurisdictions.
2. There is a need for a holistic method of examining the problems so as not to place blame with only one department.
3. People with evidence, such as police, social workers and prosecutors must bring this on time to ensure that cases are dealt with expediently.
4. Continuous education and training was necessary.
On the issue of transformation, the Deputy Chief Justice emphasised the need for the constitutional objective of having the judiciary mirror the population of the country.
He said currently there were 214 Judges. Of these, 189 are male and 25 are female, 149 are white and 72 are black. Of the 189 males, 125 were whites. He pointed out that some progress had been made, especially with the racial composition, but that there was still a long way to go.
He said one of the major problems was that suitably qualified individuals have refused to come to the bench. Even if they came, they still would not be sufficient to meet the need.
The Deputy Chief Justice outlined two main obstacles in this regard: inadequate remuneration and the resources and conditions under which judges work.
With regard to remuneration, he explained that the problem did not only relate to salary. People with comparable training get attracted to more lucrative enterprises. For example, successful advocates make more money than any judge can ever hope to make. He said this was an inherited problem. People often retired to the bench not for the salary but for the status after making all the money they needed. Today judges are getting younger and are not in that position.
With regard to resources, he suggested that during the difficult period of a young judge's life, they should get more incentives to make their lives easier. This would include subsidised housing and the paying of school fees for their children. He warned that although the country was fortunate that corruption has not yet crept up on judges, this might not be the case if the situation was not dealt with properly.
Further, there is a need for a comprehensive plan to determine the pool of judges. He said there were many areas with potential appointees. It was necessary to have a training and education programme for these.
He said another area often overlooked was the private sector. He said interest must be shown in the work of newly appointed attorneys and advocates. They must be exposed to the alternative of joining the bench at some later stage.
As a final point, the Deputy Chief Justice emphasised the fact that all the above required commitment by all concerned. Parliament would need to make available more resources. He said we need to find a structure that works for us as South Africa and be prepared to invest in it.
Three representatives spoke on behalf of the magistracy: Mr C Musi, Mr A Bekker, and Mr K Nqalala.
Mr Nqalala stated that the magistracy shares the same concerns as the Chief Justice and Deputy Chief Justice. He raised several issues that were paramount to the magistracy. The issue of staffing and personnel is extremely important, especially with the new courts, such as Equality Courts and Immigration Courts, that are being developed. Personnel issues should not be addressed in a rushed manner, but many temporary positions should be filled permanently. There must be enough money designated for training and organising new personnel.
Mr Nqalala raised the issues of acting appointments with reference to section 9. By the 11 June 2003, acting appointments are only allowed under the auspices of section 9.
The Chair interrupted to inform Mr Nqalala that the Committee is currently working to amend the act and redefine the rules pertaining to acting appointments. If a magistrate is appointed for five consecutive working days, the court may appoint the person. Longer appointments will be made by the Minister after consultation with the head of the respective court. If the appointment is longer than three months, the appointment must be submitted to Parliament.
Mr Nqalala brought up the issue of the maximum sentence that magistrates may apply. Problems occasionally arise because of the discretion of prosecutors.
The Chair noted that the Committee is investigating this issue as well. The problem often lies with the prosecutors. If the case is a triple rape, the case should go directly to the High Court. Judges have resisted the notion that magistrates can institute life in prison.
Mr Nqalala stated that the courts would be more efficient by being enabled to conduct their own investigations rather than waiting for someone else to do it. The court needs a support service to help it with such issues. This would boost the limited resources of the court, especially in dealing with specialised matters.
The Chair asked Mr S Jiyane, Managing Director: Court Services, how much money was designated for improving the infrastructure for the Chief Justice.
Mr Jiyane responded that the infrastructure improvements have yet to be costed as the investigation only began one month ago. Last year, two posts were created, but only one was filled because the necessity of having two posts early in the process was questioned.
The Chair was interested in the enabling of the Chief Justice and the Deputy Chief Justice so that all judicial officers may speak with one voice. He asked for this to begin as soon as possible through the appointment of staff members.
The Chief Justice stated that his concerns were part of the reason both posts were not filled. A clarification of the role of the Chief Justice is needed before posts are filled. Furthermore, there is no physical room for the office in the present court. A long session is needed in which all of the role players can make policy decisions regarding the role of the Chief Justice.
The Chair stated that his view is that capacity is needed in the office of the Chief Justice to address problems related by both the lower and higher courts. In the short term, more posts should be created. The basic infrastructure should be established now. Later, the structure and specific functions can be hashed out.
The Chair addressed the representatives from the magistracy with an issue he perceives as a serious problem. He stated that certain magistrates raise complaints in ways that should not be done by the magistrates. Magistrates should not send threatening letters and threaten go-slows and strikes. This is not an effective way to engage on issues affecting the magistracy. The magistrates must earn respect. Magistrates can not deem themselves employees in instances when it is beneficial to them and then classify themselves as civil servants other times. Senior magistrates must provide leadership to the entire magistracy and interactions with the magistracy should be dignified.
Ms F Chohan-Kota (ANC) asked about the issue of judicial officers having control over their own budget. She asked what that would entail, considering the separation of powers. She thought that court managers were put in place for that purpose. Furthermore, she was unsure of the meaning of judicial independence. There is a dangerous anti-government and anti-state stream of thought in some magistrates. Some see independence as self-determination.
The Chief Justice saw the need for courts to have a say in their budgetary requirements. Accountability would lie with the judicial officer. The problem with the Department developing the budget is that it takes a long time for money to become available, even for a small expenditure. Furthermore, the Department can set a budget and then reduce it by 15 percent a few months later, sending the court in fiscal chaos. Judicial independence requires that the court exercise control over its budget. The court must be engaged in the whole budgeting process; it is especially important for courts to be consulted when the budget is set.
The budgeting process is so complex that when mistakes happen no one can be held accountable. The regional officer has put money in the Constitutional Court's budget that is spent on things for other courts. It is intolerable for the courts to work on that basis. It should be up to the senior judicial officer to order what is to be done.
The Chair did not have a problem with that system. He wondered, however, who would be held accountable when the judicial officer makes a mistake.
The Chief Justice replied that the judicial officer in charge would be held accountable for his actions. It will be easier to find who is at fault with such a simplified system. Efficiency will be greatly improved.
To clarify the definition of judicial independence, the Chief Justice explained that in a truly independent judiciary, judicial officers perform duties without any influence. The current restriction to true independence arises when magistrates are required to perform administrative functions in which they take instructions from the Department.
The Chair stated that some magistrates do not take instruction from their superiors. When asked to move from criminal to civil, they refuse. When a magistrate is told to perform a task by the head of the court, he or she must do that task. Refusal is unacceptable.
The Chief Justice was unaware of a magistrate refusing an assignment.
Ms S Camerer (DA) asked about the dismissal and withdrawal of cases. In some cases, the accused has been in prison for many years without trial for a crime that is not serious, and that person is then released without trial. The question is whether it is fair to the victims to withdraw their cases. Ms Camerer summarised an example pointed out to the Committee in Johannesburg, where many of the drug syndicates are run by Nigerians. Some were dismissed while awaiting trial because there were no court interpreters. Ms Camerer agreed with the idea of giving civil jurisdiction to regional courts with no civil experience. She wondered, however, if that would overburden the magistrates since they already had a large caseload of criminal cases.
The Chief Justice replied that cases are taking too long. It is unconscionable to keep people in jail for six years without a trial. This constitutes a violation of constitutional rights.
The Chair recommended that anyone awaiting trial in prison for more than a year should be reported to Parliament. In the Child Justice Bill, there is a mechanism to review those waiting in prison every six months. The NPA must apply itself to this issue.
The Chief Justice noted that the length of time served awaiting trial was often taken into account during sentencing.
With regard to the concern that magistrates were already burdened with criminal cases, the Chief Justice stated that more magistrates would be needed.
The Chair stated that it was inaccurate to characterise magistrates as working hard. Court hours must go up before the creation of new posts.
Mr S Swart (ACDP) stated that a mechanism should be created to look at the prisoners in prison even though their bail has been set. There are 20 000 criminals awaiting trial who are in prison and cannot afford to post bail. These people are in an over-crowded prison system even though they have been deemed to not be dangerous to society. He also asked the Chief Justice to comment on section 4a of the Criminal Procedure Act.
The Chief Justice agreed with the need to monitor the bail system. The head of the prison may take steps for the court to reconsider the bail of a prisoner. There must be a more efficient system of examining the bail of a prisoner.
With regard to section 4a of the Criminal Procedure Act, the Chief Justice related that the problem is how the issue is publicised. The court interpreted the section to mean that lethal force can only be used against a suspect who poses a real threat. Lethal force must not be used for someone attempting to escape, unless that person poses a serious threat if he escapes. It is a question of drawing the line so that the police are protected and suspects are not killed unnecessarily.
The Chair noted that there is much confusion over the correct procedure. Some policemen are not properly instructed and think they cannot tell the truth if they use lethal force against a suspect, even if that suspect was heavily armed.
Adv M Masutha (ANC) asked about the rights of an accused person in prison awaiting trial who has served a longer sentence than he would if he been convicted. His question went unanswered.
Mr Nqalala asked for clarification regarding the comment that magistrates are anti-state and anti-government, as he did not agree.
The Chair related that magistrates need to be good lawyers who apply the law. They are not supposed to be pro-executive or anti-executive.
Mr Musi suggested that the justice college be used to disperse messages to the magistracy and to help encourage uniformity in the magistracy. Every magistrate must attend the college for two months. Information could also be dispersed through meetings within a province as part of the cluster system.
The Chair raised the issue of secure-care facilities. There are children in prison that were sentenced to secure care facilities. In secure care facilities, the ratio of wardens to prisoners is 1 to 5, while in prisons the ratio is 1 to 200. The crisis must be shifted to the welfare system. That system should be flooded, not the prison system. Once this happens, the welfare system will improve.
The Deputy Chief Justice commented on the issue of those awaiting trial being released from prison. Publicisation of such events imposed problems on judicial officers. Judicial officers become afraid to do anything that could be seen as favouring criminals. The judiciary needs confident judicial officers that are sensitive to doing the correct thing. Judicial officers have no forum to answer to a public outcry.
The Chair agreed. Politicians must be sensitive to this fact, especially considering the upcoming elections. It is easy to tackle the issue of crime.
Adv Masutha questioned to what extent the establishment of a uniform standard is influenced by the peer review system.
The Deputy Chief Justice suggested that more conferences and seminars are held. The issue of sentencing should be discussed for uniformity.
Ms Camerer asked for comment about the disciplinary tribunal that the Committee was currently establishing through legislation. The legislation includes magistrates in the process of disciplining judges and judges in the process of disciplining magistrates. She sought comment concerning the lack of a rules board for over one year.
The Deputy Chief Justice could not comment on the legislation since he was unaware of the details of the legislation. He was also unaware of the rules board.
The Chair informed him that the judiciary will receive the Bill for comment.
Mr Swart asked for comment on the issue of providing general amnesty as a way of reducing overcrowding in prisons.
The issue of general amnesty is debatable, replied the Deputy Chief Justice. He stated that although he is uncomfortable with general amnesties, people are divided on this issue. While amnesties are sometimes necessary, they should not be viewed as a solution to overcrowding in prisons.
The Chair discussed the need to make courts function more efficiently. District courts average four hours eight minutes of criminal court time, but they do other work as well. Regional courts average three hours fifty-two minutes of criminal court time. This total is too low. Courts need to take control to rectify their own situation. He suggested that courts should run year round rather than having scheduled recesses.
The Deputy Chief Justice agreed on the need to engage the issue of recess. While recesses are necessary, it is unnecessary to have four set periods. The courts should not close down
The Chair agreed that this issue should be addressed so that the courts can run consistently throughout the year. He informed the judiciary that he has ordered a report concerning both the time spent in court and the backlog of every judge. This information will allow the Committee to see the amount of time that is necessary for a judge to hold court. He asked what the total length of time for recess should be.
The Deputy Chief Justice responded that the amount of leave necessary would depend upon the court. He reviewed the recess schedule for the Constitutional Court for the Committee. At the end of each period of time, the court has decided to sit for one additional week.
The Chair commented that South Africa is a young democracy. As such, sufficient co-operation from different role players within the criminal justice system is not yet the norm. All of the role players from within a province should gather once a month to examine ways to encourage efficiency within the judiciary.
The Deputy Chief Justice addressed the issue of differential sentencing that is at the heart of the perception that the judiciary is not uniform. Some differential sentencing may happen along racial lines. More comparisons need to take place regarding sentencing across the judiciary.
The Deputy Chief Justice commented that judicial officers must act independently and must work towards continually upgrading themselves. Leadership by senior officials in all areas of the criminal justice system is crucial for improvements to be made. The person in charge of running a police station should do the best job possible to defeat crime in that area. Similarly, a judge president should make sure that cases run smoothly in his court. Interaction between the spheres needs to take place so that the constitution could be successfully implemented. The discussion between the spheres should begin with the judge president.
Mr Musi stated that a forum in the Western Cape held its first meeting at the end of May with all of the role players in the criminal justice system. Additionally, a conference was held on the role of the code of ethics and the asset register. The use of integrated case flow management system was also discussed. In the Western Cape, there are two courts where magistrates administer their own case flow.
The Chair discussed the problems associated with circuit courts. Circuit courts need to be controlled so that a judicial officer does not go for five days when one day would suffice.
Mr Musi stated that a conference would be held at the end of the week regarding the managing of case backlogs. The conference aimed to work out the best practice for the magistracy. The conference will also deal with the problem of postponements in the district courts, which contributes to the backlog.
Mr Bekker welcomed the legislation for the improvement of the disciplinary system. To highlight the present problems, he related the example of a magistrate who was suspended for a year. Even though he did no work for the year, he received full salary.
The Chair added that this example reflected poorly on the entire magistracy.
With respect to backlogs, Mr Bekker related that all role players must come on board. Magistrates are creatures of statute and must follow what they are legislated to do.
The Chairperson agreed that it is not only up to the magistrates to fix the system, but they must play a leadership role.
The Deputy Chief Justice reviewed some issues that members of the judiciary have voiced on the salary structure. When a young practising attorney is appointed to the bench, that person takes a large cut in pay. Flexibility is required in order to rectify the situation. Perhaps a slice of the pension can be received at the beginning of a judge's career.
The Chairperson stated that judges have a high salary and many benefits. One suggestion is that the gratuity could come earlier, which could assist the younger judges. The benefits are currently skewed towards rewarding older judges.
The Chairperson thanked the representatives from the Judiciary and stressed the importance of maintaining and expanding the open dialogue.
The meeting was adjourned.