The Portfolio Committee on Justice and Correctional Services met to consider and approve the Committee Reports on the Budget Votes of the Department of Correctional Services and the Office of the Office of the Chief Justice. That was followed by a discussion on submissions in response to the Traditional Courts Bill.
While considering the Correctional Services Report, the Committee agreed that it was the role of the Committee to ensure that the Department complied fully in respect of all obligations and that failure to report on non-compliance would reflect negatively on the Committee. There was concern that the Department had simply ignored recommendations in previous Budget Reports.
Some of the critical issues raised in the report included the failure by the Department of Correctional Services to fill its funded posts despite strongly motivated requests by the Committee that the Department should do so. Over-crowding in correctional facilities was a real concern as the Department was not making headway in increasing the number of beds. The cause of over-crowding was, in the opinion of the Committee, the result of other partners in the justice sector not applying alternative sentencing properly. The integrated justice system was a problem of both the relevant departments and Parliament which had failed to maintain adequate oversight over the requirement for an integrated system. The lack of infrastructure was the problem of Department of Public Works and not the Department of Correctional Services, which was being failed by the Department of Public Works. The lack of progress in completing the Integrated Inmate Management System was a concern, especially as the Department had not adequately reported on ongoing litigation that was stalling the process. The Department had failed to comply with the Saldanha judgement in relation to problems experienced at Pollsmoor prison. Some Members felt that the lack of implementation was a result of the increased prison population in the Western Cape stemming from the inhuman living conditions in overcrowded informal settlements that impacted on people in the province. Other Members felt that those conditions were not unique to the Western Cape but were prevalent throughout the country and that it was simply a failure by the Department to implement the judgement.
The Committee was of the opinion that much of the good work being done in skills development within correctional facilities was being negated as former inmates were neglected by other departments when they were released. The Department of Small Business Development had to explain why it was not facilitating the efforts of former inmates to make a living. The Committee made an observation on the recent escapes from correctional facilities and the rogue elements amongst officials. The Committee praised the Hawks for the re-capture of the offenders. At the request of some Members of the Committee, the Report was changed from making the statement that the Committee ‘welcomed’ the appointment of Mr Arthur Fraser as the new Commissioner and Head of the Department of Correctional Services to simply stating that the Committee ‘noted’ his appointment. The report was given unanimous support.
The second report was on the Office of the Chief Justice. The report required some amendment to reflect the delays and problems with land restitution. That was because of the huge bureaucracy and the fact that the law relating to land claims needed to be changed because it was outdated. Members queried the appointment of judges in the Land Claims Court who did not match the demography of the community and who would think that the court was loaded against them. After 20 years, the Chief Judge and three Judges in the Land Claims Court had not been permanently appointed to the Land Claims Court. That matter had to be addressed without further delay.
The Office of the Chief Justice arranged training for the judiciary at the South African Judicial Education Institute, but Members queried whether trainers knew anything about the traditional courts. The question of why Traditional Court Law was not offered at universities and why law students were not compelled to learn at least one African language was raised and was included in the recommendations as an essential addition to the curriculum for all law students in the country.
The Department of Justice and Constitutional Development presented a summary of the comments and responses to the call for public input on the Traditional Courts Bill 2017. A large number of submissions had been received and summarised in an 80-page document for the Committee. The submission of the report had been delayed and was being presented after the oral hearings and deliberations by the Committee on the Bill. The Committee believed that some of the detailed arguments being presented were taking the Committee back over matters on which the Committee had reached finality in respect of the Bill. Various issues were, therefore, perceived as being non-negotiable. The Bill had captured the fact that the traditional courts were courts of law under customary law but the Department of Justice and Constitutional Development agreed with the view, but believed that it presented a challenge as Chapter 8 Section 166 of the Constitution determined that all persons working in a court had to go through the same processes for appointment, i.e. via the Judicial Services Commission or the Magistrates Commission and that those appointees would be required to have specific qualifications.
The Committee was concerned that the Bill did not recognise the three levels of traditional courts: the traditional leader or headman, the senior leader or Nkosi, and the king/queen. A system of appeal versus escalation to a higher court in the traditional court system was debated. Schedule 1 that addressed the customs and practices which infringed on the dignity of people or abusive practices had to be removed as the Committee believed such references did not belong in a Bill about a court system. Traditional courts had, in any case, to pass constitutional muster, and the Human Rights Bill was there to prevent such abuses. The same applied to the issue of the representation and participation of women in traditional courts. The Committee also did not accept opting out of the traditional court system in any form.
The Committee was extremely concerned about the delays that the Bill had been subjected to since its introduction to Parliament but agreed to delay the matter until the following day to give Members time to thoroughly interrogate the summary of the comments and responses to the call for public submissions.
The Chairperson welcomed everyone. He stated that the meeting was quorate and could, therefore, make the necessary decisions. He asked Members to go through the draft Correctional Services Report and to check for any errors.
Report on the Department of Correctional Services
The Chairperson informed the Committee that they would go through the Correctional Services Report page by page.
Mr M Maila (ANC) suggested that there was too much detail on the staffing section on page 10 of the draft report.
The Chairperson asked for comment from other Members. When there was no comment, he asked the Content Advisor to explain why he had put in so much detail.
Dr Zakhele Hlophe, Committee Content Advisor, explained that, over the years, the Committee had been urging the Department of Correctional Services (DCS) to fill its funded posts but the Department had failed to do that. He was happy to cut out the detail, but he had been highlighting the fact that if the Department did not fill the funded posts, it would be the first port of call when Treasury was looking for money.
The Chairperson asked for Mr Maila’s response to the explanation. The posts were funded but not filled. Should that be reflected? The point was that the Oversight Committee would be asked what it had done about that.
Mr Maila accepted that explanation and reluctantly agreed that it could be left as it currently stood in the report.
The Chairperson asked the other Members for input because his concern was that the Committee had been telling the Department to fill the posts, but it was just ignoring the Committee and what could the Committee do about that?
Mr G Skosana (ANC) remarked that he had been sharing the same sentiments as Mr Maila, but he appreciated the explanation. The problem emanated from the comments that the Committee had been raising over the years. It was not something recent, so he suggested that it be left as it was.
The Chairperson agreed as it was the role of the Committee to ensure that the Department complied. There had not been compliance and that had to be reflected or the Committee could be accused of covering up. The Committee was not there to cover up for anyone. Members represented the public.
Ms M Mothapo (ANC) noted that the Committee had commended the arrest of the escapees from a Correctional Services Centre by the Hawks but that was not recorded on page 12
Dr Hlope stated that all the commendations appeared under 7.4 on page 15.
Ms Mothapo stated that it was sort-of okay, but she felt that the reader would think that that nothing had been done.
Mr Maila noted that Page 12 contained an observation on the recent escapes and an observation of the re-capture of the offenders. The Committee’s response to the observations should be captured in the same place.
Dr Hlope agreed that it could be included in the first reference to the escaped prisoners.
Ms Mothapo asked if it was going to include the action taken against the officials. She believed that it should include the fact that the Department had managed to arrest the officials who seemed to be involved.
Dr Hlope stated that it had been included later. There were rogue officials in the Department and also...
The Chairperson interrupted him, explaining that Members advised that remedial actions should be included with the original note because the person who was reading it did not know that it would come up later. It was a question of the organisation of the report. In organising the report, Dr Hlope should follow the guidance of the Members.
Mr Maila stated that the second sentence in 6.18 was not clear. The causes of over-crowding were not clear. The cause of over-crowding was, in the opinion of the Committee, the result of other partners in the sectors not applying alternative sentencing properly. The integrated justice system was a problem.
The Chairperson told the Committee that the governing party had stated that the integrated justice system had not been fully realised and that overcrowding was a consequence of the failure of the integrated justice system. It had to be indicated that the failure was not only the failure of the relevant departments; it was also a failure of Parliament that had not managed proper oversight of the integration of the system. The cluster that dealt with the integrated justice system had not taken responsibility for ensuring that the departments implemented the system. Alternative sentences should be imposed and if there were no alternative sentences, then that needed to be dealt with by way of legislation.
Mr Maila said that further in the paragraph, it referred to new bed spaces, electronic monitoring etc.
The Chairperson said that he was talking about alternative sentencing. The purpose of alternative sentencing was that there should be fewer people going into correctional services.
Dr Hlope agreed to rephrase the sentence.
The Chairperson said that he should just include the causes.
Ms Mothapo asked about the issue of infrastructure. The Committee was concerned about what the Department of Public Works (DPW) was doing. The statement about lack of infrastructure was the problem of DPW and not DCS.
The Chairperson asked if it was correct that government departments should not work in silos. If one department did not inform the other, how would the other departments know. How should the Committee deal with that situation?
Ms Mothapo reminded the Committee that the Department of Correctional Services had said that it had provided DPW with information relating to its needs. But it was okay.
The Chairperson said that it was not good enough to say that it was okay. Did the Committee not have the right to call the two departments? DPW was a service department. Did the Committee not have the right to call them and say that they were failing DCS?
Dr E Buthelezi (IFP) agreed that it would be a good move.
The Chairperson noted that the Committee had to oversee DCS as it was being failed by DPW. The Committee could not just fold its arms and do nothing.
Mr Maila agreed that it should be one of the recommendations.
Mr Skosana suggested the report should state that ‘the Committee remained concerned that the DPW was not giving the DCS the necessary support to deliver infrastructure because of supply chain management issues.’ The problem lies with DPW not DCS.
The Chairperson noted that the report should also state what should be done so both Mr Skosana and Mr Maila’s suggestions should be incorporated.
Mr Maila said he needed clarification about litigation around the service provider for the Integrated Inmate Monitoring System.
Dr Hlope agreed that there had been litigation, but the Committee had not been updated by the Department on the status of the litigation. DCS had been requested to supply information about the case in the budget report of 2017/18 but had not done so. That recommendation had had a two-month response date but there had been no response. But, the Committee was still concerned about the rolling out of the system as it delayed matters.
The Chairperson asked if the Committee was sweeping the matter under the carpet as things stood.
He asked the Content Advisor to confirm that DCS was not coming back to the Committee on the matter.
Dr Hlope noted there had been a strong recommendation and a request for an explanation regarding the litigation in the last budget report. Money had not been spent on the Integrated Inmate Management System (IIMS). The Committee had asked how the Department set targets for a matter that was under litigation and the Department had not responded to date so he thought that the Committee needed to take the matter up with the Department. There was a recommendation on the issue in the relevant section.
The Chairperson informed Members that the Auditor-General was also responsible for overseeing the Committee as matters that arose in litigation elsewhere suggested that the Committee was failing to do its oversight and was sweeping matters under the carpet.
Dr Hlope said that he had put in the recommendations that the Department needed to respond to the recommendations timeously as delays derailed the oversight work of the Committee. It was unacceptable that there was no response. The report could not be presented in Parliament and yet there was no response to it and no accountability.
The Chairperson requested him to write to the Office of the Chairpersons saying that the Committee had been waiting nearly two years for a response. Otherwise the Committee would be neglecting its duty. It was important to check the reports of the previous years.
The Chairperson asked that the recommendations be looked at in the light of what Members had raised and recommended.
Ms Mothapo recalled that the Committee had praised the DCS but 7.12 commended the Department for implementing that same court order, contrary to the sentence on page 12. The statements should be aligned.
The Chairperson asked the Content Advisor to align with the sentiment of the Committee
Ms Mothapo believed the report should say that the Department had failed to fully comply with the Western Cape High Court judgement in the Saldanha case.
The Chairperson said that compliance was something that had to be progressive. It was one of the things that could not be done overnight.
Dr Hlope said that DCS itself had said that it was supposed to do something about the judgement. The Department itself had said that it had failed.
The Chairperson asked what the Department’s justification had been for saying that it was guilty.
Dr Hlope explained that their justification had been the increased prison crime in the Western Cape but there had been no study on an increase in crime. It had just been the opinion of the DCS.
Ms Mothapo asked how they could replicate the steps taken to implement the judgement when they had failed to implement the judgement.
Dr Hlope agreed that ‘failed’ was a strong word, even if the Department had used it and suggested the wording: ‘not fully complied’.
Ms Mothapo believed that it was correct to say that they had tried but could not implement the judgement because of certain factors.
The Chairperson raised the issues of departments working in silos. The people in the Western Cape had social challenges that other departments had to address. Those factors were the social challenges in the Western Cape as there were many informal settlements in the province which were overcrowded and where people were made to live like animals, which resulted in increased crime. Only the eradication of informal settlements would decrease crime. The Members could not go there and say there was increasing crime in the Western Cape where people had ceased to be human beings. They would not create crime if conditions were not created to facilitate crime. There were societal problems.
Ms G Breytenbach (DA) stated that crime was rising, not only in the Western Cape, but throughout the country and informal settlements existed throughout the country. It was a holistic problem that needed to be addressed. People were treated inhumanely and lived in unacceptable conditions throughout South Africa and the Committee needed to be worried about the conditions as a whole. The Saldanha judgement was directed specifically at Pollsmoor but everyone knew that that was not the case. Members knew that inmates lived in inhumane conditions across the country. The Committee’s visit to St Alban’s Correctional Centre had convinced her of that. People were treated in a sub-human way throughout the country and the Committee had to see the issue holistically. DCS had failed to comply with the Saldanha judgement, not only in the Western Cape, not only in Gauteng, not anywhere. She had no doubt that DCS had failed to comply, but what the Committee did about it was another matter and that was what Members had to consider.
The Chairperson explained that the paragraph referred to the Western Cape and not the rest of the country, so he was talking only about the Western Cape.
Ms Mothapo said that the DCS had initially complied. That had been seen in their report, but the high increase of offenders had meant that they could not keep up with compliance.
The Chairperson noted that it was a matter of phrasing the point correctly. The Committee had to ensure that the current year’s reports did not ignore the reports of previous years. Phrase it in a way that it would be intelligible.
Dr Hlope suggested that that the report should state that DCS had not managed to fully comply with the Saldanha judgement.
Mr Mothapo said that the Department had initially complied.
Dr Hlope agreed that that was why the word ‘failed’ was wrong.
The Chairperson added that compliance happened progressively, and the point had to be rephrased.
The Chairperson reminded Members that a catalogue had been circulated by DCS that had shown the very high quality of the work produced by the inmates. There was a very successful skills development programme at the correctional service centres so that people could find something to do when they were released. But, when they went out, they were neglected, which negated the work done inside. There had to be a kind of call to create conditions outside so that former inmates could use their skills and there would be no need for them to go back to crime. The relevant departments could assist them. Was there a reference to that point in the report?
Dr Hlope informed the Chairperson that, in the previous report, a recommendation had been made that the Department of Small Business Development should be encouraged to facilitate work for those released from Correctional Services.
The Chairperson declared that there was no need to encourage them. They should do the work that they were employed to do. Perhaps the Committee should ask why the Department of Small Business Development was not doing its work. It should exercise the powers that it had. Was that the best way to do it? Failure to support former inmates created recidivism.
Dr Hlope suggested that the Committee could call for a briefing by the Department of Small Business Development to state how far that work was.
The Chairperson noted that there was cooperation between the two departments and he did not expect it to work overnight but noted that it was progressive work.
Mr Maila proposed the adoption of the Report on Correctional Services, with the amendments as discussed.
Ms Breytenbach stated that the DA could not support the report if 7.5 was to remain in the report. That point stated that the Committee welcomed the appointment of Mr Arthur Fraser as the new Commissioner and Head of DCS. The DA did not welcome Mr Arthur Fraser. She knew that he would say that it was the majority decision and it would stay.
The Chairperson asked Ms Breytenbach not to speak on behalf of others. The Committee was a multi-party Committee, and everyone could have their say. He asked for the opinion of other Members.
Ms Mothapo suggested that the report could state that the Committee ‘noted’ instead of ‘welcomed’ the Commissioner’s appointment.
Ms Breytenbach said that she would then be happy to support the report.
The Chairperson noted that engagement brought results.
Dr Buthelezi seconded the proposal to adopt the report.
There were no objections and the report was adopted unanimously. The Chairperson congratulated Dr Hlophe on an excellent report.
Report on the Office of the Chief Justice
The Chairperson requested Members to read through the Report on the Office of the Chief Justice
before the Committee discussed the report. He then went through the report with Members page by page.
The Chairperson noted that the report did not reflect the Commission’s delays and problems with land restitution. That was because of the huge bureaucracy and the fact that the law relating to land claims had to be changed because it was outdated. The law had to be reviewed and changed. He queried the appointment of judges in the Land Claims Court who did not match the demography of the community. They would think that the court was loaded against them. Why, after 20 years, had judges not been permanently appointed to the Land Claims Court? Those were key concerns that had not been reflected in the report.
Ms Mothapo asked about the Traditional Courts Bill. The programme had stalled.
The Chairperson raised the question of whether the people who were training people from the traditional courts knew anything about the traditional courts. He raised the question of why Traditional Court Law was not offered at universities and why the judiciary and magistracy students were not learning at least one African language. Otherwise the majority of the people in the country were not being taken seriously.
Mr Skosana said that the Committee had decided to schedule a meeting with South African Judicial Education Institute (SAJEI) to find out about the training of languages.
The Chairperson said that the report had to say what the Committee was not happy about and that the Committee had to meet the South African Judicial Training Institute (SAJTI) and those who had oversight over the Justice College. Otherwise the Committee was covering up
The Chairperson noted that it was recommended that they supported the budget of the Office of the Chief Justice but asked why there were no further recommendations. Recommendations should flow from the body of the report.
Ms Christine Silkstone, Content Advisor, indicated that she could add the recommendations. She had thought that the Committee would want to determine the recommendations.
The Chairperson stated that the Committee had raised the question of the representation of judges in the Land Claims Court (LCC), and that the Judge President of LCC had been acting for ten years and that the three other judges were also acting. There had been no explanation as to why, in such a critical court, all the judges were acting. Land should be restituted, but the judges were acting. The problem should be addressed to the Department to find out why that was so. The Judicial Services Commission met regularly. Was no one applying for the posts or where did the problem lie? The report had to raise the critical issues.
Ms Mothapo moved for the adoption of the Report with the amendments as discussed.
Mr T Mulaudzi (EFF) seconded the proposal for adoption.
Five Members voted in favour, while the two DA Members abstained. The report was adopted.
The Committee Content Advisor went away to compile the recommendations that will be added to the report.
Presentation of responses to the Traditional Courts Bill
Ms Theresa Ross, Principal State Law Advisor, Department of Justice and Constitutional Development (DoJ&CD), presented a summary of the comments and responses on the Traditional Courts Bill 2017. A large number of submissions had been received. The Department had summarised the comments and responses in a document for the Committee. She apologised for the late submission of the report but there had been a large volume, and all had to be correctly captured and classified. Submissions had been grouped according to clauses in the Bill or themes.
Ms Ross began the presentation. The first point was on the long title of the Bill. The submission from the
Eastern Cape House of Traditional Leaders submitted that the long title had to give recognition to the fact that traditional courts were courts of law. DoJ&CD agreed that the Constitution recognised the traditional courts but needed clarity.
The Chairperson asked if the Constitution did not give equal recognition and status to traditional courts. What other clarity did the Committee need?
Ms Ross agreed but in Chapter 8 Section 166 where the Constitution referred to the judicial system in the country, it listed the current courts and added that also included any other court of law that had been established or recognised by an Act of Parliament. The traditional courts were not …
The Chairperson asked if the ‘any other’ did not cover the traditional courts. Was it not clear-cut?
Ms Ross explained that the challenge in Chapter 8 Section 166 was that the persons who convened the traditional courts would then have to go through the same processes for appointment, i.e. via the Judicial Services Commission or the Magistrates Commission and those people would be required to have specific qualifications.
Dr Buthelezi asked why the traditional courts should be subjected to those requirements which stemmed from a foreign process and they would not be dealing with the same matters.
Ms Ross indicated that under Chapter 8, everyone who presided in a court of law had to undergo those processes. Traditional courts were for restorative justice whereas the other courts in the conventional courts followed a retributive system which included prison sentences. Traditional courts had a different value system which focused on healing the relationships between the parties.
The Chairperson declared that for 20 years the thing had been on the table but there had not been sufficient discussion and the Committee found it difficult to accept the recommendations of DoJ&CD. Those debates about philosophy should happen elsewhere.
Dr Buthelezi said that Ms Ross’ explanation did not explain why the traditional court people had to follow the same processes. He was confused and could not find the nexus.
Mr Maila stated that the traditional court was, indeed, a court of law. The status of customary law enjoyed the same status as Common Law and Roman Dutch Law. He did not understand why the other courts were recognised but not the traditional courts.
The Chairperson stated that the Committee did not accept the explanation. The traditional courts were courts of law. The Committee did not accept anything else. Ms Ross had to leave it there.
Ms Ross stated that the Bill did capture the fact that the traditional courts were courts of law under customary law and that was the position of DoJ.
The Chairperson thanked her and moved on.
Preamble of the Bill
The Legal Resources Centre had requested that the Bill address other levels of dispute resolution. The DoJ&CD response was that the Bill recognised other levels, but the regulations applied only to the traditional court convened by traditional leaders.
The Chairperson asked if the Bill recognised the three levels of traditional courts: the traditional leader or headman, the senior leader or Nkosi, and the king/queen.
Ms Breytenbach asked how the other levels of the traditional court system would be regulated. She was worried about the levels of the court.
Ms Ross responded that a dispute could happen at other levels, but it would be escalated to the regulated level.
The Chairperson stated that people could not hope that it would be escalated. They would be trapped into going to a magistrate’s court.
Ms Ross indicated that the Bill did provide for escalation from one level to the next. Provision had been made in the previous Bill, but the point had been raised that traditional law did not acknowledge the notion of escalation or appeal.
The Chairperson stated that he had requested the report from the reference group, but the Committee had not been given that. He wanted to know who had said that there was no escalation in traditional courts. He held a doctorate in traditional law and he had been involved in traditional courts, so he should know.
Mr Mulaudzi said that, without an appeals process, the Bill would be penalising the people. The presenter and the Department were not presenting the Bill correctly. He could not understand why the Committee was going on with the process as there were so many loopholes in the document.
The Chairperson said that the Members had been born in rural areas and knew how traditional courts worked.
Ms Ross stated that it was not that an appeal did not exist. It existed not as an appeal, but as an escalation from one level to another.
The Chairperson responded that, in law, one did not talk about escalation.
Ms Mothapo remarked that one just had to say one word and then the case moved to a higher level. Traditional leadership consisted, firstly, of the village headman, then it moved up to the Nkosi and then to king or queen level. She did not understand why people said that there was no escalation or appeal in traditional courts. It existed.
The Chairperson said that the 1910 Constitution had destroyed the traditional customs by saying the Queen of England was the only queen and the Governor-General was the supreme chief. If the Department did not know the history of distortion, it could not understand the matter. The 1909 South Africa Act, the 1910 Union of South Africa Act and the Bantu Authorities Act of 1951 had all undermined traditional courts. The Committee could not listen to people educated under the colonial system.
Ms Ross stated that the submission from the Legal Resources Centre suggested that the Bill should supply clarity on abuses. DoJ&CD’s response was that Schedule 1 addressed the customs and practices which infringed on the dignity of people or abusive practices (although not conclusively) and would need to be revised from time to time so that new abuses could be added. The Schedule included anyone who suffered abuse such as lesbians/elderly etc
The Chairperson did not know what was going on. He thought that the law was to create justice within its jurisdiction. The list of abuses sounded like an anthropology class.
Mr Maila said that the bill had to pass constitutional muster and the Human Rights Bill was there to prevent such abuses and so they did not need to be in the Bill.
The Chairperson did not know where those things came from. It was not necessary to have things about human rights abuses. He thought that those ideas came from the Reference Group whose report the Committee had not seen. Ms Ross had to forget those abuses and proceed.
Ms Breytenbach asked if there was not a better way of dealing with the matter. It was not possible to work through 80 pages of the document when there was a problem with every entry.
The Chairperson agreed that the people who had made submissions had appeared before the Committee and so Ms Ross’s presentation had been overtaken by events. Ms Ross should go through the document quickly and focus on what was important for the law. He did not want to hear about anthropology.
Ms Breytenbach asked whether Members could have an opportunity to learn about traditional law to gain a better understanding of the Bill. She noted that the Chairperson had remarked that Committee Members, especially white Members, did not understand customary law.
The Chairperson denied that he had said that.
Ms Breytenbach said that even though she had had two years of training in customary law, she did not pretend for one moment to understand traditional courts fully, and especially the nuances of customary law. She wanted to learn about customary law.
The Chairperson said there were white professors of customary law. It was not about colour. The trouble was that they had sat on that Bill for a long time and then had appointed a reference group but had not received the report from the reference group. They were not dealing with the discrimination of people in the Bill. The matter still had to go to the NCOP which would have to do public hearings, so they could not finalise the matter there. But he did not want to hear about anthropology, but only about the law.
Ms Ross stated that they came to the matter of jurisdiction. That was also a matter...
The Chairperson interjected saying that he did not want to hear about people with different sexual orientation or the treatment of elderly people as they were not dealing with that in relation to the Bill. They were dealing with traditional courts. Just move on.
Ms Ross moved on to Clause 2 of the Bill. The Bill did not distinguish between criminal or civil cases as in customary law there were no crime-specific matters because the emphasis was on restorative justice. The traditional court could also give advice on traditional practices. The other issue related to opting-out. She noted that the Legal Resources Centre believed that instead of opting-out, people should opt-in.
The Chairperson declared that the Committee did not agree with opting-out and so did not want to hear anything about it at all. She should move on.
Ms Ross referred to the issue of the representation and participation of women in traditional courts.
The Chairperson said that issue had been addressed and the Committee did not want to hear about it. There was a Traditional Leadership and Governance Framework Act which had not been implemented so there was no problem with women. There was a problem of the non-implementation of an existing Act of Parliament. The issue of women did not arise. He told Ms Ross that her Department had to meet with the Department of Cooperative Governance and Traditional Affairs and find out why the Act had not been implemented.
Ms Ross referred to submissions suggesting that reviews of the traditional court should lie with the high court which had to be provided with grounds for review of a case. The reason behind reviews going to the high court was to develop jurisprudence on customary law and for the high court to look into matters where there had been procedural shortcomings.
The Chairperson asked why, if everyone agreed that they were courts of law, but not a high court or court of review, did it not go without saying that those courts should be subject to review. Why should the Committee debate it? Certain things went without saying.
Ms Ross moved on to an issue about transfer of a matter say from criminal courts to traditional courts on agreement of parties concerned.
The Chairperson declared that that was another way of opting out. The Committee did not accept opting out in any form. The traditional court was not a new system.
Ms Ross made reference to orders that could be made by traditional courts. Commentators had proposed that traditional courts be given powers to impose fines, but the Bill had steered clear of that because traditional courts were based on restorative justice. The previous Bill had provided for fines but had been criticised.
The Chairperson interjected, asking her not to go back to the debate in the reference group. She was to just give the final opinion of the Department.
Ms Breytenbach said that the Committee was being unfair to Ms Ross as she was trying to present the document, but it was not what the Committee wanted. She was finding it a deeply unsatisfying experience and was gaining little from the experience. She was not sure if there was a logical train of thought. The Members should go through the document on their own, make comments on it and perhaps then there would be a more productive discussion.
The Chairperson stated that the Committee had asked the DoJ&CD for a response. The Committee did not want motivations. DoJ&CD should just state its position.
Ms Breytenbach stated that the response was contained in the document. She did not need Ms Ross to read it for her.
The Chairperson agreed with Ms Breytenbach. Members should read the document and come back the following day ready for a discussion.
Dr Buthelezi asked which presentations were listed. It seemed that the DoJ&CD representations came from a different group of submissions from those that the Committee had heard. They seemed to have chosen which inputs to include. For example, many presenters had supported the compensation and wanted it raised.
Ms Ross stated that the submissions were not from the reference group. They were all submissions submitted through the public process. The report contained firstly, the Clause in the Bill; secondly, who submitted; thirdly, the submission/recommendation; and, fourthly, DoJ&CD response. They would find in the document, those who supported fines and those who did not agree because traditional law was about restorative justice.
The Chairperson stated that traditional law was not just about restorative justice. It was a court of law. Not everything had to be restorative. The problem was that the Department did not respond in time. The summary had been made after the oral submissions and was not in line with what the Commission had heard. It was not acceptable to take 15 years to deal with a law that dealt with 80% of the people of the country. When Ms Ross referred to the DoJ&CD position, did that include the opinion of the politicians who led the DoJ&CD?
The compromise was to afford Members to go through the document to conclude the process as it had to go to the NCOP before Parliament rises for recess. He did not blame Ms Ross or the current leadership of the Department, but it had to be sorted out as the people could not wait indefinitely. He excused Ms Ross and asked that she appear the following day.
The Chairperson asked the Content Advisor to present the recommendations in the Report on the Office of the Chief Justice for consideration by the Committee.
Report on the Office of the Chief Justice: Recommendations
Ms Christine Silkstone indicated that she had written the recommendations as requested. 6.1 remained the same.
6.2 The Committee will request a meeting with the Chief Justice and Head of Court to discuss matters of court performance and other matters of mutual interest; and ask that the Office of the Chief Justice assist to arrange the meeting.
6.3. The Committee further recommends that
6.3.1 the ministry engages with the ministry for Rural Development and Land Reform on the need to expedite a review of the legislation needed for land restitution and, in particular, the permanent tenure of the judges appointed to the Land Claims Court and the proper capacitation of that Court as a matter of urgency;
6.3.2 the Minister introduces the legislation to create a single judiciary in line with Section 166 of the Constitution as a matter of urgency;
6. 3.3 a court administration model is finalised as soon as possible;
6.3.4 the Judicial Services Commission table a report on its activities as soon as possible as required by the enabling legislation as a matter of urgency;
6.3.5 a meeting with both the South African Judicial Education Institute and the Justice College be scheduled as soon as possible to discuss the training of traditional leaders and clerks in support of the traditional courts;
6.3.6 the Office of the Chief Justice looks at an outreach programme within the limited resources available to it.
The Chairperson suggested that it might be the right time to say that traditional law had to be a compulsory subject and at least one indigenous language should be compulsory for students of law. How could judges train traditional leaders when they did not speak the language? How could the courts review cases from the traditional courts when they did not understand traditional law? The Chairperson stated that he could not see why the Committee could not be specific and present it to the House of Assembly, which could reject it if it wished to do so.
Ms Silkstone agreed to write a recommendation about that.
The Chairperson said that judges could not train those in the traditional courts if they could not even speak the language of those people. The recommendation had to be specific and Parliament could reject it if it wished but the Committee could not afford to be wishy-washy.
The Chairperson asked if the Committee abided by its adoption of the report with the recommendations as agreed.
Mr M Mpumlwana (ANC) agreed. The Committee confirmed acceptance of the report.
The Chairperson announced that that took care of proceedings for the day and the Committee would look at the recommendations the following day.
The meeting was adjourned.
- Traditional Courts Bill: response to public hearings; Department Budgets: Committee Report 3
- Traditional Courts Bill: response to public hearings; Department Budgets: Committee Report 1
- Traditional Courts Bill: response to public hearings; Department Budgets: Committee Report 2
- Traditional Courts Bill: response to public hearings; Department Budgets: Committee Report 4
- Committee Report on Justice and Correctional Services on Budget Vote 22: Office of the Chief Justice and Judicial Administration
- Committee Report on Justice and Correctional Services on Budget Vote 18: Correctional Services
- Summary of Comments and Responses on the Traditional Courts Bill, 2017[Bill1-2017]
Download as PDF
You can download this page as a PDF using your browser's print functionality. Click on the "Print" button below and select the "PDF" option under destinations/printers.
See detailed instructions for your browser here.