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JUSTICE AND CONSTITUTIONAL DEVELOPMENT AD HOC COMMITTEE
11 June 2004
JUDICIARY AND MAGISTRACY: BRIEFINGS
Chairperson: Ms F Chohan-Kota (ANC)
Documents handed out:
The Committee was briefed on the state of the Judiciary and the Magistracy by the Chief and Deputy Chief Justice and two senior magistrates. They all complained of huge problems of under-resourcing in terms of staff and infrastructure.
Chief Justice presentation
Chief Justice Arthur Chaskalson indicated that there are fundamental problems confronting the courts as a whole. The lack of resources at various levels was an extremely important issue which needed to be addressed. >From his own experience and information obtained from colleagues in other courts, there were a substantial number of vacant posts within the court system. This had a profound impact on the courts as services could not be carried out, leading to inefficiency. Cases were held up such as when there were no interpreters and there were also many other delays. This negatively affected staff morale.
Related to this problem was the physical structure of the courts, especially the high courts and magistrate courts. Infrastructure problems and poor working conditions affected staff who lost their enthusiasm for work. In the light of these circumstances, the Chief Justice advocated the importance of ensuring that there were adequate resources for courts. Inadequate resources, vacant posts, unmonitored telephone use, lack of essential support for the court system and lack of security of the courts were listed as problems. He appealed to the Committee to take this matter up.
He further stressed that the poor relationship amongst the courts, judicial officers and the Department boiled down to a question of money and lack of resources. The Heads of Courts would have to give greater input into the budget of the court system. This inevitably led to the issue of co-operation between court officials. So it would be desirable for Financial Officers to have more contact with the Head of the Court. The solution to internal problems needed the Heads of the Courts to come together with the workers of the court, analyse such problems and together find meaningful solutions.
The problems between the lower and higher judiciary, as well as problems experienced by magistrates also needed to be addressed. This would enable these officers to exercise their authority and discretion appropriately. This was highly recommended, as there was currently no interface between the judiciary and the Department.
The Office of the Chief Justice also needed to be properly capacitated in order to enable the Chief Justice to have adequate support. Judges could be involved in a meaningful way concerning administrative decisions. Where this was possible, the Chief Justice could intervene and take responsibility for some of these matters, as it would be wrong to say that the courts cannot assume responsibility for some of these matters. This sort of approach leads to efficiency. They had to find solutions to these problems.
In addition to the foregoing, there were also delays in getting information from the courts and in making decisions. The main question here was: Where does authority reside and who makes the decisions?
Concerning delays, there needed to be progress in the legislation to address the restructuring of the judiciary. This discussion had been going on for about two to three years and these issues needed to be addressed. There was the need for serious restructuring in the lower courts in particular. In this respect, the Chief Justice proposed that the Superior Courts needed to help put thins in place in the lower courts.
The Chief Justice stated that these were his major concerns and he would be glad to respond to any questions.
Deputy Chief Justice presentation
On the issue of transformation, the Deputy Chief Justice, Mr Pius Langa, stated that this has been discussed in the past. The main point was that people must have confidence in the judiciary and this needed to be emphasised as Parliament needed to perceive this issue the same way as the judiciary did. It is now ten years since they had started the process of transformation. Though considerable progress had been made in terms of transformation, nobody was adequately satisfied and there was still a long way to go. It was therefore important to review existing measures and establish where there should be progress.
The Deputy Chief Justice noted that the work of the Judicial Services Commission was very difficult and, despite its efforts, the figures were such that there was still a long way to go.
The Justice College had been set up as an institution for training people in legal matters. There were ongoing discussions in order to address the needs of people in terms of training. It was also important that people who aspire to be judges obtain extra tuition from the Justice College. This added a new dimension to the training of judges as, traditionally, judges felt that they needed no extra training. Transformation would be facilitated by the current practice of training to increase the pool of legal practitioners.
Much more co-ordination was needed between judges. He also said that the judiciary should be assisted to transform themselves.
Chairperson of Courts Magistrates Committee
Mr Khandilizwe Nqadala, Regional Courts President, indicated that there were two magisterial organisations at the lower court level. The Lower Court Management Committee needed to unify managerial issues within the lower courts throughout the country. There has been a case backlog in the court for quite a long time. Sometimes, inquiries were directed to attorneys, the Law Society, interpreters and other officers and these were not followed and there was no feedback..
Guidelines need to be developed for the Lower Court Management to solve the problem of case backlogs. Co-operation was needed among all stakeholders. At the moment, this was being implemented as there was a team from the Department and the Magistracy going around the country to identify problems and how to rectify them.
There was a particular problem pertaining to Legal Aid, as far as delays was concerned. They postpone frequently and thus there were resultant delays in services.
There was also a dire need for interpreters in both local and foreign languages as their lack led to the postponement of cases. The late arrival of prisoners in court was another phenomenon that needed to be addressed. There were many appeals in criminal courts, delays and many infrastructural problems.
He further recommended that in the magistrate court, there needed to be a reconstruction of records and a duplication of records in the face of the frequent disappearance of records. These, together with the meagre numbers of staff, also caused delays.
At this point, the Chair noted that her office had received these concerns in writing.
Mr Nqadala further stated that there were insufficient courtrooms, meaning that judges and court staff sometimes had no place to sit.
People in maintenance cases had to sometimes travel long distances to courts and this was a great problem. It was therefore important to enhance greater accessibility to these services. Government intervention was seriously needed as far as this was concerned.
There had been costly and lengthy delays when making appointments and finalising recommendations by the Minister. Sometimes, it took approximately two years to respond to a recommendation. The norms and standards in making appointments were out of date and needed to be revised. The Department now permits acting appointments, instead of creating posts.
There was a proliferation of special courts. These were not well planned and had not been properly set up. There were also insufficient human resources. The Magistrates approached the Department of Justice to investigate the criteria needed for specialised courts and other similar structures. The Department agreed but they were not consulted.
Magistrates have voiced their deep concern that while the Department was working on producing more courts to deal with sexual offences, such incidents continued unabated. It was hoped that some adequate measures would be taken as at the moment, it appeared easy for crimes to continue.
He pointed out that the Chief Justice had appealed to the Committee to assist in getting the Department to improve security in the courts, as there was currently not enough supervision.
He also stated that there had been a lack of co-operation amongst magistrates, administrative staff and control officers. The Chief Justice and his associates then came forward and issued a circular on how to address this situation. The challenge now was how to implement the provisions of this circular. This circular, which addressed these problems and sought harmonisation, must be interpreted in the same manner to court managers and other staff within the court. This ensured unity.
Judicial Officers Association of South Africa
Mr T Maumela, Vice President of Judicial Officers Association of South Africa (JOASA), stated human resources were woefully inadequate and the same applied to building structures. This ultimately linked to problems such as smuggling of weapons, drugs and other illicit items into the courtroom. There was a serious problem of disappearance of records and this affected the giving of evidence. Some courts lacked basic amenities. Coupled with this, there was a lack of security. Magistrates had to sometimes share the same public transport with criminals who they had dealt with in court.
Mr Nqadala added that people were being tried by officers who were not properly appointed.
The Chairperson responded that this should be indicated in writing.
The Chairperson commented that the biggest problem was the budget. When the Department had amalgamated the former homelands into a single united justice system, there were a lot of financial problems and things were in a mess. The government must now find effective measures to address some of these resource issues. These included the problems of personnel shortage and vacant posts. At the core of these problems, the issue of the budget needed to be resolved.
Problems of security, maintenance and infrastructure could all be linked to financial issues. The Chair stressed the need for assistance from the courts to collect data relating to the state of these courts.
She continued that there was not any relevant amending legislation to deal with these problems at the moment, apart from the re-introduction of those Bills that had lapsed at the end of the last parliamentary term. Given the short parliamentary year, it would be difficult to pass legislation on issues that had been raised this year. She added that the Sexual Offences and Child Justice Bills were a priority. Once the status of the Justice Portfolio Committee was finalised, it would be possible to move forward with other drafting requests.
The Chair stated that the courts' relationship with magistrates was a historical problem in part. The Department had embarked on its plan to ensure an efficient budget, restructuring and a focus on improving financial matters. Historically, financial matters had been loosely co-ordinated. Accountability and responsibility in finance were being addressed by the Department. There was always an enormous disparity in the views of people in the consultative forums, and this all created very bad relationships. She therefore cautioned that people needed to work on cooperation. She believed that overall, a lot of positive rather than negative experiences had been encountered in working to rectify these matters. She said that the people who worked within the Justice System were very committed people.
Due to time constraints, it was decided that committee members would pose their questions one after another and there would be one response to all the questions thereafter.
Mr Bicze (Eastern Cape) (UDM) noted that as a layman, he could not understand why dockets went missing.
This led to the public losing confidence in the judiciary. Was it not possible that this and other malpractices within the court are being carried out by some of the court officials themselves? What happens to these dockets, who assumes responsibility for them and what can be done about this situation?
Mr M Malahlela (ANC) said that a year ago the Chief Justice had spoken about capacitating the judiciary. What had been accomplished between then and now? Where was the blockage? Who was dealing with the issue of specialised courts and their problems?
Mr Solomon (ANC) agreed that the issues heard today from the Chief Justice had been heard before. However he believed that Court Services had made tremendous progress in infrastructure and resourcing. They had now moved from an abnormal to a normal system. In spite of existing problems, there were systems in place which addressed past shortcomings. He had participated in the opening of many courts. Given such trends, the judiciary needed to reflect on its positive achievements and discuss these as well.
Ms Camerer (DA) observed that the approach of the Chief Justice was a very frank one. The reports from the Chief Justice and magistrates indicate that the backlogs in the courts seem to remain static or are growing. Having participated in the opening of many of these specialised courts, she had seen the commitment of many of the officials who worked on these matters. However, the proliferation of these courts was worrying. In effect, how did one ensure more efficiency in the workings of these courts, instead of adding to their numbers?
Ms Mahlawe (ANC) suggested that there was a need for a Judiciary Indaba as other departments do. This mechanism would include the judiciary, executive and administrative staff at a higher level. They would look at the issues of capacitating the office of the Chief Justice, the work of the Justice College and so on.
Mr Burgess (ID) proposed that more efficiency must be created in the courts system. It seemed that the judiciary cannot account for the role of attorneys and advocates. From experience, advocates keep multiple diaries and one cannot arrange a date with them. These cause delays and problems with the judiciary. Without addressing this problem, the system cannot be improved. How does the judiciary view this problem and how should it be addressed?
The Chair commented on the fact that race transformation within the courts had been dealt with positive effect as presently 25% of judges were people of colour. However she was dissatisfied with the fact that gender issues had not been dealt with in the same manner as a mere 13% of judges were female. She believed that the drawing of judges from the legal pool would help to confront this imbalance. She felt that women were discriminated against and that this area needed attention. The issue of transformation spanned both racial and gender considerations.
Where sexual offence courts are concerned, she emphasised that there did not appear to be a resource shortage here. She reiterated that specialised courts had to conform to certain standards and, as with all aspects of organisation, some had and some had not conformed to these standards. However she said that the disparity in rates of success was worrisome. Specialised courts, in her opinion, were still advantageous as regional courts did not have as high a success rate for convicted sexual offenders as specialised courts had.
The Chief Justice and his associates responded to these questions and comments. Firstly the Chief Justice suggested that the Chief Director of a specific court should be appointed to manage and deal with all administrative issues therein. All these administrative duties would force him into dealing with the ministry and the department. He thus felt that a more efficient conduit between the judiciary and the department was needed.
The Chief Justice agreed that the lost docket issue was a serious matter and should not be taken lightly. Once again he expressed his belief that a lack of resources led to poor administration. Disciplinary steps should be taken.
He said that judges should be more accessible to the public in order to create awareness. Coupled with greater monetary allocation, this would assist in the recruitment of individuals for judicial training.
The Deputy Chief Justice mentioned that transformation had occurred on a grand scale, however the gender issue within the legal system was problematic as little advancement had occurred there. He said that it may take time but that there was no excuse for gender discrimination of any kind. The mistreatment of female legal practitioners by presiding officers was a serious offence to both the individual as well as the values of the Constitution.
The meeting was adjourned.