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JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
18 May 2005
JUSTICE BUDGET: INPUT BY CHIEF JUSTICE AND DEPUTY CHIEF JUSTICE ON JUDICIARY AND MAGISTRACY
Chairperson: Ms F Chohan-Khota (ANC)
Documents handed out:
Documents of interest:
Draft Judicial Conduct Tribunals Bill as of November 2004
Draft Judicial Service Commission Amendment Bill as of November 2004
Superior Courts Bill - working draft this is the latest working draft as of November 2003
Superior Courts Bill [B52-2003] original version
Summary of Comments on Superior Courts Bill public submissions on original version
Draft SA National Justice College Bill: not yet available to the public
Draft Magistrates Bill: not yet available to the public
PIMS IDASA commentary: Debating the Transformation of the Judiciary: Rhetoric and Substance
The out-going Chief Justice Chaskalson reflected on the work done by the judiciary during his tenure and the progress made in the judiciary since the inception of democratic rule in 1994. The in-coming Chief Justice Pius Langa also expressed his views on these issues and gave an overview of the areas which required attention not only from the judiciary but also from the government and public.
Chief Justice Chaskalson noted the importance of the occasions the judiciary has to meet with Parliament which he felt was the appropriate structure for such an engagement. This was consistent with the Constitution which stressed the importance of cooperative government and the need for different arms of government to engage with each other. He talked about the progress of the judiciary since the new government in 1994 when it had just emerged from a legal system based on a highly centralised government in which absolute supremacy was vested in the government. White men dominated the legal profession by about 90% and its leadership was exclusively male. A small proportion of the legal profession was black, about 5 to 10 %, and these were mostly junior staff. Of the two hundred judges all but three were white and all but two were men. However, the Constitution marked fundamental change. It established a new form of government which vested sovereignty in the Constitution. The revolutionary nature of the Constitution and the difficulties with the implementation of such huge changes were often under appreciated. Tremendous change had taken place in these ten years if one looked at the legal judgements and the changing face of the legal profession. The change would be more rapid now as more young black professionals entered the profession. The composition of the judiciary was materially different from what it was as it now included about 45 blacks. The change would take place more rapidly in the next five years than it did in the past ten years because there would be people with at least fifteen years or more experience. The two hundred white male judges who were in office then had by now reached the age of retirement and new persons would be employed who were committed to transformation.
He emphasised that the judiciary as an institution was totally committed to the goal of transformation. It got blamed for the composition of the judiciary, which was not its responsibility. The Judicial Service Commission (JSC) consisted of 26 members of whom only four were judges, twelve were members of parliament while four were nominees of the President. The JSC made the necessary appointments therefore the judiciary should not be blamed if transformation did not take place, which was not to say that the JSC should receive blame for it as they had done extremely well under the circumstances. But he reiterated that that change would be taking place more rapidly.
He noted that recently there had been reference in the press to tension between the judiciary and parliament. The tension should not be perceived as a calamity but inherent in the nature of the relationship between the two arms of government. The concern should be how best to resolve the tensions within a democratic society, which was based on the principle of co-operative government. The different arms of government needed to find ways institutionally of resolving problems. His experience had been that at all levels there had been this attempt to cooperate and find solutions to problems and he had no doubt that that was going to continue.
The proposed legislation dealing with the judiciary which had caused the present tension had nothing to do with transformation which the press had said it did. The issue around complaints was raised by the judiciary years ago and it stemmed from a gap in the structure for dealing with complaints about the judiciary. Complaints were taken to the JSC which had no power to deal with them except via the extreme measure of recommendation for impeachment. He had been asked for input and he recommended a formal complaints system and the proposed legislation went through the various law making processes ending up in Parliament in about 2002. The conflicts had nothing to do with the principle of complaint but rather to do with the structures according to which it should be dealt with.
On the judicial education allegations by the press, the judiciary had requested this itself and set it up with financial help from a Canada/South Africa linkage. This system provided orientation courses for new judges, continuing seminars for existing judges and seminars for aspirant judges. Eventually steps were taken to create a proper institution from that initiative. This was contrary to the allegation that the judiciary was resistant to judicial education and transformation.
The independence of the judiciary was the core of the Constitution and government, without which democracy was absent. This independence was important because the judiciary had to perform functions, which concerned other arms of government. Therefore, the judiciary should not be subjected to direct or indirect pressures but should be left to make its own decisions. There was also institutional independence, which related to the conditions in which judges worked. The tribunal over which they presided must be independent in accordance with constitutional theory or it could not be said to be independent. This was not intended to exclude the government from its affairs but to say that the manner in which it was done should be handled properly. He had no doubt solutions would be found.
The entire judiciary shared concern about this particular package of legislation. The leadership in the judiciary was no longer that of white men. There was to be a black chief justice, deputy chief justice and nine high court judges. Yet all leaders of the judiciary, who were not opposed to the present Constitution, were concerned about this legislation. He emphasised that this was not opposition to transformation at all.
The Minister agreed with him that the huge Department of Justice was under funded which accounted for its problems. These could not be solved without adequate resources and good administration. Issues that concerned domestic violence and maintenance were poorly managed because of lack of resources. New structures had been created without enough resources to ensure their proper management. In future it would be better if the existing structures were strengthened.
He concluded that although tremendous progress had been made in the country which had received applause from outside the country, questions were still posed to him about government interference with the judiciary in South Africa. He had always responded in the negative. He hoped the answer would remain the same in future.
The Chairperson commented that when she read the judgements of the Constitutional Court and regarded the Constitutional Court itself, it evoked strong emotions of pride which was in large part due to his work in the Constitutional Court.
Ms S Camerer (DA) said that she felt reassured by the amount of detail which was given by the Chief Justice on the problems the judiciary encountered with the new legislation. He had issued a strong statement expressing concerns over the legislation. About individual ethics, the subject of the proposed constitutional amendment, which very specifically impinged on the institutional ethics by removing the responsibility for the control of the courts from the Chief justice, was not discussed. She asked for elaboration on that subject.
She said that in the previous addresses made by the Chief Justice, concern had been expressed over the resources available to the courts. The Committee had in the past had access to a large amount of detail where it concerned under funding in the department. The exercise that was carried out this year showed that the department had been under funded to the tune of R2.5 billion on priority items which included very large numbers of court personnel and court services. Since 2001, the share of the Department of Justice in the national budget had been reduced from a fairly modest 1.6% to 1.5% and the medium term expenditure framework would remain at 1.5%. She asked if the Chief Justice could address the issue of this shortage especially as it appeared that the priority issues would never receive funding.
The Chairperson said that it was important to contextualise the questions related to the budget as the Chief Financial Officer had already warned them about making conclusive statements about the budget. The Treasury had agreed to a process of right sizing the Department’s budget particularly in light of fact that part of the problem was that the magistracy was being funded from the budget. This in turn reduced that part of the justice department’s budget. Therefore right sizing the department was therefore necessary.
Ms C Camerer interjected that she had not mentioned the R1.8 billion intended for security, which was not funded.
The Chairperson replied that it was the norm to request more than what is required from the treasury so that it was eventually downsized to the actual amount needed.
The Chief justice responded that the success of the constitutional court was attributable to the 11 members of the judiciary and not him alone. As far as resources were concerned, the details were not available. However evidence definitely showed that projects were under funded due to lack of resources. With regard to constitutional amendment, there were two of them One of which was an issue of objection among the judges but he would not want to get into the debate by commenting on it. Comments on the bills could be made when the bills were presented. If the constitutional amendment serves no purpose, it should be in existence but since it does, the reason for its existence should be sought.
Mr J Sibanyoni (ANC) said that he was impressed that the judiciary was committed to the cause of transformation. He asked how the South African justice training college particularly the faculty who was dedicated to training the judicial officers. It consisted of a board that was presided over by the deputy chief justice. It had the power to set up a curriculum policy. Therefore the total control of the college was vested in the hands of the judiciary. In what ways could the college interfere with the independence of the judiciary?
The Chief Justice replied that he did not have the details on the justice training college. The problem which most judges had with it was they had no control over the budget, no spending power or any control over the faculty. The faculty was under the control of the ministries employed by the minister and civil servants. The head of the institution was a civil servant. The permanent members of the faculty were employees of the department. Ultimately, the judiciary was an insignificant body of control. It was asked why the proposal which was made by a multi disciplinary body after years of researching into the mode of independence in other institutions, and that there should be an independent board which was headed by the Chief justice and represented all the instances that were found, discarded and replaced with a new structure.
Imam G Solomon (ANC) acknowledged the statement of the Chief justice about the most revolutionary change that occurred in South Africa being the movement from a parliamentary state to a constitutional state. Also, that change within the judiciary would become more rapid. He asked if the attitude regarding the resistance by some white members of judiciary-despite a constitutional requirement to that effect- of the appointment of a black chief justice between 1994 and 1997 had changed. Had the government attacked, intimidated or threatened the independence of the judiciary?
The Chief justice replied that there had been no attacks or interference from the government though the government may have been displeased over the decisions of the judiciary. A number of factors were responsible for the attitude of some white judges, not excluding the racial issue. However there had been overwhelming support for the appointment of the new chief justice and for the President’s nomination. There was also the issue of seniority. This was not to excuse these factors, as the essence of the appointments was to serve transformation.
Mr C Burgess (ID) requested clarity on the independence of the courts which seemed to presuppose reference to the supreme, high and constitutional courts and if it extended to the magistrate, military and labour courts, which should portray the true essence of the independence of the judiciary.
The Chief justice replied that all the courts could not be given the same measure of independence due to the structure of the courts, as the need might arise to make transfers or due to administrative problems. Ultimately all courts should be independent though the highest degree of independence should be given to the highest courts because there were the ultimate controllers and protectors of everyone. This position had been reflected in the judgements of the courts all over the world and in the Constitutional court in South Africa. The constitutional court ruled that the court marshal’s procedures were inconsistent with the constitution that the military tribunals were not independent and legislation was passed in reaction to it. The magistrate courts had the same status as the high courts but the magistrate court required more independence.
Dr T Delport (DA) thanked the Chief justice for work well done in the judiciary and recognized him as the ideal man to lead the judiciary. He acknowledged the existence of a long-standing relationship of devising solutions in the judiciary between them. The constitution was the basis of the spirit behind the efforts to unite South Africa. Transformation would be complete when a white man could again be chief justice not because of transformation but because he was worthy to fill the position and sought also like the presidency to unite South Africa in terms of the constitution which the public believed in and were committed to.
Mr M Malahlela (ANC) expressed his gratitude at the leadership exhibited by the Chief justice whom he hoped would be found worthy of emulation. The notes taken in the previous meetings were protested. Certain persons who had claimed to have the capacity to defend themselves misinterpreted some aspects of it. It would be worthwhile if these persons were made to realise that their claims were misrepresentations if they had the opportunity to listen to presentations made by the chief justice and his deputy.
Ms Johnson said she had conducted a quick audit about the female representation in the private legal sector was using the advocate bar council as a case in point since those advocates fed into the judiciary. It was shocking to discover that as at April 2004, there were only 13 female silks as opposed to 311 male silks in the country. There was a dearth of female legal practitioners in the country and that the ones present were relegated to family law type briefing and did not get briefings on commercial law type cases. It was important to expose women in private practice to different types of legal cases that arose on the bench and to know what steps would be taken by the government to ensure that the private legal sector implemented it.
The Chief justice responded that he did not deal with the gender issue due to time constraints. The legal community had done very little with regard to the issue of gender. Statistics showed that only 13% of the judiciary consisted of women. There had been an increase in number from 1 to 28 females and there had been amore rapid increase in the area of race than in gender. Stereotyping women as better fit in certain professions than others also played a role in the few number of women in the legal profession. It was difficult to break down those stereotypes. Currently women have shown academic distinction in the universities but they dropped out along the way or were marginalized resulting from being relegated into certain prescribed roles. There had been an instance of a woman being nominated as a candidate in the judiciary. However some other women did not want to join the judiciary due its conflict with their personal lives. Putting women in senior positions within the judiciary might change the trend.
The Chairperson said that the issue of gender representation was a matter for the future leadership to tackle. There were some studies in the Gender Commission, which were alluded to during the budget hearings. Information on these studies was yet to be provided. It was a question of culture and how receptive the profession was to women and incorporating them into what could be termed as an old boys’club".
Mr P Maloyi (ANC) said that during the processing of the 3 bills, the intention was not to infringe on the system of separation of powers neither did it intend to undermine the judiciary. The main interest was to correct problems that were caused by the past system and to entrench the judiciary as one that provided professional service to the public especially to the poor and the vulnerable. It was therefore incorrect for certain persons either members of parliament or people who took advantage of their freedom to misinterpret the discussions which took place in committee meetings and within the judiciary. The public must understand the issues that were dealt with. The ANC was not interested in parading its party in the media but in dealing with the matters within the Committees and addressing the interests of its people. Were there clauses within the 3 bills being process that needed to be changed or that they interfered with the independence of the judiciary?
Regarding the bills, the Chairperson reiterated the commitment of Committee to facilitate discussions on matters of common interest. It was unfortunate the type of issues that had been arising in the media. After the colloquium, certain articles have appeared quoting certain judges as being opposed to transformation. The Chief Justice through the release of an article refuted these allegations. The Committee operated a policy of including all stakeholders when drafting legislation. However these allegations would remain indelible in the minds of the public. Was it then advisable for a judge to refrain from speaking her mind for fear of it resulting to a diminished status or salary by the executive or legislature? What was being discussed was institutional independence. Internationally, there was no model for this type of independence except in the American model which incorporated specific models of institutional independence was rejected during the negotiations on the interim constitution The British judiciary was not criticised despite its opinion on several issues. The problem had gone into the realm of substantive attack on the judiciary, which in reality was not really the case .It was rather the outcome of a fledgling democracy. There was plenty of room to negotiate around these matters and hopefully an acceptable compromise would be found. Ultimately, the legislature made laws and it was expected that when laws were made they would become laws and the judiciary would make pronouncements on such laws as to their legal viability. The function of the executive was to table the laws, which might be amended by the legislature especially during the public participation process. The outcome of the colloquium was that the legislature and judiciary had been meeting on an on going process and parliament had been left out of it. It was important that the judiciary did not speak to the legislature through the executive. Ultimately, the three arms of government had to abide by the separation of powers.
Chief justice said that nothing could be worse than litigation around the constitutionality of the constitution. It was impressive to know the standpoint of the Chairperson in that regard.
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