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JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
24 March 2006
ANNUAL REPORTS AND BUDGET VOTES HEARINGS: THE JUDICIARY
Chairperson: Ms F Chohan-Kota (ANC)
Documents handed out
The Chief Justice of South Africa and the Judge President of the Supreme Court of Appeal each addressed the Committee, and outlined the need for strengthening the structures of the judicial system, the progress made and mechanisms put in place to transform the judiciary in line with the Constitutional mandate and the different forms of training provided to all judges to enable them to keep up with the demands of an ever-changing society. They provided an overview of the current landscape of the judiciary and the steps taken to address the problems of sexism and racism in the judiciary, which included the provision of sensitivity and diversity training to all judges. The Committee was informed that the new judicial dispensation added greater strain and required increased infrastructure for the judiciary. South Africa’s judiciary and courts were held in high esteem internationally because of the country’s history, and was regarded as a role model for other jurisdictions.
Only 545 of the 1833 magistrates in South Africa were female and 940 were black South Africans, with only 296 magistrates in total being black women. Between 40 and 60 new magistrates posts were created in 2005. There were currently a total of 218 judges in the country, with 184 being male and woman made up of a "pitiable" 34. A total of 115 of the 218 judges were white, and there were currently 21 female black judges in South Africa. The Chief Justice emphasised that the responsibility of transformation did not lie with the judiciary alone, but rested on society as a whole
Members were concerned by the unacceptable treatment of rape victims outside the courtroom, and the Judge President was asked to indicate the mechanisms put in place to deal with judges who employed archaic and blatantly sexist reasoning to justify the imposition of lighter sentences in rape cases. The introduction of an inquisitorial system for rape cases and crimes against children was posited as a possible solution. The Chief Justice was asked to explain whether it was a misperception that the judiciary was reluctant to undergo the training outlined and the DA asked whether the judiciary would be making submissions on the Superior Courts Bill and the Constitution Fourteenth Amendment Bill. Members asked whether judges who had retired or resigned could be compelled to complete all their outstanding judgments before vacating office, and it was proposed that attorneys be allowed to lodge applications at the High Court to compel the judges to do so.
The Committee expressed concern as to whether the Constitution Fourteenth Amendment Bill and the Superior Courts Bill would increase the workload of the judiciary even further, whether the judiciary had the necessary infrastructure to adequately discharge its mandate and whether judicial officers who commented in the media on issues that Parliament itself was busy dealing with ran the risk of undermining the authority of Parliament.
Introduction by Chairperson
The Chair welcomed Justice P Langa, Chief Justice of South Africa, and Justice Howie, Judge President of the Supreme Court of Appeal.
Chief Justice Langa apologised for the absence of the Deputy Chief Justice, who was attending a prior engagement.
The Chair stated that she had requested Mr S Jiyane, Department Deputy Director-General: Court Services, to make a presentation on the status and budget for courts, as she thought it would inform the day’s discussion. A briefing would first be received from the Chief Justice. She conveyed the Committee’s sympathies to Judge Ngoepe and Magistrate Matlala for the personal hardships they had endured. She informed the Committee that she had conveyed them to Judge Ngoepe via telephone, but requested the Chief Justice to personally convey the Committee’s sympathies.
Briefing by the Chief Justice of South Africa
The Chief Justice thanked the Committee for the opportunity to address it. He stated that the President of the Supreme Court of Appeal would also be making a presentation. The opportunity was welcomed because it assisted in the cause for transparency, and it gave both the public and their representatives insight into the working of the judiciary.
The judiciary did not believe it had all the answers as South Africa was still in a period of transitioning to democracy, and it was believed that the institutions had to go through that process to become mature. He believed that some of the problems in the courts and the judiciary had played themselves out in full view of the public, and it was necessary for those problems to be understood in the context of the country’s and goals.
He stated that it was his first appearance before the Committee as the Chief Justice. It had to be appreciated that the position of Chief Justice was not always what it currently was because it evolved just as the judiciary, the courts and legal system were evolving. The rate of evolution had been more rapid recently. The Chief Justice was now responsible for more courts than before, and whether this could be considered an evolutionary step in the right direction was another issue. The fact was that the new dispensation added greater strain and required increased infrastructure. He was currently the head of his own Court, which consisted of eleven judges, was required to chair the Judicial Services Commission (JSC), chaired meetings of the heads of courts, participated in conferences of the legal fraternity, at times took part in consultations on matters that sometimes affected the court and judiciaries, as well as many other multifarious issues ceremonial duties and appearances.
The profile of the South African judiciary must be recognised, as well as the esteem in which it was held, both nationally and internationally. South Africa’s judiciary and courts were held in high esteem because of the country’s history, and was a role model for other jurisdictions. For that reason that there was now an increased demand for members of the South African judiciary to help out in other jurisdictions. Requests were received for South African judges to attend numerous international conferences, which was welcomed because it kept South Africa on the map and up to speed with international developments. Requests were also frequently received from other jurisdictions to visit South African courts and observe proceedings, but this was a time consuming exercise and needed the necessary facilities and resources.
It also necessitated the provision of facilities that would allow the public, both domestic and international, access to court judgments. This was already being done by posting them on the Internet, and the aim was to transfer skills throughout the world. It was discovered that there was significant interest in the decisions of our courts. He stated that he knew from personal experience that there was a demand for the decisions of the Constitutional Court. It was important that those facilities were placed at the disposal of the international community.
It was against that background that he turned to some of the issues that pertained to the internal functioning of the judiciary.
Strengthening of the judicial system
There was very evidently a need for the structures of the judiciary to be strengthened so the South African judicial system was not found wanting. However, many requests were received from other African judiciaries to train their judges, and to engage in conferences on the improvement of skills.
Transformation within the judiciary
The transformation of the judiciary was prescribed in the Constitution. It facilitated trust and confidence in the judiciary within society, which was vitally important for it to properly discharge its mandate. One of the goals of the judiciary was to have a significant group of people who were properly qualified to be appointed as judges. In particular, significant emphasis was placed on increasing the current pool of women available for those posts. Several steps had been taken to address the matter, including enlisting the Judge President to identify suitable candidates. He had spoken with various legal organisations to enlist their help in identifying those candidates.
Work had commenced on a special project aimed at devising targeted strategies that would expedite the identification of those candidates, targeting woman especially. The hope was that the special project would have its first intake in July 2006 and then again in January 2007. In order to facilitate that process a small committee had been selected by the heads of courts, who would also serve on the committee with other members of the legal fraternity, as well as other people who were not members of the judiciary but who were women in different fields. The purpose was to gain as much insight as possible into the issue from women from different walks of life.
At the same time he believed that judges and prosecutors had always received judicial education through donor funding, and here the emphasis now had to change for the State to fund judicial training for judges. Training courses were provided for the following three categories: aspirant judges, newly-appointed judges and continued training for existing judges. The legal profession, especially advocates, had been requested to assist in the search for people to increase the pool from which appointments could be made. The South African government had always pointed out that it was the biggest litigator, and had in fact made a huge contribution by creating so much work for the candidates.
From 1994 to date, although the rate of transformation may not always have been sufficient, the following figures on transformation were available. There were presently 1833 magistrates at different ranks, of those 1288 were male and 545 were women. Thus less than half of all the magistrates in South Africa were currently women. Of those 893 were white, of which 644 were male and 249 were white women. A total of 940 magistrates were black, which amounted to about half of the total of 1833. Of those 644 were male and 296 were women.
In terms of judges, there were 218 in total. Men constituted 184 of the total, with women making up a ‘pitiable’ 34. Of the 218, a total of 115 were white and 102 of those were white men, and there were 13 white women. Black judges amounted to 103, of which 82 were men and 21 were women. With regard to race, the target of 50% had not yet been reached, but it was creeping towards the desired target. Progress was being made in terms of gender, although it was still very inadequate.
Rate and nature of the appointments could be explained as follows. In 2005 a total of 18 appointments were made to the High Courts and superior courts, of which 11 were male and 7 were women. Of those 18 there were 3 white appointments, 2 men and 1 women. There were 15 black persons appointed of which 9 were men and 6 were women. This indicated that the rate might be accelerating, but there was still some way to go. The JSC was doing its utmost to bridge the gaps, but the reality of the situation did point to the fact that the key lay in finding a way to increase the pool from which they were drawn. The judiciary was doing everything within its power to address that.
The Chief Justice emphasised that the responsibility for transformation did not lie with the judiciary alone, as transformation was really an issue that society as a whole needed to deal with so as to grow the legal profession. The decision was taken to consult with people who were outside the legal profession in order to learn from them and to assist in identifying the areas that might discourage women from entering and remaining in the profession, as well as to identify potential targets and incentives.
There had also been a few resignations in the judiciary, which were regrettable. One was the Deputy Judge President in Kwazulu-Natal, another was in the Cape Provincial Division. Both were black people and occupied significant positions in those jurisdictions. A further matter that needed to be addressed was the change of the name of the Transvaal Provincial Division, as part of the rationalisation drive. Furthermore, the Chief Justice had been informed that at any given time in Pretoria and Johannesburg there were no fewer than 17 acting judges, because the permanent positions had not yet been created. He supposed that the creation of acting positions while still creating the permanent posts was a matter of history, and meant that it affected both the case backlog and the allocation of cases. He understood that acting positions were created out of necessary, but had to be corrected by creating the permanent posts.
The Chief Justice concluding his input by informing the Committee that, on the positive side, between 40 and 60 new magistrates posts were created in 2005. The Magistrates Commission (MC) would be interviewing candidates the following week. He handed over to Justice Howie to brief the Committee on the measures put in place to combat racism and sexism in the judiciary.
Briefing by the Judge President of the Supreme Court of Appeal
Justice Howie thanked the Committee for the opportunity to address it. He endorsed the statement made by the Chief Justice that facilities were needed to allow the judiciary to engage its international colleagues and attend conferences. He explained that the role of his court was essentially as follows: all constitutional issues would be decided by the Constitutional Court, and all other legal issues of commercial or private law importance would by and large end up with the Supreme Court of Appeal. Even with the Constitution Fourteenth Amendment Bill most of the litigation would end with the Supreme Court of Appeal, thus retaining its status as final court in many areas. The Supreme Court’s judgments on commercial and civil law would be read by international readers, and a pool of expertise was needed to deal with that demand. On the personnel side, during 2005 two black women were appointed to the court, which added to the court’s strength.
He believed that transformation only worked when everyone worked together to achieve it. In the past, legal, social and economic issues had been decided by male judges and magistrates, yet the judicial system was now culturally diverse with the result that discussions and judgments had become so enriched by the different perspectives of people from different backgrounds. The diversity of views was not only enriching, but also vital. His task, as Judge President of the Supreme Court of Appeal, and because it was the final court on those matters, to enlist the expertise of those who had the potential to be great judges. The aim was to strike a balance between transformation and the experience needed.
Racism and sexism in the judiciary
Disturbing reports had been published in 2005 on the problems in the Cape High Court . However, he believed that seldom did something unfortunate happen that did not have good spin-offs. On receiving the report, the heads of courts had appointed a committee to deal with the complaints in that report, and soliciting comments and responses from the public. A very wide spectrum of responses had been obtained from the public and the courts. The committee was chaired by Chief Justice Langa, and it discussed the complaints in depth, how they should be dealt with and the steps that needed to be put in place to deal with future events of that kind.
Essentially the committee was concerned solely with the complaints levelled against judges, and not on complaints that the public might have against the court staff. Those complaints were left to the Department. The was wide consultation, including with the Commission on Gender Equality (CGE), the South African Human Rights Commission (SAHRC), the Law, Race and Gender Institute at the University of Cape Town and international experts with a South African knowledge and background. The main issue identified was the need for training of new and existing judges to deal with the complexities and sensitivities created by a transformed society.
The Heads of Court had since adopted the report’s recommendations, which included diversity training. It was however a difficult learning exercise for some of the more senior judges because they were set in their ways, and it was a challenging exercise for those entering the judicial fraternity for the first time. The general consensus was, however, that it was an aspect of the training that had to be very firmly entrenched. It was realised that that kind of training had to be constantly available and implemented, as it dealt with mindsets and behaviour. The aim was to instil changes in that outlook which would accommodate the demands that a multicultural society placed on a judicial officer.
The training was to be tailored to judicial officers, but input was also sourced from academics, NGOs, etcetera to infuse the process and strengthen it. It was true that the training would not be successful if it was forced on people, because it worked best when the individual expressed a commitment to change. His sense was that everybody was committed to receiving training and being informed about what the changes that were taking place within the judiciary actually meant. Both young and senior judges had to receive training to sensitise them to the different cultures. The heads of courts must also receive training to enable them to deal with their added responsibilities, as the Chief Justice had outlined earlier.
The third leg of the training, as mentioned earlier by the Chief Justice, was the
ongoing judicial training of aspirant and serving judges. Programmes would be put together, as suggested to the judiciary by experts. During the bombings that had occurred on the international front in 2005, the Cape High Court had experienced problems relating to racism and sexism. They had already sought to address the matter by placing on their programme a facilitation weekend, aimed at discussing and ultimately resolving issues that had surfaced. He had received feedback in 2006 that the weekend had been highly successful and that, as a result of that facilitation session, there were now judges in the Cape High Court that were speaking, who would not otherwise have spoken to each other before. The direct result was that everyone in that High Court was pulling together and wanted the whole institution to be a better place. The problem was that many of the reports on the incidences that involved individuals at that court did not focus on whether the event did or did not actually occur. The judiciary had a sense that some of the individuals who were accused of racism or sexism did not in fact have their day in court. He stated that he was of the view, and believed that the Chief Justice agreed, that processes had to be adopted that were not adversarial in nature, because they made martyrs of some and vilified others. He proposed that the process instead be consultative.
In conclusion, the Judge President stated that the Supreme Court of Appeal must be in constant contact both with the legal profession and the public so that these kinds of problems could be addressed. He stated that the judiciary was resolved to set up structures to deal with complaints levelled against the judiciary.
Ms C Johnson (ANC) stated that there has been significant public debate in recent moths on the treatment of rape victims outside courtrooms. Statistics provided by the South African Police Service (SAPS) indicated that only one in five rape cases were reported, because women did not want to subject themselves to the traumatic court experience. She stated that the manner in which rape victims were treated inside South African court rooms was unacceptable. This also pointed to the attitudes and mindsets of some judicial officers, as referred to by the Judge President in his address.
Women’s coalitions had compiled a study on the relevant case law on rape cases and minimum sentences, which reflected clearly that some judges were still consistently and erroneously using certain factors to justify the imposition of lighter sentences in rape cases. These factors included the previous sexual history of the complainant, the accused’s cultural beliefs, the accused’s use of intoxicating substances, the lack of education or sophistication of the accused and the lack of excessive force used by the accused. In one specific Free State case, S v Mogamotsa, in which two women under the age of sixteen years were raped by a 23 year old, and the court stated as follows:
Ek bevind dat in die volgende omstandighede in hierdie geval a wesentlike en dringende omstandigheid soos bedoel in Artikel 51 aangeteken moet word. Alhoewel daar in hierdie geval met elke klaagster meer as een keer gemeenskap gehou is, was dit as gevolg van die viriliteit van die jong man wat nog op skool is.
[I find that in the following circumstances, in this instance a substantial and urgent ‘circumstance’ as envisaged in section 51 should be noted. Although in this case there had been intercourse with each complainant on more than one occasion, this was due to the virility of the young man, who is still school-going.]
Ms Johnson believe that the judge used the virility of the male accused as a mitigating factor to impose a lighter sentence. Judgments such as those seemed archaic and out of synch, and further perpetuated negative gender stereotyping and actually undermined the rights of women. She asked the Chief Justice to explain whether mechanisms were put in place by the judiciary to identify such incidents, and furthermore to sensitise South African judges to such matters.
Justice Howie conceded that the judgment was a serious misdirection. It was a worrying situation, and hopefully such judgments were the rarities and not the rule. The problem stemmed from years of regarding single witness’ with suspicion, and had its origins in the jury days in other jurisdictions when the State had to prove beyond a reasonable doubt, and the State had to be extra careful when dealing with a rape charge. It was only very recently that sensitivities were now becoming more understood. This involved the extent to which the judge struck a balance between allowing the requisite freedom to the defence council during cross examination, while at the same time holding a tight reign on questions that could embarrass the complainant. The fact of the matter was that the judge really had no movement because the case involved the exercise of discretion. It necessitated a sensitive approach by the judicial officer in order to realise that the two interests of liberty and dignity were at play, and that he must focus very hard on what was relevant. He apologised to the Committee for stating the matter in general terms, but there was really no formula to deal with it.
The Chair stated that the research done by the gender coalitions highlighted that some judges used deplorable and sexist reasoning to depart from minimum sentences. She was pleased that the Judge President’s presentation dealt with both racism and sexism, because she did believe that the problem of sexism in the judiciary was underplayed. It must be remembered that South Africa was historically a very patriarchal and sexist society. Perhaps the judiciary should examine the study very seriously, in order to assist it to devise mechanisms to address the problem.
Chief Justice Langa responded that conferences on racism were held in the provinces, in reaction to the racism complaints received. There was thus a commitment that all judges must receive the sensitivity and diversity training referred to during the presentation. The judiciary will continue to sensitise its officers and provide the training on an ongoing basis to meet the needs of a transforming society.
The Chair stated that, while at a formal function last night, she was left with the perception from the judiciary itself that they were reluctant to undergo the training referred to. She recommended that the judges release press statements whenever it held those training sessions, as that would address the perception that there was great reluctance.
Imam G Solomon (ANC) stated that the Chief Justice emphasised transformation in terms of race and gender in his briefing. He asked whether the Chief Justice was afraid that he might be accused of racism by emphasising transformation in terms of race.
The Chief Justice replied that he normally split them into three areas: race, gender and the mindset that needed to be altered. The last factor was deliberately taken into account by the JSC when it interviewed candidates for appointment, as the orientation of the person was important so as to gain a sense of how they would react in such sensitive situations. It thus generally dealt with having regard to the values enshrined in the Constitution. He stated that he was not afraid of such an accusation, as he was merely stating the situation as he saw it.
Imam Solomon asked the Chief Justice to indicate his opinion of the of Department’s transformation programme called ‘Rua’gabotswa’.
The Chair responded that she had spoken with the Chief Justice before the meeting and it was agreed that the ‘substance of the disputables’ would not be discussed during this meeting. The Chief Justice was however free to deal with the question if he so desired. She requested Members to please restrain themselves from raising questions about the disputables.
The Chief Justice replied that it would be premature to respond to the question, and would thus elect to pass on it.
Ms S Camerer (DA) expressed her disapproval at the Chairperson’s inhibiting remark. She requested the Chief Justice to explain what he meant by stating that "some of the problems had played themselves out in full view of the public", and whether he was referring to the media reports regarding the Superior Courts Bill and the new role of the Chief Justice as envisaged in that legislation.
The Chief Justice stated that his statement referred to the reports on racism within the judiciary, and not to the legislation referred to by Ms Camerer.
Ms Camerer sought clarity on the new role of the Chief Justice. She stated that she knew the new role was being addressed in the Superior Courts Bill, on which the judiciary submitted an 80 page memo and on the Constitution Fourteenth Amendment Bill. She asked whether submissions could be expected from the Chief Justice and the judiciary on the Bills in future and, if so, when they would be made available.
The Chief Justice responded that the judiciary would in fact be making submissions on the Bills, and he did not wish to pre-empt that input by making any statements right now.
Ms Camerer stated that she was aware of the case involving the resignation of the Cape High Court judge mentioned in the briefing, and stated that complaints were now being received that that judge had left without completing all his judgments. She asked whether anything was being done to persuade judges who retired or resigned to first complete their judgments before vacating office.
The Chief Justice replied that this problem must be dealt with by the Judge President. He was not confident that those judges could be forced to finish their judgments by bringing them back to office. The trick was usually to ask them to finalise all their cases before they left. It was of course very inconvenient when they left without finalising their outstanding cases, and there was thus the possibility that the case may have to start de novo or be settled out of court. He stated that the matter would be considered further.
Mr J Van Der Merwe (IFP) stated that, with all due respect to the Chief Justice, it was totally unacceptable that a trial would have to begin de novo. People did not have money for that. A judge has an obligation, as part of his responsibility when he became a judge, to finish all his work before vacating office. He stated that if he were the attorney involved, he would lodge an application in the High Court to compel that retired judge to come back and finish the outstanding judgments.
The untenable situation was that many judges in general have reserved judgment for ages. He stated that he had posed a Parliamentary question to the Minister requesting her to explain whether a system was in place to monitor the incidents of reserved judgments. Judges must be forced to complete all their judgments, and attorneys must be allowed to lodge applications compelling them to do so.
The Chair replied that that related to matters of governance within the judiciary itself. It was an important point that must be considered.
The Chief Justice responded that he did not have a better answer to that difficult question. All he could say was that judges became ill or passed away without completing all their judgments. They did however give notice of their intention to resign, and it was at that point that the time when the Judge President and the Heads of Court must insist on the completion of all judgments. Those judges could not be brought to office, as they would not be paid because they had officially vacated office.
The Chair echoed Mr Van Der Merwe’s concern with the enormous delay in the provision of judgments, and asked whether any statistics were available on the extent of the delay. It was important for the Committee to be provided with those figures so that it could gain insight into the manner in which the judiciary handled its own operations.
Justice Howie replied that when he was still with the Cape Provincial Division the then Judge President decided to have a list with all outstanding judgments. This could be re-introduced. That system did however rely on the importance of peer pressure and reliable and responsible conduct by the Head of Court. He was however of the view that the numbers of outstanding judgments were "an absolute minority".
The Chair stated that very cause of the current problem was that there was no hard, scientific data on the number of outstanding judgments, which was important to ascertain in order to address the problem of case backlogs. The problem must be addressed, as the importance of reducing the case backlogs was again mentioned in the President’s State of the Nation Address.
Justice Howie replied by suggesting that the delegation include the Judge Presidents of the various Provincial Divisions when the judiciary again appeared before the Committee, because this was essentially a trial court problem.
Mr S Swart (ACDP) stated that the Chief Justice noted in his briefing that his position now included greater responsibility and an increased workload than was the case in the past. In view of that, he asked whether the Constitution Fourteenth Amendment Bill and the Superior Courts Bill should then be passed at all, as they would increase the workload even further.
The Chief Justice responded that his primary concern was not an increased workload, and he was thus not of the view that the restructuring would break the judiciary’s back.
Dr T Delport (DA) expressed his very serious concern that rape would disappear altogether as offence in future, not because the act itself would not occur but because complainants would become totally reluctant to lay charges because of the manner in which they would be treated in court. People blamed the judges and advocates for the ill treatment, but it was not their fault as they merely acted in accordance with the rules. The real problem was with the system itself.
He stated that he had given the matter much thought and had concluded that the only way to resolve the problem would be to introduce an inquisitorial system, in which the judge himself would investigate the matter and lead both the questioning and the whole trial itself. Admittedly, he used the term ‘inquisitorial’ loosely here. This was however the model followed by the continental systems in Europe, where cross examination was unheard of. He suggested that, unless that model of system was migrated to, injustices would continue to be done to victims of rape in South Africa.
He asked Justice Howie to indicate whether the judiciary would be equipped to deal with an inquisitorial system for specific cases, such as rape and can crimes against children.
Justice Howie replied that the matter must be considered in greater detail. If the model were introduced then the magistrates and judges would have to do a complete "about turn" and the current procedure would have to be overhauled. He admitted that it was an Interesting idea, but it would be difficult to implement. He did not believe that judicial officers would be averse to the idea, but suggested that intensified focus then needed to be placed on current and future training. The matter related to the delicate balance that needed to be struck, as mentioned earlier.
The Chair stated that she liked the concept as it would obviate so much unnecessary secondary victimisation. She stated that it must be considered further.
Mr G Magwanishe (ANC) asked the Chief Justice to explain what he understood by transformation of the judiciary, and whether Parliament had any role to play in the process.
The Chief Justice responded that he did not really understand the question. As he stated earlier, he believed there was a role for everybody in the transformation of judiciary. Members of this Committee sat on the JSC, so they were well aware of the problems facing the judiciary The other issue he mentioned was the mindset that needed to be addressed and, as he stated earlier, he believed everyone had a role to play there.
Mr Magwanishe asked the Chief Justice to explain the role of the judiciary in transforming society at large.
The Chief Justice replied that the judiciary very clearly they had a role to play, such as encouraging government to fast track its own transformation roll out..
Mr Magwanishe asked the Chief Justice to explain whether he believed that judges themselves should be involved in procurement of goods and services for courts and, if so, whether any mechanisms were put in place to deal with instances of abuse or fraud. He referred specifically to the Kwazulu-Natal magistrate who took it upon himself to order and purchase air-conditioning units for his court, without having followed prescribed supply-chain management procedure.
The Chief Justice responded that he was aware of the case involving Judge Combrink. He informed the Committee that that judge had been pleading for years for a properly functioning air conditioning system to be installed, yet the person responsible did nothing about it. He thus ordered it himself. The Chief Justice stated that he did not think this case was a good example, because it was common knowledge that it related to one of the worst courts in South Africa.
The Chair stated that the matter not be discussed any further right now, as it appeared to involve an exception to the general rule. The law stipulated processes to be followed, and they were generally followed.
Mr L Joubert (DA) asked the Chief Justice to explain the statement made during his presentation that structures needed to be strengthened.
The Chief Justice replied that he referred to infrastructure, such as the offices of the Chief Justice and Judge President of the Supreme Court of Appeal. He stated that he was constantly in discussions with staff as to essential equipment that was needed. Mr Jiyane was involved in these discussions and was presently fitting the infrastructure needed to accommodate the present needs of the judiciary. He stated that the judiciary could not go on with the capital infrastructure shortages it was currently operating under.
Mr M Malahlela (ANC) requested the Chief Justice to comment on the current practice in which judicial officers perform "extramural activities", such as commenting in the print and electronic media on the substance of issues that Parliament itself was busy dealing with. He was of the view that that undermined Parliament’s authority.
The Chief Justice responded that there was often a fine line between activities as entertainment and activities that were designed to educate the public. He unfortunately did not have a hard and fast answer to the question. The unfortunate reality was that some people "will take the gap", and thus the matter might have to be discussed further. He believed that the crucial question was whether the judicial officer was educating the public on a certain matter, or whether he was going beyond that.
Mr J Sibanyoni (ANC) asked the Chief Justice to comment on instances in which matters were sub judice but were still reported on in the media.
The Chief Justice replied that this was a balancing act because the public wanted to be exposed to as much info as possible, but there was also the principle of freedom of expression. He stated that the boundaries were yet to be ascertained.
Mr Sibanyoni asked whether there was a reluctance amongst the judiciary to undergo the sensitivity and diversity training.
The Chief Justice responded that he had not personally detected any reluctance. In fact, there was a willingness to undergo the training.
The Chair stated that there was not enough time to hear Mr Jiyane’s presentation. It was clear that there was significant misunderstanding about the restructuring of the judiciary and the role and function of Parliament in the new Bills. There has been a very provoking public debate on the matter in recent times, and she was of the view that Members’ conduct has been exemplary in not commenting on the reports in the media on the Superior Court Bill and Constitution Fourteenth Amendment Bills. It involved questions of balance and boundaries that needed to be ascertained, and it necessitated very serious engagement with the Chief Justice on the issues. She expressed her dismay at the "serious overstepping" by non-ANC Members of the
Committee who have commented on the Bills in the media.
The meeting was adjourned.