Hansard: Appropriation Bill : Debate on Vote No 21 – Justice and Constitutional Development
House: National Assembly
Date of Meeting: 23 Jun 2009
No summary available.
EPC – COMMITTEE ROOM: E249
Wednesday, 24 June 2009
WEDNESDAY, 24 JUNE 2009
PROCEEDINGS OF THE EXTENDED PUBLIC COMMITTEE – COMMITTEE ROOM E249
Members of the Extended Public Committee met in Committee Room E249 at 10:02.
House Chairperson Mr M B Skosana, as Chairperson, took the Chair and requested members to observe a moment of silence for prayers or meditation.
START OF DAY
Debate on Vote No 21 – Justice and Constitutional Development:
The MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT: Chairperson, hon members, comrades, friends, ladies and gentlemen, 15 years ago yesterday South Africa was welcomed back by the United Nations organisation to the international family of nations.
On 23 June 1994, the general assembly of the UN invited South Africa to resume participation in its activities after decades of international isolation as a pariah state. Today, South Africa is a democratic state that respects the rights of all her people and the supremacy of the Constitution and the rule of law. Today, working together, we continue to seek ways in which to improve the lives of the people of this great country. Today, I present to this House the Budget of the Department of Justice and Constitutional Development. As I do so, I would like to assure all South Africans that we remain firmly committed to the ideals contained in our Constitution. Accordingly we continue to seek ways to utilise effectively the resources at our disposal so that we make a positive impact on the lives of all South Africans.
There is a constitutional obligation on all spheres of government and all organs of state within each sphere to co-operate in mutual trust and good faith and to fight crime collectively. As one of my primary challenges I will seek to restore mutual trust and good faith between the National Prosecuting Authority, NPA, and other law enforcement agencies. Criminals should not escape because of the in-fighting between law enforcement agencies. Therefore, I envisage taking this matter up in the criminal justice cluster so that we can come up with concrete and workable solutions to create a spirit of co-operation in the fight against crime.
Last year was marked by deliberations regarding the relocation of the Directorate of Special Operations, DSO. We wish to commend those individuals who continue to fulfil their duties diligently and effectively despite the uncertain environment they worked in during this period. We wish those DSO members who have already moved on success in their endeavours. We are encouraged by the commitment shown by those who have agreed to transfer to the Directorate of Priority Crime Investigations, DPCI, to make a success of the new unit under the SA Police Services. The NPS, DSO and the NPA task team will focus on ensuring that the transition into the new directorate of organised crime in the SAPS is smooth and without prejudice to the successful investigation and prosecution of cases.
In the past year, the Asset Forfeiture Unit, AFU, made a significant impact in the fight against crime. It had a good year in terms of the value of its cases and exceeded most of its targets. It had the best year ever for the number of and value of deposits into the Criminal Assets Recovery Account, Cara, at R66 million – the highest ever number of seizures and total orders, the highest ever number of forfeitures applied for and forfeitures completed. In this regard our message is consistently that we will relentlessly pursue those who organise crime and hope to benefit from it.
Hon members will also be reminded of the work of the cluster in ensuring the efficiency of the criminal justice system. A lot of work has been done in the review of the criminal justice system in conducting initial research of the changes required. The results of this research will be made available very soon. My department, together with the cluster, will, as required, commence implementing some of the recommendations arising form the review. In this regard, we will also push ahead with the processing of this Bill dealing with the collection and analysis of fingerprints and DNA. The Bill is currently before Parliament.
The Prevention and Combating of Trafficking in Persons Bill has been published for comment. The Bill is intended to give effect to the SA Law Reform Commission's legislative recommendations relating to trafficking in persons. It will offer protection to the most vulnerable in our society, against highly organised crime syndicates. The current law is fragmented with low reporting and conviction rates. The Bill also gives effect to our international obligations as a signatory to the United Nations protocol to prevent, suppress and punish trafficking in persons, especially women and children. The department has published a modified version of the Commission's Bill in the Government Gazette. The Department is currently engaging in a consultation process, and the closing date for comments was on 15 June 2009.
We take seriously our obligation to ensure that access to justice does not become the sole preserve of those who can afford to hire the services of lawyers. In fact, our Bill of Rights provides that "everyone is equal before the law and has the right to equal protection and benefit of the law."As a Department, we are continuously seeking innovative ways to ensure that all South Africans have access to justice. Failure to improve access to justice for all, especially the indigent, would be an unforgivable betrayal of the poor and vulnerable in this country. But worse still, it would undermine one of the founding principles of our Constitution, that of equality before the law.
The department has since the advent of our democracy worked to eradicate a legacy of the past that continues to be a challenge today – a lack of access to justice. Our efforts in the first decade of our democracy and our future endeavours are premised on ensuring complete access for all, especially children, vulnerable women, the elderly and those living in rural and underprivileged areas. The lack of access to justice is a consequence of several factors, some of which are: the historical legacy of building courts in traditionally white areas and cities; the prohibitively high cost of litigation; delays in the legal process and undue formalities in the legal process; and continuing social inequality, which, combined with the high costs of litigation, placed severe restrictions on access to justice for a large percentage of the population. Ironically, the excluded are often those that need justice the most.
Fifteen years into our democracy, Limpopo and Mpumalanga are the only two provinces that still do not have divisions of the High Courts. In practical terms this means that people in these two provinces have to travel long distances and at great cost in order to access justice services that are only available in the divisions of the High Court. For example, people in Polokwane have had to travel over 200km to Pretoria in order to access civil and family law matters.
Some of the steps we have taken to remedy this malady consisted of building more court buildings within communities where the need is more acute and urgent. We are also upgrading existing ones based on the need to address this unsatisfactory state. It is for this reason that in the last ten years a conscious decision was taken to build and improve the majority of court facilities in the previously disadvantaged rural and urban areas of the country. These are the areas where there is an acute need for courts and related facilities for the dispensation of justice. In the year 2008-09, the department completed two new courts in Daveyton and Limpopo. The Limpopo Circuit High Court was opened and plans are already underway for the construction of a fully fledged High Court that will service the people of Limpopo. The department is also working very closely with the Department of Public Works on establishing a new High Court in Mpumalanga. Three major additional projects were completed in the year 2008-09 in Augrabies, Mitchells Plain and Richmond magistrate offices.
A similar transformative initiative we have undertaken that warrants mentioning is the extension of civil jurisdiction to the regional courts. This legislation will also transform the black divorce courts, which continue to undermine the dignity and self-worth of people intended to be assisted by these courts. People have to travel to remote courts, in most instances outside their own provinces, to seek divorce or solutions to family law-related matters, including custodial and guardianship of children. Additional 21 regional magistrates and 58 registrars and assistant registrars will be appointed during the current financial year to provide capacity in the regional courts to exercise civil jurisdiction. The commencement of the Act planned for October this year will effectively dissolve the divorce courts and confer family law and divorce jurisdiction on the regional courts.
Our Constitution, and not only the Polokwane resolutions, enjoins us that when considering appointments to the Bench, we need to ensure that the judiciary reflects broadly the racial and gender composition of South Africa. In his state of the nation address, our President, Mr Jacob Zuma, underscored government's commitment to the transformation and independence of the judiciary. Clearly, the transformation of the judiciary is a constitutional imperative and our individual or collective preferences and choices of the justice system we desire must succumb to a judicial system consistent with the values underpinning our constitutional democracy which reflects the aspirations and wishes of the people of South Africa.
It is important to acknowledge the significant progress made with regard to the enactment of legislation required by the Constitution to provide for the training of judicial officers and the complaints handling mechanism about judicial officers. The South African Judicial Education Institute Act, which commenced in January this year, provides for the establishment of an institute to train both aspirant and serving judges and magistrates to improve the quality of the outputs of our courts. A building has already been procured in Johannesburg to house this institute. A twenty-three member council, chaired by the chief justice, composed of representatives of the judiciary, legal professions, academic institutions, traditional leaders and persons who are not involved in the administration of justice, has been established. The training of aspirant judicial officers will go a long way in establishing the much-needed pool of black persons and women practitioners from which judges and magistrates may be appointed.
I would, at this point, like to also thank Chief Justice Langa and fellow commissioners of the Judicial Service Commission for agreeing to my request for the postponement of the interviews which were scheduled earlier this month to allow me the opportunity to obtain more information about the progress of transformation in the judiciary. I wish to reiterate government's firm appreciation and support for the work of the Judicial Service Commission in pursuing the agenda of a transformed judiciary.
The Judicial Service Commission Amendment Act of 2008, assented to law by the President in November 2008, will soon come into operation. The Act establishes internal systems for judicial accountability. At present, the Judicial Service Commission relies solely on its constitutional mandate to deal with any matter involving impropriety or incompetence and its mandate extend only to impeachable conduct on the part of a judge. The absence of a legislative framework, coupled with the nonexistence of an enforceable judicial code of conduct, prescribing minimum standards of conduct to promote access to justice, weakens the judicial system and undermines the independence of the judiciary and the rule of law. Some of the high profile matters which have confronted the Judicial Services Commission in the recent past have exposed the inadequacy of the current framework for handling complaints about judges. The new administration is moving steadfast to implement the Act to fill this gap. Very soon I will table in this House for your approval a judicial code of conduct for judges and regulations providing for disclosure of financial interests by judges.
The Superior Courts Bill, presumably the only Bill that has stretched beyond the tenure of the two previous Parliaments, will be reintroduced in this House during this year. The Bill seeks to consolidate all outstanding aspects relating to the transformation of the judiciary, including the rationalisation of the courts, establishing an efficient court administration model consistent with our constitutional democracy and the rationalisation and harmonisation of the rules of courts, to enhance access to justice.
I have agreed to the request by the chief justice and the heads of courts that, pending the finalisation of the rationalisation of the superior courts envisaged in the Superior Courts Bill, certain areas of jurisdiction of the High Courts will be rationalised to alleviate the hardships experienced by communities in certain provinces to access the High Courts. This will ensure that certain areas of jurisdiction demarcated in terms of the defunct Transkei, Bophuthatswana, Venda, Ciskei, TBVC, territories and areas of jurisdiction extending beyond provincial boundaries, are aligned with the area of jurisdiction of the High Courts within the province concerned.
The pursuit of a transformed judiciary is also largely dependent on the legal profession, which constitutes the main pool from where judicial officers are appointed. You will recall that, in the pre-1994 era, judges were appointed solely from silk, while the prosecution was a career path for promotion to the position of a magistrate.
The Constitutional order has brought with it significant changes in this regard. The bar and the side bar are equally eligible to feed to the High Court Bench. However, there are still challenges as women are still underrepresented in the High Courts. I am pleased to learn that most of the women practitioners have volunteered to participate in the judicial education programme initiated by my predecessor, Minister Mabandla, and led by a committee of the heads of courts, which is designed to enhance opportunities of women for appointment to the Bench.
During the course of this year I also intend to introduce the Legal Practice Bill, which has endured prolonged discussion and negotiation. I have stepped up consultations with all stakeholders to finalise the fundamental principles underlying the transformation of the profession. These principles include the need to establish a rationalised, single legal profession; ensuring equal access to the profession, particularly, the previously disadvantaged persons; and establishing an accountable and responsive legal profession and measures to promote access to justice for the end users of the justice system.
In giving effect to our commitment to improve access to justice, the department will, in this current financial year, designate the remaining magisterial districts as equality courts. Hon members will recall that equality courts were established pursuant to the provisions of section 16 of the Promotion of Equality and Prevention of Unfair Discrimination Act, Act 4 of 2000.
These courts are aimed at eradicating the legacy of inequality and at the same time enhance our ability to bring justice closer to an increasing mass of our people. The designation of all the magisterial districts will not only ensure that the department complies with its legislative requirement of having a designated equality court in all the magisterial districts, but will also serve as a solid demonstration of the determined efforts by the department to eradicate all forms of discrimination and ensure equality for all citizens of this country. Furthermore, the department will also designate magistrates' courts that will hear disputes arising out of administrative decisions, as contemplated in section 1 of the Promotion of Administrative Justice Act, Act 3 of 2000.
The designation of these courts will improve access to justice for the poor in that our people will no longer be expected to approach the High Courts whenever they seek remedial action arising as a result of administrative action. This will mean that our people, especially those in the rural areas, will no longer have to travel to the cities to access High Courts to hear disputes relating, for example, to the termination of their social grants. They will be able to get recourse from courts within their residential areas.
Access to justice embodies more than just the issue of proximity of justice facilities to citizens and communities. It also entails the duration of court proceedings as well as legal representation in formal court proceedings. It is also about the language used in court proceedings. Many of you will remember how the language of record was imposed on the courts. This was simply because the prosecutor or the magistrate was not competent enough to speak in another language. It does not make sense, for example, that, in a court in Pongola in KwaZulu-Natal, where all the litigants are isiZulu-speaking, neither the magistrate nor the prosecutor speak isiZulu but cases are conducted in English. From February 2009 the department has been piloting the usage of indigenous languages in some lower courts in all the regions. This has been working very well.
As part of enhancing access to justice, we will, by August this year, convert 15 branch courts into full service courts and, by September 2009, implement legislation extending civil jurisdiction to the regional courts. The list of the branch courts which have been upgraded to provide full services will be published shortly in the Government Gazette.
A further nine branch courts are being upgraded for conversion into full service courts in this current financial year. The conversion of these branch courts will alleviate communities living in the rural villages and in the former black townships of the hardship of having to travel to remote courts in the towns and cities to access services which are currently not provided by these courts.
Hon members, in conclusion, I want to thank my predecessors, Bridgitte Mabandla and Enver Surty, and the Ministers in the Justice, Crime Prevention and Security cluster, and the Chairperson of the Justice Portfolio Committee, hon Adv Ngoako Ramathlodi. I also wish to convey my gratitude to the members of the Justice Portfolio Committee and all hon members.
Furthermore, I wish to thank the Deputy Minister, Andries Nel, for his unwavering support, as well as chairpersons and members of the Chapter 9 institutions, the chief justice, the heads of the courts, for ensuring that justice is not only done but seen to be done. In addition, I wish to thank the members of the statutory bodies for their commitment to the cause of justice. I wish also to thank my staff and senior management in the department under the leadership of the Director-General, Adv Menzi Simelane, for their sterling work.
Lastly, but not least, I also want to thank my wife, Bridgitte, and my family for their support of my work. Hon members, I am indebted to this House for its support of this Budget Vote. I thank you. [Applause.]
Adv N R RAMATHLODI
The MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT
Adv N R RAMATHLODI: Chairperson, members of the committee, comrades and friends, we know that apartheid judges and magistrates were required to apply laws that denied black people respect and dignity. For this reason oppressed people saw the judiciary as part and parcel of an instrument of the apartheid system of oppression and exploitation.
Apartheid was an unjust and unfair system that required judges and magistrates to be nothing more than positivist functionaries who had to apply the laws without regard for the principles of justice and human rights. To eradicate manifestations of apartheid in South African judicial systems the Constitution enjoins us to transform the judiciary to ensure that it consists of men and women drawn from all sectors of society from our entire South African population.
With this, the wisdom, experience and competent judicial skills of South Africans would be represented within our judiciary. However, transformation of the judiciary cannot be confined to the personnel. Even their value systems, their approach to justice, their capacity for justice and the understanding of the direction of the Constitution must be transformed.
I am reminded here of a situation in the dark days where people needed just to have a particular shape of head and they would be perceived to be criminals. So, as long as you had a flat nose, then you are a criminal until proven otherwise. This addresses the transformation required. The people in those dark days were drilled, without even being taken to the courts, on account of the shape of their heads. We need to move on from that sort of a situation. This transformation should happen without interfering with the principle of judicial interference.
We are deeply appreciative of the work done to transform the judiciary. In this context, we welcome and applaud the efforts of all those who took us this far in transforming our judiciary in the past 15 years. In particular I would like to join the Minister in thanking the Judicial Service Commission for a task well done and for the good efforts put into it.
The House Chairperson (Mr M B Skosana): Member, would you please take your seat? Hon members, you are not allowed to use laptops in the House. There has been a complaint and I am asking the hon member to please close their laptop. You may proceed, hon Ramathlodi.
Adv N R RAMATHLODI: Chairperson, one of the most important elements of transformation of the judiciary should occur as a self-driven and self-initiated process by the judicial officers in the various structures where they serve – in the magistracy, but also in the Judicial Service Commission. This has begun, however, we believe that much still can be done. In this context we accept the bona fides of the Judicial Service Commission in allowing members of the new administration to settle so that they can be effective participants in the process that seeks to take our transformation projects forward.
Envisaged in the Constitution of our Republic is a single judiciary. In giving effect to this constitutional directive, government developed a policy proposal that was criticised by those who believed that the proposal seeks to break down or blur the existing distinctions between inferior and superior courts in our country - something they claim to be inconsistent with the Constitution.
Unfortunately these criticisms missed the point. What the policy really seeks to do is to give effect to the constitutional provisions with vast judicial authority in all courts, not only in superior courts. In fact, a single judiciary means that judges and magistrates would be appointed and regulated by a uniform body of rules, standards and norms that will recognise the hierarchy and different conditions of appointment applicable to its level.
While addressing racial and gender contradictions remain critical in judicial transformation, we must avoid overemphasising the form over and above contempt in our analysis. Changing the face does not amount to changing the ideological orientation of the judiciary. The fact of the matter is that ideological orientation has it roots in colonialism and apartheid, which still underpins our judiciary.
Similarly, the issue of patriarchy applies in our case. One is reminded here of a recently decided case in the South Gauteng High Court where a woman from Ekurhuleni was raped by a group of young men. What happened was that the case dragged on for about four years and the rapists were released on bail, therefore given the opportunity to harass the victim. So, victims of rape in our country, given the privileged position that men have, are not treated equally before the law in our courts. Hence, we talk of the need for transformation. The mindset, not just the phases.
What we need to understand is that the judiciary is an integral part of the masses of the people and can only function properly when these masses of people have complete trust and confidence in the judiciary. We must all understand and appreciate the fact that the Constitution of our Republic does not embody something like the American founding fathers' jurisprudential contempt for the masses. In fact, ours acknowledges and is premised upon the need for antiapartheid transformation and for the democratisation of a South African society.
When drafting the Constitution of the Republic, the framers of this Constitution sought to advance the interests of the masses of South Africa as a whole. In this context the question arises, can the judiciary be regarded as a neutral arbiter, which is above societal conflicts? The suggested answer is "no", because members off the judiciary are affected by factors such as class, race, gender and ideology if you look at the examples provided. These are "human beings, who, like all of us, have their hopes, fears and prejudices and their role must not be exaggerated and mystified by suggestions of infallibility", as from Mr R K Sizani.
Writing about what he calls transformative constitutionalism, Chief Justice Pius Langa conceded to the effect that all members of the judiciary enter all decisions with their own baggage, both on technical legal issues as well as on broader social issues. Hence, the approaches and decisions of some of the South African judges still reflect patriarchal, social and racial prejudices. This does not apply only to people of light skin or white people, it also applies to those who get assimilated by the system who happen to be black in colour, who then, given the history of this country, seek to emulate those who are seen as superior to them. They can be even more vicious in applying those laws against their own people.
While members of the judiciary are expected to be objective, impartial and fair, they also have an obligation to protect the poor and the most vulnerable sections of the population. As we move forward, we must all appreciate that judicial independence goes hand in hand with the goal of transforming the underlying attitudes and values of the judiciary - something that remains crucial, because our country needs what Budlender regards as transformative jurisprudence, firmly anchored on the fundamental values and principles that underpins our Constitution. I want to suggest that one of the best ways to do this is to ensure that the course on human rights, our Constitution, becomes a subject that is taught at entry level, possibly a compulsory course for all our children at elementary and tertiary level so that they grow up with these values, because transformation is not a one-time act, it is a lifelong exercise and journey into our future. I thank you. [Applause.]
Ms M SMUTS
END OF TAKE
Adv N R RAMATHLODI
Ms M SMUTS: Chairperson, hon Minister, welcome. A long, long time ago I said to the late Dullah Omar that he would be dispensing with justice as our first democratic Minister of Justice instead of dispensing justice, and I was only half joking, because we had embarked, at that challenging time, on the wholesale indemnification of and amnesty for people who had broken the law under the process that became known by the name of the commission that we legislated into life in this committing in 1995, the Truth and Reconciliation Commission, TRC.
The unfinished business of that difficult process is still with us: It's still with the department; it's with the National Prosecuting Authority, the NPA; it's with us in the form of the applications for pardon; it's with us in the heartbreaking business of the exhumation of the remains of missing persons by an NPA unit; and it is or should be with us in the form of prosecution by the NPA's Priority Crimes Litigation Unit, of persons who failed to apply for amnesty or who failed to get it. That process should be with us, because if it is not, a de facto blanket amnesty has been introduced in favour of transgressors who defied the mercy offered and hoped to get away with it.
The unfinished business is, but should not be, with us in the form of the ever-growing amount left for community reparations in the President's Fund after the payment of R30 000 each to the designated survivors. Six years to the day today, on 24 June, when the decision on the distribution of the money was taken here in Parliament, the amount for community reparations now stands after interests, at R900 000 000 and disbursements still awaits the finalisation of regulations. I hope the hon Minister will make matters like these his priority, especially as the recession begins to bite, rather than jousting with the judiciary.
Throughout the time of the TRC and thereafter we have said that it is important to restore the normal operation of the law and the respect for the consequences of breaking it. Our uncontained criminality only serves to underscore the point. It is obvious that respect for the courts is a necessary component of the restoration of the rule of law. Indeed it is a precondition and it is therefore perhaps unfortunate that the hon Minister has, however indirectly, questioned the composition of the Bench, because one cannot do so without bringing its authority into question.
The DA wants black judges and coloured judges and Indian judges, not because we think, like the hon Ramatlhodi, that one's immutable characteristics render you incapable of neutrality, but because we believe a diverse society must be led and it's Constitution interpreted by a leadership that reflects our many cultures and languages and experiences.
The DA wants women judges, but let us remember that the Constitution asks in the first place for fit and proper persons and for the consideration only of pluralism thereafter, and that something like parity has already been achieved in respect of race, as defined by the ANC, while Bridgitte Mabandla, the hon Minister's predecessor, as he said, did just the right things on agenda during her tenure. The Minister's director-general has excellent statistics on the present state of diversity on the Bench, which are readily available.
We think that it cannot be the case that these are the factors which caused the hon Minister to interrupt the Judicial Service Commission, JSC, proceedings or to announce reintroduction of the Mbeki Bills on the courts. And therefore we respectfully ask for more persuasive reasons than the broad departmental definitions of transformation for these steps.
Why does government really want to take charge of the administration of the courts? Why? There are some administrative functions that are inseparable from the judicial role, such as the drawing up of court roles and deciding how many judges and which judges are to hear which cases, and that the government may not do.
Judge Michael Corbett wrote in 2006 that "any attempts to rest this function on a Minister must be treated as an assault on the judicial independence", and he was not given to expressing himself strongly on assault on judicial independence. Government has in fact tried to do this before when the three Acts that give effect to the rights to equality, information and administrative justice were legislated in 2000. The Minister was allowed to designate presiding officers, not the courts, which the Minister is now admirably designating as equality courts. He was allowed to designate the presiding officers who could hear cases brought under these Acts. I call them Penuell's poodles, because it was unacceptable that the then Minister Maduna should handpick his judges, especially when the Draft Equality Bill as it then was, expressly challenged the Constitutional Court's interpretation of equality - it did, the draft, before we fixed it - and especially when a departmental official at that time in 2000 told us quite frankly that she had a problem with "some judgements, with judges and their attitude." It sounds familiar to me. I am happy to say that the Penuell's poodles' provision was repealed in 2002 from all three Acts, and I shamelessly said I told you so amidst many interjections by the hon Llewellyn Landers. He may have forgotten, but I have looked at the old Hansards. Penuell's poodles' provision was repealed.
Now I sincerely hope hon Minister that I am not going to have to think up something that alliterates with the hon Minister's name this year to campaign against the Constitution 14th Amendment Bill. Government should not be intervening in the administration of the courts. The Constitution is clear, the certification judgment was clear, any number of other judgments written since then are clear, that independence includes institutional independence of which administrative control is an integral part.
Let's leave the judges to dispense justice. They alone can do the job and they must be left alone to do it. Thank you. [Applause.]
Mr D A KGANARE
END OF TAKE
Ms M SMUTS
Mr D A KGANARE (On behalf of Ms L H Adams): Chairperson, Minister of Justice and Constitutional Development and hon members, let me put it very clearly, I am just reading a speech which is not necessarily mine because the person who was supposed to speak has lost her voice. So, understand if I have got some problems with reading it as if it's me speaking.
It is a privilege to stand here and commend the Department of Justice and Constitutional Development for all the hard work thus far, ensuring that justice for all becomes not only a saying, but in fact, slowly but surely a way of life for South Africans. One of the main functions of this department is to provide government with state legal services. According to this department's strategic plan dated 17 June 2009, an objective of the state legal services programme is to reduce state liability. This, according to the department, will be achieved by one signing service level agreements between the state attorneys and identified client departments and to reduce the department's reliance on private firms.
Again in the department's budget briefing held on 17 June 2009, the department maintained to reduce its reliance on private legal advisory services from 70% to 30% by 2010 to 2011. It is common that the Constitutional Court in Nyathi v Member of the Education Council for the Department of Health in Gauteng and another, held that section 3 of the State Liability Act 20 of 1957, which prohibits the execution, attachment or like process to be issued against a state defendant or respondent or against any property of the state for the satisfaction of judgment to debts, unjustifiably limit the right to equal protection of the law contained in section 91 of the Constitution.
Section 3 of Act 20 of 1957 was thus inconsistent with the constitutional protection of dignity and the right of access to courts, but more importantly the Constitutional Court also held that section 3 violated the principles of judicial authority and the principles that the public administration be held accountable.
It is further common that state liability basically means that the relevant state department was found negligent by a court of law, and was thus far accordingly ordered to pay a certain amount of money to the plaintive or respondent. It is indeed so that this department has issued the Constitution 18th Amendment Bill of 2009 to effect the Constitutional Court judgment of the mentioned case.
We can all agree that even in this case the law has taken its course, and if the law has taken its course, given the independence of the judiciary and the respect that the court demands in terms of section 165 of the Constitution 1996, the mandate is clear: Where a state department refuses to adhere to a binding court order, such department runs the risk of getting its property attached. It is further common that attachment of state property will only be effected once there was deliberate noncompliance of the court order against a specific department.
Cope is concerned that this department wants to reduce the reliance on private legal advisory services to reduce a department's state liability. This is clearly not the source of the problem and the reason why the Constitutional Court arrived at this judgment. The crux of the matter is that state officials are not held accountable when they provide inefficient services. It is these poor services from respective state officials that flies against the promotion of a human rights culture as stipulated in our Constitution. Reducing the reliance on private legal advisory services will not root out the mentioned poor services. In fact, one also needs to question whether the in-house legal services of the department will be competent in a court of law.
The constitutional right of access to and relief from courts will remain an illusion, unless orders made by the courts are being enforced by state departments. According to the Constitutional Court:
There can be no greater carelessness, dilatoriness or negligence than to ignore a court order sounding in money. But we now have some officials who have become law unto themselves, and openly violate people's rights in a manner that shows disdain for the law in the belief that as state officials, they cannot be held responsible for their actions or inaction. Courts have had to spend too much time in trying to ensure that court orders are enforceable against the state precisely because the straight forward procedure is not available.
It is true that attachment of state property will affect service delivery. It is also true that a number of countries are not in favour of attachment of state property, but what can a plaintive or respondent do if the state department deliberately disregards a court order? Even in the minority judgement it was held that the problem lies with the inefficiency and mismanagement of public administration. Before the elections the ANC promised the electorate that it would not use its electoral majority to diminish the power of our courts or take away our rights. If the Amendment Bill is passed it will substantially erode the supremacy of our Constitution and will limit the right to equality and the right of access to courts guaranteed in sections 9 and 34 of the Constitution read with 165(4).
It must be remembered that President Zuma constantly reminded this country about the rule of law. It is thus ironic that the department through the Bill now wants to remove this right for poor people who really need it. [Time expired.]
Mr J H VAN DER MERWE
END OF TAKE
Mr D A KGANARE
Mr J H VAN DER MERWE: Chairperson, the IFP joins all other speakers who have thanked those people who have worked very hard over the past year in the justice system. Having only three minutes to speak, I will only raise one or two issues.
We do not understand why hon Johnny de Lange was axed. He was an excellent Deputy Minister, and his only sin appeared to have been his honesty by publicly admitting that the criminal justice system is dysfunctional. We have maintained that for many years, and we obviously agreed with him. The justice system is poorer without Johnny.
I think the new Deputy Minister is an excellent choice. I wish to offer him some well-intended advice. Andries, you must never forget that you are, firstly, a lawyer, and that your loyalty should be to the justice system, which is much more important than one's loyalty to a political party. Political parties come and go, but justice is forever, and it is to be fearlessly protected by all, particularly us who are lawyers.
As far as the Minister is concerned, I think you made a very good speech, which convinced me that you have a firm grip on the department, and we wish you well. I particularly agreed with the comments that you made about language. However, some eyebrows are being raised, Minister, about your request to postpone the Judicial Service Commission and your remarks about transformation. Transforming the judicial system has in fact been very successful. Over just 15 years since 1994, the entire image of the Bench has in fact been transformed. Today, there are more black judges than white judges, and that trend is continuing, also in appointing female judges, and the same transformation is evident in the department. That is clearly an indication of the requirement of section 174 of the Constitution, which says, as you have done, Minister, that the judiciary must reflect broadly the racial and gender composition of South Africa.
There is something being said which I sincerely hope is not true; it is whispered that the Minister's real agenda about transformation is to transform the South African judiciary into a judiciary which broadly reflects ANC loyalty.
In conclusion, there are many other important questions I need to ask, which I will do in the portfolio committee. For instance, is the criminal justice system functional – referring back to Johnny de Lange's statement? And then, what is being done about judges who reserve judgments for very long periods - up to three years - and don't deliver those judgments? And it's not good enough to say that the Judicial Service Commission does not have teeth; it does. I think the time has come to impeach a few judges who don't do their work.
I would like to know if an IT system been installed in all the courts, especially in the North Gauteng High Court where nobody knows how many judgments are outstanding?
Chairperson, we wish the justice system, the Minister and the Deputy, and the department a very bright 2009-10 and even further. [Applause.]
Mr J H JEFFERY
END OF TAKE
Mr J H VAN DER MERWE
Mr J H JEFFERY: Chairperson, I would like to start by congratulating the Minister and Deputy Minister on their appointments. We look forward to a good working relationship between them and the committee. I'm sure that together we can make a real difference to the administration of justice in South Africa. I would also like to acknowledge the presence of the former Minister, Enver Surty, who, in the space of a few months worked extremely hard and made a lot of progress in the areas of the portfolio.
Following on Mr Van der Merwe, I trust, Mr Van der Merwe, that we will see more of you in the portfolio committee. Unfortunately, it's a problem when we only get to engage with you in the plenary debates.
Mr J H VAN DER MERWE: You are talking nonsense! [Laughter.]
Mr J H JEFFERY: Unfortunately, we didn't see you in the hearings on the Justice Budget Vote - neither yourself nor your alternate Dr Oriani‑Ambrosini ... [Interjections.]
Mr J H VAN DER MERWE: I didn't see you in many other places! [Laughter.]
Mr J H JEFFERY: I was interested when you said you would be raising things in the portfolio committee. We look forward to seeing you. [Laughter.]
Mr J H VAN DER MERWE: I think there's something that you cannot raise anymore! [Laughter.]
Mr J H JEFFERY: As stated in our report ... [Interjections.]
Ms E THABETHE: Chairperson, on a point of order: Is it parliamentary for a member to answers without referring to you by taking a mike and simply answering? I'm referring to member Van der Merwe.
Mr J H VAN DER MERWE: Chairperson, further to that point of order: It is customary, for many centuries I believe, that there can be interjections. That's all I have done, and I am entitled to doing it. You've got to look at your rules.
Mr M J ELLIS: Chairperson, on a point of order: I quite understand where Mr Van der Merwe is coming from in terms of interjections, but it is incorrect for him to use the microphone to interject. I think that is the important point that needs to be taken into account here.
Mr J H VAN DER MERWE: I withdraw the interjections that I made using the microphone. [Laughter.]
The TEMPORARY CHAIRPERSON (Mr M R Mdakane): Hon Van der Merwe, you mustn't do it again. [Laughter.] Interjections will happen in all parliaments, but don't use the microphone.
Mr J H VAN DER MERWE: I faithfully promise never to do it again with the microphone. [Laughter.]
Mr J H JEFFERY: Chairperson, maybe Mr Van der Merwe can bring some cake along and see where we go from there.
As stated in our report, because of the short period allocated to the budget process, we didn't have time for an extensive examination of the inputs by the department and the NPA. Koos, you wouldn't know about this, because you weren't there. [Laughter.] We have said that we want to go into more detail into this at a later stage.
One of the issues, though, from the reports that we were given that was of concern or raised some alarm, is the decline in the number of cases getting to trial. If you look at the figures in the estimates of national expenditure, there is a decline in the National Prosecuting Authority, NPA, figures from 411 414 cases finalised with diversion and 373 995 without diversion to this past year's 388 296. The question we need to be asking ourselves is: Why? Does this mean that fewer crimes are being committed, or is it simply that matters are not getting to court? Reports to the committee are one thing; what's even more important is to get out on the ground and see what is happening – see whether things are working or see the problems that are occurring.
The main area I'm going to be dealing with is the efficiency of the criminal justice system. One of the problems with the criminal justice system is the extensive number of role-players with different lines of responsibility, from different departments even. A crime is committed and it's the SA Police who have to investigate and prepare the docket for the prosecutor. Once it's in court, it's then the prosecutors who prosecute the case in front of a magistrate or judge. Often evidence is required from experts such as pathologists, handwriting experts and forensic accountants, etc. In the light of the accused person's right to be presumed innocent, the defence lawyers come into the picture; and if the accused is indigent, then it is the Legal Aid Board that is a major role-player. If the accused is found guilty, then there have to be probation officers' reports very often. Lastly, if they are sentenced to a term of imprisonment, then it's something for the Department of Correctional Services – and Correctional Services even come in if the accused is in custody and has to be brought to court from prison. So there are many actors and many places where things can go wrong. One of the things we need to be asking ourselves, with regard to the efficiency of the criminal justice system, is whether it is improving or not, and if it's not improving, why and what can be done to replace it?
The Minister spoke about the review of the criminal justice system and the recommendations that are arising from that review, and we would hope that that report and those recommendations will make a difference. Whilst policy and implementation are important, as I said earlier, we also need to go to the ground to see what is happening. We need to get to the courts as the portfolio committee and look at the problems that may or may not be occurring. We need a more people-centred approach that's sensitive to the rights of the accused and the victim and the witnesses. Too often witnesses are called to testify; they are people with busy jobs. They end up waiting around the court without being given any explanation as to when they are going to be called, if the case is even going ahead, and are then told at the end of the day that they just have to come back. And that's something that's easy to solve. The prosecutor in that particular case can simply make a point of keeping the witnesses informed.
In the past, when we conducted oversight visits to courts, we found that those courts where the different role-players spoke to each other on a regular basis were the most successful. And, unfortunately, that often happened to be in the smaller courts. The larger courts with so many different role-players often ended up with the most problems.
We need to have a system that ensures that the role-players are able to talk to each other, that they are people-centred, and that they are given the responsibility to do what needs to be done. One anecdote relates to when we visited the Durban Magistrates' Court. One of the prosecutors complained about a problem of the lock on her door being broken, so she had to walk around court with her dockets. This was now the fault of Public Works. When we asked to look at the door and the lock, we discovered that all that was short was a small screw, which, if she had put in, could have solved her problem, but she had to wait for somebody else from another department, Public Works, to do something.
One of the other issues that the committee had noted was the question of the vacancy rates. It is in the report. We felt they are inexcusably high and we were not very happy with the explanation given, because although it might be difficult to fill some of the posts, at least they can be advertised. By way of example, it is not part of the criminal justice system that the Master of the High Court in Pietermaritzburg was due to retire. He was a very conscientious fellow and asked that a replacement be appointed before he left so that he could orientate the person. However, the vacancy was only advertised after he left his job, and so that opportunity of orientation was completely lost. I'm not sure why that had to happen.
Lastly, it's not in terms of the topic that I'm specifically speaking on, but I would just like to draw to the Minister's attention the importance of resolving the issue of legal aid representation for farm dwellers. It's a statutory requirement which is being upheld by the courts that farm dwellers need legal representation in their land cases. Attempts have been made in this regard, and the previous portfolio committee made efforts with the then Portfolio Committee on Land and Agriculture to deal with the matter. But I think it's something that hasn't been adequately resolved by the Department of Justice and, now, the Department of Rural Development. So I would like to urge the Minister please to give attention to that issue. I thank you. [Applause.]
Mr S Z NTAPANE
END OF TAKE
Mr J H JEFFERY
Mr S Z NTAPANE: Chairperson, hon Minister, hon members, the past year in justice and constitutional affairs has been far from illustrious. There have been many major public sagas, such as the disbanding of the Scorpions, which fell under the National Prosecuting Authority, the NPA.
The NPA itself was dragged into allegations of spying, conspiracy and ruling party in-fighting. Without even taking a stance on the specifics, it can be safely said that its credibility took a serious hammering and this is not the end of negative publicity for the judicial system.
The matter of Judge Hlophe continues without any resolution in sight. In fact, one would not be exaggerating if one were to claim that the case may very well rock the entire judicial and constitutional dispensation to its core. The longer the matter drags on, the deeper the damage that is being done to the image of the judiciary as independent, respectable and rational.
In this context, due to the abovementioned issues, the department and the Minister are faced with major policy challenges. Allow me to highlight the two biggest challenges: Firstly, poor delivery of justice and the massive overcrowding of prisons caused by awaiting trial prisoners. The priority must be to reduce case backlogs and conversely increase the rate at which cases are completed; and secondly, the rate of conviction for serious crimes, like rape, is a cause of great concern and the national shame.
According to conservative statistics, 99 women and children are raped each day, yet our courts only convict only a tiny fraction of the perpetrators. [Time expired.] The UDM supports the Budget Vote. Thank you. [Applause.]
The DEPUTY MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT
END OF TAKE
Mr S Z NTAPANE
The DEPUTY MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT: Chairperson, Minister, hon members, comrades, friends, ladies and gentlemen, members of the legal family present here today, I would like to start off by saying that I trust that Mr Van der Merwe is speaking with the authority of experience when he says that political parties come and go, but that the law practice remains. [Laughter.]
I really want to start by stressing that our programmes, as the Department of Justice and Constitutional Development, the institutions that have been created, the legislation that has been promulgated and our judicial system are all intended to serve the purpose of expanding the frontiers of freedom and the fulfilment of the deepest hopes and aspirations of the people of South Africa.
The challenge for all of us is to make certain that we deliver on the promises contained in our Constitution of building a South Africa that belongs to all who live in it, because this is a national covenant that we have with one another as citizens of this country.
The Constitution establishes certain important institutions designed to provide meaningful support for our constitutional democracy. The institutions listed in Chapter 9 are functionally linked to justice and constitutional development: the Public Protector; the South African Human Rights Commission; and the Commission for Gender Equality. During the past financial year, the department has continued to provide assistance to these institutions in order to ensure their independence and effectiveness. Financial assistance was provided to the Human Rights Commission and the Public Protector in meeting their obligations under the occupational specific dispensation.
In the case of the Commission on Gender Equality, assistance was sought from the department in respect of their financial arrangements. A senior official of the department was seconded to the commission to act as Chief Financial Officer. In this regard, several mechanisms were put in place to address some of the challenges faced by the Commission on Gender Equality, CGE. These include financial policy development and implementation, budget management and financial reporting, human resource issues and the alignment of the programmatic work of the institution. I think we are all aware that there are some significant challenges that remain particularly with regard to the Commission on Gender Equality.
In this regard, we can say that the Chapter 9 institutions always need to be viewed, examined or, if necessary, reviewed within the historical context of the legacy of our oppressive and discriminatory past and as products of our negotiated settlement. In this regard, we look forward to continuing the engagement with Parliament on the review of the Chapter 9 and associated institutions with a view to making concrete recommendations on their effectiveness in a dynamic and evolving constitutional democracy.
We would like to express our appreciation to the commissioners of the South African Human Rights Commission, as well as the Public Protector whose terms are coming to an end. These men and women have laid an excellent foundation for the new commissioners and Public Protector, who will be appointed by the President during this financial year. Three vacancies have also arisen in the Commission on Gender Equality, including that of the chairperson. I am sure that this House will at some stage be called upon to give its input.
I also wish to recognise the work done by the South African Law Reform Commission and the Rules Board for Courts of Law in their respective law reform and rule-making mandates. Members would be interested to know that one of the key projects of the Law Reform Commission relates to the investigation into the compliance and consistency of our legislation with the Constitution. In this process legislation which is not consistent with the Constitution and redundant and obsolete provisions on the statute book are identified and government departments consulted to verify these provisions. To indicate the magnitude of this exercise, which is likely to take some time to complete, more than 3 000 Acts administered by the national departments are being analysed. One of the significant rules to be finalised by the Rules Board are the rules on the Promotion of Administrative Justice Act, and Promotion of Access to Information Act, which are the cornerstones of transformation and access to justice. The department, in conjunction with the South African Law Reform and the Rules Board, will soon commence with the review of the civil justice system to establish an accessible and transformed civil justice system.
As part of our programme to enhance access to quality, affordable, prompt, efficient and effective justice, we will continue to strengthen the capacity in our small claims courts. The improvement of the functioning of the small claims courts is therefore one of our key priority areas. The small claims courts constitute an inexpensive tool that was created to settle minor civil disputes, currently for claims under R7 000 in an informal manner. We currently have 188 small claims courts established, and it is our intention to gradually roll it out to cover all the magisterial districts. In this regard, we would like to extend our sincere appreciation to the legal practitioners who serve as commissioners for small claims courts for their invaluable service, as they provide their services after hours, on a voluntary basis, and without remuneration.
The department, in partnership with representatives of the legal fraternity and the Swiss Agency for Development and Co-operation, and with a view to further strengthen the capacity in our courts, is in the process of finalising manuals for commissioners of small claims courts and for court officials, which will be followed by training programmes in conjunction with the Justice College.
Another very important area of the civil law that is enjoying attention is that of the masters' offices. Masters' offices play an extremely important role in the social and economic lives of our people and it is therefore crucial that we ensure that they are accessible and efficient, so that those who are entitled to this service receive it without undue delays. In this regard, we are pleased to announce that the management and administration of the Guardian's Fund has been automated and the erstwhile manual system is in the final stages of being phased out. The Master's Office in Pretoria, was the last office to be automated. The computerisation of the administration of the Guardian's Fund will allow for more accurate reporting on activities of the fund at the push of a button. Of great importance, is that it will also reduce the opportunity to manipulate the system for purposes of committing fraud and corruption. As part of the rightsizing project initiated a few years ago in order to increase capacity, 600 new posts were created and filled nationally in the last two years. Many of these were filled during the course of the year under review. There are, however, still numerous vacancies which must and will be filled in so far as the budget allows.
We also hope to have finalised a legislative framework relating to some of the services which are rendered by the masters of the High Courts. One of the medium to long-term projects of the masters' courts is the roll-out of the Guardian's Fund services to all 14 offices of the masters' offices. Johannesburg, Durban and Mafikeng are being targeted for roll-out this year. Another long-term project is the establishment of a masters' office in Mpumalanga. Mpumalanga is the only province that does not yet have its own master's office. The Minister has already referred to the construction of the High Court in that province.
During the periods under review, the Legal Aid Board extended its national footprint by three new justice centres, in Botshabelo, Bellville and Soshanguve, to 62 justice centres countrywide and by eight satellite offices, mostly in rural areas, to 55 satellite offices. Although it is clear that there is a great demand for civil legal aid centres in our communities, the limited capacity to render civil legal aid work remains one of our greatest challenges. For example, only 7% of new matters taken on by the Legal Aid Board during this period were civil matters and the rest were criminal matters. It relates to one of the issues raised by the hon Jeffery and it is certainly something that we would take up.
Another very important matter is that of the sheriffs' profession. It is an area that we often neglect when we talk about the transformation of the judiciary and the question of access to justice. Under apartheid, sheriffs were tasked with carrying out many of the bad things that emanated from our courts. Under democracy, gradually the sheriffs' profession is shedding that image. There is still a long way to go, especially in terms of the way that that profession is structured, how the services are spread out throughout the country and its demographic composition.
During the current year, 96 vacant posts have been advertised and it will provide us with an opportunity to rectify some of the historic imbalances in that profession that have resulted in the concentration of white sheriffs in affluent cities in the suburbs and black sheriffs in the underdeveloped remote rural areas. What is also significant is the finalisation and publication of rules for courts that allow for promoting a competitive profession. These rules enable the Minister to appoint, in deserving areas, two or more sheriffs. We hope that this exercise will result in an opportunity for the creation of additional posts which will be filled by candidates whose appointments will advance transformation. Secondly, that competition will enhance efficiency and accountability.
What also needs to be investigated is the subdivision of large areas in the metropolitan magisterial districts into smaller, more effective and manageable offices where a number of sheriffs will be appointed to ensure an equitable distribution of work. The legal requirement, introduced into law that sheriffs must attend a compulsory training course, will bring enhanced efficiency and ensure compliance and respect for constitutional values to a profession characterised by past abuse and disrespect of civil liberties and human rights.
Another big challenge facing service of court processes relates to the economic nonviability of some of the areas, mainly rural villages and former black townships, which do not attract suitable applicants who are interested in being appointed as sheriffs. This limits access to justice for the communities living in these areas. The department, in conjunction with the Board for Sheriffs, is considering appropriate measures, including the possibility of designation for registrars and clerks of courts to serve court processes in certain designated areas to provide services to marginalised communities.
I wish to thank the Chairperson of the Sheriff's Board, Judge Nathan Erasmus, and his fellow board members for their contribution to the transformation of the sector.
Significant strides have been made in developing legislation in respect of a number of important areas, including the protection of vulnerable groups, in particular, women and children. The department, as the Minister has already alluded to, intends finalising important outstanding pieces of legislation this year, among others the Traditional Court Bills.
In conclusion, I would like to thank the Minister for his comradeship, leadership and guidance. I would also like to associate myself with the Minister in thanking the chairperson and the members of the portfolio committee for their role in finalising our budget. We look forward to strengthening our relationship with the committee. I would also like to thank the director-general and the staff of the department, as well as previous Ministers and Deputy Minister. With that, I urge this House to support wholeheartedly the Budget of the Department of Justice and Constitutional Development. I thank you.
Mr S N SWART
END OF TAKE
The DEPUTY MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT
Mr S N SWART: Chairperson, the ACDP believes that vigilance is always crucial when matters regarding judicial independence are at stake. It appears that the debate we had in 2006 surrounding the independence of the judiciary is resurfacing, particularly if the so-called Mbeki package of amendments is to be reintroduced.
Let us be mindful that the then outgoing Chief Justice, Chaskalson, expressed the view that most judges and lawyers were of the view that those proposed measures were demeaning to and showed a lack of trust in the judiciary. By saying this, he emphasised that the judiciary was not opposed to transformation as such, but that the issue related to institutional independence. The ACDP agrees and, for its part, will remain vigilant in this regard.
Last year the Deputy Minister of Justice and Constitutional Development, in a very frank manner, highlighted the many challenges facing the criminal justice sector resulting in a comprehensive review of the system. One of the priorities identified was the urgent need to strengthen the forensic powersand capacity of the, SA Police Service, SAPS. It is irrefutable that the effective use of fingerprints and DNA evidence would help track down criminals and, once apprehended, ensure that the prosecution's case succeeds in court.
What is alarming, is that the SAPS apparently today does not have access to fingerprints held by the Departments of Home Affairs and Transport. It is no wonder, that in a huge number of cases, the perpetrator remains undetected. It is unacceptable that the Forensics Bill that was earmarked for earlier this year was not finalised and we are pleased with the Minister's announcement that it will be before Parliament and we trust that it will be dealt with urgently. The funds were made available to finalise this Bill and that will strengthen the fight against crime.
Lastly, the ACDP commends the department on having spent 99% of its budget. It continues to face various challenges and we as the ACDP are therefore pleased that the portfolio committee accepted our proposal that the department reports to us quarterly, which will assist us in our oversight work.
In conclusion, I would like to congratulate the Minister and Deputy Minister on their appointments. Whilst there are many and various challenges facing the department, I, on behalf of the ACDP, would like to thank all the dedicated prosecutors, magistrates, court officials and other officials for their committed and hard work in the department. I thank you. [Applause.]
Ms M N MATLADI
END OF TAKE
Mr S N SWART
Ms M N MATLADI: Chairperson, the UCDP highlights the following challenges to the department: The long processing of cases and appeals that can drag on for over three years; and the light sentences that are given for serious offences - in most cases due to a lack of evidence. Coupled with this problem is the issue of the lack of uniformity in our courts. The same case can be dealt with in one way in court A and a different result may be reached in court B. This could be the result of the problem regarding the quality of the judges. Maybe it is due to us not having well-qualified judges to deal with cases of such nature. We could also be looking into the wrong selection of the presiding officers at the time.
Corruption in the justice system is another concern. I would like to highlight the difference in the justice system of South Africa, which is totally different from that of developed countries. We are, however, willing to be at the same threshold with those countries. For example, in South Africa, the responsibility of making a decision lies solely on the judge, whereas in some other countries the judges use the expertise of other experienced people to reach the verdict, like having a jury, as you have seen in the USA and other countries. The other challenge is the shortage of audit demand of well-qualified judges to make an effective judicial system.
Long distances travelled by convicts to reach the courts poses danger to the police officers. They often get killed or injured while convicts escape and this poses a danger to society, as some of these are hardened criminals like Ananias Mathe. Security has to be beefed up.
The UCDP is worried about the language used in courts. It presents problems for community members and the poor that are unable to defend themselves against the rich in South Africa. We would, however, like to support the Budget for the justice system in South Africa. I thank you. [Applause.]
Mr L T LANDERS
END OF TAKE
Ms M N MATLADI
Mr L T LANDERS: Chairperson, hon Minister, Deputy Minister, comrades, hon members, members of the legal fraternity and the justice family, allow me to follow other members in congratulating both the hon Minister and the hon Deputy Minister on their appointments.
Crime is a national concern and much needs to be done to fight crime and, particularly, all forms of corruption. For the next five years at least crime will be a priority for the ANC. In this regard, the ANC government has as its stated goal, the reduction of serious and violent crime from 7% to 10% a year. For this reason, we welcome the hon Minster's statement of intent to resolve the serious tension between the National Prosecuting Authority, NPA, and other law enforcement agencies.
The stated vision of the National Prosecuting Authority is justice in our society so that people can live in freedom and security. The National Prosecuting Authority has promised to achieve this by prosecuting without fear, favour or prejudice, and by working with their partners and the public to solve and prevent crime.
Every year, at this time, we pause and reflect on whether the activities of the NPA, its operations and achievements are in keeping with that vision and mission statement. And if so, whether the NPA's strategic objectives have succeeded in guaranteeing the freedom and security of our citizens through fair and effective crime prosecution, and in so doing, contribute to the ANC government's vision of a better for all.
Our struggle for freedom and democracy was also meant to bring about peace, security and stability to our society. An improved quality of life also means improved safety and security for our citizens. To apprehend a person who is in conflict with the law and have him or her appear in a court of law while the prosecutor's case is not well-prepared, would always have the effect of encouraging and promoting the rise in crime.
It is important, therefore, that the National Prosecuting Authority is capacitated, both qualitatively and quantitatively. In this regard, the ANC's 52nd conference resolved that there should be a vigorous recruitment of law graduates, with means devised to retain them in the NPA.
The review of the criminal justice system makes the following recommendations for the NPA to attain maximum efficiency: Firstly, the retention of skilled and experienced prosecutors; secondly, prosecutor-guided investigations should be put into effect; and thirdly, establishing a sifting mechanism in designated courts to identify trial-ready case dockets in conjunction with senior detectives.
I want to shift briefly from my prepared notes. I recall a delegate of the Justice Portfolio Committee visiting the Free State and that delegation was headed by the hon Deputy Minister while he was a member of the Justice Portfolio Committee. Two magistrates' courts were visited, Kroonstad and Bethlehem, where the system was in place and being implemented, and I want to say without fear of contradiction that it worked there. A senior police officer sat down with the chief prosecutor at a particular time everyday, sifted through the case dockets and determined which were ready to go before a magistrate. Those that were not ready were taken up by the senior police investigator with the relevant investigating officer for him or her to correct. Finally, the criminal justice review system calls for an increase in the capacity of the prosecuting services.
The mandate of the NPA is to protect victims of sexual violence; to prosecute and convict sexual offenders; to investigate and combat serious organised crimes; to remove the profit element from crime and to protect state and prosecution witnesses. To this end, the NPA's performance in 2007-08 has been largely satisfactory. However, there are some serious reservations we wish to bring to the fore.
Most of the NPA's business units either matched or exceeded their performance targets. We repeat once more that the successes of the Asset Forfeiture Unit continue to impress. The conviction rate remained high, but fewer cases were finalised with lower court hours. Moreover, the case backlog figures remained high in regional courts.
What is of most concern, however, is the fact that the NPA received a qualified audit report as at March 2008 from the Auditor-General's office. This comprised of: Firstly, irregular, fruitless and wasteful expenditure; secondly, irregularities regarding tangible assets and intangible assets; thirdly, inadequate or lack of leave policies and procedures; and fourthly, financial management limitations.
Chairperson, I want to put forward a proposal that we, in this Parliament, start adopting a zero tolerance approach when Auditor-Generals' reports are tabled before this House and such reports are received by parliamentary committees. We can no longer continue calling these people before Parliament to answer questions and then in the following year, the Auditor-General simply repeats what he did the previous year. Quite clearly, the NPA has delivered and is delivering on its mandate, but the weaknesses of this organisation are glaring. The NPA is an institution that requires close monitoring and oversight by Parliament to ensure the elimination of these weaknesses.
I very seldom find myself agreeing with the hon Koos van der Merwe; today I am doing that. In his reference to judges who reserve judgement; and in this case I want to put before the House the case of the hon Ebrahim Ebrahim, and I hope in doing so, he does not take offence.
As you all know, the hon Ebrahim Ebrahim was the victim of unlawful kidnapping and subsequent torture by the apartheid state security apparatus. He took the matter to court for redress and the court at that time reserved judgement. The relevant judge eventually retired while judgement was still reserved. One trusts that the proposed code of conduct referred to by the hon Minister will seek to address matters of this nature.
Finally, the National Prosecuting Authority is a strategic asset. As such, every effort must be made by all of us, to ensure that it carries out its mandate with optimal efficiency. Thank you. [Applause.]
Ms N W A MICHAELS
END OF TAKE
Mr L T LANDERS
Ms N W A MICHAELS: Chairperson, hon Minister, hon Deputy Minister and fellow colleagues, making justice accessible to all South Africans is what we, as a committee, need to make our top priority.
Hundreds of thousands of South Africans are victims of crime daily and most of these crimes go unpunished, not to mention unnoticed due to the fact that our justice system simply cannot handle the number of cases being brought before it. What this means is that South African citizens become victims twice; once, during the perpetration of the crime, and yet again when they go to court. Our courts are highly understaffed and we have seventy, yes, hon Minister, you heard me correctly, seventy magistrate posts that yet need to be filled.
On a daily basis, court cases are abandoned due to the fact that dockets have been lost, witnesses cannot be found or simply because they have taken so long to come to court that the victim has found the experience too painful or simply too costly.
Perhaps the most embarrassing of such cases is the Buyiswe case that was recently concluded in the South Gauteng Court. This was a most horrific rape case and it was postponed more than 23 times. Hon Minister, more than 23 times! Problems included: no judge to hear the case; missing statements; no prosecutor; illness of a defence attorney; transfer of the case from the sexual offences court to the High Court; and so the list goes on. Had this woman, this brave South African, not had the determination to see justice being done for what had happened to her, one would not have been surprised if she too had abandoned this case. Hon Minister, this is a case of a victim becoming a victim of the state too.
The DA welcomes the idea and plans for all the new courts. However, we must point out that, as it stands at present, courts are understaffed; there are not enough prosecutors, magistrates or paralegals; courts are falling apart; and there is not even enough stationary to ensure the smooth running of these courts. I refer you to the Wynberg Court in Gauteng that struck awaiting murder trials from its roll last week because their telephone systems were nonoperational and there were no CDs available on which to burn the dockets. Those awaiting trial were released and now you and I are at risk for yet another crime to be perpetrated.
For a country to run successfully, it is imperative that its judicial system is free, fair and accountable on every level; that it has transparency, and most importantly, that all who appear before it, are treated equally. For too long now, interference with judicial system has made headlines in the South African news and while we are not here to argue the merits of such allegations, one has to acknowledge that there is no smoke without fire. It is of fundamental importance that the separation of power principle is adhered to at all times, and that we, as South Africans, never let any outside influence affect the fair functioning of our judiciary.
For too long, departments like the Scorpions and the NPA were tainted as being political puppets, used only for political gain. Let us, as South Africans, now fight together to ensure that they are used for their intended purpose and that is to bring justice to all South Africans.
Hon Minister, transformation of the judiciary does not equal unnecessary political involvement. President Zuma himself in his response to the state of the nation address assured all South Africans that the Constitution would remain supreme and that the judiciary would remain independent. It is imperative that, while transformation occurs in the judiciary, merit and competence remain the nucleus of all appointments and recommendations. We need a highly educated and highly trained judiciary that understands our complex Constitution and our complex legal system that covers Roman Dutch law, British law, Cannon law, indigenous law and a constantly developing precedent law.
We must not be afraid to hold our judiciary to account. If people cannot do their jobs, they must be replaced. Our country deserves a judicial system that operates and does so only in the interest of the South African taxpayer.
In conclusion, South Africa deserves an open opportunity society in which we are all equal before the law; one justice system for one nation with one future. [Applause.]
Mr M GUNGUBELE
END OF TAKE
Ms N W A MICHAELS
Mr M GUNGUBELE: Chairperson, hon members of the House, the Minister and the Deputy Minister, I greet you all. I can't resist the temptation to, before I go to my speech, respond to a few issues, especially with due respect to the thinking by hon member Dene Smuts, who I've got a lot of respect for. Her understanding of transformation is either emanating from a cynical base, opposition to transformation or ignorance of it. [Interjections.] I want to say, if she doesn't understand the relevance of colour in transformation, she does not live in South Africa.
The attitudes of society are a product of socialisation, and socialisation emanates from the manner in which you have lived. South Africa is compartmentalised on the basis of colour, projected racial attitudes, and administration of the justice system calls for trust in the conditions under which it is being administered. So, the question of transformation in that context renders colour relevant. I'm sure you will agree with me. I also want to say that judicial inefficiency remains inefficiency; judicial poor competence remains poor competence. It doesn't get a new name in the dictionary because it takes place in the judiciary system. That is why I want to agree with member Michaels, when she says "incompetence cannot be tolerated even in the judiciary system".
I was listening to the hon member of the UDM and other members. There is this fear, through the Bill, of interfering with the judicial system. I think the biggest question that we must all ask ourselves is to what extent is this intervention undermining the separation of power as enunciated by the Constitution? Because the principal custodians of policy-making in this separation, is Parliament, therefore, nowhere else can the Bill emanate, even for competency, other than in Parliament.
In addressing the critical matter of criminal capacity, Judge Tracy had this to say in 1724:
A man deprived of understanding and memory and not knowing what he is doing, is not more than an infant; he is not more than a brute, a wild beast. Such one man is never the object of punishment.
What are the determinants of this memory, knowing and understanding? It is the condition of the accused in court, where he or she lives; the situation of the affected campaigning on his behalf, justice has been administered; the distance between that individual and the court; the language that is being used in court, its effectiveness; and the attitude of the people who are administering that justice becomes key, because if they are not key, this memory, understanding and knowledge of what is going on, renders that person not an object for punishment and renders that institution not a dependable institution to execute justice on behalf of those who are affected.
It is my contention that a person, whose case is conducted in a language which he or she cannot comprehend in court, is deprived of understanding and knowing what he or she is doing and is not more than an infant and to subject such a person to punishment is tantamount to travesty of justice. The truth, hon members, is that in law no one can be found guilty of any crime, without first establishing his or her criminal capacity, criminal intention; and, in the absence of criminal intention, then negligence.
Universal equality before the law would be a mirage without commensurate access to justice by all South Africans, irrespective of their race, creed, colour or culture, socioeconomic circumstances and conditions. Simplification of court language and procedures, recognition and regulation of community and customary courts and the establishment of a legal aid fund for women to test their rights in court should be operationalised to ensure equal access to justice by all.
The 52nd National Conference of the ANC further consolidated and deepened the imperative of universal access to justice in line with the list of non-negotiables, as enunciated in the Reconstruction and Development Programme, RDP. More resources should be allocated to lower courts to improve their capacity and accessibility, as the majority of South Africans interact with the judicial system at lower courts. The department should make sure that our people have easy access to the Supreme Court of Appeals in all provinces through the establishment of High Courts in all provinces. Access to justice will also be enhanced through the usage of all official languages in the courts; the department should, thus, drive the process of making sure this intent is realised. The review of the criminal justice system document highlights accessible justice as one of its headline targets.
Accessible justice, according to the criminal justice system, is supported by the pillars of proximity and quality of service. Proximity and service quality are, therefore, the yardstick by which the quantity and quality of access to justice should be tested. Proximity should refer, but not be limited to the nearness of physical infrastructure to the majority of the people.
The department mentions, as one of its goals, the provision of justice services in the communities in indigenous languages and in Braille and sign language. The department further commits itself to extending the use of indigenous languages to at least two courts per province. The department has been running a two-year learnership programme for 100 interpreters since 18 February 2008. The University of the Free State has been appointed as the service provider and the learnership evaluated an NQF level five with 240 credits.
Section 35(3)(k) of the Constitution provides for the accused person to be tried in the language that he or she understands or to have proceedings interpreted in that language. Thus, in that regard, the department, in partnership with the Department of Arts and Culture, is soliciting linguistic services and expertise to help create internal capacity in the courts.
Other interventions are also in place, which include development of legal terminology in indigenous languages, relocating the training of interpreters to language practitioners and establishing a language unit in the department.
What the department intends doing and what it has done already are laudable. However, meaningful access can only be achieved if the court officers, not interpreters, make use of indigenous languages. One method of achieving that is advocating for every LLB student to take an indigenous language as a compulsory requirement for qualification. This is one of the scenarios that I'm proposing to be considered. It is of concern, as well, that the department does not seem to have either objectives or programmes to render justice more accessible by simplifying court procedures. The courts continue to alienate those affected by the law by using complex jargon, which is inaccessible to the very people they seek to adjudicate justly on their behalf. I am also reminded about the fact that sometimes in law junior degrees some languages were compulsory, in particular Afrikaans, and I think that was not a bad intention. It was to promote effective communication, and this applies to all other languages.
The department aims to build courts, with necessary jurisdictional adjustments, in disenfranchised communities, especially townships and rural areas. The department is currently adapting the branch courts to status of magisterial districts, accordingly. I want to go back and repeat what I said in that context, in line with Judge Tracy's phrasing in 1724, that:
A man deprived of understanding and memory and not knowing what he or she is doing is no more than a brute, a wild beast, an infant. Such one cannot be an object of punishment.
Thus referring to the conditions under which people are prosecuted.
On that point, I want to support the trust of the direction taken by the department, with implied support for their Budget. Thank you very much. [Applause.]
The MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT
Mr M GUNGUBELE
The MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT: Chairperson and hon members, thank you for your inputs on this Budget Vote, which is my maiden Budget Vote in justice. I also want to take this opportunity to also acknowledge the leadership from the Bench, represented by Justice Tshabalala and Justice Mthiyane. Thanks for your presence here.
I think many colleagues have made their inputs; I just want to respond to few issues. There is a lot that is being said about the postponement of the interviews. I think many colleagues are making a mountain out of a molehill. I have stated it repeatedly that, and I have discussed this with the heads of courts and the chief justice, my understanding is that they understood - Judge Tshabalala was there as well. I don't understand why colleagues keep harping on this issue. At the end of the day, it was not my decision to postpone it. It was the Judicial Service Commission's, JSC, decision and they understood my reasoning and my motivation and we all agreed on the postponement. The interviews are happening before the end of July. The hon Van der Merwe was present at that meeting. [Laughter.]
The hon Van der Merwe, being the democrat that he is, with the majority accepted my proposal. There is nothing sinister about that at all. So, I want to assure this House that there is no other agenda except what I stated there. The issues of transformation are still dear to my heart, and I want to use my best endeavours to participate with full information when we accelerate the transformation of the judiciary.
On the issue raised by the hon Van der Merwe, that there is a perception that we want judges that are loyal to the ANC, that is not correct, Mr Van der Merwe. As you know, the Constitution is very clear that judges must be appropriately qualified women or men, fit and proper. That is the only criterion that we in the ANC know of how to appoint judges to the High Court.
On the issue of reserve judgements, the JSC is seized with this matter and it is of deep concern to us and I am sure, when the regulations are promulgated by August, we will be able to speed up all the issues around the conduct of judges. So, I will be one of those that will be working together with JSC to make sure that those that are not working in accordance with the Constitution will be brought to book.
On the issue of the criminal justice system review, I think we have highlighted the issues before this House, ours is to make sure that we accelerate the implementation thereof. The priority is to bring back that Criminal Law Forensic Amendment Act in order to ensure that we can appraise Parliament on the issues around this criminal justice system. As you know, the Ministry of Justice and Constitutional Development is championing this cause, but we are not alone. We will be working very closely with the police, correctional services and all other law-enforcement agencies in making sure that we speed up this fight against crime.
On the issue of vacancies, in this current financial year we will be able to accelerate the filling of many posts for prosecutors and magistrates.
On the issue raised by the hon Ntapane, you will be happy to know that, contrary to what you think of the former Directorate of Special Operations, DSO, the majority of those law-enforcement officers are being integrated into the SA Police Service. The information that I got when I met with the leadership of the National Prosecuting Authority, NPA, on Monday is that more than 75% of the former DSO personnel have already been transferred to the new unit headed by Anwar Dramat. So, I believe that, even before the fixed date of 6 July 2009, we will have even more who will be crossing over. So, there is no crisis at all. The co-operation between the former DSO and the SAPS task team is working very well. So, I am satisfied, and the Minister of Police is satisfied as well that the transition is happening in a very dynamic manner.
The issue of case backlogs is a matter of grave concern to me as well, that is why the filling of these posts and the appointment of prosecutors and the building of more courts, and the implementation of state of the art IT systems in the court administration will go a long way in ensuring that we minimise case backlogs in South Africa, thereby increasing the rate of convictions, especially for serious crimes.
The so-called Mbeki Bills, I don't know what is being referred to by that. I had a meeting with the chief justice and the head of court to discuss specifically this issue. I have agreed with them that we will have a further consultation. I have an open mind, so I want to hear from them what the issues and arguments are. If I am convinced that a particular direction has to be taken, I will be the first one to agree with them. So, let us wait for that consultation. But as I have indicated, it is one of the priority Bills because, and hon members will agree with me, we can't allow a situation where more than a decade will elapse before we roll out such a very important piece of legislation.
In terms of forensic powers of the SAPS, I agree with the hon Swart that, in fact, it is a travesty of justice in South Africa that the police do not have a database that is readily available in transport through electronic National Traffic Information System, eNatis, in Home Affairs through National Identification System, Hanis, that can be utilised for the detection of crime in South Africa, not only to convict criminals, but also that those who are improperly accused can be able to prove their innocence. So, it is a very important initiative, and we will endeavour as justice department to put our shoulder to the wheel and make sure that we accelerate this particular process.
On the issue of qualified audits, I agree with the hon Landers, I think there is no reason why we should continue to have qualified audits. So, I will work closely with the director-general to make sure that we assist those who report to us in order to ensure that this does not recur.
With regard to language, I have already expressed my feelings on this issue and I am happy that the pilot projects are working very well, but I think it lies upon all South Africans to recognise that English is not the only official language in South Africa. We have 11 languages that need to be promoted in promoting the Constitution of South Africa.
The HOUSE CHAIRPERSON (Mr K O Bapela): Hon Minister, your time is up. I even gave you an extra minute.
The MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT: Well, with my one minute left, I would like to invite all hon members to the exhibition of the justice department in the foyer and also for a cocktail at Imbizo Hall at 120 Plein Street, and I am looking forward to a fruitful co-operation with all members of the justice portfolio committee so that all of us can work together to bring justice to all the people of South Africa. [Applause.]
The Committee rose at 12:03.
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