Hansard: Appropriation Bill: Debate on Vote No 23 — Justice and Constitutional Development
House: National Assembly
Date of Meeting: 04 May 2010
Summary
No summary available.
Minutes
WEDNESDAY, 5 MAY 2010
PROCEEDINGS OF EXTENDED PUBLIC COMMITTEE – OLD ASSEMBLY CHAMBER
Members of the Extended Public Committee met in the Old Assembly Chamber at 14.04.
Acting Chairperson Dr T S Farisani, as Chairperson, took the Chair and requested members to observe a moment of silence for prayers or meditation.
FIRST ORDER
START OF DAY
APPROPRIATION BILL
(Debate on Vote No 23 - Justice and Constitutional Development)
The MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT: Chairperson, hon members, Chief Justice, Deputy Chief Justice, heads of courts, members of the judiciary, heads of the constitutional institutions, distinguished guests, comrades, friends, ladies and gentlemen, this coming Saturday, on 8 May 2010, exactly 14 years later, we will be remembering the historic day of the adoption of the Constitution of the Republic of South Africa. Some at home and abroad have described it as the soul of the nation. Others have drawn the analogy of a birth certificate, signifying the emergence of our rainbow nation united in its diversity.
We in the justice family confirm and remain committed to the wise words of our icon, President Nelson Mandela, when he addressed the Constitutional Assembly on the occasion of the adoption of the Constitution of South Africa, on 8 May 1996, when he said:
This Constitution is our own humble contribution to democracy and the culture of human rights worldwide: it is our pledge to humanity that nothing will steer us from this course.
As we take stock of the road we have traversed since then, it gives me pleasure to highlight our periodic forecasts as afforded through our national Budget, to further buttress our democratic order by bringing hope for the cause of justice for all our people regardless of age, status, gender and race.
This year, 2010, has been appropriately declared by our President, Mr Jacob Zuma, as the year of action. It is the year in which we in the justice family have come to the edge of our defining moment in the long journey leading to a transformed judicial system. When we addressed this House during our Budget Vote last year, we made a firm commitment to finalise the outstanding aspects relating to the Superior Courts Bill and the accompanying Constitutional Amendment Bill. This morning I presented the fruits of our labour to Cabinet and I am pleased to announce that Cabinet has approved both of these Bills.
In terms of these Bills, the Constitutional Court will be the Apex Court in the Republic and the Supreme Court of Appeal will be the Appeal Court. The Chief Justice will be the Head of the whole judiciary and the capacity of his office shall be enhanced as a transition towards the establishment of a fully fledged court administration under one judiciary. The judiciary shall also develop the rules of court.
These measures, which provide the governance framework for the judiciary, will go a long way towards enhancing the independence of the judiciary as a separate branch of government.
The Bills also address the need for the establishment of a single High Court with divisions in all provinces, including decoupling Limpopo from the North Gauteng High Court and stepping up our efforts to find appropriate court infrastructure for the High Court in Mpumalanga.
Except for a very few aspects, there is consensus between us and the judiciary on the provisions of the Bills.
I want to extend my gratitude to the Chief Justice for his sterling leadership in consolidating the work started by his predecessors, former Chief Justices Arthur Chaskalson and Pius Langa. He, together with his colleagues, the heads of courts, made a significant contribution to this process.
I also wish to thank my own predecessors, the late Dullah Omar, Penuel Maduna, Bridgette Mabandla and Enver Surty, whose contributions have been part of the ongoing chain link in the transformation of the judiciary.
Race and gender transformation of the Bench remains an important constitutional imperative. While the Judicial Service Commission continues to play an important role in establishing a judiciary which is representative of the South African society – and has now for the first time in its history recommended the appointment of the first woman to the Office of Judge President – this still remains an area of much concern. [Applause.]
I want to congratulate Judge President Leeuw and the other judges on their appointment by the President, and trust that Judge President Leeuw will not be a lone voice among those in leadership for long.
The special programme, introduced in 2007 to fast-track the appointment of women to the Bench, has started to bear fruit, but evidently not at the pace that we all envisaged. We are aware that, since academic institutions, corporate entities, public institutions, private individuals, as well as the judiciary, fish in the same pond for expertise, we need to be more innovative in cultivating a new corps of legal and judicial officers. The South African Judicial Education Institute, about which we will further address this House, will be key to the unearthing of new talent.
The legal profession is one of the pillars of the justice system and an indispensable element of access to justice. We have defined, in the Legal Practice Bill, the parameters for reform in the legal sector. The Bill aims to create equal opportunities for all who aspire to follow in the footsteps of Bram Fischer, Duma Nokwe, Griffiths Mxenge and Oliver Tambo.
The Bill provides various ways of reducing the cost of justice to ordinary citizens, and introduces the Legal Community Service in terms of which legal practitioners would be required to render legal services for a certain minimum period on a pro bono basis for the benefit of the poor. We share Justice Lewis Powell Jr's sentiment when he said these words:
Equal justice under law is not merely a caption on the façade of the Supreme Court building; it is perhaps the most inspiring ideal of our society. It is one of the ends for which our entire legal system exists. It is fundamental that justice should be the same, in substance and availability, without regard to economic status.
We are indebted to the Bar and the Side Bar, whose representatives persevered in good faith in the negotiations on the contents of the Bill. I am pleased to announce that Cabinet has also approved this Bill. I am confident that this House will give further guidance on the aspects where, due to our policy choices, we took a different view from that of the legal profession.
To address the unequal allocation of government legal work we have set ourselves a target of 65% of the value of briefs to be allocated to historically disadvantaged individuals and firms by 2015. The department is also considering various ways of increasing its internal capacity to handle litigation work to reduce the huge costs expended on litigation against government.
We have made significant strides to turn the tide against crime and corruption. Through the Criminal Justice System, CJS, we have adopted an integrated approach to ensure that this system is a holistic continuum that stretches from where a crime is committed, to the police, to the prosecutors, to the courts, to Social Development and Correctional Services, and to restoration and integration back into the communities.
We have strengthened the bail management and the use of information technology systems to provide an integrated management of information to cluster departments and the Justice, Crime Prevention and Security cluster, the JCPS, overall.
We have also developed protocols to enhance the integration and effectiveness of the Criminal Justice System, screening mechanisms and the trial-readiness of cases; the taking and processing of forensic samples, and the Court Protocol on Legal Aid Cases. I wish to assure members of this House that the Chief Justice, the heads of courts and the Judicial Service Commission are considering the most effective ways to deal with the challenge of case backlogs.
The Judicial Service Commission Amendment Act, Act 20 of 2008, the commencement date of which I have already requested the President to announce, will assist a great deal in addressing this matter. This Act provides for a Code of Judicial Conduct which has to be approved by this House. I have received the draft code from the Chief Justice and the inputs of the judiciary on the draft Regulations that provide for the disclosure of financial interests by judges.
A month ago we celebrated the implementation of the Child Justice Act, Act 75 of 2008, that will revolutionise the way the Criminal Justice System deals with cases involving children in conflict with the law. Although it is a robust Act, and its efficacy is being tested in the current case in Ventersdorp, it in no way attempts to trivialise all kinds of misdemeanours by children. In appropriate cases, children will still be dealt with firmly by means of the new processes and procedures which have been built into this legislation. I would like the House to acknowledge the presence in the public gallery of children from Vredelus House in Elsies River. Some of them are in conflict with the law and others need care and this law is to address their predicament. [Applause.]
Together with the National Prosecuting Authority and the Departments of Health, Social Development, Police and Correctional Services, we shall continue to establish Thuthuzela Care Centres and Child Care facilities. I have, this past Monday, launched the Bellville Thuthuzela Care Centre which becomes the 21st Care Centre countrywide. With the help of our social partners, we hope to have established 35 centres by 2015.
The units that fall under the National Prosecuting Authority continue to be the key pillars in our fight against crime and corruption. I have therefore taken a decision that the Asset Forfeiture Unit would not be disbanded as had been reported. On the contrary, government will support the efforts by the National Director of Public Prosecutions to strengthen the unit's work in this regard.
We are continuing with the programme of upgrading and converting the branch courts in the former townships and rural areas into fully equipped courts to provide all court-related services. Four of these branch courts, namely Atteridgeville and Mamelodi in Gauteng, Ntuzuma in KwaZulu-Natal and Northam in Limpopo, will operate as full services courts with effect from 1 June 2010.
Cabinet has also approved the review of the civil justice system, which we will undertake with the judiciary. This review will assist in overhauling old legislation and the cumbersome rules of courts that frustrate the prompt processing of civil disputes. This project, together with the Jurisdiction of Regional Courts Amendment Act, Act 31 of 2008, due to be promulgated soon, will go a long way towards addressing the backlog of civil cases.
The Office of the Master remains one of our key service delivery programmes, as it impacts on the vulnerable members of society. We are providing appropriate skills to the staff in the Masters' offices to improve turnaround times.
Concerning the Guardian's Fund, we aim to ensure that 80% of the beneficiaries receive their entitlements within 40 days of submitting their applications. We shall continue to improve our ability to deal with the long and time-consuming queues for maintenance services at our courts. We are increasing capacity at the courts to reduce those waiting periods.
Our preparations for the 2010 Fifa World Cup are complete. The department has designated 56 court rooms within the vicinity of the host cities for the hearing of cases for the duration of the tournament. [Applause.] These courts will be adequately resourced and they will sit outside normal hours in order to finalise cases involving non-nationals to minimise the costs of having to bring them back later for their testimony.
A total budget of R12,1 billion is allocated to the department for this financial year. Of this budget allocation R3,8 billion is allocated to the court services programme; R2,4 billion is for the National Prosecuting Authority and R1,4 billion is allocated for public entities and Chapter 9 institutions.
This budget sets out additional allocations of R459 million in 2010, R680 million in 2011 and R887 million in 2012 to cater for the implementation of legislation concerning vulnerable groups, the Child Justice and Children's Acts; the building of new courts and the upgrading of existing infrastructure; the appointment of additional judges, magistrates and public defenders to Legal Aid South Africa; and increased capacity and office accommodation for the South African Human Rights Commission and the Office of the Public Protector.
On 29 April 2010, I had the opportunity to discuss and sign my performance agreement with the President. [Applause.] This contract will be cascaded down to all the personnel in the Department of Justice and Constitutional Development and entities that report to it, based on its key pillar of the outcomes-based monitoring and evaluation. Needless to say, those who fall short of what is expected of them will be subjected to appropriate censure. [Applause.]
For my accountability to the President, my co-ordination responsibilities of the outcome with the requirement that all people in South Africa are and feel safe, I will work with the various heads within the department and more broadly within the Justice Crime Prevention and Security cluster to achieve the following outputs: Addressing overall levels of crime and especially reducing the levels of trio crimes; improving the effectiveness and ensuring the integration of the Criminal Justice System; combating corruption within the Justice, Crime Prevention and Security cluster to enhance its effectiveness and its ability to serve as a deterrent against crime; managing perceptions of crime among the population; ensuring security at the border environment; securing the identity and status of citizens; integrating our ICT systems; combating cyber crimes; and fighting corruption.
To achieve these outcomes, I will be convening an implementation forum comprising of Cabinet colleagues. This forum should develop a delivery agreement by July 2010. This delivery agreement shall provide more details on the outputs, targets, indicators and key activities which are already enshrined in my performance agreement.
I have also emphasised to the director-general the need to improve our organisational efficiency to address performance-related challenges that led to the negative audit reports and noncompliance in the past. We are also putting measures to improve the court recording system and our information management systems to address the loss, deliberate or otherwise, of court records.
We will also embark on regular unannounced in loco inspection of service delivery points as we did on Monday by visiting the Master's Office in Cape Town and the Khayelitsha Magistrate's Court. In this approach we are driven by our credo, "Justice For All", because we realise the relevance to our circumstances of the view of the 75th anniversary celebration of the Legal Aid Society of New York on 16 February 1951, that:
It is the daily; it is the small; it is the cumulative injuries of little people that we are here to protect ... If we are able to keep our democracy, there must be one commandment: Thou shall not ration justice.
We shall be steadfast in our championing of the cause of an independent judiciary and shall be in the trenches of protecting the separation of powers as required by our Constitution. The application of the principle of nonencroachment should continue to be the oxygen of our democracy.
We shall do all these things, and more, being very much alive to the observation by the African-American Frederick Douglass, former slave, abolitionist, women's suffragist, orator and statesman, who lived between 1818 and 1895, that:
Where justice is denied, where poverty is enforced, where ignorance prevails, and where any one class is made to feel that society is an organised conspiracy to oppress, rob and degrade them, neither persons nor property will be safe.
We are also driven by the wise words of our icon, Nelson Mandela, at the G8 Summit in July 2005, when he stated that:
Overcoming poverty is not a gesture of charity. It is an act of justice. It is the protection of the fundamental human right, the right to dignity and a decent life. While poverty and persists there is no true freedom.
Before I conclude, I would like to convey my sincere condolences to the family and friends of Mrs Sheena Duncan and call upon all South Africans to pay tribute to this gallant fighter for human rights in our country. Without selfless individuals like Mrs Duncan, we would not be enjoying our democracy today.
I also wish to convey my condolences to the family of Judge Mohamed Jajbhay of the South Gauteng High Court who passed on this morning. Our hearts are with his family during their time of bereavement.
In conclusion, I wish take this opportunity to thank my Deputy, Andries Nel; my Director-General, Ms Nonkululeko Msomi and her management and staff; the chairpersons of the statutory bodies; the Chief Justice and the Deputy Chief Justice; the heads of courts and the judiciary as a whole; the Human Rights Commission; the Public Protector; the Rules Board; the SA Law Commission; Legal Aid SA; the National Director of Public Prosecutions; the Portfolio Committee on Justice and Constitutional Development; various members of the judiciary, and all those working in the justice sector. Without their support and industry, I would not be so bold as to lay down our tasks as covered in this Budget Vote, despite my flu.
Lastly and most importantly, I would like to thank my wife, Bridgette, and my family who have been my pillar of strength through the many challenges I have faced in the execution of my responsibilities. Thank you. [Applause.]
Mr N A RAMATLHODI
The MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT
ACTING CHAIRPERSON (Dr T S FARISANI): Hon members, decorum protocol and etiquette in this House require that we bow when we go out or come in. Entering this House is different from entering any shopping centre. When the hon Minister is speaking and we are later going to debate what he has said, I'm wondering what miracles the people, who have been talking among themselves during the presentation by the Minister, will conjure up to debate that speech.
Mr N A RAMATLHODI: Chairperson, Chief Justice, heads of courts, fellow compatriots, I am delighted to take part in this epic debate on the Budget Vote of the Department of Justice and Constitutional Development. The constitutional mandate of the Portfolio Committee of Justice and Constitutional Development is to ensure that our country is governed in accordance to the letter and spirit of our supreme law, which is the Constitution. In this regard we endeavour to ensure that the country is not only governed according to the Constitution, but indeed must be seen to be governed by the ruling floor. This fundamental principle applies equally to private citizens as it applies to public bodies.
Sepedi:
Ka Sepedi re re šako la hloka thobela ke mojano. Lefaseng le la ga borena bo thobela ba ba golo ke Molaotheo.
Magoši le balata ba a lekana mo pele ga Molaotheo. Gape Molaotheo wo ke wona lotago ditšhiwana; ke wona bopapa le bomma. Re itšhireletša ka wona ebile re lwela ditokelo tša rena ka wona. Ka mantšu a mangwe, Molaotheo wo ke kotse le lerumo la setšhaba.
English:
Our Constitution, as we all know, was born out of fierce struggles for national liberation. Accordingly it embodies the dreams of the majority of our peoples to live as free beings in the land of their forebears. On the other hand, our Constitution is a result of a negotiated settlement amongst the oppressed and the erstwhile oppressors. In this sense our Constitution represents a monumental and historic victory of the oppressed, whilst simultaneously standing out as a great compromise promising and promoting mutual accommodation among the former warring parties.
The foes of yesterday wisely chose the path of peaceful settlement faced with the looming and grim reality of mutual annihilation. Our Constitution therefore recognises the humanity and citizenship of the black majority by granting them the right to vote and to be voted for. The right to vote and to be voted for represents the basic and most fundamental demand of the revolution. This alone and there is much more gives us, the black majority, more than a thousand reasons why we should defend the Constitution.
As the leading movement for liberation and the embodiment of the aspirations of our people, we are therefore first and foremost the frontline detachment in the defence of this Constitution. We are enjoined and obligated to defend it against those who launch assaults at it when it does not promote their narrow interests, but applaud it when they think it does so.
Negotiations for a new and democratic order were underpinned and indeed ushered in by the realisation that the apartheid regime was no longer able to rule in the same old way. At the same time, our people had begun to render the system of apartheid unworkable and the country ungovernable. The change in the balance of forces in favour of liberation forces had effectively limited the ability of the regime to continue deploying violence as a principal weapon of oppression.
The Constitution thus embodies political freedoms which are the blood, the soul and the breath of our democracy. As democrats who declared in the 1955 Freedom Charter that, "South Africa belongs to all those who live in it, black and white."
We are not satisfied to attain political freedoms for the majority to the exclusion of others. In line with the spirit of ubuntu we sought to ensure that in regaining our humanity this gain was extended to the rest of society in our country.
In this regard the first lack of political compromise was the creation of a system of proportional representation, given the demography of the country. Had we opted for the winner takes all, our Parliament would in all probability be composed exclusively of the former liberation forces. We would be sitting in a legislature that excludes the white minority which constitute a vital component of our rainbow nation, the Afrikaner in particular, who is as indigenous as the mopani of the bushveld in Limpopo and Mpumalanga. [Laughter.]
The other pillar of mutual accommodation was to make the Constitution itself the supreme law of the country, amendable only by two thirds majority. In other words, the legislature is also subject to this Constitution. This limits the possibilities of a majority throwing its weight around at will. The laws it passes must therefore conform to the Constitution.
To ensure that this happens, the Constitution has established an independent judiciary at the apex of which is the Constitutional Court with the power to rule legislation unconstitutionally in appropriate circumstances. Similarly, the activities of the executive are subject to the rule of law. In addition, the Constitution provides for three generations of human rights which are enforceable under our laws. The judiciary has the principal duty of ensuring that these rights are given to all the citizens. All this the ANC is determined to defend, whether it agrees or disagrees with the decisions of the judiciary. We do so because we believe in the sanctity of these principles and the righteousness of our covenant.
This budget is aimed at providing resources to the Department of Justice and Constitutional Development in order to carry out its mandate. It is my pleasure to say to this House that, indeed, we have debated it vigorously and we have adopted it. I thank you. [Applause.]
Ms M SMUTS
Mr N A RAMATLHODI
Ms M SMUTS: Hon Minister, we join the hon Minister in extending our condolences on the passing of Judge Mohammed Jaber, to his family, to the Muslim community, and also to the judicial community. I may once have taken an issue with him on a free speech judgement, but I ended up saying, "Hurray!" for Judge Jaber in so many words for the courageous Sunday Times judgement for which he would be, among many other achievements, remembered.
Sheena Duncan was a shinning light to all who serve and seek justice and we note her passing and extend our condolences to all her people, too. My colleagues, today, will join me in wishing Natasha Michael who is a Member of Parliament good luck as she writes her exams towards her Bachelor of Law, LLB, in Pretoria. She will not be with us.
Sir, it is not every day that Minister puts before Parliament a suite of constitutional changes and Bills of the scope and import of those announced today. I congratulate him and his Deputy; firstly on restoring the proper relationship between the executive and the judiciary after the damage that followed the 2004 election; and I also congratulate him on proposing reforms which will give our courts the institutional independence that they deserve as of right.
The Chief Justice has our particular support for the Bills yet to come. A rule-setting Judicial Council or authority will enhance judicial independence and an Administrative Agency to run the courts will hopefully bring an end to the malfunctions currently encountered, especially in the lower courts.
It goes without saying, I hope, that we will be vigilant in legislating these reforms to ensure that our courts are truly independent, subject only to the Constitution and the law, as the Constitution requires and that no person or organ of state can interfere with their functioning.
Once those principles are given full effect in the law, the seven-point plan adopted under the Criminal Justice Review by the previous Cabinet can be implemented with greater confidence. Its one weakness always was the proposition that there should be co-ordination stretching from, "Cabinet to court", to be conducted at one point, most disconcertingly, from a departmental war room under the command of our then former combative Deputy Minister. Once these laws are in place; the seven-point plan already in implementation can be implemented with full confidence.
We will support, therefore, the R3,8 billion set aside for the court services and we do so with pleasure in view of the proposed legislative changes. The amount of R2,4 billion proposed for the National Prosecuting Authority, NPA, is, however, a different matter. The Treasury's proposals are in order. It is precisely a mismatch between the appropriation per sub-programme and the National Directorate of Public Prosecutions, NDPP, strategic plan that I pointed out to the hon Minister in the Justice Committee.
Now, that he has put some sort of stop to advocate Simelane's plans, we need however to see a new strategic plan in my view before we vote on 26 May 2010. We need also to ask ourselves, how it can be tolerated that the person intrusted with prosecuting people who break the law, can himself ignore - in my view on my analysis - hold sections of the law that structures the NPA Act as the Constitution requires as well as the separate law governing the forfeiture of the proceeds of crime. He also acted in breach of the Criminal Procedure Act when he instructed the Chief Prosecutor of the Protea Court not to oppose bail for Mr Maarohanye.
It is time, now, to amend the Constitution to provide for a better appointment procedure for South Africa's National Director of Public Prosecution. Section 179(1) gives the President the power outright and unencumbered by the requirements of recommendation or consultation of any kind to appoint the NDPP.
Now, as I understand, the 19th Constitutional Amendment Bill is likely to introduce amendments to almost every section of Chapter 8, but not to section 179 – and if my understanding is correct, we may, as a committee, after discussion, want to consider gazetting for public comments under section 74 of the Constitution an additional set of amendments to that section.
These should not be seen as Simelane amendments, though he is the gentleman who triggers this proposal. They would just as much be a set of Vusi Pikoli amendments, because it was the fate of the former NDPP which prompted the first suggestions of review, many of them from leading ANC members, including the hon Enver Surty and I'm very that he is attending, today.
What should such an appointment amendment say? The previous President, President Mothlante, proposed, while in office, that the NDPP should be recommended by the Judicial Service Commission. The previous Minister of Justice, Mr Enver Surty, suggested that Parliament should look at its own role. The previous justice Members of Parliament, our predecessors sitting in the ad hoc committee charged with deciding the removal or the reinstatement of Advocate Vusi Pikoli, formally reported that they found it anomalous that Parliament has no role in the appointment of the NDPP and, yet, it has the final say on his or her removal.
We agreed then, and we are likely as a new caucus to agree now, that the President should have only the formal signing power to appoint the person recommended by Parliament after a public nomination process and we could add other mechanisms into such a process, if we wish.
The second amendment that we should be looking at should state clearly that the prosecuting authority is independent. The Constitution intends prosecutorial independence, and the Constitutional Court has so certified. But to say, as section 179(4) does, that national legislation must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice is to say it softly.
It is out of character for our Constitution to be so half-hearted about independence when a whole set of Independent Institutions in Chapter 9 enjoy the classic formulation that applies also to the courts; they are independent subject only to the Constitution and the law; and they must work without fear, favour, etc. Like the Chapter 9 institutions, but unlike the courts, the NPA should be accountable to Parliament as, indeed, it already is under the NPA Act.
Thirdly, I suggest that we to amend the final responsibility given to the Minister of Justice in section 179(6). It stands in contradiction to prosecutorial independence in subsection (4). It is uncharacteristically olde worlde when we have led the world on all other constitutional counts; and when the soft law emanating now from the United Nations, inter alia, asks for fuller independence, both the then Minister Surty and the Pikoli ad hoc committee said earlier in 2009, notwithstanding section 33 of the NPA Act, that final responsibility needed clarification. The ANC members, in particular of that ad hoc, recorded their view that both the Constitution and the Act needed to be reviewed on this point.
It had after all by then contributed to the fantastic and unlawful misconstruction of the scope of the executive powers which led Minister Mabandla and the then Director-General for Justice to thunder at Advocate Pikoli and the notorious letter of September 2007, "you shall not pursue the route you have taken steps to pursue in respect of Mr Jackie Selebi". Mr Selebi is, currently, in court following just such steps.
It also led to Advocate Simelane's misconception, "of his authority over the NPA", as Frene Ginwala described it, when he used his role as accounting officer to undermine the independence of the NPA from without. Now, he is trying to diminish it for within, not least by transferring its corporate services to the department while decapitating all the specialised units and packing senior prosecutors of the junior courts.
May I say that I am pleased as the hon Minister's shadow to have spotted the plot and to have revealed it, because that is Parliament's role. That, and the voting or the withholding of the taxpayers' money until satisfied. I don't see what powers the Minister needs beyond the concurrent determination of prosecution policy in subsection (5). I, therefore, believe that we should simply delete the final responsibility because prosecutorial independence can't be qualified; it can't. How can you qualify it; you can't be a little bit independent in respect of a function. It belongs to the NPA. The final responsibility for the nuts and bolts of the institution itself should take the form of accountability to Parliament, which after all passes its laws.
There is one last section of Chapter 8 that requires our attention. There is a view taking root now in favour of the reconstitution of the Judicial Service Commission, following the exclusion of Advocate Jeremy Gauntlett from eligibility to the Bench. The ANC-led block in that body has done the JSC and itself greater reputation or injury than it may realise by excluding him from an appointment even to the Cape Bench, and yes, it was exclusion, but not just a failure to select.
It is perfectly not obvious, secret vote notwithstanding, that he had the support of the country's top judges. He has the support of judges outside also, and little wonder. Judge Ramodibedi who is the President of the Lesotho Court of Appeal, thought fit last year, to quote his predecessor Judge Jan Steyn in bidding farewell to Advocate Gauntlett after his 12 years of service as a judge on that Bench. In describing him, "simply unique"; simply unique both for his intellect, his judgement, and the way he ran his courts. That is 12 years of full appointment, apart from the four or five acting appointments on the Cape Bench, apart from the ground-breaking work in the Southern African Development Community, SADC, region; and apart from the fact that he is our foremost constitutional lawyer, but the ANC bloc will not appoint him. Do they know what they have done? They have proved that they are not qualified to select judges. We will not go with the argument that judges only retired or otherwise should select, but we do ask ourselves whether a better balance is not required.
Now, let us discuss, later, on mature reflection when representatives of the magistracy are added at the JSC in the 19th, whether only one representative judge president really suffices. The judge presidents are unarguably best placed to judge the potential of lawyers from their provincial divisions. They will have seen them in action in court. They will have real knowledge of the character and the constitutional commitment of a candidate. That commitment is really what transformation means. The rest is smoke and mirrors.
Underneath the smokescreen routinely thrown up by the spokesperson from the JSC, that body is clearly, in my view, trying to reverse inappropriate earlier selection trends, just as this Ministry is reversing its predecessor's assault on judicial independence. All the doubts about the JSC have been revived, the doubts created last year when it ducked the duty of dealing with he whose name we may not speak. We cannot discuss him here, because we have given our primary powers concerning judicial conduct away to the JSC. We cannot discuss him, because we remain the final impeaching authority, should the JSC aver after proper enquiry make such a recommendation. The exclusion of Advocate Gauntlett occurred to avoid conflict with him too, didn't it?
How it is that one man can render several institutions paralysed and powerless? To me, there are striking similarities with the current on-again, off-again attempts by the ANC to conduct an enquiry into another such man, a younger one; but you really cannot treat a judge as if he were the Julius Malema of the judiciary. Therefore I leave a question with the hon Minister: how long, hon Minister? You must surely realise that the jury remains resolutely out on you, sir, because of him in spite of your excellent work in almost every other respect. [Applause.]
Ms L H ADAMS
Ms M SMUTS
Ms L H ADAMS: Chairperson, Minister and Deputy Minister of Justice and Constitutional Development, Members of Parliament and all invited guests, South African citizens are becoming more and more accustomed to the fact that life in South Africa has become cheap. This is evident in the high levels of senseless crime, the brutality of these crimes and the current idea that one can literally get away with murder depending on how well connected one is with a politician.
Today we know that one can get killed for a cellphone, a R10 note, for being a passenger in a Bus Rapid Transit, BRT, bus instead of a taxi, and, even worse, for walking home from school and being hit by a car allegedly driven by a person who is high on drugs. South African citizens are looking at this Department of Justice and Constitutional Development to ensure that life becomes respected again.
So the question that we have to ask today is not whether the department will use the money it has been allocated in the budget as set out in the strategic plan, but, rather, whether the department will ensure that life in South Africa becomes more respected than what it is today. Cope acknowledges the hard work this department has put in so far to increase access to justice. It also believes that with the appointment of the Director-General, Ms Msomi, at least sanity will prevail in this department.
However, on a daily basis South Africans are being slapped in their faces for believing that justice is attainable through the vehicle of this department. Our court rolls have a substantial backlog. The chance that the South African citizen will speedily get access to justice is merely a dream. Citizens don't always even understand what is happening in the cases as lodged in court, and criminals walk free on a daily basis for all sorts of reasons. We all know the sources of crime. So the biggest problem with this department is the fact that it does not attempt to solve the root of the criminal problem, but instead, on a daily basis, deals with the results of crime.
In a study conducted in 2008, research indicated that, apart form all the same causes of crime in countries, in South Africa there are at least two more factors that contribute to our crime level. These are: Firstly, the level of income inequality coupled with high levels of poverty; and, secodly, the culture of violence and disobedience that permeated all parts of our society prior to the fall of apartheid. Surely it is not this department's core function to ensure that inequality regarding the levels of income gets addressed. However, Cope submits that it falls squarely within this department' ambit to address the culture of violence that emanated even while apartheid was still in existence.
It becomes unacceptable that, while we have a Constitution such as ours, that is highly praised around the world, South Africans do not really benefit when it comes to the security of a person or speedy access to justice. It also becomes unacceptable that we have the Domestic Violence Act of 1998, but, at the same time, South African men in particular carry on with domestic violence as if no such legislation exists. It becomes unacceptable that legislation, which will ultimately only have the effect of addressing the result of crime, gets introduced by this department but, in most cases, not even to the effect that the victims can boldly declare that they are no longer victims of crime.
The fear of punishment - be it a fine, a criminal record or even imprisonment - has disappeared from our society. But, even worse, this department contributes to the idea that crime in South Africa has taken the upper hand in our society and that we have no control over such. This is not done in an open manner, but through the way in which it operates towards the public and through its internal operations. For example, this was done when the National Director of Public Prosecutions, Adv Simelane, interfered in the Jub Jub matter. This was also done with his interference in the Fana Hlongwane matter and, again, when he interfered by instructing prosecutors to refrain from speaking to the media about court cases without prior approval from a provincial director of public prosecutions.
The media is a link between the state and the public and, unfortunately, the public becomes informed by what the media tells it. It becomes laughable when one expects bureaucracy and procedure to undermine the public's knowledge. Whether the department wants to justify this bureaucracy or not, the bottom line is that, with our volatile citizens, the department slowly contributes to the destruction of the system instead of building it into a system that we can all have trust in.
This was also done when the Minister appointed Adv Mpshe as the acting judge. It is indeed so that the appointment of this judge was consistent with the Constitution of 1996 that allows the Minister to appoint an acting judge, but can we say that this procedure was in alignment with all the previous appointments of acting judges?
The Chapter 9 institutions falling under the budgetary umbrella of the department, the SA Human Rights Commission, is also slowly becoming government department. The SA Human Rights Commission is not exercising its powers as expected. This commission is in existence, but that is where it stops. This was again evident when the whole debate of struggle songs and racist attacks on certain members of society emerged a few weeks ago. No protection of whatever kind was provided by this commission to any of the relevant parties. This Chapter 9 institution is not adding value to the South African citizens on the level that will make an impact in their lives. For how long will we accept this?
Why is it that the Legal Aid Board of South Africa, which falls under this department's budgetary umbrella, has become a worldwide model for access to justice for poor people? And why is it that the Public Protector, which is under a young reign, has already begun to act in the manner that South Africans need? What is it that the SA Human Rights Commission is doing wrong? And what is it that the Legal Aid Board of SA and the Public Protector are doing right? For how long are South Africa citizens supposed to be okay with it? We cannot have a Chapter 9 institution that is fast becoming like another government department.
In conclusion, we must protect the ordinary citizen at all times, and more especially so when they have become victims of crime. Loopholes in our justice system such as tampering with blood samples and exclusion of such crucial evidence in a criminal matter where people were killed must stop. The withdrawal of cases from court due to all sorts of technical reasons must stop. The delay in court cases must stop. The deafening silence form the SA Human Rights Commission on a daily basis must also stop. Thank you. [Applause.]
Mr N SINGH
Ms L H ADAMS
Mr N SINGH: Chairperson, hon Minister, Deputy Minister and colleagues, at the outset, as the IFP, we want to associate ourselves with the condolences expressed by the Minister to the two families that have lost loved ones.
I think members of the justice committee are quite aware that I am not a member of the committee, but I participate here today as the sheriff. I am here to deliver a message and I do hope that all of you know the song I shot the sheriff and that does not happen here today. [Laughter.].
However, my fee for the services I will render today is that I'm allowed to raise a matter about which I have been corresponding with the department for more that a year. It's quite sad to say that - I've got correspondence here - for more than a year I have been corresponding with the department on a particular request, and I still have not had a final answer to the request. I will forward these documents to the hon Minister through the service officer.
I want to proceed to outline the challenges and or successes which my colleagues, who participate in this particular department, have identified. Firstly, the IFP joins other speakers in thanking all persons who have been involved in justice during the past year and we wish them well in the year ahead.
We must not forget that justice and constitutional development are the very pillars of our democracy in South Africa. Democracy is built and flourishes around the rule of law and the supremacy of the Constitution. The Department of Justice and Constitutional Development, as custodian of these foundational pillars, must ensure that they are protected and continually strengthened. The IFP is very concerned that the department is not doing enough in this respect.
Civil justice is far too costly and unnecessarily prolonged by outmoded court procedures. In addition, many courts lack the necessary resources required in order to operate efficiently. This leads to delays and unnecessary financial burdens. These, in turn, result in justice being delayed, which is justice denied. The other day I watched on TV the hon Minister going to some courts, where he himself witnessed the way in which our people are sent back home and matters are not finalised in good time.
Criminal justice suffers from a lack of manpower, poorly trained prosecutors and court staff, and, in some cases, incompetent magistrates. We hope that this was just a case of incompetence that allowed a man of certain notoriety to flee to Namibia. Hon Minister, justice must not only be done, but must be seen to be done. We suggest that the Department of Justice and Constitutional Development should start to play a more active role in the judicial reform process. It seems as if his aspect of its portfolio, which is one of the department's core functions, has been left for the constitutional judges to deal with.
Regarding the implementation of new laws assigned to the Department of Justice and Constitutional Development such as the Child Justice Act, we have only two words to say, "Very poor". The emphasis is not on the contents of the legislation, but its implementation. Going forward, we urge the department to plan correctly and communicate effectively with all stakeholders so that we do not have a repeat of such a situation.
The Master's Office is yet another thorn in the side of efficient civil service. Its function at best is antiquated and, for the most part, wholly unnecessary. In fact, it does not even exist in most civil law countries.
Turning to the National Prosecuting Authority, NPA, the lack of communication between the National Prosecuting Authority and the Ministry indicates to us a breakdown in the relationship between the two offices. This is not conducive to an effective department or prosecuting authority. We urge the Minister to attend to and resolve this matter forthwith.
This morning we were privileged to get a briefing from the Auditor-General's office on the annual reports of the National Prosecuting Authority. In the report of 2008-09, it was quite disturbing to note that: Firstly, there are lots of vacancies that still exist within the NPA; secondly, there is low staff morale; and thirdly, and more importantly, many, if not all, Standing Committee on Public Accounts, Scopa, resolutions from the 2006-07 year to date have not been attended to. We hope that the department will look into this as a matter of urgency.
We also wish to raise the question of the 384 political prisoners. We know that there has been some progress in this regard, but there is still work to be done and we hope that the department will deal with these issues as quickly as possible, in conjunction with the office of the President.
The IFP is conscious of the fact that the Minister has inherited a flailing department from some of his predecessors. However, blaming the past is the weakest of excuses. We therefore urge the Minister and the department to seize the reigns of the department and to bring order out of this chaos. The IFP supports this Vote. Thank you. [Applause.]
Mr M GUNGUBELE
Mr N SINGH
Mr M GUNGUBELE: Chair, the historic mission of our movement, which translated to the historic mission of the country through law, is that of a united South Africa, a nonsexist South Africa, a nonracial South Africa and a prosperous South Africa.
The big challenge that we have, hon Chair, is that we need to act on the challenges of life between the realisation of that dream and the day we dreamt it. To achieve that dream, we are required to live a life that is inspiring to our people, a life that is dependable, a life that inspires confidence.
It is in that context, Comrade Minister, that I applaud the department amongst its three strategic goals to have adopted the one that says, "enhancing organisational efficiency, integrating justice services for a simpler and faster delivery".
I want to affirm the stance of our movement on these issues. Amongst others, in taking a bold step to challenge Adam Smith, who in his treaties of moral sentiments and the causes of the wealth of a nation, asserted that, governments are wasteful, corrupt, militaristic and unproductive.
The movement took a view that that sentiment does not apply everywhere and adopted a role that render the state central in our struggle towards realising this historic mission. Our movement got away of the capacity implications that are required through our strategy and tactics document.
Amongst others, the need for a state strategic capacity based on that approach that ensure that we are people-centred and a people-driven change and also a leading capacity that ensures that we move together in defining our common national agenda and mobilising all our people at large in its implementation.
Our movement has asserted that, without an organisational capacity, it is not going to be possible to ensure structures and systems will facilitate the realisation of this set agenda of our institution. Macro-organisational issues of the state will not continue to receive attention unless this organisational capacity is realised. It is our movement again that has asserted that the technical capacity of the state is critical in ensuring that we translate the broad objectives into programmes and projects to ensure their implementations.
Key elements, hon Chair, on this technical capacity is ensuring that there is proper training, orientation and leadership of the public service and acquisition and retention of skilled personnel. However, there are issues that are militating against this intended and ennoble view. It is in that context that I commend the hon minister by being upfront in his approach, where in his speech in addressing the portfolio committee he said:
We recognise the challenges we have had in our internal control system, which have resulted in the department receiving qualified audits in the previous three years. During my term I want to ensure that there is no recurrence of these bad audits in the department. Thus we have set our sights on improving corporate governance and enhancing the department's internal control system. Our plan is to develop a robust turnaround strategy that will establish building blocks towards an unqualified audit. In addition we want to improve our enterprise risks management system to ensure that we fully comply with the Public Finance Management Act, PFMA, and other prescripts.
That is the bold initiative by the department we want to commend.
I also want to state very clearly that the implications, therefore, of a qualified audit extends beyond the violation of the general accounting principles and failure to observe the law. The impact of a qualified audit is neither felt by the accounting officer - it is not felt by the members of parliament - nor by the rich. The impact of it is felt by the poor who cannot access justice, because courts are far from them or because the legal aid board was not capitalised adequately to expand its caseload and extend its reach. The impact of a qualified audit is felt by the poor presumed innocent awaiting trial detainee subjected to successive case remands, owing to Prosecutor inadequacy and heavy caseloads. Indeed clean governance should be recognised as central to the service of our people.
I also want to read something else that militates against what our movement proposes as a required capacity. I want to quote from the 11 March 2010 Scopa ANC study group when it observed as follows:
Most of the problems identified by the Auditor-General in his audit relate to the internal control issues - contravention of PMFA and Treasury regulations.
In too many instances these issues are not being effectively monitored by leadership. There are three categories of leadership that are articulated here: one, you will be surprised is the portfolio committee themselves, ministers and directors-general.
The report goes further to aver that there appears to be a general reluctance on the part of departments and entities to investigate timeously noncompliance with relevant legislation such as the PFMA and cases of fraud and corruption; and to follow with appropriate disciplinary or criminal action.
We further refer to factors that militate against these which our movement proposed. I want to quote the statement of the National Executive of 8 January that:
Corruption poses a serious threat to our struggle to build a caring society and it erodes the moral fabric of our society. It is a threat that must be fought both inside and outside the state.The ANC must never tolerate corruption. Resolutely punishing and effectively preventing corruption is therefore a major political task the ANC must attend to at all times. All ANC members should be aware that combating corruption is a battle that can be won.
The statement concludes this matter by categorically stating that:
The ANC is committed to transforming the state in a manner that benefits our people. There is no room for using the resources of the state for self-enrichment and acting from narrow selfish interests. Selfishness is alien to the values of our movement.
The other militating factor against what our movement is proposing will be reflected on the Finance Minister's statement:
A major site of both wastage and inefficiency is in our procurement system through combination of corrupt practises, inefficient procurement, poor planning and in some instances collusion by private sector.
We are not getting the kind of value from our purchases that our people deserve. Corruption is an ever-present threat to our ambitions. All South Africans must constantly and consciously work to root out this cancer if we are to address the scores we need to improve the management capability, governance enforcement and oversight in government and in the business sector. Poorly managed tender processes are all too often open to such abuses.
I just want to say that these challenges will undermine what the Minister is committing himself to do, but we are very confident and you have inspired us by speaking unwaveringly and unflinchingly on these matters that these are the stances of our movement and the movement has spoken about them. [Applause.]
Mr S Z NTAPANE
Mr M GUNGUBELE
Mr S Z NTAPANE: Chairperson, hon Minister, Deputy Minister and hon members. The budget before us represents the means by which government seeks to resolve the vital issue of justice and constitutional development. Therefore, as a tool that needs to give life to policy, it must be judged against the important policy questions facing the country in terms of the justice system.
It is well known that the judiciary has been under repeated attack for a number of years now. Individual judges and the institution as a whole, including the Constitutional Court, have been bad-mouthed and attacked in the most unbecoming manner.
Another fact that we cannot ignore is that the ability of the justice system to dispute justice is being questioned by many South Africans, because the rate of successful prosecutions are shockingly low. Indeed there is a strong argument to be made that the courts represent a bottleneck in the administration of justice, because the backlogs that cause an untenable high number of awaiting trial prisoners has resulted in overcrowding in prisons. It is therefore undeniable that this government needs to spend a significant amount in making the country's legal system work. It is therefore disturbing and troubling that the department's budget has been decreased in real terms.
It is within this context that we are perturbed about the latest developments at the National Prosecuting Authority, NPA. The comments and behaviour of the National Director of Public Prosecution are deeply disturbing and seem to indicate a heavy-handed and anti-democratic intent to dismantle vital components on the NPA and remove some of its leading members under the guise of so called "reforms".
We are particularly concerned that in many cases government, represented by the hon Minister, appears to be as surprised as the rest of us by thess developments. The Portfolio Committee on Justice did not have sufficient time to consider these proposed institutional changes and how they may impact upon the budget.
There should be no uncertainty that the constitutional obligation of the NPA is to prosecute without fear or favour. Any erosion of this prerogative is a direct attack on our democratic dispensation. The amount of R2,4 billion is allocated in this budget to the NPA, but we are not entirely clear what this funding is intended for. Thank you.
The DEPUTY MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT
Mr S Z NTAPANE
The DEPUTY MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT: Chairperson, I have a passionate dislike for the term "all protocol observed." Fortunately, the Minister spoke before me, and I can therefore take refuge in saying that I associate myself with the acknowledgements that he has made. I hope to acknowledge many in, and beyond, this audience by speaking of their good deeds.
I add my voice to those who have expressed their sadness and condolences on the passing of Judge Mohamed Jajbhay and the stalwart human rights campaigner, Mrs Sheena Duncan.
Sixteen years ago, on 26 August 1994, the late Minister Dullah Omar opened the debate on the first Justice Budget Vote of our democratic South Africa. He concluded with the words:
We have taken the first steps. They are small ones, but we are comforted by the thought that every journey begins with a single step.
One year and a few steps later, during the 1995 Justice budget debate, he outlined in greater detail a vision for justice in South Africa, and stressed that:
When access to justice does not exist or is inadequate - in our case hopelessly inadequate - and where there is no equal protection under the law, there will be a greater tendency for people to take the law into their own hands. The result is violence, crime and the destruction of the safety and security of communities.
Access to justice, therefore, is the heart and soul of our vision in the work of the Department of Justice. It is part of our contribution towards building a just society, but also towards guaranteeing the safety and security of all South Africa's communities.
In his state of the nation address, President Jacob Zuma identified five national priorities. These are the creation of decent work and sustainable livelihood, education, health, rural development and food security, as well as the fight against crime and corruption. These priorities are mutually dependent and reinforcing. They require united action by all of us in order to be achieved. The question of access to justice is central to the realisation of these goals.
Small claims courts are a powerful mechanism for providing access to justice, especially for the poor. These courts function on the basis of speed, simplicity and cost-effectiveness. They also provide a forum for the resolution of civil claims up to R7 000, an amount that was determined in 2004, and is hopelessly outdated. Consultations have started to increase this amount to between R10 000 and R15 000
Interestingly, Brazil has a very dynamic system of small claims courts in which jurisdiction is defined in terms of a nationally determined basic minimum salary. Currently, these courts have jurisdiction to hear matters involving up to 40 minimum salaries or approximately R80 000. Our objective is to establish at least one small claims court in each of South Africa's 384 magisterial districts.
Presently, we are just over the halfway mark, with 201 functioning small claims courts, 13 of which were established in the past year, and the imminent proclamation of a further seven. Our aim is to establish another 60 courts during 2010 and a further 60 by the end of the 2011 financial year. Most of these newly established courts will be in rural areas. Special attention is also being given to those 15 branch courts designated as full service courts. These are located in what the topography of apartheid would have classified as black areas.
The excellent work done in these courts is done after hours, on a voluntary basis and without any remuneration by the 1 078 legal practitioners who preside as commissioners. We call on all to follow their example.
Training manuals for clerks and commissioners will be launched publicly on 21 May 2010, and the first training for commissioners will commence on 19 May, further improving the quality of services rendered by these courts. We wish, yet again, to extend our appreciation to the Swiss Development Agency for their support and partnership in this endeavour.
Outreach awareness campaigns to popularise the use of these courts as well as referrals of cases to the courts by civil society, various pro bono organisations, legal aid clinics and lawyers, are being conducted. We call upon all members in this House to assist us by adopting the rallying cry, "one constituency, one small claims court." [Applause.]
Legal Aid South Africa, has continued to discharge its mandate to facilitate access to justice by providing legal representation, and has done so in a manner that can only be described as excellent - an example to all organisations, public and private.
During the 2008-09 financial year Legal Aid South Africa continued to provide legal aid services at all criminal courts through 62 justice centres and 55 satellite offices. During this period, these centres delivered quality legal services in 430 922 new legal matters, which included assistance in 404 613 criminal matters and 30 309 civil legal matters.
The establishment of a legal quality assurance unit will further strengthen the quality programmes provided by Legal Aid South Africa. Outdoor advertising campaigns, community events and the branding of police and prison cells to increase awareness of legal aid services and human rights continues.
The 2008-09 financial year, was the eighth consecutive year that Legal Aid South Africa achieved an unqualified audit, and the fourth consecutive year of no matters of emphasis in the Auditor-General's reports.
The work of sheriffs forms an important link in the civil justice value chain. The transformation of this sector is one of our priorities. We are implementing measures to enhance the capacity of sheriffs to improve the turnaround time on the service and execution of court processes.
Amendments to deal with flaws in the appointment process of sheriffs will be finalised by August this year, after which the long-overdue process of filling 230 vacant offices, will commence. In this regard, we are consulting with the SA Board of Sheriffs, as well as the organised profession.
We are deeply concerned that underdeveloped and poverty-stricken areas are unable to attract suitable persons for appointment as sheriffs. These nonviable offices constitute almost 30% of the 384 magisterial districts, and most are in the Eastern Cape, Northern Cape and Limpopo. We will soon be introducing legislation that will enable the department to appoint state employees in appropriate circumstances to ensure that communities in these areas are able to enjoy the equal benefit and protection of the law.
At the dawn of our democracy, former President Nelson Mandela, addressing the Africa Regional Workshop of the International Ombudsman Institution in 1996, stated that:
We were mindful from the very start of the importance of accountability to our democracy. Our experience had made us acutely aware of the possible dangers of a government that is neither transparent nor accountable. To this end, our Constitution contains several mechanisms to ensure that government will not be part of the problem, but part of the solution.
We commend the work done by our state institutions supporting constitutional democracy, such as the Human Rights Commission and the Public Protector. We have a constitutional and legal responsibility to support these institutions. We are committed to working closely with them, without compromising their independence.
It is a matter of serious concern that the remuneration and conditions of service of members of a number of our state institutions supporting constitutional democracy continue to be dealt with in terms of an outdated framework that predates the adoption of our Constitution. We are attempting to expedite implementation of the Cabinet decision that this framework must be reviewed.
The SA Law Reform Commission has continued to do valuable work by researching and making recommendations regarding the development, improvement, modernisation or reform of our law. The commission has done so informed by the need to improve access to justice and transformation of our legal system. The commission is busy with 17 substantive research areas approved by the Minister. It is clear that the commission adds value to government's strategic outcomes and priorities, and that there is recognition, locally and internationally, of the tremendous contribution the commission has made to law reform.
I would like to highlight three Bills in our legislative programme that impact most directly upon our objective of ensuring that everyone in South Africa is safe and feels safe: Firstly, the Prevention and Combating of Trafficking in Persons Bill, providing for the prosecution and imposition of heavy penalties for those involved in the trafficking of persons, and for the protection of and assistance to, victims of trafficking, among others. These crimes are perpetrated by transnational syndicates, hence the calls from many states for regional and international co-operation and our ratification of the relevant international instruments. We have demonstrated our intention to deal forcibly with these crimes. A National Action Plan that will enable the co-ordination of preventative initiatives, criminal justice responses, training, public education and the improvement of services to victims of human trafficking, is currently being finalised. We urge hon members to process this Bill with the urgency that it deserves.
Secondly, the Protection from Harassment Bill is a victim empowerment tool that provides for the granting of a protection order by a court of law against persons who harass or stalk their victims. This is similar to the procedures found in the Domestic Violence Act, but it is also available to victims of harassment who fall outside a domestic relationship.
Thirdly, we have the much-spoken-about amendment to section 49 of the Criminal Procedure Act dealing the use of force in effecting arrest. This amendment is not about "shoot to kill", but about bringing section 49 in line with the judgment of the Constitutional Court in the Walters case. This will assist law enforcement officers in the performance of their functions, thereby enhancing efficiency in the combating of crime.
Other Bills which are being prepared for submission to Parliament include the Bills mentioned by the Minister, as well as the Muslim Marriages Bill; the State Liability Bill; the Prevention and Combating of Hate Speech, Racial Discrimination, Xenophobia and Related Intolerance Bill; the SA Human Rights Commission Amendment Bill; and the Customary Judicial Matters Amendment Bill.
One aspect of our legislative programme that often goes unnoticed is the so-called subordinate legislation - the rules and regulations, the nuts and bolts required for the implementation of Acts of Parliament.
Hon members, if the devil is in the detail, then the drafters of subordinate legislation must own substantial tracts of subprime timeshare in hell. However, whenever I meet with the members of this dedicated team responsible for this important work, they smell, not of brimstone, but of nicotine. I take this opportunity, publicly, to urge them to part ways with this habit - we need their skills for many years to come. [Laughter.] [Applause.]
I would like to thank the Minister for his leadership, guidance and wisdom. I would also like to associate myself with the Minister in thanking the chairpersons of the portfolio and select committees, Adv Ngoako Ramatlhodi and Mr Harry Mofokeng, respectively, as well as committee members from all parties for the committed manner in which they have executed their constitutional mandate to legislate, as well as oversee our work. Allow me to express special thanks to Adv Menzi Simelane, former Director-General, as well as the current Director-General, Adv Nonkululeko Msomi and the staff in the Department of Justice and Constitutional Development.
I also wish express appreciation to the Chairperson of the Magistrate's Commission, Judge Ngoepe; the Chairperson of the SA Law Reform Commission, Judge Mokgoro; the Chairperson of Legal Aid SA, Judge Mlambo; the Chairperson of the Human Rights Commission, Adv Mushwana; the Chairperson of the SA Board for Sheriffs, Judge Erasmus; and the Public Protector, Adv Madonsela. The respective members of these institutions and their staff are also thanked for their work. Last, but not least, I wish to thank the lawyer who occupies a special place in the court of my heart, my wife, Kim Robinson.
I would like to conclude where I started, with the debate on the first Budget Vote on Justice in democratic South Africa, on 26 August 1994. It was during that debate that I spoke for the first time in our democratic Parliament. I spoke about young people and justice. I spoke about proposals that had been made by the ANC Youth League for the reform of the juvenile justice system.
On 1 April 2010, 16 years later, the Child Justice Act finally came into operation, giving effect to almost all those proposals by the ANC Youth League.
I make this point to illustrate the painfully slow pace at which the transformation of our legal system has, in many instances, proceeded, and the need to increase the pace of change dramatically. We are confident that, working together, we can speed up change. Through our joint efforts in the Justice, Crime Prevention and Security cluster aimed at fulfilling the outcome and outputs set for the cluster by the President, we can ensure that all in South Africa will be safe and feel safe.
Chairperson, I urge the House to support the budget of the Department of Justice and Constitutional Development for the 2010-11 financial year. [Applause.]
Mr P J GROENEWALD
The DEPUTY MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT
Afrikaans:
Mnr P J GROENEWALD:
Agb Voorsitter, ek wil vir die agb Minister sê sy departement se strategiese raamwerk vir 2010 tot 2014 het 12 prioriteite wat hulle daar stel. Die eerste prioriteit is dat die departement verklaar dat hy sy rol in spesifiek Grondwetlike ontwikkeling gaan versterk. In Program 3 maak hy selfs daarvoor voorsiening dat 'n kantoor gevestig word waar vier amptenare nog voor die einde van die jaar aangestel sal word. Die VF Plus verwelkom hierdie benadering.
Daar is baie van die mense wat vandag hier sit wat nie weet wat die gees was met die vestiging van die 1996 Grondwet nie. Daar is bitter min van die lede in die Parlement en spesifiek van die ANC wat weet wat alles daar gebeur het. Daar was sekere onderhandelinge gesluit. Daar was 'n sekere gees wat geheers het met die vestiging.
Daar is mense wat dink dat ons Grondwet 'n finale Grondwet is en dat dit nou daar gelaat kan word. 'n Grondwet is 'n lewendige dokument. Ek wil vandag vir die agb Minister sê dat daar opvolggesprekke moet plaasvind en die VF Plus is van mening dat daar 'n opvolgskikking moet plaasvind wat betref sekere aspekte in die Grondwet. Ons het nou 15 jaar gehad van die Grondwet. Ons kan sien wat die positiewe dinge daarin is en wat die negatiewe aspekte is. Die negatiewe aspekte moet dan aangespreek word om dit 'n nog beter Grondwet te maak. So ons sal, wat dit betref, met die Minister skakel.
Agb Minister, dit is so dat die klem gewoonlik op Justisie is, en dat Grondwetlike ontwikkeling partymaal uit die oog verloor word.
Maar dit is ook so dat, as ons gaan kyk na die misdaadsituasie – en ek het geluister na wat u gesê het oor die strafregstelsel, en ons weet van die vorige Adjunkminister wat twee jaar gelede daarmee begin het, ens – die werklikheid in Suid-Afrika is nogsteeds dat slegs ongeveer 10% van misdaadsake wat aangemeld word, suskesvol in ons howe eindig. Dit beteken 'n misdadiger het 'n 90% kans om weg te kom met misdaad in Suid-Afrika. Ons verwelkom die stappe wat u neem, maar ek wil vra, agb Minister, dat u dit sal moet versnel, want die misdaad het nie tyd om te wag nie; inteendeel, hoe langer daar gewag word, en hoe meer tyd dit neem om die prossesse in werking te stel, hoe beter vir hulle.
Daar is ook 'n ander aspek. Die verhoor en die regskoste van Mnr Jackie Selebi word gefinansier deur die belastingbetaler. U departement gee die magtiging dat hy staatsgelde mag kry, maar die polisiedepartment moet dit betaal. Nou, agb Minister, ek hét al 'n vraag in die verband vir u gevra. Ons wil graag weet: wat is die kriteria? Hoe is dit moontlik dat 'n persoon soos Mnr Jackie Selebi, wat aangekla word van misdrywe wat geensins verband gehou het met sy werk en die uitvoering van sy ampspligte nie, toelaat word om belastingbetalers se geld vir sy regsonkostes aan te wend? Dit skep die indruk dat ons nie misdaad beveg nie, maar dit bevorder. Dankie.
Mr J B SIBANYONI
Mr P J GROENEWALD
IsiNdebele:
Nmz J B SIBANYONI: Sihlalo oHloniphekileko, namaLunga ahloniphekileko wePalamende, ngingalibali nakibo abavela ekorweni ekulu yomThetho Sisekelo, ngiyalotjhisa ngithi nina enakhula silibele. Akwande!
Ummongo engizakukhulemela phezu kwawo namhlanjesi uthi:
English:
Accelerated universal access to justice for substantive protection, promotion and fulfilment of the enshrined rights to human dignity, equality and freedom.
The National Democratic Revolution, NDR, seeks to build an open and free society in which discrimination finds no space to operate in and to promote the quality of people's rights as well as the promotion and protection of human dignity.
The constitutional democracy should protect its people from crime and ensure that everyone has equal access to justice. The constitutional supremacy supported by the Bill of Rights enjoins the state to respect, protect, promote as well as to fulfil the rights contained in the Constitution.
The Constitution guarantees the right to equal access to courts in section 34 as follows:
Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.
In common law, infants and minors were deemed not to have the capacity to litigate, however, the new Children's Act has extended the right to bring a matter before the court to all children. The Child Justice Act created a suitable justice system for children who are in conflict with the law. In this regard, access to justice has been extended to children who are among the most vulnerable of our society.
I commend the department endeavours to bring justice services closure to the communities previously discriminated against to ensure their access to justice services as required by the Constitution and the bill of rights.
In the 52nd National General Council held at Polokwane in 2007, the ANC resolved, among other things, that all official languages are to be used in the courts so as to enhance access to justice. No one should be excluded from meaningful participation in the court in proceedings due to language barriers. The Constitution recognises this objective in section 6(2) namely:
Recognising the historically diminished use and status of the indigenous languages of our people, the state must take practical and positive measures to elevate the status and advance the use of these languages.
The Constitution is referring to the effective use thereof to ensure equality as section 9(3) also prohibits discrimination on the basis of language.
The department aims to build courts to provide required justice services to people. This includes improving the quality and quantity of justice services, providing justice in people's indigenous languages, including Braille and sign language, educating the public about their rights and transforming courts to comply with their constitutional mandate of a self-sufficient and trusted arbiter of individual and societal conflicts.
Universal access to justice needs to recognise that since 1652 when Jan van Riebeeck arrived in the Cape of Good Hope bringing along Roman-Dutch law with him, through to 1795 when the Cape was under British control for the first time to date, South Africa has been and remains a hybrid legal system. In that regard customary law as applied mainly by traditional courts persists concurrently with common law and statute law as applied by western courts across their jurisdictions. In this regard, Polokwane resolved that traditional courts must be aligned with our constitutional dispensation and that our indigenous law be incorporated and developed.
The colonial judicial system did not recognise African indigenous jurisprudence and when apartheid shows recognition for customary law, through the then Native Administration Act, which was later called the Bantu Administration Act and currently the Black Administration Act, it was in order to create a system for subjugating and suppressing Africans, thus some of the customary law provisions and sanctions offend against our Constitution.
In that regard, it is important that indigenous law be revived and its integrity restored. However, reviving the integrity of indigenous law without mainstreaming it and recognising traditional courts will not be sufficient for ensuring universal access to justice. It is thus important that traditional courts be enabled to comply with the Constitution regarding equal treatment of all legal subjects regardless of gender or lineage. The Traditional Courts Bill has been prioritised for this year, 2010. The so-called Black Administration Act of 1927 will be abolished, that is repealed, during this year.
Economic inequality affects access to justice such that the poor who find themselves on the other side of the law do not have the means to secure legal representation and, were it not for state intervention through the Legal Aid Board, many people would be convicted of crimes they never committed as a result of lack of legal representation. [Time expired.] The ANC supports this Budget Vote.
IsiNdebele:
Ngiyathokoza, Sihlalo. [Iwahlo.]
Mr S N SWART
Mr J B Sibanyoni
Mr S N SWART: Chairperson, the ACDP welcomes the increase in the departmental budget and we will support this Budget Vote. The department leads the criminal justice cluster in a fight against crime. We look forward to the effective implementation of the seven-point plan flowing from the criminal justice review. This is an attempt to ensure that all South Africans feel free and are save. However, in this regard it is a matter of concern that only 317 000 criminal cases were finalised although more than a million cases were enrolled. Clearly, our courts are overstretched and require further capacity. Our prosecutors also need assistance. We cannot afford to lose experienced prosecutors, and for that reason we cannot understand why experienced High Court and senior prosecutors were redeployed to lower courts. Thankfully this decision was reversed.
In this regard the ACDP shares the view that Parliament should play a key role in the appointment of the National Director of Public Prosecutions, NDPP. The judiciary has come through a particularly challenging year following the complaints of interference lodged by the Constitutional Court Judges and ensuing litigation and investigation by the Judicial Service Commission, JSC. The recent Cape High Court decision striking down the JSC decision resulted in this matter lingering on. We trust that the JSC will now speedily resolve this issue.
The ACDP also shares the views expressed on the exclusion of Advocate Jeremy Gauntlett from appointment to the Bench. It is a shocking and illogical decision to say the least, particularly in view of the time he has spent on the Lesotho Bench. We would urge him to apply again.
The ACDP is also concern about the increase in human trafficking in the run up to the Fifa Soccer World Cup. It was the ACDP that requested the Justice Portfolio Committee to hold an urgent briefing on this issue following the tabling of the Trafficking in Persons Bill.
Whilst we are still to consider this Bill, we want to make it very clear that, at the moment, there is more than sufficient legislation in place, to successfully prosecute perpetrators of human trafficking. This is born from the successful prosecution of traffickers in KwaZulu-Natal on a number of charges including racketeering. So criminals be warned! We will not tolerate the abuse of our women and children.
The ACDP is concerned about the degree of victims support available to victims of trafficking following briefings. Minister, as Head of the criminal justice cluster, we would urge you to ensure that police officials are properly trained and that there are sufficient safe houses to accommodate such victims although these are not directly your line function. As cluster Head, we would urge you to look at that, particularly in the rural areas. Please also ensure that provincial task teams are established in all provinces as a matter of urgency.
The long-awaited Child Justice Act commenced on 01 April 2010. This followed some 10 years of drafting and deliberations. Diversion and restorative justice have however been applied in our courts with great success for a number of years. The ACDP played a key role in finalising this Act and will closely monitor its implementation. All that we can say at this stage is, "at long last!" We have implemented it at long last.
As far as the Chapter 9 Institutions are concerned, we need to take responsibility for not implementing all the decisions of the ad hoc committee. Clearly, this unit needs to be further capacitated to improve oversight and engagement by the relevant portfolio committee.
We appreciate that the department faces many and varied challenges, however the challenges can be overcome. Take for example the Legal Aid Board that was in a chaotic state a few years ago, through perseverance and hard work it has been transformed to a world leader in the provision of legal aid. Lastly, the ACDP would like to thank all those dedicated members of the judiciary, prosecutors, court officials who tirelessly seek to uphold the Constitution and the rule of law by providing justice on a day to day basis. I thank you. [Applause.]
Prof L B G NDABANDABA
Mr S N SWART
Prof L B G NDABANDABA: Chairperson, Minister, Deputy Minister, and the hon Chief Justice. In the time allocated to me, I will concentrate on the deepening, consolidating and broadening of the judiciary operations in our country. The new democratic dispensation was crowned in February 1997 with the new Constitution coming into effect, which mirrored in many ways the spirit of the Freedom Charter. The Constitution did not just displace the parliamentary supremacy that churned out unjust laws and subjected the judiciary to enforcing such draconian laws which changed with lightning speed. The apartheid regime had of course pushed this country into isolation.
Our Constitution does not only declare collective ownership of South Africa as does the Freedom Charter, but also entrenches and extols equality, which is the antithesis of separate development and racial segregation practiced by the past regime. It is therefore absurd to imagine that the judicial infrastructure which was tailor made to protect the privileges of the oligarchic racial minority and to suppress the majority, will automatically present itself as a trusted servant in the hands of a democratic dispensation based on the values of equality, human dignity and freedom.
While one does not seek to venture into the terrain of questioning the fairness of the blindfolded lady justice, it is not far fetched to imagine that the orientation of those who are responsible for the fair administration of justice and the alignment of the infrastructure should match the national agenda; that the judiciary is independent as part of the three arms of the state as function of the Constitution and the ANC is determined to protect the independence of the judiciary and to support the judiciary at all times. It is a fact that a legal system of any country is a function of power relations recorded in history.
It is a historical fact also that Roman law was not accepted in England and that England continues to practice English common law which is a product of the wise judgements of its own jurists. The question begs an answer then as to why South Africa would seek to continue practicing a mixed legal system which is a product of a compromise in the Treaty of Vereeniging at the end of the Anglo Boer war, which itself was triggered by the refusal of the Boers to accept English common law. Whilst one might not be advocating for wanton jettisoning of Roman Dutch law and English common law, at least one is contending that African jurisprudence, which is underpinned by the values of Ubuntu Botho, which avers that a person is a person because of others and by extension extols collectivism and individualism.
The question should be asked whether indeed legal positivism, which seems to drive Roman Dutch law, is a philosophy that can foster social cohesion and nation-building. Should we be saying that the law does not have to be moral for it to be right or should we embrace natural law and say in Latin lex inuista non est lex? If the law is unjust, then it is not law at all. Should we not subject our legal system to our values? The question begs an answer whether the adversarial system, which purports adversity and conflict between the parties in a lawsuit, is a system that can foster rehabilitative justice.
Should we as South Africans continue with jurisprudence that isolates the accused from the society and seeks to punish an offender in a retributive way? African jurisprudence, as practised throughout the continent of Africa, despite marginalisation, is inquisitorial and reconciliatory. It seeks first to reconcile the parties in dispute among themselves, and the community later. African jurisprudence does not see a lawsuit as a war between the parties, but a misunderstanding or deviant behaviour that can be remedied or in exceptional circumstances shunned and punished.
In reference to the transformation of the judicial system to which the Minister and the Deputy Minister referred, the Polokwane National Conference contends that:
There should be a single, accessible and affordable court system, including the integration of the Judicial Service Commission, JSC, and the Magistrates Commission, MC, into a single appointment mechanism and the establishment of a single grievance procedure for judicial officers.
This resolution is in recognition of the quasi federalism that is obtained in the administration of justice in our country today. The status quo ante is that Provincial High Court decisions stand uninfluenced by other Provincial High Courts, but the doctrine of stare decisis, judicial precedent, binds each Provincial High Court to its own decisions and subsequently binds all lower courts in that province to the precedent set by that High Court.
The effect of this practice is that there are noticeable differences between the legal practices in different provinces, which at times mean that similar offences are dealt with differently in different provinces. This was more pronounced during the days of the TBVC states where some Bantustans had outlawed the death penalty while others had not. The matter of the JSC and MC as it was mentioned by the Minister and the Deputy Minister tends to impose a difference between Presiding Officers on the basis of which court they preside upon.
This situation is undesirable as it breeds unnecessary inconsistencies and imposes a hierarchy whose only effect would be to affect operations. Mostly this situation causes duplication of scarce resources on two bodies with the same mandate but occupying different levels. Maybe there should be one National High Court with provincial divisions to foster coherence, ensure consistency in the judicial operation and fairness in the administration of justice.
A few remarks about the traditional courts, as showing transformation - these courts have been mentioned by the Minister, Deputy Minister and hon Sibanyoni. It seeks to affirm the recognition of the traditional justice system and its values, based on the restorative which underlines justice and reconciliation, to provide for the structure and functioning of traditional courts in line with constitutional imperatives and values.
Our Constitution recognises the institution status and role of traditional leadership. We cannot doubt that. The essential motivation behind the introduction of the Bill is not to create a parallel justice system against the ordinary system of our courts, but to affirm the values of the traditional justice system which are based on restorative justice.
Another area of transformation is indicated by the Child Justice Act. I will not go into the details of this Act, but basically this Act has established a criminal justice system for children who are in conflict with the law and are accused of committing offences. It provides a number of items that I won't mention because of time.
This Act therefore transforms our justice system by creating a parallel system for children which are in conflict with the law. The transformation of the judiciary is not complete without the alignment of the demographical representation among judges. Some commentators have argued that representation should be trumped by at least 15 years' experience. The unfairness of this statement derives from the fact that very few black people were jurists 15 years ago. Thus if such a statement were to be followed to the letter, the judiciary would remain dominantly white and male for the next 58 years. [Time expired.] Thank you. [Applause.]
Mr J H Jeffery
Prof L B G NDABANDABA
Mr J H JEFFERY: Chairperson, Minister, Deputy Minister, Chief Justice, Deputy Chief Justice, Public Protector, Chair of the Human Rights Commission, hon members, I rise as the last ANC speaker in this debate in support of the budget for the Department of Justice.
I would like to start by responding to some of the issues that some of the opposition parties raised. For those members who are not members of the Justice Committee or who are members but do not attend meetings, we work very well in the Justice Committee on a multi-party basis. Basically, everybody speaks, everybody gets listened to, and the views of any member, whether they be from the majority party or the opposition, get taken seriously and take effect. It is a pity, but, I suppose, understandable, that parties have to come here and start politicking. I suppose that that is what they feel they need to do.
I want to deal with two issues that parties raised. Maybe before that, I would like to congratulate the Minister on signing his performance agreement. Perhaps we, as members of the Justice Committee, should look at whether to sign performance agreements. Maybe we could start with the hon member from the IFP, the hon Van der Merwe, who could probably put the following into his performance agreement, "attend at least one meeting of the Justice Committee per year." [Laughter.] Because he has not attended any.
Usually, we see him during the Budget Vote. It is a pity we do not see him here today. I do not know if he is sick or if he has some court case in his practice, but anyway, welcome, hon Singh. It is nice to have you here, but maybe you should look at the performance of your hon Chief Whip – he has not attended one meeting. His alternative, Dr Oriani-Ambrosini, attends, but he is only an alternative, and he runs between many committees, I know.
Going onto the issue of the National Prosecuting Authority, NPA, I think it is clear that we need further debate on the matter. It is a pity that members have raised issues here when the National Director is here but cannot defend himself and cannot speak. One of the members who raised issues, the hon Mtapane, was not even there when the National Prosecuting Authority appeared before the committee. I think it is clear – we need further discussion, and I think we need to discuss again what is actually meant by the National Prosecuting Authority and the issue of independence.
The hon Smuts surprises me. I mean, she was there when the Constitution was drafted. She knows, I presume, that in many authorities of the Commonwealth, the head of the prosecuting authority forms part of the executive. It is a political appointment, and that is also true in America. I think that it may be olde worlde, but that is what happens in most other countries. The prosecuting authority is an extension of the executive. What happens is that the prosecuting authority needs to exercise its functions and make decisions on whether to prosecute or not, without fear or favour.
The authority itself, however, is not independent. That is why the Constitution does not say anything about the prosecuting authority being independent. You may wish it, but it does not say that. It says "national legislation must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice". It does not say, as it does with the courts, and let me just help you, the courts are independent and subject only to the Constitution.
If the intention was that the prosecuting authority was to be independent, as you put it, why did the Constitution not say that? Instead it stresses a role for the National Director. We have had these accusations of his interference, which were explained when he came and spoke before the committee. The same goes for the role of the Minister. Perhaps we need to debate these things again, but it is interesting that, suddenly, there is this wish that the prosecuting authority be independent, which it is not. So, let us debate that further.
The other issue is the question of the Judicial Service Commission, JSC. It is worrying that there is a tendency that has come up, where judges seem to have lobbyists, or people seem to have lobbyists for them to be judges. Unlike when you started in Parliament, hon Smuts, the appointment of judges is not a political appointment by the President on his or her own. Judges are appointed on the recommendation of the JSC as set out in the Constitution.
I think it is wrong that parties ...
The TEMPORARY CHAIRPERSON (Dr T S FARISANI): Hon members, I am not calling for order, because I know the hon member can handle the heckling. Proceed. [Laughter.]
Mr J H JEFFERY: Thank you. I was hoping, Chair, that you would throw her out, but maybe she does add to the debate as well. Yes, the point I am making is we need to be careful about expressing preferences as political parties for candidates. The JSC is there. Again, it and the composition thereof are quite clearly set out in the Constitution. I think everybody supported it.
Just for those who think that it is an ANC structure, it is made up as follows: the Chief Justice, the President of the Supreme Court of Appeal, one judge president designated by the judge presidents, and the Minister. Then, two practising advocates are nominated from within the advocates' profession to represent that profession. They are not ANC nominees. There are two practising attorneys nominated from within that profession – not ANC nominees, presumably – one teacher of Law, six persons from the National Assembly, three of whom have to be from the opposition, and four from the NCOP. Four are designated by the President, presumably not because of their ANC membership, and then, when considering matters relating to a specific high court, the judge president of that court, and the Premier. That brings you to a total of 25.
If you do the maths, you get to eight ANC members if you include the Minister. You get nine, I suppose, if it is a province where an ANC member is the Premier. However, this is not in the case of the Western Cape, which was considering the appointments for judges to the Western Cape.
So, again, to say that there is an ANC bloc – I mean, eight ANC members out of 25 – is really not fair and not correct. I think it would be good if hon members could read the Constitution when it comes to the composition of the JSC. We should remember the process that was followed before, but hon Smuts, I do not know whether you said anything to P W Botha about a problem with his appointment of judges. It is just interesting, however, to see the born-again democrats who have problems with the appointments of judges. [Laughter.] [Interjections.]
The TEMPORARY CHAIRPERSON (Dr T S FARISANI): Hon member, I did not hear you.
Ms M SMUTS: Might I ask a question of the hon Jeffrey?
Mr J H JEFFERY: If I have time at the end, but not for the moment.
The TEMPORARY CHAIRPERSON (Dr T S FARISANI): Hon member, are you taking a question from her?
Mr J H JEFFERY: Only at the end, if I have time.
The TEMPORARY CHAIRPERSON (Dr T S FARISANI): Hon member, he has democratically turned down your request. Proceed.
Mr J H JEFFREY: Thank you. Now, turning to other aspects relating to the portfolio, I think the first point that I wanted to make, Minister, is that we have a very good relationship with the officials from the department. They attend meetings regularly, they quite clearly care about the job they are doing – this is now the officials that we interact with. They are conscientious, they go the extra mile in responding to the queries or issues that we raise, or the work that we give them to do. So, I would like to praise the department in their interaction with the portfolio committee.
I would like to congratulate Director-General Msomi on her appointment, and to say that in the short time she has been here, we have also been very impressed with her interaction with the portfolio committee and for giving it time in what must be a busy schedule. We worked very well with the regulations on the Child Justice Bill in getting that resolved and getting regulations that everybody could accept. Generally, when we sit in the portfolio committee, the reports from the department and from the National Prosecuting Authority, NPA, are good. The plans are good. The attempts to address the problems are good.
The problem is that on the ground things are often different. Minister, I read a report of your unannounced visit to certain courts, and read that you came across a number of complaints from ordinary people. They were not getting the service that they were expecting, that officials were rude, unhelpful, and could not be bothered, in some cases. This is something that we need to get to grips with. It is a pity that the portfolio committee, because of our legislative and other loads, we have not had enough time to get out into the courts to do unannounced visits ourselves.
We have got to look at engaging with these officials to establish what the problems are. We also need to look at what they are saying. Why are they unhelpful? Why are they being rude? Is it that they do not like their jobs, and if so, are they frustrated? Why are they frustrated? Is it by bureaucracy, by policies that they do not like, by supervisors? There is a slogan of government: Together we can do more. I think we need to look at that in the Justice context, not just with senior officials, but with officials on the ground. We need to engage and involve them in improving the quality of justice that is given.
Some time ago, we, as the committee, conducted oversight visits to courts. One of the lessons seemed to be that those courts where people spoke to each other, where everybody spoke to each other and there were meetings of the magistrates, the prosecutors, the administrative staff, often involving the police, were the courts that worked the best. And the courts where the parties were not talking to each other and engaging each other were the courts where people seemed to be the unhappiest. So, I think that that is something that I would really recommend.
Hon Minister and members, lawyers are not known for their small egos, and in the justice system falling under your department, you have got a number of role-players, some of whom have fairly large egos. [Laughter.] You have the department itself, the NPA, and the different sections within it, Legal Aid South Africa, the court administration, the magistrates and the judges. I think it was the Deputy Minister who spoke about how long it had taken to actually finalise the Child Justice Act. Things do take a long time, and I think it is because of the different role-players in the whole system.
If we are going to get things through, we need to make sure that all the role-players work together and co-operate. Something should not be foisted on one group by another. It basically means that there should be communication and consultation. I am very pleased, Minister, with the Superior Courts Bill, that there has been engagement with the judiciary, and I hope that in the processing of the Bill by Parliament through our committee, that we will continue that.
Those are the two recommendations I would make in terms of improving the justice system, ensuring that the role-players consult and work together, and ensuring that even the officials at the coalface of delivery are involved and are taken along.
I then wanted to raise some issues relating to special courts. The debate relating to special courts seems to have swung to and fro. There are arguments in favour of the idea that there are categories of crimes that are complicated and require a specific knowledge of the law, both statute and case law, on the part of the prosecutors and presiding officers, and therefore you need expertise to build up. There are arguments against that idea, which, I think, mainly seem to be coming from the presiding officers, that prosecutors and magistrates should be trained and have the ability to deal with any offence.
The problem is, from a defendant's point of view, if you are accused in a court, and if you have the money, you will go to a legal representative who is skilled in that area of law that you have been charged with. So, it makes sense that there should be expertise built up from the prosecutors' and magistrates' sides. Indications seem to be that where there are specialised courts, that these are effective. I am told we have 10 commercial crime courts; they have a conviction rate of 92,8%.
The problem seems to be with the sexual offences courts, where the numbers seem to be declining. Aside from the expertise as to the rules of evidence, there are special skills needed, particularly by a prosecutor – how to lead a witness who has been raped, for example, or how to lead a child. You may have intermediaries. You may have evidence given on video camera. So, I would urge that the issue of special courts needs to be looked at. We need to go back to increasing the number of special courts, particularly for sexual offences. It is necessary. It is something that we can debate, but if there are problems, let us have a debate about it. Let us get it resolved.
When it comes to the judiciary and the magistracy, in the past, the committee has engaged the magistracy and the judiciary through the Chief Justice coming and speaking to the committee. I think it is something that we should look at again, not, obviously, to impede upon the independence of the judiciary, but to hear from the Chief Justice and the Magistrates' Commission what their views are about the work that we are doing. Thank you. [Time expired.]
The MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT
Mr J H JEFFERY
The MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT: Chairperson, hon members, while the debate is raging on about the independence or otherwise of the National Prosecuting Authority, NPA, I continue to exercise final responsibility in terms of section 179 of the Constitution. It is for that reason that I had a meeting with the top leadership of the NPA to discuss these issues and also within the context of the performance agreement that I have signed with the President as well as my responsibility to deliver on the delivery agreement that I have indicated and they have accepted that that restructuring will be subjected to this process that I am leading in government. So, my schedule section 179 works.
On top of that, if one could also read judgement by the Deputy President of the Supreme Court of Appeal, Deputy President Harms, on the matter of the President and the NPA; on this issue, there is a very good articulation and interpretation of the Constitution, which reinforces the points that have been made, that the fathers and mothers of this Constitution were not asleep when they crafted the Constitution in the manner in which they did.
On the issue of the civil justice system, the reason we are doing this review is precisely what we are saying that we need to ensure that we address speed, simplicity and cost in how we provide services to our people and also to look at other alternative dispute resolution measures that have to be part of our system in South Africa.
If one looks at the road accident fund matters that are clogging our courts throughout the country, especially in Gauteng, on the issue of an alleged person who has fled to Namibia, I wish to highlight that my predecessor dealt with this matter and he issued a notice for this person to be extradited to Italy, which I have confirmed as the current Minister.
What has happened right now that has brought an application to court alleging that this notice is unlawful. So, that is the case that is before court at the moment. Hopefully this matter will be finalised between 18 and 20 May this year.
On the issue of the Child Justice Act, since 2009, before the implementation of this Act, all the role-players that are key to the implementation of this legislation have been trained magistrates, prosecutors, clerks of court, probation officers, police personnel and training is continuing for all of them throughout the year.
I have full confidence that this is working according to plan. And, on top of that, the intersectoral and interdepartmental committee that is co-ordinated by the director-general is working very hard to ensure that it implements this Act.
On the issue that was raised about the appointment of Adv Mpshe as acting judge, the Constitution is very clear that the Cabinet member responsible for the administration of justice appoints acting judges. I have no intention of not exercising this constitutional obligation. So, that is why I appointed Mpshe.
The law society and the general council of the Bar wrote to me indicating their views about this matter. I issued a statement, which is a matter of public record, that subsequently gives my legal opinion and that of the general council of the Bar, which I am still studying. But as of now, I think the decision I took is the correct one.
On the effectiveness of the criminal justice system, as I have indicated, I have signed a performance agreement and the main thrust of this performance agreement is around the implementation of the criminal justice system in South Africa.
We have lots of challenges that we are facing, particularly my predecessor, the combative Johnny de Lange, as my shadow Minister has described him. He did sterling work in terms of starting this process. We are no longer reviewing, but implementing the seven-point plan so that we can ensure that what I saw in Khayelitsha on Monday does not recur. I was there for about 30 minutes and about five cases of murder, robbery and theft were postponed - all of them – because the police had not yet completed their investigation.
What this criminal justice system seeks to achieve is to make sure that there is a seamless chain of events that start with the crime scene. We need to have proper detectives. We do have technology and we need to use technology so that by the time the matter goes before court, it is court ready and not scrambling around looking for witnesses.
However, related to that, there is work that is being done by the Chief Justice and the heads of court in order to ensure that the judicial officers are empowered to take charge of their courts. Right now, the pace of litigation is determined by the litigants. The judicial officers are subjected to this abuse by litigants.
So, if we give this power and authority to judicial officers so that when they say that the trial takes place on 5 May, all these things that should have happened before should happen. If everybody is there in court and for any reason they want postponement, that will not happen. I think in that way we will be able to ensure that we provide a proper justice service to the people of South Africa.
Thank you, hon members, for the contributions you have made, and I hope you will pass this Budget Vote. [Applause.]
The TEMPORARY CHAIRPERSON (Mr Farisani): Hon members, you are reminded of the EPC on Public Works in Committee Room E249, at 16:30 today. But hon members, we must respect each other, including the Chairperson.
Debate concluded.
The Committee rose at 16:23
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