Hansard: NA: Debate on Vote No 24 – Justice and Constitutional Development
House: National Assembly
Date of Meeting: 29 May 2013
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Minutes
UNREVISED HANSARD
EPC – NATIONAL ASSEMBLY
Wednesday, 29 May 2013 Take: 387
START OF DAY
WEDNESDAY, 29 MAY 2013
PROCEEDINGS OF THE NATIONAL ASSEMBLY
_________________
The House met at 14:02.
Mr C T Frolick, as House Chairperson, took the Chair and requested members to observe a moment of silence for prayers or meditation.
The MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT
UNREVISED HANSARD
EPC – NATIONAL ASSEMBLY
Wednesday, 29 May 2013 Take: 387
START OF DAY
APPROPRIATION BILL
Debate on Vote No 24 – Justice and Constitutional Development
The MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT: Chairperson, hon members, distinguished members of the judiciary, heads of constitutional and statutory bodies, comrades and friends, ladies and gentlemen, it is almost 20 years since South Africa chose the path of democracy in contrast to that of self-destruction to take up its rightful place amongst the international family of nations.
In less than a year, South Africans will be heading to the polls to elect the fifth government that will continue the journey that we have started in 1994. Not only has this new nation freed itself from the shuttles of more than 300 years of colonialism and four decades of apartheid misrule, but has also embarked on a journey of laying down a legal framework for a just order as underlined by our Constitution.
Just four days ago on 25 May, South Africa and the rest of the continent celebrated the fiftieth anniversary of the establishment of the Organisation of African Unity, the OAU - the predecessor of the African Union. This commemoration is of significance to South Africa in particular, as the decolonisation of Africa and the demise of apartheid role in South Africa was part of its primary focus. Half a century later, the continent has been decolonised.
As we forge ahead with the African Renaissance, we are reminded of the wise words of one of the continent's iconic freedom fighters, Dr Kwame Nkrumah, when he was addressing the Organisation of African Unity in 1964 when he said, and I quote:
The struggle against colonialism does not end with the attainment of national independence. Independence is only the prelude to a new and more involved struggle for the right to conduct our own economic and social affairs, to construct our society according to our own aspirations unhampered by crushing and humiliating neo-colonialists controls and interference. [Applause.]
Today, as a proud South African and an African, I am greatly honoured and privileged to present before this House and all South Africans, the Budget of our extended justice family. I do this on behalf of the Department of Justice and Constitutional Development, the Office of the Chief Justice and the entire justice family. I also renew our pledge as servants of the people to endeavour, protect and promote the right to freedom and security of all people, and to uphold and defend the rule of law in our quest to ensure that all in South Africa are and feel safe. We reaffirm our commitment to building a safer South Africa during this Child Protection Week. Children are our future and like our fledging constitutional democracy, they deserve to be treated with the outmost of care. [Applause.]
Our Constitution is an embodiment of the values and ideas of the Freedom Charter, which was shaped and championed by the ANC during its 100 years of selfless struggle for freedom and justice. Our country's transition from a bleak past to a bright future has been phenomenal. During this transition spanning over 19 years, Parliament has enacted 1 294 laws - Acts of Parliament - while the magnitude of policies and programmes adopted and implemented by the executive is beyond imagination. These laws and policies have been translated into strategies, programmes and plans that give effect to the transformation goals in our Constitution.
It is through these programmes of the ANC-led government that today millions of our people are able to enjoy the rights in the Bill of Rights, including the right to equal protection and benefit of the law – housing, basic education, health care, water and social security. At this time of the budget debate, this House is inundated with statistics and figures showing the strides that we, as a country, have made in changing the lives of South Africans. The facts are there for everyone to see.
We continue to put measures to enhance the capacity of government to deliver on its constitutional mandate. I am pleased that government, through the Ministry of Performance, Monitoring and Evaluation, has initiated a research to assess both the gains we have made and the challenges we have encountered in the past 19 years of democratic rule. The assessment on the impact of the decisions of the Constitutional Court and the Supreme Court of appeal will compliment this initiative in order to ensure that we give South Africans the holistic picture of how far we have progressed as a country.
I am pleased to indicate that the process relating to the appointment of a suitable research institution to conduct this important exercise is completed. It is anticipated that a preliminary report of this assessment will be completed by 31 March 2014.
As the ANC-led government, and indeed as a democratic state, we are not basking in the glory of our successes, but we continue to tackle challenges of unemployment, inequality and poverty, which still persist. Our icon, President Mandela, warned us when he was addressing the campaign to make poverty history in London's Trafalgar Square in 2005, he said, and I quote:
Like slavery and apartheid, poverty is not natural. It is manmade and it can be overcome and eradicated by the action of human beings. And overcoming poverty is not a gesture of charity. It is an act of justice. It is the protection of fundamental human rights, the right to dignity and descent life. While poverty persists, there is no true freedom. [Applause.]
In advancing its progressive agenda, the ANC at its Mangaung conference, adopted a fundamental and radical shift towards economic transformation. Our government, anchored by the legislature, executive and judiciary as its three equal branches, is solid and unshakeable. The autonomy and territory of each branch is safeguarded by the separation of powers and the rule of law entrenched in our Constitution.
Our President's proclamation of the Office of the Chief Justice as a separate entity from the Department of Justice and Constitutional Development reaffirms the ANC's commitment to the independence of the judiciary. This year, we shall be commemorating the legacy of injustice as caused by the draconian Land Act of 1913. Our Constitution provides a framework for individuals and communities, who were dispossessed of their land, to be restored to their land or be redressed equitably.
We look to our courts to develop jurisprudence to guide us regarding the interpretation and implementation of the provisions of the property clause in our Bill of Rights. It is for this reason that through the Department of Rural Development and Land Reform, we have proposed legislative amendments that will enable the Judicial Service Commission to recruit judges who possess appropriate skills and the required judicial philosophy to redress the devastating effects of land dispossession. I am please that my colleagues and the Land Affairs and Rural Development is pursuing these amendments. Of the 1294 Acts passed by Parliament since 1994, 148 of them are attributed to the justice sector. These Acts focus mainly on the following pillars of the justice system: building and strengthening state institutions that support our constitutional democracy; transforming the judiciary and the justice sector broadly; fighting crime and corruption; and broadening access to justice. I will now reflect briefly on some of these pillars.
In so far as institutional reform is concerned, democratising the state and its institution is one of the whole marks and imperatives of our constitutional democracy. In our justice environment, the amalgamation of the 11 eastward separate and fragment administrations of justice are the highlights of our successful transition to democracy which laid down the foundation for further institutional reform.
A strong and legitimate body of state machinery was created to promote and advance access to justice. These include the Office of the Public Protector, the SA Human Rights Commission and Legal Aid SA. Through these bodies, many of our people are able to enjoy the rights enshrined in our Constitution. These constitutional bodies, together with the courts of our land, all embrace our common adage that permeates the entire justice sector; namely, that "justice delayed is justice denied."
The ANC-led government has introduced radical reforms which are aimed at strengthening the judiciary as a separate branch of government. The Constitution's 17th Amendment Act, which the President ascended to in February this year, has broken new ground in our judicial landscape. These amendments confer on the Chief Justice, the authority to lead and guide the performance of judicial functions by all judicial officers. The Constitution now enjoins the Chief Justice to develop standards for the performance of all judicial functions. These standards, which would be made public, will address challenges caused by long postponements and delayed judgements which clog court rolls at all our courts. With the implementation of these amendments, the judiciary will have the necessary armoury to drive caseflow management.
The amendments also put beyond any doubt, the position of the Constitutional Court, as the Apex court of the Republic. It can now hear any matter under any law that raises an arguable point of law of general public interests. When these amendments were initiated, it was argued by some who sought to sow confusion and mistrust amongst South Africans that our government introduced these in order to curtail the powers of our Constitutional Court.
On the contrary, these amendments put the Constitutional Court firmly on the driving seat of our jurisprudence across all facets or our law. It is at the level of the Constitutional Court that the delicate power of the judicial review embodied in our Constitution, ultimately resides. Hon members, we will be interested to know that since 1994, the Constitutional Court has declared only 17 provisions of different Acts of Parliament unconstitutional. This translates to less than 1,6% of all legislations passed by this House since 1994. This is a drop in the ocean and affirms that our ANC-led government has safe democracy in its hands. [Applause.]
We have made strides in our quest to transform the judiciary. Today, 61% of judges are black as compared to one black judge in 1994. [Applause.] Similar progress has been made in addressing race and gender imbalances in the magistracy. Of the 1 661, 974 are black; 687 are white; 647 are women; and 1 014 are men. [Applause.] We still face challenges though, regarding the appointment of women judges. Out of 239 judges, only 76 are women. This is a matter of concern to government and the Judicial Service Commission, which plays a significant role in the appointment of judges.
It is also disturbing to observe that the debate regarding the slow pace in appointing women judges is raised alongside that of white male judges. Let me put the record straight, out of a total of 311 judges appointed since 1994, 113 are white males compared to 76 women judges. This shows that white males outnumber women in the appointment stakes thus far. Therefore, drastic steps are needed to replenish and nourish the pool from which female judges can be appointed. The challenge does not lie with the dispensation of silk or senior counsel as some argue, but with the transformation of the legal profession broadly speaking, and also the general gender transformation of South African society. Of the 5 708 enrolled advocates, only 1 841 are women, whilst there are 7 147 female attorneys with the total number 21 463 attorneys.
From the department's point of view, we have taken bold steps by increasing the allocation of briefs to legal practitioners from previously disadvantaged individuals from 65% which we set for ourselves last year, to 70% this current financial year. We are very optimistic that our target will benefit more women, despite the under-representation of women in the legal profession as a whole.
I am also pleased that as we debate this morning, there is a debate taking place in Johannesburg about the transformation of the curriculum of the Latin Legum Baccalaureus, the LLB, Degree. We do hope that progressive proposals will come out of that. Compatriot and friends, in the Justice Crime Prevention and Security Cluster, we have changed the way in which we approach the fight against crime and corruption by working as a formidable team. We have also forged strong partnerships with our social partners and civil society.
As cluster departments and security agencies, we have achieved more than what each of us would have achieved individually. This is evident from the realisation of some of the outputs that the department and cluster as a whole have developed. The concerted efforts of the Special Investigative Unit, anticorruption task team, Assets Forfeiture Unit and hawks have made notable progress in our quest to combat corruption in the public sector.
The Special Investigative Unit, the SIU, currently has 25 active proclamations, 10 arising from national departments, seven from provinces, six from local government and the seven from state-owned enterprises. Another 15 are envisaged for finalisation in this current financial year. These include investigations of 481 incidents of serious corruption, which are recorded in the last financial year.
The Assets Forfeiture Unit, the AFU, completed 302 forfeiture cases in the past financial year to the value of R118 million. The success rate of the AFU is 94,1%. The President giving due for considerations regarding the filling of the positions of the National Director of Public Prosecutions, the NDPP, and the head of the SIU. We will discourage any speculations until these appointments have been made.
Let me also highlight some of the rigorous steps that we, as the Justice Crime Prevention and Security cluster are taking, to root out gender-based violence. We have adopted a zero-tolerance to rape, violation of the rights of lesbian, gay, bisexual, transgender, intersex and other forms of violence that are targeted at our mothers and daughters. We will ensure that we create a post of additional magistrates to increase the capacity of these courts. We will be appointing additional personnel, including intermediaries. We are going to be ensuring that we install maintenance and technical equipments fitted with closed-circuit televisions, CCTVs, in all the Thuthuzela Care Centres, the TCC, where we are.
On the issue of magistrates, we need to ensure that one of the interventions that we need to have is the intervention in the backlog courts in our country. In total, the regional and district backlog criminal courts have dealt with 82 271 cases since its inception in 1996. Significant progress is being made to improve our civil justice system.
As part of this reform, we are going to be initiating a court connected mediation rule which is being done through the rules board. We also intend to increase the civil jurisdiction of magistrates and regional courts beyond their current R100 000 to R300 000 threshold, respectively. I can report that the recent protest action that was orchestrated by the Judicial Officers Association of SA, Joasa, did not have any significant impact on the performance of our magistrate courts.
Before I conclude, let me now highlight some of our service delivery projects which form part of our access to justice programme. Yesterday, we officially opened the Ntuzuma Magistrate Court, which is the forty-third new court that has been built since 1994. [Applause.]
We have also started to turnaround this situation in the magistrate courts. Beside the 43 new courts, we have revamped and equipped a further 24 branch courts and elevated them into full service courts. From the 369 maintenance courts nationwide, the department registers about 200 000 new maintenance complaints per annum. We have also introduced a new system called the Electronic Financial Transfer to replace the card-based manual system. Similarly, the department through the Guardian's Fund, have contributed in ensuring that 37 payments have been made, totalling just over R1 billion. In November 2010, the department introduced an electronic payment system, reaching 92,88% of beneficiaries. On the Truth and Reconciliation Commission, we have paid reparations to 16 729 beneficiaries, ensuring that only 111 remains.
In conclusion, our budget totals R16,7 billion this current financial year, of which R5,8 billion has been allocated to court services, R3 billion to the National Prosecuting Authority, and R1,8 billion to public entities and Chapter 9 institutions. This is driven to ensure that the growth of the budget for our department is to carry through costs of salary increases. We are investing more on Thuthuzela Care Centres and making major investments in information technology upgrades. We also ensure that we increase the capacity of the Legal Aid, the office of the Public Protector and the Human Rights Commission.
We have also ensured that we have savings totalling R230 million in this Medium-Term Expenditure Framework period, and cut down on spending, advertising, communications, catering, stationary, travelling, subsistence venues and facilities. We are going to ensure that additional allocations in this current financial year, which is at R3 million, is rising to R400 million in 2014 financial year for investments in information technology upgrades and systems development as part of the reform of the criminal justice system.
We are also going to continue improving the services of the National Prosecuting Authority, Chapter 9 institutions, including the SIU and Legal Aid SA. Over the next three years, the department will spend R3,1 billion on the construction of new courts and other infrastructure projects. An amount of R249 million has been earmarked this current financial year for the NPA and Legal Aid SA in order to ensure that we reduce the backlogs in criminal cases in regional and district courts.
The budget presented here today, reflects our commitment towards achieving the goals that we have set for ourselves. It is a blueprint against which we will be assessed as to the strides we are making in ensuring access to justice for all our people, and that they should feel safe in our country.
Let me convey our gratitude to the chairperson of the portfolio committee and the entire committee for their continued support and guidance. My thanks also go to my Deputy, Andries Nel, for the support that he is giving at all times. A special word of thanks also go to the director-general, Ms Sindane, the secretary-general in the Chief Justice Office, Ms Mmeme Sejosengwe and all senior management and the entire staff in the justice family. Lastly and importantly, I would like to thank my wife, Bridgett and my family for their support through the many challenges that I continue to encounter in the execution of my responsibilities. Thank you. [Applause.]
Mr L T LANDERS
UNREVISED HANSARD
EPC – NATIONAL ASSEMBLY
Wednesday, 29 May 2013 Take: 388
The MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT
Mr L T LANDERS: Hon Chairperson, it is a privilege and an honour to present after the hon Minister. The transformation of our judiciary and legal systems is a constitutional imperative premised on access to justice for all our citizens, and includes access to the legal profession and access to our courts, including the right to effective legal representation.
The transformation of our judiciary and legal systems extends to processes that will change the mindset of the judiciary and the legal profession; and a complete overhaul of our legal system which will help realise the goal of a unified South Africa, free of racism, sexism, poverty and depravation. The constitutional principles adopted by the ANC in 1991 sought to establish a judicial and legal system that advances the ideals of a national democratic society and social justice. In particular, amongst other things, the principles provided for the following, and I quote: "Without interfering with its independence, and with a view to ensuring that justice is manifestly seen to be done in a nonracial way and that the wisdom, experience and judicial skills of all South Africans are represented on the bench, the judiciary shall be transformed in such a way as to consist of men and women drawn from all sectors of South African society."
During the recent past – and the hon Minister has alluded to this – an important debate has raged. It sought to provide an answer to the following question: Why do so few black women appear as candidates before the Judicial Services Commission to be interviewed for positions on the bench? This debate has raised several diverse and yet important views on this matter. It is important to note that section 174(2) of our Constitution sets out another imperative, and it says the following:
The need for the judiciary to reflect broadly, the racial and gender composition of South Africa must be considered when judicial officers are appointed.
As part of this debate, we must ask how do we, the legislature and the executive, ensure that there is always an oversupply of African women who will be nominated to serve on the bench when vacancies arise, instead of the present situation, where we seem to have very few or no such candidates who are not just fit and proper, but who will serve with distinction? It is an indictment on us all that less than 1% one percent of our senior council are African women.
Gender transformation of our judiciary and the appointment of women to the bench as a means to transform the patriarchal character of South Africa's legal system are crucial in achieving the imperative of a judiciary that broadly reflects the racial and gender composition of our society. It is a fact that government is our biggest litigator and is therefore in the strategic position to contribute to this transformation by ensuring that black lawyers, and specifically African women lawyers, are engaged in government's legal work.
We acknowledge that whenever the state litigates, it has to engage the best lawyers to argue its case and to ensure that it wins its case. To that end, we acknowledge the state's right to engage the Unterhalters and the Gauntlets. However, as a matter of policy, together with the Unterhalters and the Gauntlets, we expect to see the faces and names of black lawyers representing the state.
Such a policy must extend to the provincial and local spheres of government, as well as to our state-owned entities. Such a step would provide lawyers from previously disadvantaged backgrounds with the much needed experience, without which they would never obtain any meaningful work. It is a vicious circle that we are witnessing. Without the relevant experience, the black lawyer cannot be engaged, and he or she will not gain such experience until he or she is engaged.
Our legal profession has had 20 years in which to rid itself of the "old boys' network" that some commentators and analysts refer to. The legal profession has failed or refused to change. We note and commend the fact that the hon Minister has instructed the state law advisers and state departments to provide at least 70% of government's legal work to lawyers from previously disadvantaged backgrounds. [Applause.] We welcome this development. Perhaps as part of oversight and monitoring of the state attorney's office and the Chief State Law Adviser's office, we should engage with them to ensure that this is in fact happening; although we cannot help wondering about the other 30%.
In a recent interview on this very matter, Kgomotso Moroka, who has been a senior counsel since 2004 said, and I quote: "There are very talented young women on the bar but they don't have work; they leave and join big firms. It is absolutely and utterly depressing."
Legal expert Pierre de Vos goes even further by calling for a radical overhaul of the legal profession because until then, the status quo will remain. In fact, he is talking about a fusion of the bar and the sidebar. We note and welcome the intention to table the legislation that will provide for the appointment of a solicitor-general who will be responsible for the transformation of state legal services. We look forward to the event with enthusiasm.
The Department of Justice and Constitutional Development relies on the Department of Public Works for what it is called the implementation of funded projects. This means that when the Department of Justice decides to proceed with the construction of a court building, the department itself does not manage or implement such a project. This is done through the Department of Public Works. Examples of such projects are the Ntuzuma Magistrate Court which was officially opened by the hon Minister of Justice and Constitutional Development yesterday and the High Court buildings in Polokwane and Nelspruit. We congratulate the department on all these projects.
However, this reliance on the Department of Public Works has resulted in serious challenges. We are informed that courts services were allocated additional amounts of R11,3 billion over the medium-term for the building of new courts. The department has reported that it was experiencing difficulties in spending its budget in this area because of the delays and the delivery of capital work projects by the Department of Public Works. We have to question whether or not the Department of Justice and Constitutional Development can afford to continue go on using the Department of Public Works for capital expenditure projects which are vital for bringing access to justice closer to our people.
Our concerns extend to the Department of Public Works' planned maintenance programme for existing buildings. We are informed that the Department of Justice and Constitutional Development is unable to establish with certainty details of this programme. The portfolio committee finds this totally unacceptable, and we ask whether the Department of Public Works should be tasked with maintaining court buildings or not.
Finally, in the same way that we dish out brickbats and criticism when we find reason to do so, we should also give recognition to that which is good and laudable. There is much that is good and laudable in the Department of Justice and Constitutional Development and indeed within the justice family. Legal Aid SA is a centre of excellence within the justice family. This is the unanimous view of the portfolio committee. The Portfolio Committee on Justice and Constitutional Development commends and congratulates Legal Aid SA for its role in drafting the United Nations principles and guidelines to provide legal aid assistance in criminal matters. The portfolio committee also commends Legal Aid SA for its excellent leadership, governance and institutional arrangements and for being a centre of excellence. I thank you. [Applause.]
Ms M SMUTS
UNREVISED HANSARD
EPC – NATIONAL ASSEMBLY
Wednesday, 29 May 2013 Take: 389
Mr L T LANDERS
Ms M SMUTS: Hon Chairperson, I don't think that our esteemed Chief Justice is with us today but, I acknowledge our esteemed President of the Supreme Court of Appeal and other heads of courts, and the leaders of the justice sector. This is the last budget debate of this term and so it is the good time to look back at how far we have come, and what needs to be done in the very few functional months remaining.
When this term started, the sitting Director-General of Justice was Adv Menzi Simelane, and the new chairperson of the justice committee was hon Ngoako Ramatlhodi. Things would have been very different if both had remained because neither has much tolerance for independent institutions. It was precisely because of the things that DG Simelane did to poor Adv Vusi Pikoli, that I argued that he was not fit and proper for the position of the National Director of Public Prosecutions, the NDPP, to which the hon President elevated him. We eventually won this case in the highest courts. Now, if Adv Simelane was still the DG of Justice, the department would not now be working on the National Prosecuting Authority Amendment Act, which gives the prosecuting authority the full institutional independence for which I argued in this debate two or three years ago. That amending Act needs, alongside it, changes to section 179 of the Constitution, in particular subsection (1), (4) and (6), as I had set out here three years ago. Above all, we need the amendment to section 179(1) of the Constitution which gives the President the sole power to appoint the NDPP. To help that process hon Justice Minister, I will give you the Private Member's Bill which the justice committee can consider alongside the National Prosecuting Authority Amendment Act.
We need to take the appointment of the NDPP out of the President's hands, as former President Motlanthe and former Justice Minister Enver Surty, and every Member of Parliament on the ad hoc committee which sealed Adv Pikoli's fate, suggested. There is a large degree of consensus about the need for this change. We need to put the choice of the NDPP in the hands of Parliament. If the hon President makes another inappropriate appointment, the DA will challenge it again. We need the new appointment provision to be in place and ready to be implemented.
As for the hon Adv Ramatlhodi, he moved on to a captive audience in the prisons Ministry and an apparently equally captive audience on the Judicial Service Commission. It is interesting to reflect that he and I clashed on the subject of the transformed judiciary and the appointment provisions for judges in the very first justice debate in 2009.
However, the immediate point to make is that the independent judicial branch of state which we have been building, law-by-law, would never have gotten off the ground with the hon Ramatlhodi as the portfolio committee's chair. He does not care about the power of judicial review of executive conduct, or of the laws of Parliament which he believes should be sovereign once more.
The Ministry and the justice committee are committed to the Constitution and believe in the separation of powers. Our main achievement as the judicial, executive and legislative branches working together to give full effect to the Constitution, has been the creation of a truly separate judicial arm of state.
As the hon Minister rightly pointed out, the constitutional 17th amendment has laid the foundation, and the Superior Courts Bill constructs the pillars of the new edifice and also the basis for its pediment. That pediment if you like, is the Office of the Chief Justice, whose secretary-general appeared before the portfolio committee for the very first time during this budget cycle. The Ontario Court of Justice, the OCJ, will by next year's pre-election budget have its own Budget Vote. It will start receiving some real money when the biggest programme under the Justice's Courts Services, at just under R6 billion, starts moving across.
However, the legislative basis for the independent judicial arm of the state is incomplete. The work done by the former Chief Justices, Arthur Chaskalson and Pius Langa on the independent administrative agency which will run the courts and take that running out of the hands of the department is by all accounts complete. If there was any dispute between the judges and the Ministry on the composition of the policy and the rule-setting Judicial Council, as with the Legal Practice Council, the hon Minister would send it to us to resolve.
There are only twelve legislating weeks left this year. The hon Minister must move faster as we need it tabled, in fact by the end of next week.
The departmental or bureaucratic preparations for this change are moving at some speed. However, our new DG Sindane inherited a house of justice as dilapidated as many of our courts, and it is a real concern that the department has actually reduced its targets for catching in-house crooks.
Transferring corrupt justice personnel to the new agency is not good enough. I said last year that fraudulent court orders were being issued at Gauteng South High Court. They were still being sold last month. I know the Hawks have been called in, but how can this be tolerated for even one day?
As to the Judicial Service Commission, the JSC, it is now no longer only the DA which asks for change in the composition of that body. The Cabinet-approved National Development Plan proposes that the JSC should be sized down and restructured to function effectively and free from political interests.
It is clear to me where the composition went wrong. It went wrong in the final Constitution when the interim Constitution's four senators were joined by six National Assembly members for a total of 10. That is 10 out of 23 JSC members or out of 25 when provincial premiers and judge presidents sat in the Upper House in the old days when four senators were included. The JSC was then a house of wise persons. My colleague, the hon James Selfe, was one of those wise persons then, so was the hon Enver Surty. It was a house of wise persons. There is no particular argument for including the NCOP MPs now, and I am not reflecting upon their wisdom, but the upper house is now the house of provinces. Premiers already have automatic sitting when it is relevant on the JSC. Moreover, justice is a national competence. There is no argument for having four NCOP MPs.
In addition, we need to look afresh at the four Presidential appointees, who when they are political appointees, will bring the political total to 14 or 15, including the Minister. My colleague, Adv Hendrik Schmidt, who represents us on the JSC, remarked at one point when the JSC sittings used to take place – as the Minister will remember – at the Twelve Apostles Hotel, that the venue was all too symbolic.
There are four presidential appointees, four from the NCOP, three ANC National Assembly MPs and the other three from the opposition. Add in the Justice Minister, who is already the President's choice and you have 12. Why have the Presidential appointees at all? Remember they were created under the Interim Constitution to be chosen in consultation with the Cabinet, which you will recall included Mr F W de Klerk as leader of the biggest minority party. The reason for their existence has in fact fallen away.
In taking the NDP forward, Adv Schmidt and I will do what the hon Minister should be doing and we will provide you with a Private Members Bill on the Composition of the JSC. I trust that this time my proposals will receive a better reception since a change in the composition is now a Cabinet policy. We do all of these things to prevent the independent judicial branch, which we are building, from ever being populated by nonindependent appointees. It is no good build independent institutions and then put in executive-minded people to run them. That defeats the purpose. I thank you. [Applause.]
Ms L H ADAMS
UNREVISED HANSARD
EPC – NATIONAL ASSEMBLY
Wednesday, 29 May 2013 Take: 390
Ms M SMUTS
Ms L H ADAMS: Hon Chairperson, Minister and Deputy Minister of Justice and Constitutional Development, Members of Parliament, this week is Child Protection Week in South Africa. It is a week in which we need to stand still and determine whether this department is indeed protecting the children of this country. Unfortunately, it is not the case with this department. A simple task like registering names of convicted people that committed crime against children seems like an impossible task to perform for this department.
The establishment of this child protection register in 2010 was merely a political exercise to show South Africans that the government intends to deal with child protection one day. However, today fewer names are recorded on that register than the actual crimes committed against children on an annual basis.
A nation is always judged on how it protects its vulnerable groups. The inability of this department to have an updated child register can only mean that the protection of our vulnerable children is not a priority for this department or this government. This is nothing but a shame.
A bigger crisis is looming in the country than the lack of an updated child register. More and more South Africans are turning to mob justice. It thus means that with all the government systems in place and with all the education about the implementation of our human rights, we are still raising criminals in our society.
The President of this country has been adding fuel to this lawlessness. He was the one saying that prisons are only for people that cannot resolve problems. Any responsible and good president of a country will be sensible to the pain felt by the victims of crime. That statement sent out a clear message that South Africans should not put their hope in the current justice system. In fact, victims of crime should further feel guilty for contributing to the fate of criminals being behind bars. In other words, victims of rape must negotiate with their rapists. The families of the victims of murder should just shrug the incident off and we must not report thieves and fraudsters for the crimes that they have committed.
The President also went as far as saying that lawyers cannot deal with legal matters. Africans must solve legal problems the African way and not the white man's way. The President thus confirms the perception of a certain circle within the country that the lawyers in the National Prosecuting Authority, the NPA, amongst others, are incapable of putting a proper case forward in court. In fact, if the President's statement is correct, then it means that we are wasting South African's time in approaching the courts for legal relief.
These statements of the President are without a doubt fuelling mob justice and anarchy in this country. We can all try to do the work of Mr Mac Maharaj by putting the President's statements into context, but the fact of the matter remains that the President acts irresponsibly against the effective functioning of the justice system.
Not all fingers can be directed to the President. The fact that we have a justice system that does not yet address the legal needs of the people at the time that it should be addressed, is a fault of this department. Our justice system has failed South Africans and the family of Andries Tatane. It was simply impossible to believe the video clip of the incident on TV. We saw with our own eyes a person being shot by a policeman and that he subsequently died on the scene. A few months down the line, the magistrate told South Africans that even though we saw this incident, we should not always believe what we see.
In fact, we did not see a crime being committed because nobody could be held responsible. Neither the prosecution nor the court could identify the killers. Irrespective of the reasons provided by the NPA about this case's failure, South Africans were fooled to believe that we have a justice system which we can trust.
Even with the Arthur Brown matter, the Justice failed South Africans. Here was a man that did not do business according to the law, but at the end of the day, a finger was pointed at him and that was the end.
The very same justice system that needs to keep South Africans on the straight and narrow has now become the system that multiplies victims of crime.
For all the right reasons, the NPA should be held accountable for the fact that South Africans are taking the law into their own hands. Then again, the current NPA's focus is not making criminals account for their deeds so that they can take their rightful places behind bars. Instead, the NPA has been more in the media for being involved in political issues. If it is not the notorious spy tapes that are nowhere to be found, then it is for pursuing witch-hunt cases.
The mighty Ridchard Mdluli was allegedly the reason why the NPA went all out to pursue senior prosecutor, Glynnis Breytenbach. The NPA, through its actions, made it quite clear that Ms Breytenbach must go and they will even approach the courts for her removal. This is clearly a waist of resources, given the financial state of the NPA. I plead with the NPA to leave this woman alone and rather prosecute the untouchable Richard Mdluli so that he can prove his innocence.
The action of the NPA in this Breytenbach matter is once again simply confirming that all is not well in this unit. The NPA is also a target to be influenced politically.
Last year, shortly after the NPA had announced that it will charge the miners of Marikana with murder and attempted murder, the Minister of this department had a word with the acting National Director of Public Prosecutions and these charges were withdrawn. That was political interference at its best and one cannot help to wonder how many times the Minister had a word with the acting NDPP about other cases. Remember, "perception is the grandmother of believe".
In conclusion, unless the President of the country, the Minister of Justice and Constitutional Development, and the NPA speak and act in the same manner, mob justice and anarchy will become the norm in South Africa. Until the NPA becomes a truly independent body, the likes of Glynnis Breytenbach will become an exception rather than the norm in the ranks of the NPA system. Cope supports this Bill.
The HOUSE CHAIRPERSON (Mr C T Frolick): I think the member meant the Budget Vote.
Mr J H VAN DER MERWE
UNREVISED HANSARD
EPC – NATIONAL ASSEMBLY
Wednesday, 29 May 2013 Take: 391
Ms L H ADAMS
Mr J H VAN DER MERWE: Hon Chairperson, I wish to devote my contribution to discussing serious criticism against the Judicial Service Commission. I do so based on my experience as the longest serving member of the Judicial Service Commission, the JSC, having served 17 years under five Chief Justices. Let me deal with the accusations one by one.
Firstly, is the accusation that the ANC has a secret agenda on who are or who are not to be appointed as judges. Whether this allegation is true, I do not know. It is however true that the majority of commissioners are appointed by the President and the ANC. They obviously form majority on the JSC. Except for many allegations, there is no factual prove that the ANC secretly decides on who are or who are not to become judges.
Secondly, is the accusation that competent white senior counsels are not appointed. It is true that competent white senior counsels have appeared before us, but were not appointed. That is a fact. However, equally true that quite a number of competent white advocates have in fact been appointed. During the past few years, some of the white judges appointed are Judge Willem van der Merwe as Deputy Judge President of Gauteng. A brilliant judge because of his name obviously. [Laughter.] He is retiring this week, after an illustrious career and we all wish him well in his retirement. Many other whites have been appointed, Hennie de Vos, Willem Luther, Hans Fabricius, etc.
The third accusation is that white applicants go through rough interrogation. This is sometimes true. Yes, some whites have been strongly interrogated especially those who were "Broederbonders". I myself have been rough here and there. I once openly told a prominent white applicant that I do not believe his story of a "Damascus experience". And I told him openly that he is trying to impress black commissioners to curry favour for being appointed as a judge. He was not appointed. Rough interrogation has, however, become the exception. Applicants must always remember that the Judiciary is not a kindergarten and that cowboys don't cry. So, my white friends apply and face the questions.
Fourthly, is the accusation of not appointing more women. Yes, we are consistently criticised for not appointing more women judges. The Minister dealt with it, and also the chairperson. But the answer is very simple: Women do not apply. We advertise, we encourage women to apply, we arrange special courses for aspirant women, yet they do not come forward. So how therefore, can the JSC be blamed for not appointing women if they do not apply. However, the Minister apparently has a plan to replenish the pool of women. It is a big task and I wish you well Minister.
The last criticism I want to deal with is that the JSC appoints incompetent black judges. This accusation is answered by referring critics to section 174(1) and (2) of the Constitution by which all of us in the JSC are bound. These are constitutional imperatives and section 174(1) makes it clear that any appropriately qualified person, who is fit and proper, is to be considered. If a person is not appropriately qualified and not fit and proper, he cannot be considered. Once an applicant is accepted as appropriately qualified and a fit and proper person, which is a constitutional imperative, then the applicant can be considered in terms of section 174(2).
I think much of the criticism against the JSC lies here. Incompetent people, so goes the criticism, are appointed to the Bench merely to demonstrate that the Bench is being transformed. As far as section 174(2) is concerned, it stipulates the need for the judiciary to reflect broadly on the racial and gender composition. Much progress has been made in this respect. The composition of the Bench is currently totally different from 1994, totally different, 61% of judges are now black.
In conclusion, I wish to appeal to the critics of the JSC that they carefully consider the provisions of the Constitution and the realities facing the JSC before criticising. I also wish to appeal to all lawyers in the country to respect the JSC and if they have problems, they should discuss them with the Chief Justice. Let us discuss the complaints and accusations and seek solutions. There is no other way to solve problems.
Finally, you and I, all South Africans, have to respect the integrity and the independence of the Judicial Service Commission as the body that has been tasked by the law with a monumental challenge, namely to appoint the judges of the High Court. Thank you. [Applause.]
Prof L B G NDABANDABA
UNREVISED HANSARD
EPC – NATIONAL ASSEMBLY
Wednesday, 29 May 2013 Take: 392
Mr J H VAN DER MERVE
Prof L B G NDABANDABA: Chairperson, hon Minister, Deputy Minister, esteemed judiciary, distinguished guests in the gallery, ladies and gentlemen; we thank the hon Van der Merve for the fundamental joke.
I will speak about the role of courts in crime prevention.
The National Development Plan, the NDP, makes a number of far reaching proposals, which impact on the mandate of the Department of Justice and Constitutional Development. The plan proposes inter alia policy measures and implementation tools aimed at strengthening the fight against crime and maximising efforts to bring about peace and stability in South Africa.
One of the critical areas, on which the plan makes comprehensive recommendations, is the area of building safer communities, which we all need in this country and the chosen focus of my speech today.
In this regard, the National Planning Commission the NPC, envisions a South Africa where people feel safe and have no fear of crime. The NDP provides that this may be achieved through a well-functioning criminal justice system, wherein the police, the judiciary and the correctional services work together to ensure an effective criminal justice system.
To this NPC, advances five priorities to realise a crime free South Africa; namely, strengthening the criminal justice system; making the police service professional; demilitarising the police service; building safety in using an integrated approach; and building community participation in community safety.
The Seven-Point Plan captures the thought of the ANC, which refers to a holistic approach to crime; transformation of the courts and the administration thereof; modernisation of its systems; record-keeping systems; and most importantly, the involvement and participation of the public in the fight against crime.
The ANC noted in its 50th national conference in 1997 that peace and stability is a prerequisite for the successful transformation of the country. The conference further noted that the traditional model of security concerns itself with the stability and security of the state, while the approach of the ANC emphasises the security and stability of the people; hence the ANC seeks to build safer communities.
The National Development Plan recommends the professionalisation of the police through enforcing the code of conduct and a code of ethics, appointing highly trained and skilled personnel, and establishing a professional body set to regulate standards.
The code of conduct is meant to regulate the conduct of police officers in order to honour the badge and the profession. Cases of breach of the code of conduct should be dealt with as a priority, and as such, charge members. And members must immediately leave the stations until their disciplinary enquiries would be completed or finalised.
The plan makes detailed recommendations in this regard. The ANC will continue to engage with the process as it develops a policy position. The ANC however, notes that the notion of developing a professional code for the police gives expression to the Ready to Govern policy document, which provides for the development of a professional code governing standards and the suitability of recruits.
The plan noted that post 1994; the government took a decision to civilianise a highly militarised police service. Conversely, in 2010 the Police Force was once more militarised with the introduction of military ranks. This, the NPC has observed, has not assisted in professionalising the police. The NPC calls for the recivilisation of the SAPS.
The Ready to Govern document of the ANC calls for a new approach to policing, which differs from that of the previous oppressive government.
The NPC indicates that the state should not overly focus on policing as the only means of fighting crime. Focus should also be in identifying and attending to the root causes of crime, with socioeconomic factors being a driving force. It is suggested also that an analysis of the patterns and trends of crime assist in formulating approaches, and build long-term sustainable community safety.
This integrated approach to the building of safe communities is in line with the ANC's thinking in that the ANC recognises which socioeconomic circumstances of communities directly impact on crime, which is poverty, inequality and unemployment.
The notion of public participation and working with the people is not foreign to the ANC. In the ANC's 2007 national conference, a call was made for the involvement of the community safety forums in the criminal justice system. Further to this, it called for the community policing forum to be empowered to enable them to influence the management and policy-making processes on a continuous basis.
Furthermore, with regard to crime prevention, the ANC advocates that community safety forums, community police forums, Parent-Teacher Associations and School Governing Bodies should play a role in this respect.
The mandate of the Department of Justice and Constitutional Development is to ensure a robust legal and institutional framework that enhances the rule of law, including the prosecution of offenders and the settlement of all disputes by legal means. The department also exercises executive oversight in the provision of public defence for citizens from a poor background.
The continued increase of court cases involving the state has highlighted the need for the transformation of State Legal Services to reposition these services to meet the growing demand. There will be an appointment of the solicitor-general, as the head of State Legal Services, as the Minister has alluded to, who will take the ultimate responsibility and accountability for the implementation of the civil litigation policy and strategy.
This will facilitate improved co-ordination of the activities relating to litigation by and against the state through, not only the state attorneys and other legal units in the Department of Justice and Constitutional Development, but also other state departments in general. The introduction of the alternative dispute resolution mechanism for civil cases, will also contribute immensely towards the reduction of backlog in civil cases in the legal system.
The lasting solution to the challenge of sexual violence, which is a big problem in our society, is often felt by the most vulnerable people of our country. It is for this reason that the department announced the establishment of a task team to investigate the resuscitation of Sexual Offences Courts. The task team will look into practical steps that will ensure that these courts benefit the entire population and not selected communities as was the practice in the piloted sites.
The decision of the Supreme Court of Appeal, which reversed the decision of the Western Cape High Court, in the State v Prins' case is encouraging. The Western Cape High Court had earlier decided that the failure by the legislature to apply penalties in respect of certain offences reflected in the Criminal Law - Sexual Offences and Related Matters Amendment Act, Act 32 of 2007, did not create offences. The ANC government would like to see an improved turnaround time in the adjudication of cases associated with the Family Violence, Child Protection and Sexual Offences Unit.
In this regard, we applaud the department for establishing an intersectoral task team to look into the viability of prioritising such cases through specialised sexual courts.
The continued increase of court cases involving the state highlighted the need for the transformation of the state's legal services to reposition these services to meet the growing demand. There will be an appointment of the solicitor-general, as has been alluded to by the Minister, very soon.
Lasting solutions to the challenge of sexual violence, which is often felt by the most vulnerable people in our country, are sought.
To conclude, our courts should endeavour to avoid our society in becoming what I, as a criminologist, would call a criminological society. We support the Budget Vote. Thank you. [Applause.]
The DEPUTY MINISTER OF JUSTICE AND CONSTITUTIONAL DEPARTMENT
UNREVISED HANSARD
EPC – NATIONAL ASSEMBLY
Wednesday, 29 May 2013 Take: 393
Prof L B G NDABANDABA
The DEPUTY MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT: Chairperson, hon Minister, hon cluster colleagues, hon members of the judiciary, hon members, distinguished guests, comrades and friends, this year marks the centenary of the Natives' Land Act of 1913, one of the foundation stones of apartheid colonialism, the legacy of which we are today still grappling with.
It is interesting then to read what the annual report of the Department of Justice for 1912 says about land and labour. The magistrate of Lydenburg was of the view that: The native was naturally a person of indolence and was pleasure-loving and until such time as "kaffir farming" was discontinued it would not be possible to instil into them the desire for progress and advance in civilisation. A few months' work on the mines was sufficient to keep a kraal going for some time, and as long as women were there to till the ground and brew the beer the "kaffir" had attained his ideal. This evil of "kaffir farming" had in the Magistrate's opinion to be expelled by legislation.
The magistrate for Heidelberg, on the other hand, observed that:
The cause for the scarcity, however, was undoubtedly the growing independence of the natives. This was brought about by so many of them working on the farms not as labourers, but on a share of the crops. Others paid rent for land and farmed entirely for themselves.
Rev Muller of the Berlin Missions Gesellschaft was of the opinion that when natives were allowed to cultivate a lined number of acres in return for their services, they showed great care in the cultivation of the land. And where they worked for a certain portion of the harvest as their wages or where they hired land, they often outstripped the white owner, as they spared neither care nor pains to gain the greatest possible harvest and procured the most modern agricultural machinery for the purpose.
These quotes are not merely of academic interest. The legacy they speak of still impacts on how we live, where we live, with whom we live, where we go to school, and in the context of this debate, which court we use and what quality of justice we access.
Much of our Reconstruction and Development Plan, and now our National Development Plan are aimed at addressing this legacy in the manner outlined in the Freedom Charter and our Constitution.
After almost two decades of democracy, it would be appropriate to ask whether we are succeeding in doing so.
In last year's debate, I quoted some unfortunate remarks by former Deputy President F W de Klerk, this time around he has made some more fortunate ones, and it would only be just and fair to quote him again. Mr de Klerk says, and I quote:
Unfortunately, a tendency has developed to be skeptical and often pessimistic about both South Africa and Africa. I should like to address these prophets of doom and Afro-pessimists in a balanced way. I believe that it is important to retain balance in one's assessment of our complex society. In fact, South Africa has, on the whole, done pretty well since 1994.
After decades of isolation and criticism, the new South Africa has emerged as a respected member of the international community. We are regarded as an international model for democracy, constitutionalism, human rights and the rule of law. We have set an example for national reconciliation and multiculturalism.
He goes on to say that: We have also made remarkable social progress in many areas. The percentage of the population living in absolute poverty has declined from 31% in 1995 to 23% in 2008 largely because of social grants. Ninety-four percent of households now have access to drinkable water. More than 3 million housing units have been built - enough to house almost a quarter of the population - with another million units in the pipeline. Three quarters of the population now has access to electricity and sanitation compared with only half in 1994.
He also says that: I also remain an optimist about South Africa's future because of the excellent foundation that our nonracial Constitution has created for present and long-term stability. South Africa will succeed provided that we can work together as South Africans to support our Constitution to demand the rights that it guarantees and to achieve the vision of human dignity, equality and enjoyment of human rights and freedoms that it articulates. In the same manner I am increasingly confident about the future of Africa.
I would like to share some stories that would suggest that this optimism is well-founded. One such story is that of Legal Aid SA. Twenty-two years ago, in 1994, the Legal Aid Board, as it was then known, was an organization on the precipice of disaster, a legal Titanic on a collision course with a constitutional, administrative and budgetary iceberg. The board handled only 79 500 matters by paying private lawyers to represent indigent people, mainly in criminal matters. It was an organisation with a budget of R62 million, a staff of 42 based in a national office and 58 based in 8 branch offices located mainly in white, urban areas. The board was unable to cope with the explosion of demand for legal representation that followed the adoption of the interim Constitution. Its affairs were in chaos, budget deficits and qualified audits were the order of the day. The dedicated efforts of the parliamentary portfolio committee, academics, law clinics and the board under the leadership of Judge Mohammed Navsa, led to a dramatic turnaround with the implementation of a public defender model and sound organisational governance practices.
Eighteen years later, the financial year 2012-13, Legal Aid SA provided assistance in 736 000 matters. This includes legal representation in 438 000 criminal and civil matters and advice in a further 297 000 matters, including through a national legal aid call centre.
This sterling work is done by a dedicated, motivated and representative team of 183 staff at national office and 2 395 staff based at 128 justice centres nationally. It operates on a budget of R1 259 billion at a time when many countries in the world are scaling back their legal aid budgets. Indeed, Legal Aid SA has made a valuable contribution to the formulation of the recently adopted UN Guidelines for Legal Aid.
There are still many challenges but we know what needs to change, we know how to change it and we are doing it faster than ever. We would like to thank the chairperson, Judge President Dunstan Mlambo and CEO Ms Vidu Videlankar for leading a team that continues to show that South Africa is a remarkable nation, with remarkable people for whom no challenge is too great, especially when they unite and work together.
Another such story is that of the Public Protector. The 1994 election manifesto of the ANC said that: Government administration exists to serve the people. It must be answerable to them. The ANC will encourage private citizens to use the independent Public Protector to investigate corruption, dishonesty or violation of rules of conduct on the part of government officials and those found guilty will be dealt with.
This is exactly what has happened. When Adv Selby Baqwa, SC, as he then was, was appointed as the first Public Protector in 1995, the office had a budget of R1, 6 million and dealt with a total of 1989 new cases.
By 2012-13 the third Public Protector, Adv Thuli Madonsela, was investigating 33 500 complaints per year, assisted by a staff of whom 160 are based at a national office and 238 at nine provincial and satellite offices throughout the country. The budget of the Public Protector stood at R183 million. For the current financial year an amount of R199 million has been budgeted. Surveys have shown that 77% of the population is aware of the Office of the Public Protector.
The recently reported interaction between the Public Protector and the Portfolio Committee on Justice and Constitutional Development has, regrettably, been reported and commented upon as widely as it has been understood narrowly. In our view the Constitution is clear about both the powers and the independence of the Public Protector as well as the powers and the oversight role of Parliament.
Interactions such as these are necessary catalysts for evolution of a deeper and stronger culture of constitutionalism. We thank Public Protector Adv Thuli Madonsela, Deputy Public Protector Kevin Malunga and CEO Themba Mthethwa for leading another team of remarkable people dedicated to realising the vision of our Constitution and creating a life better for all.
Another story is that of the SA Human Rights Commission starting off in 1995 as a small organisation with a staff of 60 and a budget of R6 million, the commission has grown into an institution with a staff establishment of 165 and a national footprint through nine provincial offices. Its budget for 2012-13 was R100 million. An amount of R116 million has been budgeted for 2013-14. The commission deals with a wide range of human rights complaints. In the last financial year it financial year it finalised 7000 out of 8900 cases brought to it.
Recognition for this work has taken the form an award from the African Commission on Human and Peoples' Rights in October last year as well as the election of the commission's chairperson, Adv. Lawrence Mushwana, as the chair of the Network of African National Human Rights Institutionsand also as the chairperson of the International Co-ordinating Committee of National Institutions for the Promotion and Protection of Human Rights in May this year. Adv. Mushwana is the first African to hold this position. The amendment of the outdated Human Rights Act is currently before Parliament.
One of my favourate stories, of course, is that of the small claims courts. Time doesn't permit me to give all of the good news but what I can say is that we are more than half way, far more that half way of establishing a small claim court in each and everyone of our 394 magisterial districts. At the movement there are 268. A further 9 courts will be established during the first week of June when the Government Gazette appears. Gauteng and Mpumalanga have or soon will be achieving this goal.
Hon members, the sheriff's profession is one of the most dramatic stories of transformation in our new era. Before 1994 this was an overwhelmingly white male profession with a "skiet, skop en donner" [Shoot, kick and hit.] reputation, one that was not always undeserved. Sheriffs had the power to arrest and imprison people, often the poorest of the poor, for their inability to settle civil debt. Since the appointment of 120 new sheriffs in 2012, the composition, the culture and the ethos of this profession is fast changing.
A further 120 appointments will be made by the end of June. We are confident that by the end of this administration the sheriff's profession would have made a decisive break with the past.
These stories demonstrate that we are a remarkable nation with remarkable people who prove on a day-to-day that no challenge is too great to overcome.
Regrettably, hon members, your chances of reading about these stories are negligible. The news is either simply too good to be profitable or too fundamentally at odds with the preconceived notions of the prophets of doom. Those in the media who want to tell these stories, and they are there, are afraid to do so for fear of being branded as stooges of government who are not truly independent.
My appreciation goes to the Minister for his leadership, guidance and support, and to Director-General Ms Nonkululeko Sindane, the leadership and staff of our departments, the justice family and the members of the Justice portfolio committee.
Last but not least, my special thanks to a special lawyer who is exempt from the Legal Practice Bill, my in-house counsel Ms Kim Robinson, who is a New Yorker by birth and proudly South African by marriage.
In conclusion, the annual report of the Department of Justice for 1912, contains an interesting observation by the Magistrate of Johannesburg under the heading "Fortunetelling penalty too severe" which read thus: Section 34 of Act No 26 of 1904 prescribed imprisonment only as a penalty for this offence. There were many cases, which would be met by a fine, and, as magistrates are naturally loath in such cases to send the accused to prison, the effect was that he – or, more probably, she – got off with a warning
.
At the risk of being sent to prison, I want to do some fortunetelling and predict that Parliament will support Vote 24 - Justice and Constitutional Development, and I want to ask your support to make this prediction a reality. [Applause.]
Mr J B SIBANYONI
UNREVISED HANSARD
EPC – NATIONAL ASSEMBLY
Wednesday, 29 May 2013 Take: 394
The DEPUTY MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT
IsiNdebele:
Mr J B SIBANYONI: Sihlalo, naboNgqongqotjhe abakhona lapha namhlanje, Majaji naboMarhastrada, nani enivela nge-ofisini kaNgqongqotjhe, maLunga wePalamende ahloniphekileko, ngiyanilotjhisa, ngithi akwande! Ningibona ngivunule ngalindlela nje, lesi sikhathi sokuphuma kweNgoma. Kusikhathi sokuwisela. Kusikhathi lapha vane sithi: "Ikosi ithabile!" Bekumele bona lokha nanginilotjhisako ngitjho njalo kodwana siyazi bona kwenzekeni ngaso lesi isikhathi, esifundeni seMpumalanga neLimpopo, lapho silahlekelwe khona miphefumulo yabentwana. Ngifuna bona ngitjho emindenini yesitjhaba samaNdebele nesitjhaba esibomakhelwana sakwaSikhukhune begodu nekungiso esakhe saphathela amaNdebele iNgoma, ngithi: "Mahlungu! dudu!"
Namhlanje ekulumeni yami ngifuna bona ngithome ngokutjho ukuthi thina njengehlangano kaKhongolose siyayisekela iVowudu ngeSabelomali yama-24. Ngifuna ukuthi ngibuye ngikhulume nginabe mayelana namatjhuguluko asele akhona ngehlangothini lamajaji nabomarhastrada, ngikhulume ngekomitjhini okungiyo ephakamisa amabizo walabo abakhethelwa ukuba majaji, ngikhulume ngesikolo esibandula amajaji, ngikhulume nge-ofisi yeHloko yamaJaji begodu ngikhulume nangeenhlangano ezingekho ngaphasi kombuso.
English:
Before 1994, the Minister of Justice had to use his discretion in deciding about those who are to be recommended for appointments as Judges. It was the white male senior council, the SC, or queen's council, the QC, thus the bench was lily-white. The irony is that in South Africa, at that time, there was no justice yet, there was a Minister called the Minister of Justice. What a misnomer.
Magistrates started as prosecutors. That is, if only fortunate, a prosecutor could be appointed as a magistrate. The ceiling was reached when a magistrate would be promoted to being a chief magistrate but not a judge. It was exclusively only white males that became appointed as magistrates. After the establishment of homelands and Bantustans, blacks were also appointed as prosecutors and eventually as magistrates in their respective homelands.
During that time, whenever a white person would be arrested for any transgression, no matter how petty the offence would be, a black prosecutor could not prosecute and a black magistrate could also not preside over such a case. When some of the judges of the Supreme Court were reviewing decisions by black magistrates, this is what they would say: "What appears before me does not show that the person who presided over the case had any legal training." What an undermining statement.
Today, prosecutors resort under the National Prosecuting Authority, the NPA. Magistrates have a Magistrates Commission that advertises vacancies, interviews candidates and ultimately recommends for appointment, if a candidate qualifies to be a magistrate. The Minister of Justice will then appoint the successful candidate to become a magistrate.
Regarding the issue of the Association of Regional Magistrates of
SA, Armsa, some magistrates disassociate themselves from the strike action by certain individual magistrates. "Toyi-toying" by judicial officers is never heard of. In isiNdebele language we say:
IsiNdebele:
"Ubamkhulu walala angakaboni."
English:
We welcome the Constitutional Court's decision to dismiss the Armsa court case. We have heard that Armsa threatens to take the matter up. My question is: Does Armsa not know that the Constitutional Court is the highest court of the land? It was only during the olden days that a person could appeal to the Privy Council in England. Action should be taken against those magistrates who made themselves guilty of this dishonourable and unprofessional conduct. [Applause.]
On Thursday 16 May 2013, the Presidency issued a statement announcing that: President Jacob Zuma has appointed 10 judges to the courts around the country. The appointments were made on the recommendation of the Judicial Service Commission, for which I serve. The 10 judges are as follows: - listen to the combination - Judge Halima Khanam Saldulker and Judge Nigel Paul Willis were appointed to the Supreme Court of Appeal, the SCA. Judge Aubrey Phago Ledwaba was appointed Deputy Judge President of the North Gauteng High Courts, that is, the Johannesburg and the Pretoria High Courts. The Judges who were appointed to both the Johannesburg and Pretoria Courts are, Gregory Charles Wright, SC, Wendy Hughes, Nomsa Victoria Khumalo - uMaMntungwa loyo [That is Ms Mntungwa], Brian Amos Mashile - a judge with a disability or a differently enabled person, Daisy Sekao Molefe and Leonie Windell. Judge Dennis Martin Davis, who needs no introduction due to his famous programme Judge for Yourself and who is a Western Cape High Court judge, was appointed Judge President of the Competition Appeal Court for a period of five years. All the appointments are with effect from the 1 July 2013."
We all need to congratulate these judges on their appointments and wish them well. [Applause.] This makes us to ask ourselves a question:
IsiNdebele:
"Kanti thina beKomitjhini yemiSebenzi yobuLungiswa sisolwa ngebanga lani?" Asazi!
English:
I want to, further, point out and say that I also want to deal with the Office of the Chief Justice. The initiatives of the Office of the Chief Justice to capacitate itself so as to execute its executive legislative responsibilities, flowing from the Superior Courts' Bill and other relevant legislation, are in progress. The initiatives for 2013-14 are as follows: The transfer of the administration of all Superior Courts to the Office of the Chief Justice; the establishment of fully functional internal controls and accounting systems, and the creation of a separate vote for the Office of the Chief Justice which currently has only a plan but not a vote in existence.
The strengthening of governing structures of the SA Judicial Education Institution, Sajei, is up and running. The committee congratulates the secretary general on her appointment and wishes her well. In so far as the Sajei in concerned, I want to quote and say that: The promulgation of the SA Judicial Service Institute Act which established the Judicial Education Institute for the training of judges and magistrate is a watershed. Not only will the institute become a reservoir of judicial knowledge and jurisprudence in South Africa and the continent, but it will also facilitate an exchange of knowledge with the comparable jurisdictions across the world.
The institute is governed by a council which is chaired by the Chief Justice. It reflects South Africa's commitment to the independence of the judiciary. The institute is an important vehicle to promote the transformation of the judiciary. It provides an opportunity to enhance and hone the skills and competencies of those individual officers who aspire to pursue a career in the judiciary. Further, the institute is an epic center for the development and advancement of the constitutional jurisprudence.
The transformation of the society, as required by the Constitution, is the duty of all the three arms of the state, namely the Parliament, the executive and the judiciary. We should work together in transforming the South African society. The separation of powers which entails the independence of the judiciary should be maintained. I would like to say: ...
IsiNdebele:
... umthwalo lo ubudisi, ufuna bona siwumbisane.
English:
I want to end by saying that the role of the civil society nowadays, surprises us. In the past, we knew the civil society to be fighting for socioeconomic rights, but nowadays we find that they also dabble over political issues.
We are calling upon the National Association of Democratic Lawyers, Nadel, and the Black Lawyers Association, the BLA, to say: Where is your voice? Your silence is conspicuous. I thank you. [Applause.]
Adv A de W ALBERTS
UNREVISED HANSARD
EPC – NATIONAL ASSEMBLY
Wednesday, 29 May 2013 Take: 395
Mr J B SIBANYONI
Afrikaans:
Adv A de W ALBERTS: Voorsitter en Minister, die funksies van regspleging en grondwetlike ontwikkeling moet praktiese effek gee aan Suid-Afrikaners se grondwetlike verwagtinge, gegrond in menseregte, om reg te laat geskied op beide siviele en strafregtelike vlakke en om ontwikkeling te sien geskied ten aansien van grondwetlike noodsaaklikhede.
Ek kan u gelukwens met twee positiewe ontwikkelinge.
English:
Government's consideration of signing a section 36(4) declaration on the protocol on the African Court on Human and People's Rights that will make it possible for individuals to have direct access to the African Court is positive, and we urge government to executive this instrument. It is also positive that government intends to accede to the International Covenant on Economic, Social, and Cultural Rights, which will further enhance South Africa's human rights regime.
Minister, you talk about a just order brought about after 1994, but you and your very own department don't abide by that order.
Afrikaans:
U het dit self goed gedink om die vorige hoof van die Nasionale Vervolgingsgesag, NVG, aan te stel terwyl hy nie voldoen het aan die wetlike vereistes nie. Die Minister moes 'n beter voorbeeld stel en sy eie wette nakom eerder as om ANC-politiek te betrek by sy departement. Intussen funksioneer die NVG steeds sonder 'n permanente hoof wat nie goed is vir die effektiewe bestuur daarvan nie. Die Spesiale Ondersoekeenheid funksioneer ook sonder 'n hoof. Die Minister het aangedui dat aanstellings in albei poste alreeds in Februarie sou plaasvind, maar dit is steeds nie gedoen nie.
'n Verdere probleem is die Nasionale Vervolgingsgesag se obsessie om adv Glynnis Breytenbach te vervolg, omdat sy bloot haar werk gedoen deur luit-genl Mdluli te vervolg. Die rede waarom die NVG besluit het om te appelleer teen haar onskuldigbevinding kan net gevind word in die politieke speletjies wat deur die ANC in die departement gespeel word. Die ANC wil die NVG gebruik om te beheer wie vervolg en wie beskerm moet word. In 'n wêreld waar die Grondwet op die wyse ondermyn word, kan 'n mens wie werklik veilig kan voel?
English:
The ANC's obsession with controlling society is also to be found in the Legal Practice Bill that seeks to regulate the legal profession, in order to further transformation and access to legal counsel. These objectives serve, however, merely as a smokescreen to tighten control over the legal profession, whereby the legal profession will follow inevitably the same downward spiral as the LLB degree. If the Minister was truly concerned about access problems, he should have used the Minister of Health's idea of a national insurance scheme instead, whereby all South Africans would be able to afford legal counsel.
Lastly, on the matter of constitutional development and the advancement of constitutional rights, we have taken note with concern of a certain judge's remarks that English should be the only language used in court proceedings. Should government entertain such a thought, it would clearly once again be acting against constitutional dictates and the interests of the diverse peoples of South Africa.
Members of the Khoisan have also contacted us to assist them with their plight regarding obtaining First Nation status that is seemingly not taken seriously by government. Whilst the Department of Co-operative Governance and Traditional Affairs is tasked with this matter, your own department, Minister, must also ensure that the government complies with its international human rights obligations with regard to people's minority and indigenous rights. Thank you. [Time expired.]
Mr S N SWART
UNREVISED HANSARD
EPC – NATIONAL ASSEMBLY
Wednesday, 29 May 2013 Take: 395
Adv A de W ALBERTS
Mr S N SWART: Chairperson, my greetings to the heads of court and the broader justice sector present here in the House today. The ACDP is clearly concerned about the severe budgetary constraints upon the department, the National Prosecuting Authority, the NPA, and other entities accountable to Parliament, such as the Public Protector and the Human Rights Commission.
We do note a steady improvement in the financial affairs of the department, and we commend and applaud it, director-general. We do also look forward to the resolution of the long-outstanding issues about the Third Party Funds and a clean audit. We regret, as far as the NPA is concerned, that it has been unable to have two prosecutors for dedicated courts and, of course, the department has had to cut back on various projects due to budgetary constraints. So, we, as Parliament, definitely need to do something about this.
It is regrettable that National Treasury did not adhere to our requests for additional funds. Minister, we, as Parliament, need to assist you in this regard. It clearly has a huge impact on the creation of an effective criminal justice sector and the roll out of the National Development Plan.
Crime and corruption continue to pose a great threat to us in South Africa and the future of all South African citizens. The Special Investigating Unit, the SIU, estimated that R30 billion is lost to the state annually through procurement fraud. The Minister of Finance himself said it is a difficult task to combat procurement fraud, as "there are too many points of resistance ... [and] too many people who have a stake in keeping the system the way it is". It will undoubtedly take a special effort from all of us here in Parliament, government, business, the broader society and, of course, the justice sector to combat this scourge.
The SIU, as we know, has specific powers and functions in this regard, together with other law enforcement units, such as the Asset Forfeiture Unit, the Hawks and the anticorruption task force. These agencies, in my view, should be given additional resources to combat fraud and corruption. Just think that if the SIU had double the resources, they would be able to recover the amounts of funds that had been misappropriated. The SIU also needs to focus on – we understand it has a new approach – the targets, and funds need to be considerably higher. We did point that out in the committee.
In my limited time, I would like to just mention an aspect of the perceived spat between the committee and the Public Protector. We fully support the exceptional work that the Public Protector and her staff perform, but clearly the Public Protector cannot be above parliamentary scrutiny, particularly when it comes to engagement and interaction on the best usage of limited resources. We understand that both our and the Public Protector's constitutional imperative in this regard. We regret the public spat that has devolved from that. The ACDP will support this Budget Vote. I thank you. [Time expired.]
Ms M C C PILANE-MAJAKE
UNREVISED HANSARD
EPC – NATIONAL ASSEMBLY
Wednesday, 29 May 2013 Take: 396
Adv A de W ALBERTS
Setswana:
Mme M C C PILANE-MAJAKE: Modulasetilo wa Ntlokgolo ya Palamente, ke rata go lebisa madume a me go baetapele ba rona mo letsatsing leno. Ke dumedisa motlotlegi Tona ya Lefapha la Bosiamisi le Tlhabololo ya Molaotheo, Jeff Radebe, motlotlegi Motlatsatona ya Lefapha la Bosiamisi le Tlhabololo ya Molaotheo, Andries Nel, Maloko a Palamente, le baeng ba rona ba ba dutseng kwa bonnong jwa setšhaba mo Palamenteng, ke tla lebisa puo ya me gompieno go...
English:
... National Prosecuting Authority, the NPA, and the Special Investigating Unit, the SIU, both established to create a more just and cleaner South Africa, free from various forms of crimes, with the budgets of R3,05 billion and R294 million, respectively. The NPA consists of specialised units. These units were established through presidential proclamations relevant to their specific focus areas such as sexual offences; special commercial crimes; and priority crimes litigation. The Asset Forfeiture Unit was also established to create powers, for the prevention of organised crime, in accordance with the Prevention of Organised Crime Act 121 of 1998, to seize assets acquired from profits of crime.
Legislation governing the prosecuting authority is the National Prosecuting Authority Act 32 of 1998. The Constitution, read with this Act, provides the prosecuting authority with the power to institute criminal proceedings on behalf of the state, and to carry out any necessary functions incidental to instituting criminal proceedings.
While the core work of the NPA will remain prosecutions and being the people's lawyer, the NPA Strategy 2020 seeks to ensure that the organisation becomes more proactive so as to contribute to economic growth, freedom from crime and social development, promote a culture of civic morality reduce crime, and ensure public confidence in the Criminal Justice System.
The committee has noted a large number of informal mediations being used to resolve typically occurs less serious offences. The committee wishes to see closer monitoring of this initiative that is helping to deal with the backlogs. Indicators on plea bargaining will also be welcomed by the committee.
The committee welcomes the appointment of the chief executive officer of NPA, and is concerned about delays in the appointment of heads of the NPA and the SIU that are covered by this debate. The matter, as indicated by the hon Minister, is receiving attention. Let us avoid speculation. The choice of the National Director of Public Prosecutions, the NDPP, head still remains with the President.
The committee is concerned with funding difficulties experienced by the NPA in implementing the Occupation Specific Dispensation. The NPA has a court order regarding job evaluations, in this regard, to the tune of R53 million. For this reason, the NPA has informed the committee that every post that falls vacant will become an unfunded position. This state of affairs calls for close monitoring.
Hon Minister, we commend you for building systems that fast-track access to justice to ensure that South Africans will never be exposed to apartheid atrocities such as detentions without trial for justice delayed is justice denied, as you have mentioned this morning. The committee supports funding the justice modernisation information and communication technology infrastructure that will positively impact on the NPA's work.
The committee has noted the effort of re-establishing sexual offences courts to ensure that victims, especially women and children, are not revictimised by the manner in which their cases are tried. Here we are talking about women and children and the extent to which South Africa is puting measures to ensure that they are protected because earlier, comments were made which suggested that South Africa does not really care for children. There is no political organisation that has good policies about the protection of children like the ANC.
One of the many achievements the committee is noting, in ensuring government's commitment to fight against sexual offences and gender-based violence, is the Thuthuzela care centres that are operated by the NPA. There are now 27 fully-operational Thuthuzela care centres countrywide.
The Asset Forfeiture Unit, the AFU, has traditionally set stretched targets, but the Auditor-General tends to regard the failure to achieve these targets as an indication of poor planning. There is a need to revise the strategy of determining targets in terms of the number of assets to be seized by the unit. This strategy should instead utilise percentages in terms of assets to be seized, based on the number of cases reported, instead of blind estimates.
Setswana:
Modulasetilo, se se raya gore batšhotšhisi ba rona, ka tsela e ba ratang go bona lefatshe la bomme le borremogolo le sena bosenyi ka teng, ba dira ka bojotlhe ba bona go bona gore disenyi di tswalelwa dingwaga di le dintsi kwa kgolegelong, ka tsela e e dumelesegang.
English:
Crime undermines our freedom, and the NPA is fighting back on behalf of South Africans. It is sad to have person like the hon Adams of Cope, who comes here, having selective amnesia about how the prosecution system of South Africa is working, and misquotes the President by really trying hard to mention all sorts of things just to score political points.
Improved collaboration with Justice Crime Prevention and Security, the JCPS, partners have increased the conviction rate in prosecuted cases to 88%, and that also include cases of children that have been tried.
The Special Investigating Unit, the SIU, is an independent statutory body that is accountable to Parliament. The SIU was created in terms of the Special Investigating Units and Special Tribunals Act 74 of 1996. I am mentioning all of these numbers and dates to show the amount of work that has been done, since the dawn of democracy in South Africa, to ensure that people of South Africa are safe and crime is correctly acted upon.
The SIU functions in a manner similar to a commission of inquiry in that the President refers cases to it by way of a proclamation. It may investigate any matter set out in section 2 of the Special Investigating Units and Special Tribunals Act of 1996 regarding serious maladministration concerning the affairs of any state institution; improper or unlawful conduct by employees of any state institution; unlawful appropriation or expenditure of public money or property; and any unlawful, irregular or unapproved acquisitive act, transaction, measure or practice having a bearing on state property; intentional or negligent loss of public money or damage to public property; corruption in connection with the affairs of any state institution; and unlawful or improper conduct by any person who has caused or may cause serious harm to the interests of the public or any category thereof.
The unit can also take civil action to correct any wrongdoing it uncovers during an investigation and can therefore, for example, obtain a court order to compel a person to pay back any wrongful benefit received, cancel contracts when the proper procedures were not followed and stop transactions or other actions that were not properly authorised. That means we should not keep on casting aspersions when we want to score political points. This demonstrates that as a country, we have systems and mechanisms that are about dealing with all of these issues.
The committee was previously concerned with the level of private funding of the SIU which was at two thirds of the total funding, mostly utilised on consultants. This situation has since changed to normalise a state-run institution.
Setswana:
Modulasetilo, se se raya gore fa re sena dithutokgolo tse di batliwang ke lefapha le, go latela ponalo ya tsa tshireletso, ga re a tshwanela go tsaya se se tshwanetseng go re thusa go siamisa Aforika Borwa, ra se neela ba ba nang le madi go re tsamaisetsa sona. Kgololosego e tsamaelana le go ipusa go go feletseng.
English:
This is something that actually endorses the ANC's policy of a national democratic society we are all aspiring for.
Setswana:
Re seke ra re kamoso re senyeditswe, e le rona re ba dumeletseng go senya.
English:
A critical factor contributing towards the success of the SIU has been the development of an integrated forensic service to state institutions that require an intervention to address allegations of corruption, maladministration and fraud. I was quite perturbed to listen to the hon Van der Merwe talking about transformation of the judiciary, and also making utterances such as: "Women do not apply and this is why they are not included." Gender transformation is not about excuses, hon Van der Merwe. If women do not apply, we need to find out why they do not apply. We need to know how the advertisements are dealt with. There is no woman in South Africa today that does not want to see herself developing and advancing. We cannot allow a situation where excuses are given when women are excluded in any of the processes.
Another issue is the utterances about incompetent black judges. That kind of statement is a very sad state of affairs because it is aligned with all of these stereotypes that we continue to utilise in South Africa, to put barriers for black people to advance by utterances such as: Black people are incompetent; black people are corrupt; and black people are stealing. It is very sad to find somebody in this august House managing to come up with such utterances.
Setswana:
Modulasetilo, ke kopa gore re latedisise dipuo tse di tshwanang le tse, gore re tlhaloganye gore a Rre Van der Merwe o dumeletswe gore a tle go roga batho ba bantsho mo Palamenteng. [Nako e fedile.]
English:
The ANC supports the Budget Vote. I thank you. [Applause.]
Mr I S MFUNDISI
UNREVISED HANSARD
EPC – NATIONAL ASSEMBLY
Wednesday, 29 May 2013 Take: 397
Ms M C C PILANE-MAJAKE
Setswana:
Mr I S MFUNDISI: Motlotlegi Modulasetilo le ntlo ya gagwe e e tlotlegang.
English:
It is undeniable that our current criminal justice system is a nightmare for the South African citizenry, that is why Robert Balaicius of the Sacred Truth Ministries goes on to say it stinks.
It is deeply worrying that the National Prosecution Authority statistics cannot be linked to those of the police. What good does it do to have police boasting of having had an increase in the number of arrests when the NPA reflects a substantial decrease in the number of convictions? Bail is dished out left, right and centre to fill the coffers of the Justice department and to keep the already overflowing prisons from overflowing even more. In most courts, very few cases are given attention after midday, if not, all are put off to a later date.
It is cases such as that of Andries Tatane that lead many to believe that the criminal justice system is completely failing its citizenry. The police officers who murdered Tatane were caught on camera. They were clearly identified. A crime was obviously committed, in front of our eyes. But we were told that the prosecution could not prove its case. The recent release of Arthur Brown with just a slap on the wrist is another case in point of incompetence as far as prosecutions are concerned.
The debacles surrounding the suspension of senior prosecutor, Glynnis Breytenbach, of spurious charges is another case where people seem concerned about feathering their nests and ridding effective public servants. It boggles the mind that on Monday, the NPA announced that they would accept the not guilty verdict of the commission of enquiry, but then on Tuesday turn around and say they are going to appeal the matter.
The former Director of the NPA, now Acting Judge Mokotedi Mpshe, once aptly called the division, Hollywood, because almost all of its incumbents are in acting positions, even now, four years on. This cannot be good for any organisation. It is an indictment on the government not to fill strategic posts such as those of the head of the Special Investigating Unit, head of the NPA and others, for years. Well, unless those posts are reserved for some people yet to be born. We do not know.
It is very sad that some cases take inordinately long because services of interpreters cannot be secured. All this resulting in the not uncommon occurrence of protests with signs that read: Justice delayed is justice denied. We can make all the right sounds and scream against rape and other related crimes, but if ineptitude is the norm, all those efforts are pointless.
Why should our police and courts fail to enforce legislation such as the Sexual Offences Act? Delays in rape trials take up to two years to get through the trial process and only 12% of such cases result in convictions. [Time expired.]
Setswana:
Le fa go ntse jaalo, UCDP e tla tshegetsa tlotlokabo e.
Mr R B BHOOLA
UNREVISED HANSARD
EPC – NATIONAL ASSEMBLY
Wednesday, 29 May 2013 Take: 397
Mr I S MFUNDISI
Mr R B BHOOLA: Madam Chairperson, hon Minister, we laud your efforts to transform our justice system and I have no doubt that you will only be content when all South Africans are equal in front of the eyes of the law. [Interjections.]
The justice fraternity has undoubtedly advanced from the dark days of apartheid into the light of democracy and development, which we all can proudly boast about. [Applause.] We have one of the worlds' greatest constitutions provided by the Deputy President of the ANC, Mr Cyril Ramaphosa, during the era of this government. The performance of our courts in a case law, actually internationally recognised, and the justice system is open to all. Even the DA runs to the same courts and justice system for relief. [Applause.]
There is always robust contestation at times. And whilst there is separation of powers, the separation of powers is always contested. If you go to the United States and analyse the judges appointed, anybody will tell you that the conservative judges are appointed by the Republicans and the more liberal judges are appointed by whichever democratic president in power.
The political contestation around the composition of the jury is really a worldwide phenomena and our judges by large indeed have made an incredible contribution and have done us proud. There will always be logistical challenges in terms of case laws and issues of space.
The MF welcomes the establishment of new courts in the townships which is ...
Mr D A KGANARE: Hon Chairperson, I rise on a point of order: Does the hon Bhoola understand that we don't have a jury system in this country?
Mr R B BHOOLA: He cannot cope with the challenges. [Laughter.]
The MF welcomes the establishment of the new courts in the townships, whish is really transforming townships and taking development to the underdeveloped areas. This is one of the ways to add to economic development and job creation, which is bringing the courts' roles down to the public. Therefore, there is an absolute need for magistrates and lawyers to transform the judiciary.
The question is what and whether we need to change? Yes indeed. We need to change certain laws and aspects to strengthen and give more power to law enforcement agents, especially to fight organised crime and we need tougher measures to fight drug lords. Despite all the noise made by white judges not being appointed, when you look at statistics, it gives you the true reflection. People must not come and distort facts.
The MF's concern is that we must produce more black attorneys and advocates that are prepared to take on the appointments of judges. Whatever the people might say about Ms Thuli Madonsela, the truth is that the government has increased the budget for the Public Protector. There will always be spats now and again with the Public Protector. This is a Chapter 9 Institution of the country and the government respects its decisions and provides funds. The MF will support the Budget Vote. [Time expired.][Applause.]
Ms S C N SITHOLE
UNREVISED HANSARD
EPC – NATIONAL ASSEMBLY
Wednesday, 29 May 2013 Take: 398
Mr R B BHOOLA
Xitsonga:
Manana S C N SITHOLE: Mutshamaxitulu, Vaholobye hinkwavo lava nga kona laha ndzeni ka Yindlu, ndza khensa ku nyikiwa nkarhi wo vulavula.
English:
I want to dedicate my speech to my beloved Mama Ruth First. I remember in 1962, just after passing my Standard 6, my father took me to her office. I was very proud of my little certificate. I showed it to her. I had good marks but she was not impressed with my Arithmatics. She said to my father: Mark, your child is a bluestocking, but we need to correct something, the effect of the Bantu Education on your child. We must make your child love figures.
That is what she said. I didn't understand what she was talking about because I was still young then. She organised for me to receive Mathematics lessons from the late Comrade Sheila Wynberg who was a student at the University of Witwatersrand. Indeed, today I love figures. That was the vision of Mama Ruth First who was killed by the apartheid regime which knew no respect for human rights.
Comrade Jeff, today you are the Minister of Justice and Constitutional Development under the ANC, a congress that cares about the rights of the people. I feel sorry for you because you have mountains to climb.
At this point I want to address my beloved director-general ...
Xitsonga:
...nhwanyana wo saseka a saseka na vito ra yena, Gingirikani wa ka Sindane.
English:
I have been impressed by the fact that the department achieved a good report on the criminal assets recovery accounts in the quality of performance and information. It is clear that you really apply your mind and put effort to improve the department. Indeed, you inherited the department in a bad shape. Today, you have inspired and instilled confidence in your work force. That is what I call leadership. [Applause.] That is the type of a public servant that your country needs. We are very proud of you, and keep up the good work!
I just want to say a few things, just a little advice to you. When you submit your financial statements for auditing, make sure that they are prepared in all material respect in accordance with section 40(1)(b) of the Public Finance Management Act. Always prepare regular, accurate and complete financial statements. Financial statements are a tool for a prudent programme and project management. It will help you.
Good corporate governance demands sound financial and operational control over the management of programmes and projects. In the public sector, management of programmes includes policy and planning, public finance, planning instruments such as the Medium-Term Expenditure Framework and public-private partnerships. Regular preparation of financial statements will help you not only to monitor, but also to evaluate the effectiveness. You can then be able to check the impact made by your projects in our communities.
With regard to transparency and contracting of consultants, your department must benefit from the skills of the consultants. It must not forever remain hooked and be enslaved in consultancy. Time must come where your employees will have to learnt a skill or two from those consultants.
How effective is your record management? I just want to tell you, no auditor under the sun will impress an opinion on an issue if records are not available when required. Keep your records safe because you never know which one the auditor will demand.
My hon Minister, Comrade Jeff Radebe and Deputy Minister, Comrade Andries Nel, I say revolutionary greetings. People from Bushbuckridge and Hoedspruit said I must tell you that they love you and want you to be very assertive and decisive in transforming the justice system in our land. They say your efforts to bring access to justice to Mpumalanga and Limpopo are well received. They say thank you very much, Minister. [Applause.]
Don't worry about the people on the left, they hate justice. [Laughter.] What the people of Bushbuckridge will do is to keep you in their prayers and God will give you strength to transform South Africa.
Our caring organisation, the ANC, has given you a task to liberate everybody, including the people on my left. [Laughter.] You have a task to protect their rights. Even if they don't understand, you must protect them as they are South Africans as well.
Comrade Jeff, it will take some time for this situation to be normalised. It takes experience to know that the rights of other people are as dear as your rights. They are used to being in comfort zones; that is why they won't even give me a chance to express myself. They don't respect my freedom of expression. That is the problem. You need workshops for them. [Applause.]
Hon Minister, as Mpumalanga, we are delighted to have a court of justice there. I hope that you are going to make sure that even in the regions, especially the faraway regions like Bushbuckridge, there is access to things like the masters' courts. Those people don't have money to travel long distances to reach such offices. I plead with you to have these offices in all the regions of Mpumalanga and Limpopo. There is a lot of poverty there.
The hon director-general, I want to come back to you and remind you about one thing that a budget is a tool for a ruling party in any democratic country to express its policies. Any person who misappropriates state money is the enemy of the ANC and the state. The ANC supports the budget. [Time expired.] [Applause.]
Mr N J VAN DEN BERG: Bye mamie, I love you.
Ms S C N SITHOLE: I love you too. [Laughter.]
The HOUSE CHAIRPERSON (Mr C T Frolick): Order hon member, you can exchange those pleasantries outside the House. [Laughter.]
Mrs D A SCHAFER
UNREVISED HANSARD
EPC – NATIONAL ASSEMBLY
Wednesday, 29 May 2013 Take: 399
Ms S C SITHOLE
Mrs D A SCHÄFER: Mr Chairperson, I think that the hon Bhoola should just get it over with and join the job seekers united. In the justice system this year, we have seen the fulfilment of the Chinese curse " may you live in interesting times". We have seen some improvement in the management of the department, and I would like to acknowledge the extreme hard work and dedication of the always pleasant and always professional Director-General Nonkululeko Sindane.
The long-awaited announcement earlier this year that the sexual offences courts are to be reinstated is most welcome. However, we do have serious concerns that, with the budget increase in real terms of only 3,3% for the department as a whole, it will not be possible to roll them out in a manner in which they would be satisfactorily resourced. This does not back up government's stated commitment, hon Sithole, to combating crimes against the most vulnerable.
We have been calling for the reinstatement of these courts for a number of years now, and fully support a possible inclusion in the Judicial Matters Amendment Bill currently before our committee, that legislation provide for these courts. This should ensure that it will not again be possible for these courts to disappear because magistrates do not wish to be confined to these courts. If the very people tasked with upholding and enforcing the law have objections in staffing these courts, which as been proven by the National Prosecuting Authority's statistics that they result in higher conviction rates, what message does this send to the poor victims?
In the matter of people upholding and enforcing the law, we have seen, with extreme concern, the illegal industrial action embarked upon by some magistrates. This unprofessional conduct has done nothing to engender sympathy for their cause. In fact, it's quite the opposite. This is most unfortunate for the many magistrates who are dedicated and who do give of their best every day in a professional manner. There are many of them. Concerning these people, I would urge the Minister to earnestly engage with the Chief Justice and the various fora of magistrates, as there are some legitimate issues that require attention and have been outstanding for far too long.
With regard to the Special Investigating Unit, the SIU, the fact that today we still have no announcement as to the appointment of a permanent head of the SIU, is quite simply unforgivable. For 17 months, the SIU has been crippled by the mismanagement of Adv Nomvula Mokhatla. Valuable experience has been lost as a result, and the performance of the SIU has undoubtedly deteriorated, as was quite evident at their recent briefing to the portfolio committee. How much longer does the President need? Is 17 months not enough? [Interjections.]
By the way, Minister, is the Nkandla proclamation one of those to be finalised this year, which I understand, has still not been sent to the SIU by the President, despite him promising to do so?
We announced last week that we shall be tabling a Private Members Bill to limit the President's powers in appointing and removing the head of the SIU, as well as limiting the period of time for which a person may act in the position. We sincerely hope that we shall receive support in this regard from the other side of the House, to ensure that such a situation does not happen again.
When looking at the entire Justice department's budget of R16,7 billion and compare it to other departments, for example, the Police department, which gets R60 billion, we cannot escape the conclusion that this is simply not sufficient money to carry out all the responsibilities falling under this Budget Vote. The R16,7 billion includes the amounts provided for the salaries of magistrates and judges, and if we exclude this, it leaves a mere R14 billion for the five Justice programmes, namely administration, court services, state legal services, the NPA, and the auxiliary and associated services, which itself includes Legal Aid, the SIU, the Human Rights Commission and the Public Protector. This really needs to be reconsidered.
The Public Protector has once again made the news recently in rather unfortunate circumstances. She quite rightly asserts that she is constitutionally independent. However, she is in terms of that very same Constitution, accountable to the National Assembly. Section 181(5) provides that the Public Protector must report on its activities and the performance of its functions. It cannot possibly be that the purpose of the report is merely for us to note and nothing else.
Section 182(1) also provides that she is subject to national legislation. Section 6 of the Public Protector Act clearly provides that she may not investigate the performance of judicial functions by any court of law, yet she reported to our committee that a number of complaints she dealt with relating to justice were in respect of outstanding judgements and appeals, which are clearly judicial functions. However, the public attention that was generated thereafter shows just how much support the Public Protector has. This is because she has done excellent work in dealing with investigations that, quite frankly, the police and the NPA have been unable or unwilling to do.
Herein lies the problem. I believe that the reality is that the Public Protector is seen by the majority of people in this country as the only institution we have left that deals with corruption, without fear or favour. The view that the system is failing is corroborated almost every day now.
When Mr J Arthur Brown received a slap on the wrist for 100 charges of fraud and the judge castigated the NPA for the way they dealt with the matter, the public lost faith in the justice system.
As the DA, we laid 22 criminal charges with the police, and in not one case since 2006 have we had anybody taken to court or had a satisfactory explanation as to why they have not been, we lost faith in the justice system. [Interjections.] We know that there are many more matters like these of which we do not have records.
When the President makes completely inappropriate appointments to key positions, such as the National Director of Public Prosecutions, the NDPP, and then fails to make appointments at all, people lose faith in the justice system. When the President ignores the law and removes an SIU head without giving reasons as required by the law, and leaves the position unfilled for 17 months, people lose faith in the justice system.
The Department of Basic Education ignored, not one, but two or three court orders to provide textbooks in Limpopo, and people lost confidence in the justice system. Never mind the departments of Home Affairs, Labour, Police and Agriculture, all of which have blatantly failed to comply with court orders.
Perhaps when the NPA - Glynnis Breytenbach may like to call it the national persecuting authority - even fails to charge two Vietnamese nationals arrested for possession of 12 rhinoceros horns for nearly three years, so that the case is struck from the roll by the court, people lost faith in the justice system.
When a woman withdraws an application for a family violence interdict, to try and protect her sexually molested daughter because she can no longer deal with the trauma, frustration and costs after nine postponements, this shows that people are losing faith in the justice system.
We can allocate all the money in the world and have technically independent institutions, but if there is no political will to fill crucial positions with fit, proper and suitably qualified people of integrity, this system will not succeed.
The National Development Plan recognises that the most efficient and effective deterrent to criminality is an efficient and effective criminal justice system. Minister, at this point, our system is neither efficient nor effective, and you have a key role in restoring credibility to it.
I understand that at a press briefing this morning, the Minister apparently said that overcrowded prisons are a sign that the NPA is working. Well, Minister, about a third of those people are awaiting trial. Nice try, but no cigar! You would be well advised to spend less time on your role as head of the damage control unit of Guptastan, and devote more energy and attention towards fixing the system of which you are the cluster head. The future of our country depends on it. [Applause.]
Mr J H JEFFERY
UNREVISED HANSARD
EPC – NATIONAL ASSEMBLY
Wednesday, 29 May 2013 Take: 400
Mrs D A SCHÄFER
Mr J H JEFFERY: Chairperson, hon Minister, Deputy Minister, Members of Parliament, guests in the gallery, and elsewhere, I will be dealing with the portfolio committee's oversight of the SA Human Rights Commission and the Public Protector. As I think everybody is aware, and as has been mentioned, there has been a fair amount of media coverage over our interaction with the Public Protector, and to a lesser extent, the Human Rights Commission. I want to use this opportunity to clarify some issues and set the record straight.
Although the portfolio committee comprises four political parties, our position with regard to these two Chapter 9 Institutions is something we are generally united on. The committee's report to the National Assembly, including its observations and recommendations on the two Chapter 9 Institutions, was adopted unanimously. And I hope that, in this input, I will be representing largely the views of the committee as a whole, and not just the ANC.
Before I do that, however, I must raise two points specifically as an ANC member of the committee on this issue of the Public Protector. Firstly, the ANC has always supported the creation of an independent ombudsman as the primary architect of our Constitution. We proposed it. Details of this can be found in documents at the time, such as our Ready to Govern document of 1992, and we still support that position.
Secondly, criticisms and comments by me, or other ANC members of the committee, are designed to improve the functioning of that office, and not to interfere with its independence. As has been mentioned by other speakers from both sides of the House, both these bodies are accountable to the National Assembly in terms of section 181(5) of the Constitution, and the Justice committee has been delegated the responsibility of dealing with these matters. These bodies report to us twice yearly. We are concerned with how they spend the money allocated to them, their overall performance, and whether they are implementing their vision and mission and achieving their strategic objectives.
We do not want to interfere with their independence. And let me stress this again; we have no intention of interfering with the independence of these institutions. What we are concerned about, particularly in the context of the requests for additional funding, is firstly, their making the best use of the resources they have been allocated.
Secondly, the resources are limited. Given the wide powers that both bodies have, they will never have enough investigators – at least, not in the near future. Should these bodies investigate all complaints, or if they find that they are unable do to so properly, should they not focus on priority areas?
Thirdly, how long are both bodies taking to finalise matters?
Lastly, are these institutions as accessible to the public as they should be? Let me pause at this point.
There appears to be a number of misconceptions from some sections of the public about these bodies. Both the Human Rights Commission and the Public Protector are described in the Constitution as state institutions supporting constitutional democracy. They are watchdogs, meant to guard against the abuse of power. They make findings and recommendations, but they do not have the power to enforce their decisions. Let me stress in particular with regard to the Public Protector, and in this regard, quote from Caiden's International Handbook on the Ombudsman, which was quoted in the Comparative Study on Mandates of National Human Rights Institutions in the Commonwealth, in 2007:
The ombudsman deals with specific complaints from the public against administrative injustice and maladministration. He has the power to investigate, report upon and make recommendations about individual cases and administrative procedures. He is not a judge or tribunal. He has no powers to make orders or to reverse administrative action.
Indeed, the Public Protector, although very popular as a corruption-buster, as Mrs Schäfer has indicated, has no powers to find anyone guilty of a crime, to recover any money or seize any assets, to fire anyone or to set aside contracts. These can only be done by a court of law, and it is important to note that, while court decisions can be appealed against, ending up in the final instance before a panel of judges in the Supreme Court of Appeal or the Constitutional Court, the findings of the Public Protector or a Human Rights Commission ruling can only be taken on review. I trust people know the difference between review and appeal.
In our oversight work, we are looking at how the functioning of both these bodies can be improved. I am sure we are all united in the committee on wanting to see both the Human Rights Commission and the Public Protector's office function as optimally as possible. We do not bully. We do not instruct. We make suggestions which we do expect some response to, but nothing more. They are suggestions; they are proposals.
As far as the Public Protector is concerned, many of our findings appear to get ignored. In October 2010, we recommended that the committee be informed when the Justice department or any other institution within the justice fold has not responded to queries from the Public Protector, or is not compliant with recommendations, so that we could take the matter up with the relevant institution. This has never been implemented.
In June 2011, we said we would like to be notified of any reports that the Public Protector produces. Again, this has been ignored. Last year, we again requested more information about complaints relating to the Justice Department and other institutions, so that we could take these up. This was not forthcoming. In addition, these reports that I refer to were all reports adopted by the House.
With regard to the Human Rights Commission, they reported to us last year that they were going to be conducting an investigation into Marikana. The committee was concerned that this was a potential duplication of the Farlam Commission of Inquiry's work, and questioned the commission on this. They were able to reassure us that what they were doing would supplement the Farlam Commission, not duplicate it. We were also concerned that the commission intended sharing legal counsel with other interested parties, and pointed out that, as the Human Rights Commission is independent, we did not feel this was appropriate. The commission reconsidered and changed their position on this.
During the recent budget hearings, we questioned whether a finding that excessive force had been used in the death of Andries Tatane was of much value, given that it was purely a desktop enquiry – looking just at papers – and there would be a criminal case and civil claims. The commission had different views on this, which we listened to.
What is interesting with this engagement is that no one from the Human Rights Commission alleged that we did not have the right to ask such questions. Although such interaction was reported in the media, no civil society body complained that we were interfering with the independence of the Human Rights Commission by asking these questions. I think that just needs to be contrasted with the reaction to the Public Protector's questions.
Our concern with the Public Protector is that we want to know that that Office is making a difference. We have, in the course of our oversight work during this term, found it difficult to establish exactly what is being done, in some cases. Reports are produced on some matters, but these are only a few.
Something that worries me about these reports is how long the investigations are taking to complete. If you look at the reports released recently – this year and the end of last year – some of them date back to complaints laid in 2006, 2010 and 2011. The Public Protector reported to us that there are 16 763 other complaints that were dealt with. We do not know, systematically, what is happening with the bulk of these complaints, and from the limited information, we are concerned – as the hon Schäfer from the other side of the House has raised – that some of them relate to matters, such as court procedures, which the Public Protector is prohibited, in terms of the Constitution and the Public Protector Act, from dealing with.
In terms of section 6(3) of the Public Protector Act, the Public Protector may refuse to investigate a matter where a state employee has not exhausted all remedies. In this regard, I question the Public Protector on her recently released report entitled, There are no Heroes, concerning a dispute between the Minister and Director-General of Trade and Industry, and Ms Mamodupi Mohlala, the former National Consumer Commissioner. The complaint was made at the same time that Ms Mohlala had been informed that she was not having her contract renewed. The questions I was asking were whether such an investigation was appropriate in terms of the section I have referred to already, particularly as Ms Mohlala launched four urgent court applications against the Minister of Trade and Industry. Incidentally, in the finding on the matter, the Public Protector does make a finding in paragraph 10.1.1.8 of her report that the conduct of Trade and Industry constituted an unfair labour practice.
We have consistently been eager to assist the Public Protector in monitoring departmental compliance with her remedies. This is reflected in our reports, but, as I mentioned earlier, we have not often been given the information to assist.
Other concerns that we have had is the spread of offices. There is an overconcentration in sparsely-populated regions of the country, such as the Northern Cape and the North West, at the expense of more densely-populated provinces, such as KwaZulu-Natal, the Eastern Cape and Limpopo. In the past financial year, there were three offices each in the North West and the Northern Cape, but only two in the Eastern Cape and KwaZulu-Natal, and only one in Limpopo. Although we have been raising this concern for a number of years, the Public Protector has not been particularly responsive.
Other issues we have raised regarding the use of resources, is whether R800 000 should be spent on a corporate branding video when there are shortages in the budget. These questions are asked in the context of a budget that has increased from R86,5 million in the 2008-09 financial year to R199 million in this financial year. In spite of this, the Public Protector is asking for an additional R97 million – almost a third more of her budget.
I must stress that we are not out to conduct a witch hunt against the Public Protector. One issue I wanted to briefly deal with is that, last year, the Public Protector referred complaints against her by her then deputy to the Speaker, with the request that the matters be investigated. The Speaker referred this to the justice committee, and I must say there was not great eagerness on the part of the committee to get involved. A Mail & Guardian report, prompted by concerns from some unknown person, that the Public Protector was going to get grilled, were really false. We are still busy with the matter, and will be asking the Public Protector to respond on a limited number of issues.
Unfortunately, in the interaction that has taken place, the response from the Public Protector has not been that helpful. In the budget hearings, she was fairly defensive, claiming we did not have the right to ask certain questions. She implied that questions relating to the public servant matters that I raised may have been influenced by pressures she had already received from persons not to investigate certain cases. In this regard, I must state I have no idea what she is talking about. I have not been approached by anyone to pressure the Public Protector not to investigate any particular case.
In a subsequent interview with The Times, she then made broader allegations – on which the committee has asked her for greater clarity – that there have been attempts to get rid of her. She made references to the underhanded manner in which her staff had been manipulated for political gain, and of people lighting fires behind her in an attempt to make her lose focus. Those are concerning concerns.
Mr J H STEENHUISEN: Chairperson, I rise on a point of order: Rule 66 refers to reflections upon judges and other holders of office whose removal from such office is dependent upon a decision of this House. I would submit that the Pubic Protector falls under that, and would urge the hon member to refrain from reflecting upon the competence or honour of the Public Protector. [Interjections.]
The HOUSE CHAIRPERSON (Mr C T Frolick): Hon member, the Rule does not apply in this particular instance. There have been various references to the Public Protector during the debate. Continue, hon member.
Mr J H JEFFERY: Thank you, Chairperson. I would refer the hon member to section 9(2) of the Public Protector Act, which says nothing prohibits Parliament from discussing a matter being investigated by her. [Applause.]
So, anyway, she has expressed these concerns. Also, on the justice factor, she alleged that the questions on the Mohlala report and on Report 23 were an ambush, because they were outside of the year of review. Yet, we were not dealing with the annual report. That will happen in October. She made other points that she is accountable to the Speaker and not to us; and she only has to submit a report if requested by the Speaker.
These are clearly all things that we need to engage the Public Protector on. It is unfortunate we have enormous problems in our country of maladministration, of abuse of power and corruption. The Public Protector plays an important role in dealing with these and we need the Office of the Public Protector to be as effective and responsive as possible and to make a difference. We are on the same side. We need to ensure we have an effective working relationship regarding the different roles we perform.
I would like to stress that we are generally satisfied with the performance of the Office of the Public Protector, and we say so, as the Justice committee, in our report. Hopefully, we will be able to have further engagements with the Public Protector, and resolve the areas of disagreement so that we can both perform the functions we are expected to perform in terms of the Constitution.
In the final seconds, I would like to respond to some of the issues raised in the debate. The hon Alberts from the FF Plus, who seems to have left and is not here, made a reference to the ANC being obsessed with control with regard to the Legal Practice Bill. He is not a member of our committee. I hope he will attend our meetings if he is so concerned, but he should look at international experiences as far as state involvement in regulating the legal profession is concerned.
All I can say about the hon Adams is that she is an active member of the committee. She makes good contributions. It is a pity that the issues she raised here were not raised during the budget hearings to the relevant persons.
The hon Mfundisi spoke about the decrease in convictions. He is also not a member of the committee. I would be interested to know where he gets those facts from. He also spoke about bail filling the coffers of the Justice department. As we all know, bail gets paid back to the person unless it is forfeited if they do not appear in court, in which case, I think it goes to the Revenue Fund, but not to the Justice department.
In the final few seconds, I will say that the ANC supports the budget of the Department of Justice and Constitutional Development, and I thank you. [Applause.]
The MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT
UNREVISED HANSARD
EPC – NATIONAL ASSEMBLY
Wednesday, 29 May 2013 Take: 401
Mr J H JEFFERY
The MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT: Chairperson and hon members, firstly, I would like to thank all hon members who have participated in this Budget Vote debate. My gratitude also goes to all political parties who are supporting this Budget Vote of Justice and Constitutional Development. However, I also wish to address a few issues that have come up in this debate.
The hon Smuts suggest that she will introduce a Private Members' Bill amending our Constitution to allow Parliament to appoint the National Director of Public Prosecutions and also to change the composition of the Judicial Service Commission, the JSC. May I remind the hon Smuts to reread the Constitutional Court judgement in the first certification case, which was penned by the late Chief Justice Chaskalson, who found nothing wrong with the powers of the President to appoint heads of our important institutions, including the National Director of Public Prosecutions? [Applause.]
If the DA truly believes in the independence of the judiciary, they should accept the decisions and rulings of our Constitutional Court because the Constitutional Court is the final arbiter on all disputes. Their decisions are final and are not appealable, unless of cause the DA wants South Africa to revert back to the 1950s - to those sad days when Parliament, in those infamous harass cases, usurped the powers of our courts and made sure that there is supremacy of Parliament. That will not happen in our constitutional democracy. [Applause.]
May I also remind the hon members who are so obsessed with the President's role in appointing the heads of these important institutions that in many democracies, for example, the Unites States, the President appoints the Attorney-General who is an equivalent of the National Director of Public Prosecutions. And on top of that, that Attorney-General is a member of Cabinet – but not here in South Africa. That is the difference.
On the composition of the Judicial Service Commission, the same certification judgement found nothing wrong with our President appointing four members of the Judicial Service Commission out of 23. In America again the President there currently, Barack Obama, appoints all judges in the Supreme Court.
The point perhaps that is being raised indirectly is that the attack is against the people of South Africa who always vote for the ANC, in ever-increasing majorities. The President does not appoint all the members of the JSC, except for only four. The rest of them are either from the legal profession, attorneys and advocates, representatives of the judiciary, heads who represent some academic institutions, and also the NCOP and the NA. So, regrettably, Koos van der Merwe, the President does not appoint Members of Parliament. In other words, those Members of Parliament are elected by the people of South Africa. So, it is the people of South Africa who voted in the majority of the Members in Parliament, who happened to be the ANC. The list is not being decided on at Luthuli House but in these Chambers. [Applause.]
I also want to indicate to the hon Adams who is complaining about the Child Protection Register that if the hon Adams was reading the documents that the department is always supplying to Members of Parliament, he would have realised that the department issued protocols recently to the courts on how to manage the Child Protection Register. This function has now been elevated to the director of Legal Administration, not the clerks, in order to ensure that these forms are properly completed and submitted to the Department of Social Development.
On the issue of the hon Mfundisi, who I understand does not attend the meetings of the Portfolio Committee of Justice and Constitutional Development, let he be educated. I can give you a copy of the Constitution that will educate you that the issue of bail is a constitutional matter. It is the right of every suspect to satisfy bail requirements and in serious cases, bail is not easily granted, unless suspects can proof exceptional circumstances to ensure that the bail is given to those deserving candidates. So, again in this instance, it is the independent judiciary, not the Department of Justice and Constitutional Development that decides on those matters.
I think we need to read our Constitution to understand the difference between the role of the Department of Justice and the independent judiciary of which the members on my left always talk about, but in action, if it doesn't suit them, things are bad. So, this, I thought, needed to be clarified in order to ensure that we understand what is happening.
I agree with the hon Jeffery about hon Mfundisi, who believes that the department always gets back the money. No, it is given back to the accused, unless it is forfeited to the state if there is any transgression on the bail conditions.
Other than that, I am very happy that the majority of the political parties are supporting this Budget Vote of Justice and Constitutional Development, as it plays a very key role in ensuring that we entrench democracy in our country. Thank you. [Applause.]
The HOUSE CHAIRPERSON (Mr C T Frolick): Hon members, just a reminder that the NA will sit at 14:00 this afternoon. The EPCs on Agriculture, Forestry and Fisheries, and Correctional Service will meet at 15:30 in the Old Assembly Chamber and Committee Room E249, respectively.
Debate concluded.
The Committee rose at 12:42.
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