Hansard: NA: Debate on Vote No 24 – Justice and Constitutional Development
House: National Assembly
Date of Meeting: 15 Jul 2014
Summary
No summary available.
Minutes
TUESDAY, 15 JULY 2014
Proceedings of extended public committee – national assembly CHAMBER
-----------
Members of the Extended Public Committee met in the National Assembly Chamber at 19:11.
House Chairperson Ms A T Didiza, as Chairperson, took the Chair and requested members to observe a moment of silence for prayers or meditation.
APPROPRIATION BILL
Debate on Vote No 24 – Justice and Constitutional Development:
The MINISTER OF JUSTICE AND CORRECTIONAL SERVICES: Hon Chairperson of the National Assembly, Ministers, Deputy Ministers, hon members of this House, judges president, esteemed members of the judiciary, heads of the constitutional commissions and statutory institutions in the justice cluster, heads of professional law bodies, distinguished guests, comrades and friends, ladies and gentlemen, it is an honour and privilege for me to deliver to this esteemed House this my first budget policy statement of the Department of Justice and Constitutional Development.
I am humbled by the confidence bestowed on me by the President, the ruling party – the ANC, and the people of this country, to have been appointed as the Minister for Justice and Correctional Services in this fifth term of our democracy.
The revamped Ministry, backed by two departments and two Deputy Ministers, will focus on the implementation of policies and programmes aimed at accelerating the transformation of our justice system and enhancing service delivery. In carrying out this mandate we are guided by the National Development Plan, NDP, the government's programme of action and the overarching vision of a better South Africa as espoused in the manifesto of the ruling party.
During this term we will focus mainly on intensifying the fight against crime and corruption; broadening access to justice, and improving service delivery, particularly in relation to vulnerable and underprivileged members of our society.
Allow me to seize this opportunity, therefore, and compliment all my predecessors who made significant strides in the transformation of justice, notably the current Minister in the Presidency, Dr Jeff Radebe, whose contributions, in particular to the expansion of our court infrastructure, constitute a monumental achievement and a valuable contribution to the advancement of our justice system.
The Constitution Seventeenth Amendment Act and the Superior Courts Act, which came into operation in August 2013, provide a constitutional and legislative framework for the development of an independent court administration model in keeping with the principle of the separation of powers under our Constitution. The Office of the Chief Justice serves as a transition towards a fully fledged administration, which will enhance the independence of the judiciary and the advancement of the rule of law.
We hope to finalise legislation providing for the desired alternative court administration model during the term of the current administration. In the interim we will continue to provide support to this office, including stepping up our efforts towards ensuring that the office obtains its separate Budget Vote in order to exercise its independence effectively and efficiently.
Among the significant gains we have made since the advent of our democracy is the racial and gender transformation of our judiciary. From one black judge in 1994, we pride ourselves on having 155 black judges out of a total of 243 judges. [Applause.] It is a significant achievement indeed. We are, however, concerned about the underrepresentation of women on the bench. There are 79 female judges on the establishment of 243 judges.
Through the State Attorney Amendment Bill which was enacted by the fourth democratic Parliament, government will develop and implement policies which will enable us to monitor the preferential allocation of state's legal work to female and other previously disadvantaged practitioners. These measures are aimed at widening the pool from which the Judicial Service Commission can select candidates who will advance the transformation of the judicial system.
As part of the justice, crime prevention and security cluster, we continue to work together to strengthen our criminal justice system. Our strength is in our unity; hence an integrated approach is significant as we adopt an aggressive stance against serious crimes, including commercial crimes, and corruption in particular.
We have, over the past 20 years, built a strong legal framework and formidable law enforcement agencies and institutions which are equipped to tackle these serious crimes. The reduced incidence of serious crimes realised over the past nine years bear testimony to the effectiveness of the joint efforts of the cluster in fighting crime and corruption. There is a visibly growing synergy in the work of the Special Investigating Unit, the Anti-Corruption Task Team, the Asset Forfeiture Unit and the Hawks and other entities outside of the public sector, such as Corruption Watch, which aim to rid the country of corruption.
In the 2013-14 financial year, the Asset Forfeiture Unit froze R452,6 million as proceeds of crime, involving an amount of more than R5 million in value. Over the past five years, the amount frozen has totalled to R1,466 billion.
We will continue with our successful campaign to name and shame those who are convicted of corruption as a deterrent to those who want to benefit from the ill-gotten gains of crime. By publishing the names of the convicts, we are sending a strong message that government is taking a stern stance against those who help themselves to the monies that are intended to uplift our communities and our nation as a whole.
This also attests to the ability and competence of the National Prosecuting Authority, NPA, of prosecuting those who commit crime without fear, favour or prejudice. At this juncture let me congratulate the NPA for continued and unrelenting improvement in service delivery and producing clean audits. It is commendable indeed. [Applause.]
As hon members would notice, there is a steady increase in conviction rates recorded across various categories of crimes. For the 2013-14 financial year, for example, the conviction rate in relation to organised crime was 87,9 %. The conviction rate for trio crimes was 84,7% and the conviction rate for sexual offences was 66,7%.
I want to assure South Africans that there are effective institutional arrangements in place to ensure that the work of the NPA is not affected by the inquiry relating to the National Director of Public Prosecution's fitness to hold office that the President has announced recently.
The department will continue to work with all stakeholders to improve court performance. Working with the JCPS cluster departments, several interventions have been introduced to deal with case backlogs in our courts.
The regional and district backlog courts have removed 109 419 cases from the court rolls since 1 November 2006 until the end of March 2014, comprising of 79 081 cases finalised, 26 799 cases withdrawn and 3 539 cases transferred to higher courts. The provincial efficiency enhancement committees, established in all provinces by the Chief Justice to deal with challenges and obstacles in the management of cases through our courts, are yielding positive results.
The protection of human rights and the rights of vulnerable groups is a focus area to which we will give special attention in the coming term.
In line with the NDP, we want to make a significant contribution to the general safety of all who live in South Africa, in particular the most vulnerable of our society. Through the Child Justice Act we have revamped our criminal justice system by creating a system suited to children who are in conflict with the law. This legislative intervention is bearing fruit, surpassing our expectations.
We are also paying attention to other categories of vulnerable sectors in society. In April 2014, together with Chapter 9 institutions and nominated civil society organisations, my predecessor, Minister Radebe, launched the national Lesbian, Gay, Bisexual, Transgender and Intersex, LGBTI, programme. As part of this programme a national task team has been formed to develop a policy framework on combating hate crimes, hate speech and unfair discrimination, which we expect to publish soon for comment.
Government is dealing robustly with gender-based violence, including serious sexual offences such as rape. In 2013 we reintroduced the sexual offences courts. A total of 22 sexual offences courts in this regard have been established countrywide, including in remote rural communities. A further 12 sexual offences courts are earmarked for establishment during this financial year. Through these dedicated sexual offences courts we are able to provide specialised victim-support services; improve the effectiveness of witnesses in the execution of their role in court; reduce the turnaround time in the finalisation of sexual offences matters and improve the conviction rates in these cases. Linked to these courts are the Thuthuzela Care Centres, which provide support services to victims of sexual offences. We hope to increase these Thuthuzela Care Centres in the current financial cycle.
During 2014, efforts will be directed towards the implementation of the Prevention and Combating of Trafficking in Persons Act of 2013, a single statute that tackles human trafficking holistically and comprehensively. The new law provides for a maximum penalty of R100 million, life imprisonment or both in the case of a conviction.
With regard to maintenance, we have brought about improvement through, amongst other things, the reduction of long queues through the introduction of the electronic funds transfer, EFT, system. There are approximately 9,5 million EFT transactions to the value of R3 billion annually. Over R2,9 billion was paid to maintenance beneficiaries, the majority of whom are children, in the past three years.
We have also enhanced the management of our Guardian's Fund and improved our service, particularly to orphans who are dependent on the fund for their livelihood. In 2012-13, government made 37 000 payments totalling R1,006 billion to the Guardian's Fund beneficiaries, the majority of whom are children. During 2013-14 this increased to 60 675 beneficiaries being serviced to the amount of R1,3 billion.
Small claims courts are an important vehicle through which people continue to access justice speedily and at no cost. We are pleased to report that the number of small claims courts increased from 68 in 2009 to 293 in 2012-13.
So, in case you want to check out the legacy of the incumbent President, you have the figures at your fingertips. [Interjections.]
The HOUSE CHAIRPERSON (Ms A T Didiza): Hon Minister, you have three minutes left.
The MINISTER OF JUSTICE AND CORRECTIONAL SERVICES: Thank you.
In March this year, court-annexed mediation rules which aim at introducing formal mediation in our court system were promulgated. The date for the implementation of these rules has been extended from 1 August to 1 December 2014. This is with a view to synchronising the implementation thereof with the impending reorganisation of magisterial districts. The implementation of these rules will massify access to justice and introduce an affordable and less adversarial means of settling disputes.
We will soon begin with the implementation of the court rationalisation programme which seeks to align jurisdictional boundaries of our lower courts and divisions of the High Court with municipal and provincial boundaries respectively. Implementation will commence soon after we have concluded our consultation with the judiciary, stakeholders and the affected communities.
Through this programme we aim to alleviate the unbearable hardship endured by communities in rural areas and historically black townships in particular, of having to travel long distances to access courts in far-flung areas. They do so at great expense due to high costs of transport and litigation. As part of this programme, 29 branch courts have been converted into full-service courts in the past three years, and four are earmarked for the current financial year.
Let me now turn to the budget and indicate that an allocation of R17,9 - almost R18 billion - has been allocated, a third of which - just over R6 billion - goes to court services and just over R3 billion goes to the National Prosecuting Authority, NPA. Together those amounts make up half of the total amount that we are spending on our courts system alone to ensure that we give priority to an effective, functional and efficient court system.
The rest of the funds are split between other sectors in the justice cluster. For example, just over R2 billion is spent on Chapter 9 and other institutions, such as the Legal Aid Board. And, of course, the Deputy Minister will elaborate a bit on the role of the Legal Aid Board.
Let me say that in recent weeks I was privileged to attend an international conference that was convened, where it became clear that our legal aid system in South Africa is a model which even the UN has adopted as a model to display for the rest of the world to learn from. [Applause.] I must say thank you very much to them for their continued clean audits over the past 11 years. Like many other institutions in this cluster, they deserve to be commended.
Let me conclude by thanking the Deputy Minister of Justice and Constitutional Development, the Deputy Minister of Correctional Services, the Director-General of Justice, the Acting National Commissioner and all the officials in the department; and, of course, not forgetting the leadership of the judiciary present here and all other fraternity and sorority of the justice system. I thank you. [Applause.]
Hon M S MOTSHEKGA
The MINISTER OF JUSTICE AND CORRECTIONAL SERVICES
Dr M S MOTSHEKGA: Hon House Chairperson, hon Minister and Deputy Ministers, and all protocol observed, the South African Constitution Act, Act 108 of 1996, mandates us to conduct a radical transformation of the entire legal system, including the judiciary. This constitutional imperative is premised on the fundamental right of all South Africans to access formal and substantive justice, the courts and legal services and the legal profession. To achieve these objectives, our legal system, including the judiciary, should be radically transformed. The desired radical transformation must be informed by the values of ubuntu and the principles embodied in the Constitution and the Bill of Rights.
The Constitution enjoins us to build a united, nonracial, nonsexist, democratic and prosperous South Africa in which the value of every citizen is measured by our common humanity, ubuntu-botho. These constitutional values and principles must be infused into our jurisprudence and the legal system. Of course, these values did not come from heaven like manna. They were born out of the struggle of the African people for freedom and justice. South Africa needs a home-grown jurisprudence - that is, legal philosophy - based on our spiritual and humanist values.
The founders of our democracy left a rich spiritual and humanist culture which should inform our transformation agenda. In 1892, the founding president of the ANC, John Langalibalele Dube, called for a new Africa that would be a spiritual, humane and prosperous continent. In 1905, Pixley ka Isaka Seme embraced these values, reclaimed his African identity and called for a new and unique civilisation for Africa and Africans. However, Seme condemned the demon of racism and called for unity in diversity. Sefako Makgatho, successor of John Langalibalele Dube, called for the creation of a nonracial society in South Africa.
His successor, Reverend Zaccheus Mahabane, noted that African people were degraded and dehumanised and rendered landless, homeless and hopeless in their own country. Mahabane argued that the recovery of the African humanity - ubuntu-botho - was a prerequisite for the recovery of the humanity of all Africans, both black and white. Mahabane's humanist philosophy found expression in the 1923 ANC Bill of Rights which called for the recovery of the humanity of the African people and their right to participate in the economic life of the country.
Thus, the ANC made our common humanity, ubuntu, the fountainhead and foundation of its human and people's rights culture. The 1923 Bill of Rights was amplified by the African claims adopted by the ANC in 1943 which called for the recognition of the socioeconomic rights of African people. In 1955, the Freedom Charter, adopted by the Congress of the People, introduced a constitutional blueprint for a postapartheid South Africa based on unity in diversity and the right of South Africans, both black and white, to cultural, social and economic self-determination.
In 1987, the ANC adopted a statement of negotiations which affirmed the constitutional vision embodied in the Freedom Charter. In 1988, the ANC issued the constitutional guidelines for a democratic South Africa which provided that all government structures and institutions shall be based on democratic principles, popular participation, accountability and accessibility within a united South Africa.
The ANC was also the architect of the Harare Declaration which contained constitutional principles for a democratic dispensation and guidelines for a negotiated settlement. The constitutional values and principles contained in the Freedom Charter and the Harare Declaration found their way into the South African Constitution. This is not political, but constitutional history, which must be taught to all law students and aspirant judges.
Regarding the transformation of the legal system, South Africa needs a new legal system, a new judicial system. It needs a home-grown jurisprudence, not transplanted from Canada and other western countries which have no regard for the African stream of history and culture. It is important for South Africa to domesticate African human rights instruments to Africanise the South African legal system and jurisprudence. As President Jacob Zuma said, supported by Judge Hlophe, it is necessary to Africanise or indigenise the law in this country. That also means, therefore, that we need to train a new type of judge, and that is why we support the development of criteria for the training of judges, so that we have judges who are rooted in the African human and people's rights culture. We therefore support the SA Judicial Education Institute for the training of judges and we think that it has to be capacitated so that it can produce progressive judges for the country.
We also believe that you cannot produce good black judges unless you have good black lawyers. We are therefore, as this Parliament, going to monitor the issuing of briefs to black lawyers so that they can get the necessary experience that will make them eligible for appointment as judges. It is not true, hon Horn, that the development of criteria for the appointment of judges is interference with the independence of the judiciary.
For the past 20 years we have done very well in the transformation of the judiciary by passing the Constitution Seventeenth Amendment Act of 2012 and the Supreme Court Act, Act 59 of 1959 as well as the Legal Practice Bill. But, it must be borne in mind that transformation of the legal system and the judiciary is not only a matter of restructuring and creating a different institution; it also goes to the heart of the concept of justice itself.
South Africa has three streams of history and culture, namely the African, Asian and European streams. The English common law and Roman Dutch law are based on the European stream of history and culture; indigenous African law is based on the African stream of history and culture. Our courts apply statutory law, English common law and Roman Dutch law to resolve criminal, civil and family disputes. This means that European norms and standards are imposed on the African majority, contrary to the Constitution. There is also a marked difference between European and African court systems. Traditional African courts use inquisitorial not adversarial procedures and do not require legal representation. Their decisions are also based on consensus. Indigenous African courts therefore favour the poor whilst European courts favour the rich.
The transformation of the legal system offers us an opportunity to infuse constitutional values and principles in indigenous African law, English common law and Roman Dutch law. The final excision of the Traditional Courts Bill and the implementation of the Traditional Leadership and Governance Framework Act, Act 41 of 2003, will therefore go a long way in giving traditional communities, especially rural women, equal access to justice and alternative dispute resolution forums.
The people of this country, during the 80s, not only rejected apartheid court systems, but also evolved alternative dispute resolution forums that came to be known as people's or community courts. The state agents infiltrated and discredited them and got government to suppress and eliminate them. The government went and imported Canadian and other alternative dispute resolution forums and thereby denied the African people an opportunity to develop home-grown alternative dispute resolution forums. In other countries, notably Zimbabwe and Mozambique, the postcolonial administrations adopted an integrated community system into the modern system. So, as this Parliament, we will conduct a comparative study of these systems and see how South Africa can also create space for the masses of the people to create their own common law in the same manner that the British, Romans and the Dutch created their own common law.
Many miscarriages of justice result from language barriers. It cannot be that, in a country that is predominantly African, with the majority of judges not being black and not knowing a single African language, we can claim the administration of justice delivers justice to the majority of the people. Therefore, we want to suggest that, in the same manner that we were not allowed to become lawyers unless we know Afrikaans, English and Latin, no South African, both black and white, should be allowed to get a law degree and become a judge or a magistrate unless he has passed one indigenous African language. [Applause.]
With regard to fighting corruption, there are institutions supporting democracy such as the Public Protector, the SA Human Rights Commission and the Public Service Commission. When they appeared before us, it emerged that there are overlapping mandates, and poor co-ordination. When we asked them whether these overlapping mandates should be revisited or not, we were accused of wanting to reduce the powers of the Chapter 9 institutions or to clip the wings of the Public Protector. I can assure you that the ANC respects all Chapter 9 institutions, including the Public Protector, and has no intention to clip anyone's wings.
However, the ANC and this Parliament would be irresponsible to turn a blind eye to these overlapping mandates because they are costly and the country cannot afford them. However, we are not dictators. We want to call on the leaders of these Chapter 9 institutions to immediately reactivate the forum of these institutions, convene within three months to address the problem themselves and recommend to Parliament how we should deal with those matters. We will also revisit the Kader Asmal report and see whether the recommendations therein can be utilised to address these questions.
We have also noticed that all these Chapter 9 institutions focus more on investigations, but the fact that we have service delivery protests that are violent may suggest that our people have not fully internalised the human rights culture. Therefore, there is a greater need for human rights education, and we would take the view that commissions such as the SA Human Rights Commission, should perhaps focus more on human rights education and support the public interest and community law centres to make sure that the people participate in building a new society. Thank you. [Time expired.]
Mrs G BREYTENBACH
Dr M S MOTSHEKGA
Mrs G BREYTENBACH: Madam Chairperson, hon members, South Africa has, if not the strongest, then one of the strongest constitutional legislative frameworks in the world. It is designed to ensure that all our citizens live in safety and security and that everyone is equal before the law. It is these principles that should guide the criminal justice cluster in the performance of their duties, guided always by the prescripts of the Constitution and the principles of the rule of law.
However, this has not been done successfully or at all, and the web of terror that crime throws over South Africa is so strong and far-reaching that every South African has been constrained by it in some way. The lives of many committed and talented South Africans have been lost. Many are deeply traumatised. We have become suspicious of our fellow citizens and distrusting of the institutions that are supposed to keep us safe. This, clearly, has a negative effect on the fight against crime in general and the fight against corruption in particular. This, in turn, has a disastrous effect on the economy and investment. Internationally, investors are hesitant to invest where they believe that they may have no recourse, where they have little faith in the ability of the legal framework to offer adequate protection. The knock-on effect is the high unemployment rate and the inability to create jobs, and employ, particularly, young people and young graduates.
The 2007 Cabinet adopted a so-called seven-point plan to review and revamp the criminal justice system. This, very briefly, was designed to address the most serious shortcomings of the criminal justice system and was to create an effective and efficient so-called integrated criminal justice system.
We now find ourselves in mid-2014 and no closer to achieving even the most modest of the goals set out in that plan. Seven years of planning, budgeting and promises of implementation have left us nowhere. Billions have been spent by the Department of Justice and by the criminal justice cluster in pursuit of these goals, with very little or nothing to show for it.
This year, again, in his overview of the proposed budget, Minister Masutha refers to these goals, how they will be pursued and achieved and how much will be spent in pursuit thereof. And this year, again, there can be no realistic expectation of any success in this regard.
The National Prosecuting Authority, an important player in the criminal justice cluster and the institution upon which the achievement of these goals largely rests, is in disarray. It has been without a permanent head for long periods, and the ensuing chaos is a direct result of this. Acting heads, who, by their very nature are directionless, and unsuitable appointments, have wreaked havoc on a once strong and dependable institution. This is, of course, the direct result of unabashed and undisguised political meddling in the affairs of the National Prosecuting Authority and the criminal justice cluster as a whole.
The National Prosecuting Authority is an institution that should have no dirty linen to wash, let alone to be washed in public, yet week after week we see it lurch from one damaging scandal to the next. Its reputation is in tatters. It is constantly in the news and never for the right reasons. The public at large has no faith in the organisation to fulfil even its most basic mandate, and a budget of billions annually sees no real improvement in its daily functions. Millions are wasted on litigation for poor, or no, reasons.
The previous Minister stated that the full prisons indicated that the NPA was working. That's not true. Jails are full because of awaiting-trial prisoners, and that's proof that the NPA is not working at all.
The hapless and very pliable Koki Mpshe was appointed after the inexcusable firing of Vusi Pikoli, solely to facilitate the withdrawal of the corruption and other charges against the President. The appointment of the wholly unsuitable Menzi Simelane followed and was defended to the doors of the Constitutional Court. The equally unsuitable Nomgcobo Jiba was rushed up the corporate ladder in order to replace him and to oversee the continued stonewalling surrounding the spy-tapes saga and the protection of Richard Mdluli, astonishingly even in the face of various court judgments and despite the assurances of the Minister in this regard.
Under pressure from various sources, the President, having had plenty of time to apply his mind, appointed the unfortunate Mxolisi Nxasana, only to institute an inquiry into his fitness to hold office 10 months later, but only after he called for the spy tapes and other related documents and reinstituted charges against Richard Mdluli. It takes no great amount of intelligence to glean the golden thread in this sad tale.
Ms M C C PILANE-MAJAKE: Hon Chairperson, is the hon Breytenbach prepared to take a question?
Mrs G BREYTENBACH: No.
The only sensible thing to do now is for the President to widen the still-to-be-announced terms of reference of the commission to include an inquiry into the behaviour of other senior managers in the NPA, most notably ...
The HOUSE CHAIRPERSON (Ms A T Didiza): Hon member, could you take your seat. Hon Motshekga?
Dr M S MOTSHEKGA: Hon House Chairperson, I would like to know whether it is ethically correct for the hon member to use this Parliament to deal with issues from her former employment in this Parliament. [Interjections.] She is addressing her problems in her former employment and she wants this Parliament to be used for that ... [Interjections.] Is that ethical and acceptable? [Interjections.]
The HOUSE CHAIRPERSON (Ms A T Didiza): Hon member, I will reflect on the matter and then make a ruling.
Mr R W T CHANCE: That was not a point of order, Chairperson. This is a free House, and freedom of speech is taking place here. This is a debate, and the member is entitled to say what she wants to say. Thank you, Chairperson.
The MINISTER OF JUSTICE AND CORRECTIONAL SERVICES: Chairperson, on a point of order: When a member of this House has raised a point of order and the presiding officer has indicated that she will apply her mind and come back with a ruling, nobody else need stand up and comment on that. [Interjections.] So, in future, remember how the Rule system in this House works. Thank you. [Interjections.]
Mr R W T CHANCE: A point of order, Chairperson. [Interjections.]
The HOUSE CHAIRPERSON (Ms A T Didiza): Order, hon members!
Mr R W T CHANCE: Point of order, Chairperson. [Interjections.]
The HOUSE CHAIRPERSON (Ms A T Didiza): Order! Order, hon members! Could you please take your seat, sir.
A point of order has been raised. It might be that other members don't think it is a point of order, but as a presiding officer I said that I would reflect on the issue raised and make a ruling. Could we respect that and allow the member to proceed with her speech?
Mr R W T CHANCE: Point of order, Chairperson. I would like to know what Rule the member is raising in terms of his point of order. Thank you, Chairperson.
The HOUSE CHAIRPERSON (Ms A T Didiza): Hon member, could you allow the presiding officer, together with the Table, to reflect on this matter that has been raised and make a ruling? Hon Breytenbach, you can continue.
Mrs G BREYTENBACH: Thank you, Madam Chairperson.
The only sensible thing to do now is for the President to widen the still-to-be-announced terms of reference of the commission to include an inquiry into the behaviour of other senior members, notably Adv Jiba and Adv Mrwebi. Both were severely criticised in judgments of the High Court and the Supreme Court of Appeal. The top structure of the National Prosecuting Authority needs to be cleaned out so that those who remain can get on with the core business of the organisation.
The Minister suggests that this new inquiry will not affect the work of the NPA. Of course it will. The morale is at an all-time low. The NPA is not about clean audits; it is about prosecuting efficiently and effectively without fear, favour or prejudice, and this is currently not the case.
The Special Investigating Unit has not fared much better than the NPA. Beset by leadership issues – notice the pattern here? – the SIU has largely failed to fulfil its proclaimed goals, despite a year-on-year increase in its budget. Many investigations have dragged on for years and appear to be nowhere near completion. The Bosasa matter has been alive for five years or more with no end in sight, and the head, Adv Soni, admitted last week before the portfolio committee that he could give no indication as to when the Nkandla investigation and report would be finalised and placed before the President.
Despite the importance of and public interest in the matter, the SIU only managed to gain access to the premises at Nkandla on 3 July 2014. Adv Soni declined to say who was responsible for the delay, despite the parties involved being legally obliged to co-operate with him. Given the profile of this matter and the obvious importance and pressure to finalise it, no real progress could be demonstrated, and certainly no will to drive the matter was discernible.
The current presentation before the portfolio committee reveals an enormous decrease in cases expected to be finalised, but despite this, the SIU felt comfortable to approach Parliament and request an increased budget in order to meet its significantly decreased goals. There can be very little confidence that even these modest goals will be met. Again, we see an important component in the criminal justice cluster being reduced to somewhat embarrassing ineffectiveness due to overt political meddling. Even Adv Soni conceded that this unit may have outlived its usefulness.
The Office of the Public Protector, a Chapter 9 institution and independent and reporting to Parliament, is one in which the mandate is being followed and fulfilled, but it is clearly under fire due to the independence being exhibited. The Public Protector herself is vilified, accused of overreaching her mandate, accused of playing politics and the target of severe personal criticism from certain sources simply because she refuses to bow to political pressure and refuses to allow political interference in her institution, which derives its independence from the Constitution.
Again, the threat of political interference in these institutions is glaring and the attack on the independence of the criminal justice cluster is palpable.
No amount of budget increases will fix this. No amount of money is going to make these institutions effective in the face of such interference. The interference must stop. It is our duty, the duty of this Fifth Parliament, to all those citizens who voted for us to sit here to make it stop and to work towards making the criminal justice cluster effective and efficient in order to fulfil the role it is enjoined to fulfil by the Constitution. If we allow the rule of law to be eroded any further, we will find it impossible to regain the lost ground.
The great Russian author Aleksandr Solzhenitsyn wrote:
In keeping silent about evil, in burying it so deep within us that no sign of it appears on the surface, we are implanting it, and it will rise up a thousandfold in the future. When we neither punish nor reproach evildoers, we are not simply protecting their trivial old age, we are thereby ripping the foundations of justice from beneath new generations.
If the ANC is serious about chasing a good story, then they will take steps to put an end to this interference now. Thank you, Madam Chair. [Applause.]
Mrs K LITCHFIELD-TSHABALALA
Mrs G BREYTENBACH
Mrs K LITCHFIELD-TSHABALALA: Hon Chair, I greet the hon Minister, hon members and our distinguished guests.
Where justice is denied, where poverty is enforced, where ignorance prevails, and where any one class is made to feel that society is engaged [nm1] in a conspiracy to oppress, rob and degrade them, neither persons nor property will be safe.
These are the words of Frederick Douglass who was born a slave and were uttered about three centuries ago. They are words that have come to haunt the justice system in South Africa, anchored in capitalism and rooted there by the National Development Programme, NDP. It is a system that gives the rich a choice whether they shall await their trial in prison or at home while an estimated 10 000 poor people, some of whom cannot afford bail as low as R1 000, are forced to spend years awaiting trial in conditions that are appalling. Some of them are forced to share one bed between four people, a place where TB festers.
It is a system in which one is not necessarily found guilty because they have committed a crime but simply because they could afford a good lawyer. Sometimes they are not found guilty because they are innocent; it is simply because they could afford a good lawyer. It is a system which is very harsh on ordinary crimes committed by ordinary people but very silent on crimes that involve billions of dollars. [Interjections.]
The HOUSE CHAIRPERSON (Ms A T DIDIZA): Hon Tshabalala, can you take a seat? Hon Motshekga.
Dr M S MOTSHEKGA: Will the hon member take a question?
Mrs K LITCHFIELD-TSHABALALA: No, I will take a question if I am done and am within my time.
The HOUSE CHAIRPERSON (Ms A T Didiza): Hon member, you may proceed.
Mrs K LITCHFIELD-TSHABALALA: It is a system which allows multinational corporations to do what is called tax evasion leading to base corrosion, or what is called capital flight, amounting to billions of rand.[nm2]
It is a system that allows multinational corporations to do what is called price fixing. To date 15 companies involved in the construction industry in South Africa have admitted to this. Between the 15 of them, they were only fined a mere R1,5 billion. It is a system which the World Bank refers to as "foreign direct capital loves corruption", because it is a system in which multinational corporations bribe senior officials in government and get into a country with a license to kill. [Applause.] They do as they please, degrade the environment and underpay our people because they have a license to kill and the government is silent.
It is against this background that we in the EFF cannot say yes to this Budget Vote because we would be participating in what is called an abortion of justice for poor people. [Applause.]
If the EFF is elected into government, we shall prosecute and criminalise all multinational corporations involved in price fixing, tax evasion and driving senior officials to get a license to kill. We shall also shorten the awaiting-trial time to an estimated three months maximum. We shall also move from the high sentencing which our justice system uses at the moment, using sentencing to deter crime instead of using sentencing for rehabilitation or just deserts.
Hon Chair, we are not in support of this budget for all the reasons that I have elaborated on. I thank you. [Applause.]
The HOUSE CHAIRPERSON (Ms A T Didiza): Thank you, hon member. Hon Motshekga, you will ask the hon member the question outside.
Mr M G ORIANI-AMBROSINI
Mrs K LITCHFIELD-TSHABALALA
Mr M G ORIANI-AMBROSINI: Madam Chairperson, in this debate, as in many of the debates of the Department of Justice and Constitutional Development in prior years and, unfortunately, in many of the debates in future years, the issue of corruption appears to be central. We are debating it in recognition of its importance. The real issue is whether we can do something over and above debating it.
I, for one, believe that there is nothing wrong with the legislation we have adopted. We have good laws on the Statute Book. The process of implementing those laws has been extraordinarily difficult, and we have reached a critical point where corruption can no longer be defeated because the burden of enforcing the law has become greater than the administrative capacity dedicated to that purpose.
We must become realists and do the unpalatable. If we look at the situation of Nkandla, to which reference was made earlier, it is clear that we are dealing not only with the activity of corruption, but the culture of corruption. Unless we do something radical and dramatic, and turn the page, things are not going to change. Corruption has become a way of doing business, a way of operating, a way of going about[nm3] things.
We made a suggestion several years ago and I want to make it again because, when everything else fails, perhaps what seems to be outrageous can become meaningful and worth considering. We need to have a general amnesty. We need to have something on corruption; something that highlights the fact that the past is the past. We have had a 20-year process of changing the country from an apartheid situation to a democratic situation. Many things went right and many went wrong. Let us write down 20 years of corruption and pillaging of state resources to what went wrong. Let us promote a general amnesty that highlights the fact that what was done yesterday can no longer be done tomorrow and not by itself; it must be part of a three-aspect operation.
The other thing we need to commit ourselves to is to start on a new page in the enforcement of corruption. If we clear the slate from the past, we can have structures dedicated to ensuring that, in the future, not a single action of corruption is tolerated.
We must adopt what has been proven[nm4] to be the most effective form of combating corruption. Consistent with our constitutional order, we must adopt something like the anti-corruption commission in Hong Kong - a dedicated and specially tasked commission with international expertise and expertise from all segments of society, which has no respect for any established authority and cannot be intimidated. It goes out there and prosecutes corruption wherever it happens and no matter who is involved, and applies the laws we have, which are adequate.
That is essential because if it does not happen... I do not have much strength left; I know that there are other people with more strength than I do.
There is a third element that is being formed within our society. We give our money to the government to build roads, educate our children, heal the sick and attend to all other public functions; not to build complexes like Nkandla. If that is how our money is used, it is about time for a tax revolt.
There are people in South Africa who are organising a tax revolt. Make no mistake, it takes one single action of skipping one single cycle of VAT [nm5] and the entire system collapses. We the people, we the taxpayers, still have the final say on whether or not this society can operate.
There must be a new social contract[nm6] where agreement is reached, where we turn the page. What went on, went on; and there is a general amnesty for that. We have a new approach to the future based on effective mechanisms of enforcement of the laws we have on the Statute Book – failing which, we will need to go back to a negotiating posture, because the scenario of a tax revolt will force government to realise that the money it spends, wastes and squanders is not government money. It's our money, given to the government to govern.This issue of corruption is central.
The second issue that I would like to address – I do not have a watch in front of me, I hope I still have two minutes to do so – is that of the judicial processes. The business of the Department of Justice and Constitutional Development is to render justice. Justice ... Thank you very much. [Time expired.] [Applause.]
The DEPUTY MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT
Mr M G ORIANI-AMBROSINI
The DEPUTY MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT: Chairperson, hon Minister, hon members, members of the judiciary, and other important guests in the gallery, ladies and gentlemen, former Chief Justice Sandile Ngcobo once outlined the characteristics of an accessible justice system: It is a justice system that is just in the results that it delivers, that is fair to all litigants regardless of their station in life, that is inexpensive, that delivers results in the shortest possible time, that is understood by the people who use it, that responds to their needs, and that is effective.
Justice has in the past been a commodity which was accessible only to the state and the privileged few, to the exclusion and detriment of the majority of our people, the poor and the marginalised. Fortunately, as government's Twenty Year Review describes, we have emerged from a deeply divided and violent past into a vibrant democracy. We think of the words our Nobel Prize-winning author and anti-apartheid activist Nadine Gordimer who sadly passed away at the weekend. She once said, "Time is change; we measure its passing by how much things alter." Our society has changed over the past 20 years. We promised that we would create a better life for our people, and we have done so.
Access to justice is a vital component of a vibrant democracy, and it is pivotal to the rule of law. Access to justice can in the first instance be effectively achieved only if all prospective litigants have an unfettered right to bring a case before a court and if they are aware of their rights. A recent survey conducted by the Foundation for Human Rights concludes, alarmingly, that only 46% of South Africans have ever heard of the Constitution or the Bill of Rights, and a mere 10% of people have either read the Constitution or had it read to them. Improving access to justice for all and enhancing the rule of law have been critical priorities for government and, consequently, in the last two decades, specific initiatives were undertaken to extend access to justice to the 90% of the population who had previously been excluded. Former Chief Justice Ngcobo said that an accessible justice system must respond to the needs of the people. In this regard, we have fundamentally improved access to justice through the creation of new courts, particularly in previously disadvantaged communities.
Other characteristics of an accessible justice system, in the words of Ngcobo, are that it must be inexpensive, easy to understand and deliver results speedily. This is exactly what our small claims courts do. Small claims courts are speedy, simple and cost-effective ways to resolve disputes. These courts have been a success story in the drive to make justice more accessible. In 1994, most of these small claims courts were in white and urban areas. We currently have 301 small claims courts. Thirty were established in the last financial year and eight have been established since 1 April 2014. Of the 30 which were established last year, the overwhelming majority are situated in rural and traditionally black areas. Areas which now have small claims courts include Msinga in KwaZulu-Natal, Madikwe in the North West, Peddie in the Eastern Cape, Clocolan in the Free State, KwaMhlanga in Mpumalanga, Mutale in Limpopo, Vanrhynsdorp in the Western Cape, Williston in the Northern Cape, and Tsakane in Gauteng, to name but a few.
The number of people enjoying the benefits of access to justice through small claims courts has increased steadily. For example, if one looks at the size of the population in the areas within which the 30 new courts were established in 2013, it amounts to more than 2,8 million people. These are 2,8 million people who now have enhanced access to justice by having a forum available to them to resolve civil disputes free of charge. The monetary jurisdiction of the small claims courts was also increased earlier this year from R12 000 to R15 000. This effectively means that the words "small claims" are somewhat misleading as R15 000 is, for the majority of our people, not a small amount and thus very much a bread-and-butter issue.
The commissioners who preside in these courts are drawn from a pool of experienced legal professionals and academics who work on a pro bono basis – that is, for free. I want to convey our sincere appreciation to each of the 1 705 commissioners countrywide, of whom nine are magistrates – one of whom is a chief magistrate and one a regional court magistrate – as well as the 189 Legal Aid SA lawyers, who all make our small claims courts a success, and we urge other practitioners, magistrates and academics to make themselves available to serve as commissioners. New small claims courts are continually being established, and only 92 new small claims courts are still needed to meet our target for every magisterial district to have a small claims court. This year we will be focusing on improving the functioning of these courts, and we also intend to conduct a comprehensive review of the small claims court legislation which was drafted in 1984 – long before our progressive Constitution. I would also like to thank the Swiss Agency for Development and Co-operation for their continued support of our small claims court project.
As part of our quest for access to justice for all, Legal Aid SA has over the past few years been revamped and remodelled to become one of the best legal aid systems in the world, as the Minister has spoken about. It has grown significantly and, in many instances, its performance is higher than the set targets. Where there were a total of only 79 501 matters dealt with in 1993-94, the number of total cases dealt with has grown dramatically, almost tenfold, to 736 679 in the 2012-13 financial year. We are also pleased that the Legal Aid Bill, which will repeal the old Legal Aid Act, Act 22 of 1969, will be introduced in Parliament later this week.
Many representations are made to Parliament for increased funding and for increasing staff. Where increased funding is not possible, institutions have to look at ways to improve service delivery within the allocation they receive. The aim of Programme 5: Auxiliary and Associated Services in the department's budget is, amongst others, to fund transfer payments to the SA Human Rights Commission, SAHRC, and the Office of the Public Protector. Where possible, there have been increases in funding. For example, the SAHRC budget has been increased from R119 million in the last financial year to R128 million for this year, whilst the budget for the Office of the Public Protector has been increased from R199 million in the last financial year to R217 million for this financial year.
I have noted the request made by the Public Protector to the portfolio committee for increased funding. Members should recall that the Office of the Public Protector was given significant increases in transfers in the recent past, up from R114 million in 2010-11 to R217 million for this financial year. The increases in transfers were mainly for growing the investigative capacity within the Office of the Public Protector.
The harsh reality for all of us is that we face limited resources. Our national fiscus simply does not have a bottomless purse. We must all cut our coat according to our cloth. I trust that the Public Protector will ensure that, given the limited resources, there will be no overlap in investigations between her office and other institutions such as the Public Service Commission and the SA Human Rights Commission. I have noted that 24 642 reports were finalised by the Public Protector in the last financial year. I hope that the annual report will reflect full details as to what the nature of these complaints were so that government can look at ways of systemically improving its service delivery. From the side of the Department of Justice and Constitutional Development, we are eager to see proposals from the Public Protector on how we can eliminate whatever the problems are that give rise to the complaints against our department. I trust that these kinds of reports can be made available to the relevant portfolio committees in Parliament to assist them with their oversight work.
The sheriff's profession is another critical component of the justice system and contributes immensely to the quality and accessibility of justice. One of the major focuses of our transformation agenda was the sheriff's profession which, at the time, was the domain of mostly white males. Significant progress has since been made with regards to transforming the profession. According to the SA Board for Sheriffs, as from 1 October last year, 51% of the current 348 sheriffs were black. Although we have also made strides in making the sheriffs' profession more efficient and professional, more needs to be done. The sheriff's role goes beyond that of just being a mere messenger of the court. Central to the new Code of Conduct for Sheriffs is the requirement for all sheriffs to constantly hold in high regard the rights of all citizens in performing their functions. In line with this, sections of the Sheriffs Amendment Act, which have not yet been put into operation, along with the new regulations dealing with the sheriffs' profession, will come into operation on 18 July; in other words, on Friday.
One of the other pieces of legislation that needs to be finalised by Parliament is the Traditional Courts Bill, which the committee chairperson referred to. The Bill sustained criticism from certain quarters when it was being considered by the National Council of Provinces, and it subsequently lapsed. It was unfortunate that the critics did not seek to propose amendments to the Bill to address their concerns but rather sought to attack the Bill as a whole. The crucial point that cannot be overlooked is that traditional courts exist in many parts of the country and provide access to dispute resolution to many people for whom the current court system is alien or too expensive. These courts need to be brought in line with the Constitution. Further work is being done on the Bill to address concerns raised, and I trust when the Bill is reintroduced into Parliament, all stakeholders will contribute in ensuring that the legislative framework is strengthened.
The National Development Plan states that most prospective litigants do not possess the necessary legal skills or finances to institute or defend a case. Affordable legal representation is a critical and integral part of access to justice. I have already indicated how we have transformed legal aid services, but that is only one pillar of legal representation. There also needs to be transformation in the provision of private legal representation and services. Our department is fully aware of this, and, for this reason, we have the Legal Practice Bill, passed by Parliament just before the election. The reality is that lawyers' fees restrict access to justice for the poor and even the not-so-poor. By this I mean people who earn more than the means test used by Legal Aid SA and who therefore do not qualify for legal aid. We hope that the Legal Practice Bill will make legal services more affordable and more accessible to our people and that it will also facilitate entry into the legal profession for people who were previously excluded from it.
Our legal profession is still largely untransformed. Looking at the attorneys' profession, from figures obtained from the Law Society of SA, of the more than 22 000 practicing attorneys in the country, the majority – namely 14 189 - are white, and only 4 930 are African. Whilst the number of graduates last year was in the majority African, at 2 039 as opposed to 1 092 white graduates, it is still white graduates who obtain the majority of articles of clerkship. There were 1 000 African candidate attorneys to 1 048 white candidate attorneys for the last financial year. This is an improvement on previous years but still does not reflect the position with regard to graduates. Similarly, amongst the largest legal firms in the country, there is not one that is predominately African owned. If one looks at the titles, the names, of the so-called big five law firms, one will not spot a single African surname in those titles. Can this still be the situation 20 years after the end of apartheid?
With regards to gender representation, it appears as if the attorneys' profession is making progress, as more female attorneys - 167 - than male attorneys -126 - were admitted to the profession last year. However, the advocates' profession is still a matter of concern when it comes to both gender and race. According to the race and gender statistics of the General Council of the Bar of South Africa, only a quarter, 645, of our country's total 2 571 advocates at the Bar are female. Of these, only 4,5% - 116 - are African females. Of the "silks", or senior counsel, only 27 are female, of which only 4 are African. This is less than 1% of our country's 451 senior counsel. This is a concern, particularly since many of our judges come from the ranks of the advocates' profession.
In conclusion, it is important that each of the above areas of our work is viewed in the context of the manifesto of the ruling ANC, government's programme of action, and the National Development Plan. Ultimately everything we do should be to improve the lives of our people. Let all of us here today, as members of the executive and the legislature, be mindful of these few lines from the poem "Freedom" by poet Afzal Moolla:
Today we reaffirm,
that promise of freedom.
From want.
From hunger.
From eyes without promise.
Today we pledge.
To stand firm.
To keep the pressure turned on.
To remind those in the corridors of power,
that we the people need to savor the fruits of the tree of freedom.
Freedom under a Constitution is only meaningful if people are free from poverty and inequality, free from injustice, free from hunger and free to exercise their rights. We therefore call upon this House to support this Budget Vote. The budget which is before this House today will, no doubt, allow our department to help our people to exercise their rights and to further savour the fruits of the tree of freedom. As the Roman Senator Cicero said, "Let the welfare of the people be the ultimate law." I thank you. [Applause.]
Mr B T BONGO
The DEPUTY MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT
Mr B T BONGO: Hon Chair, hon Minister and Deputy Minister, hon members of the House, ladies and gentlemen, I am humbled by this opportunity presented by Parliament to engage with Budget Vote 24.
I would like to focus on some of the issues impacting on society in general and focus in particular on access to justice in postapartheid South Africa.
The ANC notes, reconciles and identifies itself with the role played by the Freedom Charter, thus asserted in the Constitution of the Republic of South Africa: a prerequisite for the rule of law is access to justice. The Constitution of the Republic of South Africa guarantees the right of access to courts, equality before the law, and protection and benefit of the law.
Statistics provided by Statistics SA show that 52% of people in rural areas are unemployed and that 32% of households in those areas depend on government grants as the main source of their income. Many of those people cannot deal with their enormous difficulties without access to legal justice.
Justice remains something that the majority of South Africans residing in rural areas cannot access easily. The reasons for this include high levels of poverty, lack of infrastructure, lack of state capacity, a scarcity of legal skills in impoverished areas, illiteracy and ignorance of the Bill of Rights and the Constitution.
The country's courts are divided into 384 magisterial districts and 18 subdistricts. This division is still informed by the demarcations of the apartheid system and its discriminatory legislation.
Chapter 12 of the National Development Plan, NDP, acknowledges that there is a need to build safer communities. Therefore, as a first step – now that we have community policing forums already existing in our communities – we need to make sure that we establish community courts, particularly in townships, to deal with minor offences. This is the case wherever such courts exist in the world.
Traditional courts must be properly transformed so that they comply with the Constitution and they must be adequately resourced. They must be empowered to fulfil their traditional role. The traditional leaders – the headmen and headwomen – who adjudicate these courts must be trained properly so as to improve access to justice.
We need to accelerate the alignment of the magisterial boundaries to improve access to our courts so that our people do not have to travel long distances to access justice. This was also a resolution of the ANC's 53rd conference at Mangaung.
It is worth appreciating that the department is in the process of building two High Courts, one in Mpumalanga and the other in Limpopo. This means that our people who reside in those rural areas will no longer be required to travel long distances to access a High Court.
The department is committed to decreasing the rate of court postponements and eradicating the apartheid spatial development framework. We need to ensure that the proceedings of courts in rural areas are conducted in the indigenous languages that are spoken in those rural areas. English must be used only for the purposes of interpreting the record.
Responding to and ensuring proper access to justice in those areas will require the establishment of a dedicated sexual offences court and a national action plan to deal with domestic violence. To ensure that we respond to the Constitution and the hon President's state of the nation address, the following pieces of legislation will be enacted: the Legal Practice Bill – which is in the final stages in Parliament and is intended to address all the problems that relate to the cost of attorneys in the legal fraternity. Another Bill to be dealt with by this Fifth Parliament is the justice administered fund Bill, which intends to address all problems experienced in connection to third party funds.
We will also attend to the amendments of the following legislation to ensure that we move South Africa forward: The Legal Aid Amendment Bill, as articulated by both the Minister and the Deputy Minister, and the maintenance amendment Bill.
The quality of the work done by the Legal Aid Board of SA is commendable. The five parties represented in the portfolio committee all agree that the Legal Aid Board of SA is doing a great job. This office has managed to execute its legislative mandate given by section 35(2) of the Constitution.
The office of the Legal Aid Board has 64 justice centres around the country and they have received clean audits for the past 11 financial years. Some of the achievements of this board include dealing with 429 000 cases, 27 960 of which involved children, while 80% of those are criminal cases and 20% civil cases. They provided general legal advice to 256 681 clients across the country. These offices are in the process of ensuring that a fully operational call centre is established which will facilitate telephone access to justice and service people who have difficulty approaching this office.
The 53rd national conference in Mangaung noted that black lawyers are not sufficiently briefed – a matter that the chairperson of the committee, hon Motshekga, has always raised – and resolved that there should be a radical shift in state legal services practice that will see government advance the briefing of black lawyers so as to acquaint them with the powers to defend the state – not only individuals – thus creating a pool from which potential judges may be selected. Apartheid briefing patterns – which fast-track the development of white legal practitioners – must come to an end or be eliminated. Big business, parastatals, organisations and government departments must deliberately brief black practitioners and female practitioners to make sure that the resolution of our congress is taken to its finality.
I have just heard Ms Breytenbach from the DA raising some issues, particularly about the work she did in her previous employment. That constitutes a conflict of interest and creates a very serious problem for this committee because it casts aspersions of the integrity of Parliament. The reason she left the NPA is because of the huge donations that she was getting because of malpractices and corrupt tendencies that ...
Dr D T GEORGE: Chairperson, I rise on a point of order: the member is impugning the dignity of an hon member of this House. I would request that you Rule it out of order. Thank you.
Mr B T BONGO: I want to advise the hon member ...
The HOUSE CHAIRPERSON (Ms M G Boroto): Wait, hon member. The point of order is sustained. You are accusing an hon member of this House. Will you please withdraw?
Mr B T BONGO: I withdraw, Chair.
The HOUSE CHAIRPERSON (Ms M G Boroto): Continue.
Mr B T BONGO: I think the issues that relate to that means we must [Inaudible.] continue as Parliament and also as progressive forces to ensure that we pursue the issues that made hon Breytenbach leave the NPA in the manner that she did. However, we congratulate her for having left the NPA because we could not see whether there were third forces working there from the opposition parties. [Laughter.]
I would like to tell hon Tshabalala that we understand that the EFF was formed on the basis of anger. Just take note that the ANC is the only organisation that can unite this country. It is the only organisation that can act and think at the same time. So, we are inviting you to join this organisation because it is the only organisation that provides for the future of the country. Thank you.
Mr M G P LEKOTA
Mr B T BONGO
Mr M G P LEKOTA[mm7] : Hon Chair, I think you will give me a minute for that service to the House. [Interjections.]
The HOUSE CHAIRPERSON (Ms M G Boroto[mm8] ): A second!
Mr M G P LEKOTA[mm9] : Thank you very much!
Hon Chair, hon Minister, Deputy Minister and members of the House, we are now marking 20 years of our democracy and it is appropriate to recall that apartheid was a state of lawlessness because there were rights for some and no rights for others. That is why apartheid destabilised our society, and that is why there had to be drastic action to change that situation and create one in which there would be lawfulness. So, when we introduced a Constitution that gave rights to all South Africans, irrespective of colour or social standing, we created a situation of lawfulness in our country.
It is important, therefore, that all of us must keep in mind that it is our duty to sustain the state of lawfulness in this country, not to proceed in a manner that may suggest that there are some who deserve to have rights upheld and others not. A state of lawfulness is what our African forebears often spoke about when they expressed their appreciation. They spoke of kgotso [peace] because equal rights for everybody create peace. Then they said when that peace is there, you need pula [rain] because when there is rain, the only thing that can result is prosperity [nala]!
Since we established a state of lawfulness in our country, there has been reasonable progress, especially as long as all of us remembered the emphasis that the late President Mandela placed on the need to uphold the Constitution and respect all its provisions. If we are going to depart, consciously or unconsciously, from the provisions of the Constitution, we are going to create a situation of lawlessness. [Interjections.]
The HOUSE CHAIRPERSON (Ms M G Boroto[mm10] ): Take a seat, hon member. Is that a point of order?
Mr B T BONGO[mm11] : I just want to know whether hon Lekota would be willing to take a question.
The HOUSE CHAIRPERSON (Ms M G Boroto[mm12] ): Is the hon member willing to take a question?
Mr M G P LEKOTA[mm13] : Chairperson, I think that all of us from minority parties do not have as much time as members from the ruling party. I therefore really take a very dim view when they undermine our speaking opportunities by raising completely irrelevant issues when we speak. I am not going to take it. I have no time to take questions! [Interjections.]
The HOUSE CHAIRPERSON (Ms M G Boroto[mm14] ): Your point is taken, hon member. Continue!
Mr M G P LEKOTA[mm15] : He can come to my house or on the streets and we can discuss there. I have got limited time here! [Laughter.] I want to talk and say things here that are sensible, to contribute to my national duty in the debates of the nation. He comes and disturbs me like this, with frivolity! [Laughter.] I will therefore ask, Chair, if you can please keep in mind my time that has been wasted by this member. [Interjections.]
In order to ensure that our country proceeds in a state of lawfulness, we must watch very carefully some of the observations which I have made with regards to hon Motshekga, which suggests to me that we have to be extremely cautious. Hon Minister, I am wary to adopt an approach that does not recognise the fact that we are at the beginning of the Fifth Parliament. You have only just been appointed. There are differences of views in our country. Whether our country has in fact proceeded as we had thought it would or not, there are differences in views on this matter.
A year from now, we will consider whether you have proceeded in a manner that improves the situation or not. Even if you think that you have done very well, we will be very keen to see – in fact we will be duty-bound to evaluate – whether you have in fact made it better or not. When that time comes, when that review period comes, I think we will be in a better... [Interjections.]
The HOUSE CHAIRPERSON (Ms M G Boroto[mm16] ): Hon member, your time, with all the added seconds has expired. Thank you. [Laughter.]
Mr M G P LEKOTA[mm17] : Thank you, Madam Chair. [Applause.]
Mr S N SWART
Mr G P LEKOTA
Mr S N SWART[mm18] : Chairperson, the ACDP today joins all parties in considering the Budget Vote for the Department of Justice and the various entities that receive funding from it, including the Office of the Public Protector which I will be focusing on today.
A Supreme Court of Appeal, SCA, judge, Justice Nugent, said, as we know, that:
The Office of the Public Protector is an important institution. It provides what would often be the last defence against bureaucratic oppression, and against corruption and malfeasance in public office that is capable of insidiously destroying the nation. If that institution falters, or finds itself undermined, the nation loses an indispensable guarantee.
We in the ACDP agree with the sentiment.
It is therefore of great concern when findings and recommendations of the Public Protector are so blatantly disregarded as occurred last week when Communications Minister, Faith Muthambi, confirmed the appointment of the Chief Operating Officer at the SABC, Mr Hlaudi Motsoeneng, on the recommendation of the SABC Board.
Let us be reminded that the Public Protector recommended thatthe board should take disciplinary action against Mr Motsoeneng for his dishonesty related to the misrepresentation of his qualification, abuse of power and improper conduct.
She did not recommend that he be permanently appointed. On the contrary, she recommended that he be disciplined. Those findings stand, unless they were taken on review by a court of law. In our view it verges on contempt of the Public Protector to go ahead and appoint the very same person permanently after obtaining some legal opinion which purportedly cleared him. This is utter nonsense!
No opinion of a private lawyer can ever trump the findings of a constitutional institution like the Public Protector. Only a court of review can repeal its findings. In any event, Mchunu Attorneys have said that they did not have instructions on the appointment of Mr Motsoeneng.
So we in the ACDP are pleased that the Public Protector is launching another probe into this appointment. Of course, there will be other court challenges brought by the main opposition and other parties which, no doubt, will be met with success given, in our view, the irrationality of this appointment.
This sorry saga raises serious questions and issues about the lack of respect for the Office of the Public Protector. Whilst members in the majority party raised issues about the Public Protector, commented on it and raised other issues, what concerns us is that she is continually being vilified and criticised in the public domain, in the media and, even last week, in the Portfolio Committee on Justice and Correctional Services, she was accused of political posturing. We believe this is without foundation and unacceptable.
It is very clear that the knives are out for the Public Protector and that it is a direct result of her damning findings against the government. Whether it is the Nkandla report or the sea fisheries or police leases, this is something that we as Parliament need to be very aware of. Parliamentarians need to come alongside and protect our Chapter 9 institutions, including the Public Protector. They form part of the checks and balances designed to reign in executive power. And, yes, hon Deputy Minister Jeffery, we need to ask questions about overlapping mandates and trends in maladministration. We also support the revisiting of the recommendations of the Kader Asmal report.
However, to exercise effective oversight, we, as Parliament, need to be cautious of what we are saying when we are dealing with Chapter 9 institutions and what our mandates are. This is an issue of serious concern for us as the ACDP, and I believe that it is a serious issue when we treat a Chapter 9 institution with the disdain that is often showed to it. I thank you. [Applause.]
Mr M S MAILA
Mr S N SWART
Mr M S MAILA: Hon Chairperson, hon Minister of Justice and Correctional Services, Deputy Ministers, hon members and distinguished guests, I will focus more on the National Prosecuting Authority, NPA, and the office of the Chief Justice.
Both these institutions have a role to play in ensuring that the will of the people and that ``all shall be equal before the law'' as enshrined in the Freedom Charter is realised. Both these entities have great strides to take to ensure that South Africa moves forward towards the creation of a crime-free society characterised by swift, effective, efficient and accessible justice.
South African society, post-1994, has been marked by profound political changes accompanied by the implementation of progressive legislation, policies and programmes that have served to lay a foundation for a new society.
Section 179 of the Constitution has given effect to the establishment of the National Prosecuting Authority, NPA, which ensures justice to the victims of crime by prosecuting without fear, favour or prejudice, and by working with partners in the justice crime prevention and security cluster and the public to solve and prevent crime.
The role of the NPA in the criminal justice system can never be underestimated or underplayed, as some do. There are marked achievements by the NPA which are worth noting. In the 2011-12 financial year, the courts finalised 216 cybercrime cases with a conviction rate of 87,5%. During the same period, the Anti-Corruption Task Team finalised 175 cases with charges of corruption involving justice, crime prevention and security cluster officials.
The NPA has set clear measureable objectives for the current estimates of the national expenditure. The set objectives will enable the NPA to increase the number of cases finalised, including those finalised by the Specialised Commercial Crime Unit. The NPA will be able to maintain the conviction rates in courts at various levels to improve justice services for the victims of sexual offences by establishing additional Thuthuzela Care Centres and reduce the percentage of witnesses that walk away from the witness protection programme.
These and other targets set by the NPA will go a long way in ensuring that the National Development Plan's, NDP, vision of creating safe communities is realised.
The Asset Forfeiture Unit, AFU, continues with its uncompromising approach to crime and corruption, both of which deprive the majority of South Africans of their right to enjoy the fruits of their hard-earned democracy. A total of 150 officials were convicted of corruption in the past year. The value of the assets seized by the AFU, as proceeds of crime, has been alluded to by the hon Minister. However, in the past 13 years, the Asset Forfeiture Unit was able to seize assets to the value of almost R5 billion.
The Special Investigating Unit is also making great strides in the investigations of serious incidents of corruption. These and other achievements are indication enough that the NPA is on course to take South Africa forward.
Of course, in implementing its mandate, the NPA is not without challenges. Some of the challenges include the lack of efficiency in the implementation of the caseflow management system. This is a matter that has to be looked at critically, as it impacts negatively on the realisation of our desired objectives.
The proclamation of the Office of the Chief Justice as a separate entity from the Department of Justice and Correctional Services is evidence enough that the ANC is committed to the independence of the judiciary.
The independence of the judiciary is amplified by the autonomy of the three branches of government, the legislature, the executive and the judiciary. The autonomy of these three branches is safeguarded by the separation of powers and the rule of law as entrenched in the Constitution. The provisions of section 165 of the Constitution constitute the nerve centre of our constitutional democracy. Without the essence of these values, our constitutional democracy will cease to exist.
We cannot underplay the strides we have made in trying to transform the judiciary, as the Minister has alluded. More than 60% of the judges are black, compared to only one black judge in 1994. This is a good story to tell. There has always been a concern regarding the appointment of women judges. However, we need to commend the Judicial Service Commission. In the JSC sittings of April 2013 and October 2013, 19 candidates were recommended for appointment and they were ultimately appointed by the President. Of the 19 candidates appointed, 12 were women, 8 of whom were African women. [Applause.]
We are not yet there. However, this is evidence enough that there is a radical move towards gender transformation. If you check these numbers, with 12 appointed women judges, it represent 63,2% of the appointees, and of that 63,2%, 66,7% of those were African women . This is quite a great leap, which probably had Verwoerd turning if not spinning in his grave.
The South African judicial institute will go a long way in building capacity and transforming the judiciary and the entire legal system. The Office of the Chief Justice is well positioned to champion a more aggressive and aspirant judges and magistrates programme which has the possibility to prepare more black people and women for possible appointment to the bench of the High Court.
The establishment of the Office of the Chief Justice provides a platform for the implementation of initiatives designed to improve the culture of nonperformance that has sneaked into the judiciary over the past few years.
The building of the High Courts in Limpopo and Mpumalanga is assurance enough that the ANC-led government is on track to make justice accessible.
I am deeply touched by the passion shown by the hon Lekota on the state of lawfulness. I think this passion can actually be seen on how he won ... Thank you. [Time expired.] [Applause.]
Mr M M TSHISHONGA
Mr M S MAILA
Mr M M TSHISHONGA: Hon Chairperson, hon Minister, Deputy Minister, hon members, let me say right from the beginning that I am not going to entertain questions. [Laughter.]
In point form fraud and corruption cannot be complete without referring to whistle-blowing. Without whistle-blowing we cannot eradicate fraud and corruption, we cannot eradicate organised crime.
I happen to be one of the whistle-blowers. I don't care who committed crime or corruption - within my ranks and outside my ranks - I blew the whistle. And I made it a point that ... [Laughter.] It is just unfortunate that the truth is painful but it must be told.
I have been persecuted by this department as a whistle-blower. Some of the comrades here know; and I won't mention names. I want the department to do something – it doesn't matter now for me - because I don't want this to happen to the next whistle-blower. Some people are dead and some lost their jobs. I want the Minister to attend to that. I wanted to say that before I read my speech. [Interjections.] Mr Minister, I will donate this book to you and this is a guide to deal or help the whistle-blower. Please, protect the whistle-blowers.
The HOUSE CHAIRPERSON (Ms A T Didiza): You have 13 minutes left, sir; actually nine seconds left.
Mr M M TSHISHONGA: No, no, no! With the supremacy of the Constitution and the rule of law enshrined in section 1 of the founding provisions of the South African Constitution, it effectively means that our system is ... [Interjections.]
The HOUSE CHAIRPERSON (Ms A T Didiza): Hon Tshishonga, your time has expired. [Interjections.]
Mr M M TSHISHONGA: Okay, donation is guaranteed. [Time expired.] [Applause.]
Ms S C N SHOPE-SITHOLE
Mr M M TSHISHONGA
Ms S C N SHOPE-SITHOLE: Hon House Chair, hon Minister, Deputy Minister, hon members of this august House and our esteemed guests, avuxeni, mi njhani, hi kona [Good evening. How are you? I am fine.]
Hon Minister, firstly, I want to congratulate you on your appointment as Minister of Justice and Correctional Services. I must tell you, though, that I will miss you a lot as the chairperson of the Standing Committee on the Auditor-General. Be that as it may.
I want to remind you about the discussion we had in Vienna, Austria, when we visited the International Anti-Corruption Academy that you actually said that it would be good for our country to connect with that institution so that we would have people who specialised in combating and investigating corruption. I think this is an opportunity for you as the head of Justice and Correctional Services, which is responsible for keeping South Africa safe. I am looking forward to your pursuing the discussion we had.
I also want to assure you that if there is anything I hate in my life it is corruption. The reason is because it steals the money that is meant for service delivery. You know, with the best plans in the world, if there is no curbing of corruption and if there is no financial control, anything that you plan you will not necessarily achieve. Therefore, I want you to support a unit that I love very much: the Special Investigating Unit. I will tell you why. When Adv Soni came to present in the committee, I put it to him that it would be important for him to make doubly sure that he actually got the money and returned it to the state coffers. We can talk about all these things. If the money is not returned, we are not making progress and people are not learning from it.
People will keep on wearing nice suits and having nice cars. Take those cars and those suits and sell them. If needs be, get the Asset Forfeiture Unit to assist. Hon Minister, it would be very good if you could support the Special Investigating Unit, the SIU.
My speech is actually not for you, hon Minister; it is for the accounting officers. My worry is about money all the time. I am directing this speech to Madam Sindane. I just want to thank you for the dedication and the leadership that you have demonstrated. I remember in 2009, when hon Minister Radebe went to that department, he actually said that he did not want to suffer like his predecessors. I think you saved him from suffering, because you managed to turn around that department, which was always getting negative reports from the Auditor-General. But now it is continually getting unqualified reports. I want to thank you from the bottom of my heart - you and your team. May God give you more strength to do that good work.
I want to assure you that this budget will be passed. That is my responsibility - to come and say that I support this budget. This is because you have demonstrated what I have mentioned – the good work - and I was also impressed by the fact that you actually alluded to the fiscal policy of government. You mentioned that the government has emphasised its intention in the medium-term to contain spending while maintaining social and economic programmes.
There is concern that additional spending in previous years sometimes did not result in improved delivery. Therefore, the policy objectives have been set out, three of them: one, improving the outcomes of spending and shifting the composition of spending from consumption to infrastructure, therefore creating social and economic assets; two, ensuring that expenditure grows at a moderate pace, and; three, stabilising public debt. Those are the things that actually made us support this budget, so we are supporting the budget.
I want to tell you further that after supporting the budget, the story does not end there. We are going to follow up the trends of your activities. We expect you to appear before the committee at least quarterly. When you appear before the committee, we would like you to tell us that you are paying your suppliers promptly, because if you don't pay small and medium businesses, you are killing them. You are making them unable to compete in the economy. You are creating fertile grounds for monopoly by big business, and that is reversing economic transformation which this budget should promote.
We also expect you, Madam Sindane, when you appear before the committee, to inform us that you ...
The HOUSE CHAIRPERSON (Ms A T Didiza): Hon Sithole, your time is up.
Ms S C N SHOPE-SITHOLE: Thank you. I support the budget. [Applause.]
Mr W HORN
Ms S C N SHOPE-SITHOLE
Mr W HORN[mm19] : Chairperson, as we celebrate 20 years of democracy, it is indeed an opportune time for us all to remind ourselves and to reaffirm that the most important vessel of our democratic freedoms is our Constitution.
In the foreword to the book, The Post-Apartheid Constitutions: Perspectives on South Africa's Basic Law, the late President Nelson Mandela stated that our Constitution:
... speaks of both the past and the future ... It is a solemn pact in which we, as South Africans, declare to one another that we shall never permit a repetition of our past ... It is also the charter for the transformation of our country into one which is truly shared by its entire people.
We, in this House, are enjoined with the responsibility to uphold, strengthen and promote our Constitution while carving out a society which the Constitution so aptly describes as one in which the potential of everyone is freed.
This speaks of course largely to what nowadays is called 'economic freedom'. It is imperative for this Fifth Parliament to facilitate, rather than hinder, job creation and economic growth.
The statement on zero tolerance of corruption in his department by the hon Minister in his briefing of the Portfolio Committee on Justice and Correctional Services is therefore welcomed, as is his undertaking that he will ensure compliance by government with court orders. If the Minister keeps these promises, it will certainly contribute towards the realisation of the capable state envisioned by the NDP which in turn will enable a climate suitable for job creation.
Regarding the budget, the yardstick remains: Whether it enables the department to fulfil its constitutional duties or not. It is therefore of great concern to us that the umbilical cord between the Office of the Chief Justice, which was already born in 2010, and the department, has not been cut, especially as this is due to political indecisiveness disguised as budgetary considerations.
Principally, we share the view that the institutional independence of the judiciary can be better achieved if the Minister is no longer the political head of the judiciary. We will therefore support the ongoing efforts to not only establish a separate Budget Vote for the Office of the Chief Justice but also to remove it from the domain of the department, completely.
Although the independence of the judiciary is guaranteed by our Constitution, we are also concerned that the decisional independence of our judiciary increasingly seems to be under threat. The term 'decisional independence,' as used by the Chief Justice of Ghana, Justice Georgina Wood, in an address to a South African judges' conference in 2011, was explained by her to mean the freedom the judiciary must enjoy from external pressures and influences to render impartial judgements. Interference from other branches of government will always be nothing but a threat to the independence of the judiciary.
Thus, we reconfirm our unease with the study that is currently under way, commissioned by the executive, regarding the impact of decisions of the Constitutional Court on transformation. We also oppose, hon Motshekga, the proposal to implement criteria for the selection of judges with the effect that the technical expertise and experience of candidates, their willingness to commit to uphold and protect the Constitution, and the human rights entrenched in it, as called for by the judges oath, will no longer be sufficient.
In this regard, we heard tonight from the hon member that South Africa is in need of what he called "good black judges." Perhaps the hon Motshekga should explain to us whether he views the late Chief Justices Langa, Mohamed, Moseneke and Navsa as `poor' black judges.
These efforts and argument have the smell of what has ironically, recently in other circumstances, being called 'political posturing.' [Interjections.]
Dr M S MOTSHEKGA[mm20] : Hon Chairperson!
The HOUSE CHAIRPERSON (Ms A T Didiza[mm21] ): Hon member, can you take a seat? Hon Motshekga?
Dr M S MOTSHEKGA[mm22] : I just want to know whether the hon member knows the difference between the future and the past ... [Interjections.] ... because I was talking about the future judges.
The HOUSE CHAIRPERSON (Ms A T Didiza): Hon member, that was not a point of order! Rather, you wanted to ask a question to the member. He can decide whether he would like to respond or not.
Mr W HORN[mm23] : He can, maybe, ask me the question afterwards. Thank you, Chair.
These efforts and argument, as I said, have the smell of what has been called 'political posturing,' recently, and ultimately this is an unjustified encroachment on the domain of the judiciary.
As a legislature, we should be wary of self-styled constitutionalists telling us that we in this country can give new content to the principles of the separation of powers and the rule of law in contrast to how it is understood universally. This will most certainly put us on the slippery slope towards rejoining the ranks of the pariah states of the world. We should rather look into ways in which we can insulate the process of selecting and appointing judges from politics.
Let us turn to the hot topic of the day: the Chapter 9 institutions. On 24 November 2011, President Zuma stated that the work of the Chapter 9 institutions must not be misunderstood. For once, with great clarity, he added, and I quote:
It is of concern that when they do their work diligently, as they do, some in society want to give an impression that the institutions exist to attack government, which is not the case.
However, two-and-a-half years on, and one finding on Nkandla later, this narrative seems to have been dumped by the executive for one that, even if drafted along careful lines, makes it quite clear that the current Public Protector is in the aim of the ruling party. Now, all of a sudden, the thinking is that certain investigations into maladministration and corruption should be off-limits to the Public Protector, apparently because they can be dealt with also by other institutions.
Given the legislative framework in this regard, this argument would have been somewhat comical if we were not faced with a serious situation where Corruption Watch describes the level of corruption in South Africa as epidemic and estimates that R675 billion has been lost in South Africa since 1994 to graft and corruption.
Sound-reasoning South Africans will see these arguments for what they are: Laying the foundation for an all-out assault on the Public Protector, echoing the one which ended in the demise of another effective corruption-fighting institution known to us all as the Scorpions.
The Report of the Ad Hoc Committee on the Review of Chapter 9 and Associated Institutions of 2007 seems to have been identified as the weapon of choice in this regard. We welcome the revival of this report. Seven years on, it is unacceptable that many of the important recommendations made in the Asmal report have not been implemented.
In order to acknowledge the independence of these institutions as called for by the Constitution, and as recommended by the Asmal report, we will in turn propose that the budgets of these institutions should rather be part of Parliament's Budget Vote.
Furthermore, we will propose that these institutions, similar to the Auditor-General, must report to their own committee, a standing committee of Parliament. Like Scopa, we propose that this committee should be chaired by a member from an opposition party ... [Interjections.] ... because what South Africa needs are not strong men but strong institutions. Once again, in the words of the late President Mandela, otherwise, "Without them, we shall surely fail." Thank you. [Applause.]
Ms CC PILANE-MAJAKE
Mr W HORN
Ms M C C PILANE-MAJAKE: Hon Chairperson, hon Minister of Justice and Correctional Services, Deputy Minister of Justice and Correctional Services, Chief Justice, if he is here, judges president, if they are here, leaders of the forums for institutions supporting democracy, the director-general of the department and her team, the ANC-led government has created a culture of freedoms and liberties based on our democratic Constitution that makes everybody feel protected and that they have a voice that matters in this country. South Africa has become a home for so many who thought, at the beginning of our democracy, that they would be treated unfairly. We all know and remember what happened in the past that was based on impunity for self-proclaimed and illegitimate rulers, who had given themselves the license to dehumanize the natives of this land.
Today, a lingering apartheid mentality of undermining the intellect of our people is what makes representatives of the forces of darkness keep crying ``fire, fire'': there's confusion; there's corruption; school results are bad; oh, they are good? No, there must be a commission of inquiry. The lingering apartheid mentality is what confuses the role of the majority opposition. The majority opposition should actually understand what the role of the opposition in Parliament is, that it is to keep the ruling party in line and not to try and put the spanners in the work at every corner. You have to actually become part and parcel of processes that are trying to really rebuild this country.
The Special Investigating Unit, SIU, created in terms of the Special Investigating Unit and Special Tribunals Act, Act 74 of 1996, is an independent statutory body that is directly established to conduct investigations at the President's request and to report to him on the outcomes of these investigations. The mandate is to investigate corruption and maladministration. The SIU fulfils its mandate via forensic investigations as well as through civil litigation.
The committee noted that the SIU received an unqualified audit opinion for 2012-13. However, there were matters of emphasis relating to the restatement of corresponding figures and the manner in which the SIU operations were funded. In terms of the unit's performance, the SIU targets were exceeded in respect of civil litigation, criminal action, disciplinary action and other remedial actions.
Actual achievements were 17 073 cases against 10 000, which is very good compared to all these stories that we hear about the SIU. Cash recovered was R224 million out of a target of R30 million. Total recovery of actual achievement was R408 million out of a target of R260 million, with R169 million in the form of prevention of future losses. These are substantial amounts of monies that have actually been saved for this country. I would actually emphasise this, taking into consideration what Mr Horn has just indicated, that about R6 billion has been lost because of graft and corruption. There is a lot of money that these established institutions have really brought back. Also, we really need to look at how to bring back some of the monies that were taken away from us by these multinational companies. They took millions. The multinational companies took billions. Sometimes we focus much more on millions and we do not ask ourselves questions such as where are the billions. That is the question we need to start answering.
Some of the committee members question the relevance of the continued existence of the unit, the SIU, which actually sparked a lengthy debate. The general sentiment expressed by the committee is that the unit's existence is still relevant to support the intention of the National Development Plan of fighting crime and corruption or just to expel the myth of high levels of crime and corruption in South Africa that affect our ratings by institutions such as the Global Competitiveness Index. Of course, some of us actually continue to try and create this black cloud over government and government business as long as they are not in the forefront. That is why when they talk they say you have to actually have me as a government.
The SIU continues to function in a manner similar to a commission of inquiry in that the President refers cases to it by way of proclamation. It may investigate any matter set out in section 2 of the Special Investigating Unit 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 of expenditure of public money or property and any unlawful, irregular and unapproved transaction; 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 interest of the public. The unit can also take civil action to correct any wrongdoing it uncovers during investigation and can therefore, for example, obtain a court order to compel a person to pay back any wrongful benefits received, cancel contracts when proper procedures were not followed, stop transactions or other actions that were not properly authorised.
The overall allocation of the Justice and Constitutional Development Budget Vote 24 for 2014-15 is R17,8 billion. However, an amount of R8,05 billion is allocated as follows: R3,25 billion to the National Prosecuting Authority; R2,7 billion to the National Revenue Fund for judges and magistrates' salaries; R2,1 billion under Programme 5 which involves the following transactions: R1,4 billion to Legal Aid SA, R217 million to the Public Protector, R128 million to the SA Human Rights Commission, and R296,8 million to SIU.
General challenges identified are leasing costs for the department and all these institutions, for example, which are worth R545 million, and property payments of R447 million per annum just for the department. This is a lot of money. We are hoping that, in future, we will see a different pattern when we actually start having ownership of these buildings. Delays in completion of infrastructure projects, such as the south Gauteng high court, makes costs escalate and lead to underspending by the department.
The vacancy rate of about 290 magistrates, SIU's ability to attract forensic investigators and cash flow challenges with invoicing that does not translate into immediate payment from state institutions, including the government departments, also continue to be part of the challenges, especially for the SIU. Other challenges are harmonising the mandate and budget allocations of Chapter 9 institutions which is something that has being elaborately engaged in today. There are forums for institutions supporting democracy processes and there is a need, especially from the office of the institutions supporting democracy in Parliament, to lead processes of actually promoting discussion around this.
Other challenges are fast-tracking the establishment of a one-stop child justice centre, availability of a third party funds audited report, finalising the Traditional Courts Bill, and accessibility of sheriffs' offices. If I have to give an example, if you go to Pretoria, in Centurion, you realise that the sheriff's office is in an industrial area which is far away from everybody. There is not even public transport. When it comes to subpoenas that would actually be coming from self-handled processes by the small claims courts, it would then make such processes difficult for South Africans in general.
Another challenge is the ombudsmen for sectors, which is an area that needs to be interrogated because ombudsmen have been established to promote access to justice and there is not any process that demonstrates monitoring in this regard, especially for the mere fact that ombudsmen tend to get paid by the sectors. If it is a bank ombudsman, he gets paid by the bank; if it is an insurance ombudsman, he gets paid by the insurance companies. So, the whole issue of fairness needs to be interrogated. We also need to look at financial implications of human rights instruments because, with our quest to democracy, we keep on rectifying conventions and international instruments, but we never really seriously look at the financial implications for the country.
Noticeable achievements are improved audit outcomes for the department and all these institutions. Of course, we have noted that the SA Human Rights Commission had a qualified audit in 2012-13 and we are hoping for the better with the financial statements that are currently being audited. Improved technical Guardian Fund services is one of the achievements. More can still be done in this regard. It is not yet perfect.
There should be more capacity-building of institutions fighting crime and corruption, and improving access to justice. In this regard, perhaps when I'm talking about building the capacity of institutions fighting crime and corruption, we need to continue building the capacity of the NPA, SIU, Public Protector and the SA Human Rights Commission. We are making access to justice a reality by establishing more viable systems, including the Office of the Chief Justice that was preceded by building new courts and the establishment of small claims courts. The current focus is on aligning magisterial districts to municipal boundaries and converting branch courts into full service courts, a move that really needs to be supported.
Working towards affordable access to justice, through legislative processes, such the Legal Practice Bill and Chapter 9 institutions such as the SA Human Rights Commission, ensuring that the rights of vulnerable groups are protected through courts, Thuthuzela Care Centres and legislation such as the sexual offences Act of 2006 and the Maintenance Act of 1998 have all been noted as achievements.
Together we should move South Africa forward, within our diversity taking into consideration all the blaming syndromes and the bickering which we are always getting from the opposition. However, we believe that, as a nation, we are in a position to take this country forward. Of course, pessimists are allowed to remain behind. The ANC supports the Budget Vote. Thank you. [Applause.]
The MINISTER OF JUSTICE AND CORRECTIONAL SERVICES
Mrs C C PILANE-MAJAKE
The MINISTER OF JUSTICE AND CORRECTIONAL SERVICES: Chairperson, thank you very much for steering this ship and making sure that we are all in order, despite experiencing turbulence from my left side from time to time.
Let me start by thanking the hon members from both sides of the House for contributing to a very vibrant debate. But, more importantly, let me thank hon members for pointing us toward some of the more important issues that will need us to apply our minds , going forward, during the currency of this term to ensure that justice is not only done but is seen to be done, especially by the ordinary people of our country. In so doing, we will ensure that services are improved through the increased and enhanced performance of our justice system.
In the few minutes that I have and, given the time of the night, I do not want to keep you long, except to make a few remarks. Firstly, I just want to thank my former Chief Whip, the current chairperson of the portfolio committee, for the leadership he provides to all of us and, in particular, for some of the thought-provoking ideas he has put across. Our Constitution certainly recognises both customary and common law, only to the extent, of course, that they are consistent with the Constitution itself.
I have, for example, indicated that the department should consider the possible reintroduction of the Traditional Courts Bill. Also, looking at a Bill that is currently before us – which deals with Sharia law and the judicial system applicable to the Muslim dispensation – I would prefer an approach, not unlike that of the old Zulu code, in which there is not an attempt to codify customary law or religious law, but rather to give it some statutory recognition and limitation given the extent to which such systems may be found to be inconsistent with the Constitution. This is preferable to attempts to reincarnate such legal systems through codification and by rewriting those laws in statute, because one is likely to completely misrepresent what they are and what they are intended to do.
Certainly, indigenisation of our legal system is something we need to look at. We are in Africa, not in Europe. African realities need to be taken into account when we reflect on the way forward and the future. I understand, for example, that about 18 million of our people live by and observe customary legal systems. Therefore, to simply brush them aside or ignore them would, I think, be unrealistic.
Let me respond to a few points. I certainly agree that it would be remiss of us to reflect poorly on the integrity of constitutional institutions, including Chapter 9 institutions, be it the Public Protector or any of the other institutions. However, none of us is beyond accountability. None of us is beyond the Constitution and the rule of law. Therefore, it is perfectly in order, in my view, that, in the spirit of accountability, we should all be open to fair and sincere criticism that is reasonable and measured.
Therefore, the issue of how we utilise our resources and how we apply ourselves to the execution of our mandate is something that, in my view, should be open for discussion. That does not mean, however, that we should go out of our way to vilify certain institutions because we do not like what they do. I would certainly support you in that regard, hon Breytenbach, except for the fact that you do not seem to live up to the very values that you espouse. You stood up here and your colleague raised a point of order that a member of the ANC is reflecting on your integrity. Yet, you said so many things which are effectively a reflection on the integrity of the NPA, of which you were a part. You are yet to tell us exactly what it is that made you leave that institution. You know, in life, things follow us. Be careful of some of the skeletons you leave behind in life; they may just haunt you later. Thank you. [Time expired.]
The HOUSE CHAIRPERSON (Ms A T DIDIZA)
The MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT
UNPARLIAMENTARY LANGUAGE
(Ruling)
The HOUSE CHAIRPERSON (Ms A T Didiza): In the course of the debate earlier, hon Motshekga rose on a point of order in response to remarks made by hon Breytenbach. Hon Motshekga asked whether it was ethical for the member to say what she said, as her comments related to her previous employment.
I undertook to reflect on the matter and rule on it.
Having now considered the points raised in reference to the member's input, I wish to rule as follows: Section 58 of the Constitution affords Members of the National Assembly freedom of speech. This freedom of speech is qualified only by the Rules of Order which the National Assembly imposes on itself.
The question asked of the Chair was whether what the member said was ethical or not. That, hon members, is a point of debate and not for the Chair to determine. As you know, the Chair rules on points of procedure, and not on the merits or otherwise of statements made. We would always urge members to temper their language in the interest of the decorum of the House, particularly when referring to other members and specific organs of state.
On matters of ethics which were raised, it may be necessary that the Rules Committee or any other relevant committee of the National Assembly and of Parliament might need to reflect on this matter so that it informs us on how we can deal with it in the future.
Debate concluded.
The Committee rose at 21:38.
[nm1]mishearing
[nm2]rand not rands
[nm3]mishearing
[nm4]don't leave out words
[nm5]abbreviation is acceptable – see Guide
[nm6]mishearing
[mm7][[xxx Jul 15 20:37:21 2014]]
[mm8][[xxx Jul 15 20:37:27 2014]]
[mm9][[xxx Jul 15 20:37:29 2014]]
[mm10][[xxx Jul 15 20:40:11 2014]]
[mm11][[xxx Jul 15 20:40:19 2014]]
[mm12][[xxx Jul 15 20:40:24 2014]]
[mm13][[xxx Jul 15 20:40:27 2014]]
[mm14][[xxx Jul 15 20:40:57 2014]]
[mm15][[xxx Jul 15 20:41:00 2014]]
[mm16][[xxx Jul 15 20:42:55 2014]]
[mm17][[xxx Jul 15 20:43:02 2014]]
[mm18][[xxx Jul 15 20:43:19 2014]]
[mm19][[xxx Jul 15 21:09:15 2014]]
[mm20][[xxx Jul 15 21:14:11 2014]]
[mm21][[xxx Jul 15 21:14:15 2014]]
[mm22][[xxx Jul 15 21:14:19 2014]]
[mm23][[xxx Jul 15 21:14:38 2014]]
Audio
No related
Documents
No related documents