Hansard: NA: Debate on Vote 22: Office of the Chief Justice and Judicial Administration (NA Chamber)
House: National Assembly
Date of Meeting: 19 May 2015
No summary available.
EPC – NATIONAL ASSEMBLY CHAMBER
Tuesday, 19 May 2015 Take: 25
THURSDAY, 14 MAY 2015
PROCEEDINGS OF EXTENDED PUBLIC COMMITTEE – NATIONAL ASSEMBLY CHAMBER
Members of the Extended Public Committee met in the Chamber of the National Assembly at 16:43.
House Chairperson Ms A T Didiza, as Chairperson, took the Chair and requested members to observe a moment of silence for prayer or meditation.
The MINISTER OF JUSTICE AND CORRECTIONAL SERVICES
START OF DAY
Debate on Vote No 22 – Office of the Chief Justice and Judicial Administration:
The MINISTER OF JUSTICE AND CORRECTIONAL SERVICES: Hon Chairperson of the House, Ministers and Deputy Ministers, hon members, heads of courts, members of the judiciary, heads of the professional law bodies, distinguished guests, ladies and gentlemen, allow me once again to express appreciation for this opportunity to present today the maiden Budget Vote debate of the Office of the Chief Justice and Judicial Administration, which marks an important turning point in the 21 years of our democracy. Let me thank this hon House for the separate budget allocation for the Office of the Chief Justice. It heralds a new beginning that will facilitate the determination of a proper budget for the courts and the independent judiciary. This affirms the ANC government’s commitment to the independence of the judiciary.
The separate budget allocation of the Office of the Chief Justice is the culmination of protracted institutional reforms that underpin the Constitution Seventeenth Amendment and the Superior Courts Act. The Constitution Seventeenth Amendment affirms the Chief Justice as the head of the judiciary and assigns to him or her responsibility over the establishment and monitoring of norms and standards for the exercise of judicial functions. These are functions in respect of all courts. On the other hand the Superior Courts Act establishes a judicial governance framework through which the Chief Justice and the heads of the court oversee the management of judicial functions as listed in section 8 of the Act.
The office of the Chief Justice is a mechanism for providing an administrative support function to the Chief Justice, other heads of courts and the judiciary in the performance of their judicial functions. We have transferred the administrative function and staff of the Superior Courts to the Office of the Chief Justice with effect from 01 October 2014. In total, 1 486 staff members who perform functions directly connected to the Superior Courts were transferred from the Department of Justice and Constitutional Development to the Office of the Chief Justice. Similarly a budget to the tune of R1,5 billion has been transferred from the department’s budget to constitute part of the budget of the Office of the Chief Justice, which, from 1 April 2015,receives its own separate Vote allocation, called Vote 22.
We have taken note of the anxiety, in particular among the magistracy, to have the administration pertaining to Magistrates’ Courts transferred to the Office of the Chief Justice even prior to the enactment of a proper legislative framework that will facilitate such an arrangement. I need to remind all that the transfer of the administrative functions relating to the superior courts was facilitated through the Superior Courts Act, which, we are aware, has been a long time in the making. Similarly, legislative reforms are necessary to achieve the same purpose in respect of the administration relating to the Magistrates’ Courts.
It is in this context that we have embarked on a process to develop a concept framework that will culminate in the enactment of an appropriate legislative framework to replace the outdated Magistrates’ Court Act of 1944. We are confident that the contemplated Lower Courts Act will take a much shorter time to complete as it will assume the broad framework adopted in the Superior Courts Act.
Madam Chair, it is important to note that the Office of the Chief Justice is an interim phase pending the design of an end-state framework that will usher in a judicial administration model suited to our constitutional democracy. The judiciary has expressed its view on this topic through the Chief Justice. We will soon commence with the drafting of a concept paper that articulates best practices extrapolated from models adopted in other jurisdictions, as well as home-grown precedents.
A discussion of the concept framework, which will culminate in a Draft Bill on the preferred model, will form part of the themes that will be discussed at the colloquium that we are planning towards the end of this year. May I just state that colloquia in the past have informed some of the groundbreaking constitutional reforms and developments that today are characteristic of the dispensation that prevails - for example, locating the Chief Justice within the Constitutional Court as the head of that court, which in turn was also elevated to the status of Apex Court; in other words, removing the headquarters from Bloemfontein to Braamfontein. Further announcements regarding the envisaged colloquium will be made after I have canvassed this matter with Cabinet and the judiciary.
The independence of the judiciary is crucial in view of the role it plays in a constitutional democracy within the context of the separation of powers. Former Chief Justice Ngcobo alluded to this point when he remarked:
The role of the judiciary in a constitutional democracy is an expansive one. Decisions of judges affect many people. Courts have the power to overrule even the most popular decisions of other arms of the state if they believe they are contrary to the Constitution. The acceptance and support of these and all court decisions by society depends upon public confidence in the integrity and independence of the judiciary.
Associated with judicial independence is judicial accountability, which is essential in ensuring that courts perform optimally. The legislative framework that provides for a mechanism for handling complaints against judges and a dispensation for financial disclosure is an important measure that seeks to safeguard judicial independence and accountability. During the 2014-15 financial year, 69 complaints were lodged against judges, of which 57 were finalised and 12 are pending. The majority of these complaints were dismissed as they related to dissatisfaction with court judgments. Some of these complaints are in relation to judgments that have been reserved for long periods, thus depriving litigants of access to justice.
With regard to financial disclosure by judges, our hon President, through a proclamation published in the Government Gazette, fixed 29 January 2014 as the date from which the 60 days by which judges must make disclosure of the financial interest took effect. It is encouraging that of the 240 judges in active service, 238 have disclosed their registrable interests. I am confident that the Chief Justice and the Judicial Service Commission will follow up on the two who have not done so. In respect of judges discharged from active service, we are in the process of revisiting the regulations in light of the recent judgment regarding this matter.
We have made significant strides in relation to the transformation of the judiciary as we seek to ensure that the lofty ideals outlined in the Constitution of establishing a judiciary that reflects the gender and racial demographics of the South African society are realised. Although we have made significant progress in relation to racial transformation, the representation of women on the bench remains a concern. Only 31 out of the 240 judges in South Africa are women. The Judicial service Commission continues to grapple with this issue. The two vacancies in the Supreme Court of Appeal and the Constitutional Courts respectively provide an opportunity to improve the gender composition in the highest courts in the land.
I also wish to share with this House some of my observations during the recent visits I made to the superiors courts. Visits to the Constitutional Court, the Competition Appeal Court and the Land Claims Court are still pending. The purpose was to meet with judges, presidents and judges of all courts in general in order to appraise myself of the conditions under which they work and to appreciate some of the challenges that make their working conditions challenging. During the visits I was accompanied by senior officials of the department and the Office of the Chief Justice. We were able to make interventions on the spot, even though some were medium to long-term in particular with regard to the unsatisfactory state of our physical infrastructure at some of the courts. In this regard, I would like to state that we have a pending meeting with the Minister of Public Works to look at not only expanding the infrastructure framework for the provision of court services in our country but also to deal with the sore point of the adequate maintenance of that infrastructure.
On matters of substance, the practice of “forum shopping”, which appears to be the trend in certain high courts, also emerged. I am pleased that the leadership in the judiciary has undertaken to manage this issue, which has the potential of undermining the credibility of our courts.
Madam Chair, of the R1,616 billion allocated for the 2015-16 financial year, R873 million is for judges’ remuneration and benefits and R742 million is for administrative support functions. Of the latter amount, R640 million is allocated to judicial support and court administration. These funds will be used to improve the court system through an effective and efficient case-flow management system and the establishment of the Office of the Chief Justice provincial centres, which will provide administrative support to the superior courts. The funds allocated for judicial training of judicial officials has increased from R25,3 million to R28,6 million in 2015-16. A total amount of R90,7 million has been allocated to conduct about 75 judicial education courses over the Medium-term Expenditure Framework period.
In conclusion, let me convey our profound gratitude to the chairperson of the portfolio committee and his entire committee for their continued support and guidance. A special word of thanks also goes to the Chief Justice for his astute leadership of the judiciary; the heads of courts; and all members of our judiciary. Please allow me to thank my two Deputy Ministers once again - the hon John Jeffery and the hon Thabang Makwetla- and my colleagues in the Justice, Crime Prevention and Security Cluster for their support. Lastly, I would like to thank the secretary-general of the Office of the Chief Justice, Ms Memme Joyce Sejosengwe, who clearly has her work cut out for her, having to be at the helm of the administration of an organ of state that has just been born. I also thank the director-general of the Department of Justice and Constitutional Development, their respective managements and their entire staff in the Justice family for their tireless efforts in bringing quality justice to the people of this country. Thank you very much. [Applause.]
Ms M C C PILANE-MAJAKE
The MINISTER OF JUSTICE AND CORRECTIONAL SERVICES
Ms M C C PILANE-MAJAKE: Chairperson, the Office of the Chief Justice is a new department that became fully operational from 1 April 2015, with its own Budget Vote. It was proclaimed a national department on 23 August 2010 as an interim arrangement, pending the Office of the Chief Justice becoming fully operational.
A memorandum of understanding was signed between it and the Department of Justice and Constitutional Development on 26 January 2012 to progressively transfer administrative support functions to the Office of the Chief Justice relating to the Judicial Service Commission, the SA Judicial Education Institute, the Constitutional Court and the Supreme Court of Appeal.
It was later suggested that all Superior Courts and the specialised courts be transferred as well. In August 2013 the Constitution Seventeenth Amendment Act of 2013 and Superior Courts Act, Act 10 of2013, came into effect, providing the legislative basis for judicial reforms.
The Constitution Seventeenth Amendment Act affirms the Chief Justice as the head of the judiciary, responsible for establishing and monitoring the norms and standards for the exercise of the judicial functions of all courts.
The Superior Courts Act, Act 10 of 2013, establishes a legislative framework for the Chief Justice to exercise his or her judicial leadership, supported by the Office of the Chief Justice, and provides for the delegation of certain functions flowing from the Act to the Office of the Chief Justice. A budget programme structure was approved by National Treasury on 12 April 2013.
The transfer of administrative functions and identified staff attached to Superior Courts from the Department of Justice to the Office of the Chief Justice began on 1 October 2014.The Secretary-General, Memme Sejosengwe, is the accounting officer of the Office of the Chief Justice. Notably, the Department of Justice continues to support the administration of the Magistrates’ Courts.
The Office of the Chief Justice’s annual budget for the Medium-Term Expenditure Framework is R1,6 billion for 2015-16, R1,7 billion for 2016-17 and R1,8 billion for 2017-18.These funds were transferred from the Department of Justice and Constitutional Development for the Constitutional Court, the Supreme Court of Appeal, the High Court and specialised courts.
The funds also provide for administrative staff transferred from the department and tasked with supporting judicial functions of Superior Courts, as well as other staff attached to the department whose roles are directly connected to the Superior Courts.
Furthermore, the direct charge for judges’ salaries is included in the Office of the Chief Justice budget, as well as the allocation for the Judicial Service Commission and the SA Judicial Education Institute.
The Office of the Chief Justice presented this strategic plan 2015 to 2020, an annual performance plan 2015-16 and its 2015- 16 Medium-Term Expenditure Framework budget on 21 April 2015. This marks a milestone in the transformation of the judiciary in South Africa, as this is its first appearance as a new department.
Of the R1,6 billion allocated, a total of R742 million is allocated to the Vote’s three programmes for operations while an amount of R873 million is a direct charge for judges’ salaries. More funds are required to fill critical vacancies at various levels of the Office of the Chief Justice to ensure the proper administration once the Superior Courts are transferred.
Due to austerity measures currently being applied by Treasury, the Office of the Chief Justice has experienced shortfalls in a number of areas. We are hopeful that the next Medium-Term Expenditure Framework will manage to revisit these shortfalls. We appreciate the amount of R25 million that the Department of Justice has just provided to try and make up for some of the shortfalls.
The Office of the Chief Justice is mandated to provide support for the Chief Justice in his or her dual role as head of the Judiciary and the Constitutional Court respectively. The strategic plan seeks to support the judicial reforms aimed at improving the efficiency and effectiveness of the administration of the courts. Over the Medium-Term Strategic Framework, the Office of the Chief Justice has aligned its plans with the National Development Plan and the Medium-Term Strategic Framework 2014-19 as follows.
The Office of the Chief Justice should have administration. This is linked to chapter 12 of the NDP, which speaks of an efficient and effective development-oriented Public Service with the programmes Judicial Support; Court Administration; Judicial Education and Research. These are linked to chapter 14 of the NDP. The Office of the Chief Justice should also strengthen judicial governance and the rule of law in South Africa, as advocated much more by the ANC. Siyaqhuba. [We are moving forward.]
In line with the NDP 2014 to 2019, the Office of the Chief Justice has identified the following key focus areas: judicial selection and appointment; judicial ethics; the leadership and management of the judiciary and administration of courts; training of judicial officers and accelerated reforms to implement judiciary-led independent court administration.
The Office of the Chief Justice has the following broad strategic outcomes and goals: firstly, to capacitate the Office of the Chief Justice, secondly, to support the Chief Justice in fulfilling his or her functions as head of the judiciary; thirdly, rendering effective and efficient administration service and technical support to Superior Courts.
The Office of the Chief Justice has identified the transitional arrangement from the Department of Justice and Constitutional Development to the Office of the Chief Justice as a risk. Other things identified as risks are the adequacy of systems to measure court performance; the capacity to provide training through judicial education and research to judicial officers, in line with the transformation agenda of South Africa; and the availability of funds to adequately execute the mandate of the Office of the Chief Justice.
The Office of the Chief Justice has identified case backlogs, the postponements of cases, the lack of adherence to trial dates and reserved judgments as key challenges that must be addressed to improve the efficiency and effectiveness of Superior Courts.
Constitutional courts and the Supreme Court of Appeal are expected to finalise 80% of their cases in the 2015-16 year. High courts are expected to reduce the number of criminal backlogs from 281 in 2014-15 to 106 in 2015-16; to increase the finalisation of criminal cases with verdicts from 60% in 2014-15 to 66% in 2015-16 and to increase the finalisation of civil cases from 52%.
Specialised Courts should increase the finalisation of cases in 2015-16. The committee has ... [Interjections.]The ANC supports Budget Vote 22. Thank you. [Time expired.]
Mr W HORN
Ms M C C PILANE-MAJAKE
Mr W HORN: Chairperson, in the State versus Mamabolo case, Justice Kriegler made the following remarks in respect of the somewhat precarious position of the judiciary in our constitutional order. He said:
The judiciary is an independent pillar of state, constitutionally mandated to exercise the judicial authority of the state fearlessly and impartially. Under the doctrine of separation of powers, it stands on an equal footing with the executive and the legislative pillars of the state. But in terms of political, financial and military power, it cannot hope to compete. It is in these terms by far the weakest of the three pillars, yet its manifest independence and authority are essential.
This first debate on Vote22 and the establishment of the Department of the Office of the Chief Justice is an important milestone in the quest to establish operational independence for the judiciary in South Africa. It is a milestone in a marathon journey embarked on more than 10 years ago by, among others, the former Chief Justices Langa and Ngcobo. The latter remarked in 2003 that:
At a conceptual level, one cannot talk about the judiciary as a genuinely independent and autonomous branch of government if it is substantially dependent upon the executive branch not only for its funding but also for many features of its day-to-day functions and operations. A key element of this is the extent to which the judiciary has control over its own resources and thus is able to determine its policy and strategic priorities.
An important milestone therefore, but not the finish line yet. The finish line will be reached only when the Office of the Chief Justice can negotiate its budget directly with the Treasury and account to a standing committee of Parliament on the use of these funds; a finish line which could have, and should have, been reached already. The fact of the matter is that an investigation into the best option of a judicially-led model of court administration was concluded under the chairmanship of the Former Chief Justices Arthur Chaskalson and Pius Langa years ago already.
A comprehensive report with the title “Capacitating the Office of the Chief Justice and Laying Foundations for Judicial Independence” was subsequently compiled. More importantly, during the fourth Parliament, a Memorandum of Understanding to implement a judicially-led court administration model was signed by the Chief Justice and the then Minister - only for the current Minister to apparently renege on this agreement, a decision that caused huge embarrassment towards the end of last year when the Chief Justice and the Minister got involved on this issue in what can only be described as a public spat.
The Minister has up to now not done anything to counter the perception that he indeed is unwilling to allow the judiciary to obtain full operational independence. The reason he offers, namely that he, in terms of the Constitution, is tasked to oversee the administration of justice, and that therefore he needs to retain political control over the budget of the judiciary, seems to be questionable in light of the Chief Justice having been officially declared as the Head of the Judiciary.
Our point of view is very simple, therefore: The operational independence of the judiciary must be established sooner rather than later. Thank you.
Ms M O MAKAUSE
Mr W HORN
Ms M O MOKAUSE: Thank you, hon Chair. The EFF supports this Budget Vote. However, we are extremely concerned about the budget allocated to this department because it will be extremely difficult for this office to fulfill its mandate. The ANC government, through the Department of Justice and Constitutional Development, made sure that this new department’s strategic plan and annual performance plan are grossly underfunded because they want to serve this new institution up for failure.
It is clear sabotage by the ANC government because how do you proclaim a new department without funding and all the other relevant resources? How do you think it will succeed in terms of delivering on its mandate going forward? But of course, we are not surprised, because we know that this is happening due to the fact that this new institution is not being led by a puppet of the current administration.
If the office of the Chief Justice was led by one of their puppets, there was going to be a massive injection of cash into the organisation, which will not necessarily be used for the fulfilment of the mandate of this department, but for corruption. We, however, commend the Chief Justice for rising above criticism since he was appointed to office, because he was accused of being a puppet of the current administration.
Chief Justice Mogoeng Mogoeng is a typical example of how one can be appointed by one of the most corrupt administrations in recent time and still be independent. We salute him for not being part of the rot that we see happening with many of the government departments and entities. Further, we need more men and women of honour like him in our society.[Interjections.]We have in recent times witnessed how independent entities, like the Office of the Public Protector, which are not puppets of the President, are persecuted and antagonised.
Underfunding is one of the mechanisms used by the current government to sabotage institutions that are independent and are not seen to be protecting corrupt politicians in the current administration. Based on the gross underfunding that characterises this budget, we have a strong feeling that the current government has began to launch its missiles against this office, just as it does with the Public Protector.[Interjections.]
The proclamation of the Office of the Chief Justice as a department is most welcome, because our view is that this will help to strengthen a judiciary that would not be compromised by the current administration. As the EFF, we are confident that his leadership will further entrench and protect the independence of the judiciary. Our appeal to the powers that be is simple: Adequate funding is needed to enable the department to run its day-to-day operations. Release funding! Thank you, Chair.[Interjections.][Applause.]
Mr N SINGH
Ms M O MAKAUSE
Mr N SINGH: Hon Chairperson, well, at least, for the first time, I am following a political party that supports one Budget Vote. A maiden Budget Vote seems to have a positive impact![Interjections.]
We heard from the hon Minister that this department was proclaimed a national department in 2010 and became fully operational on 1 April 2015.We want to congratulate the departmental officials on becoming a new department and commend the fine example it has already set to other departments by compiling its strategic plan and annual performance plan without the use of consultants. In accordance with our constitutionally mandated doctrine of the separation of powers and an independent judiciary, we welcome the establishment of the Office of the Chief Justice.
Hon Minister, it is indeed a laudable move and a good point of departure that this budget exists. Ideally, this committee that is considering this Budget Vote today in this Extended Public Committee of Parliament should not approve this budget because this new department is underfunded. However, it has work to do; it has to start somewhere and this is a point of departure.
Hon members, I have said this before and I will say it again: We have the opportunity as Parliament, through the portfolio committee, to impress upon the Minister - also on the Minister of Finance and on Cabinet - that monies can be increased in the budget. Parliament has that responsibility and power. I therefore think that we should make use of the money Bills and the related Amendment Act, which are there. We must use them as we move towards the Appropriation Budget.
We have some concerns, however. That is the budget shortfall, as I have mentioned, and its impact on administration. Here is a case that I read about yesterday: “Wife killer to spend another year on bail.” Somebody was convicted and given a life sentence but appealed the matter. What is the reason for the appeal not to go ahead? The advocate revealed that portions of the trial transcripts went missing, so for a whole year this particular gentleman will be out on bail.
How will the family of the deceased feel when they hear that some of the records are missing? I do not think that the money is going to help this case, but that is certainly a problem. The independence of the judiciary has to be protected at all times, and we would venture to say that it should be treated at all times like the Office of the Auditor-General and be given its own budget, which they will control. That is true independence. But as I said, this is a point of departure.
The concern we have is that he who pays the piper calls the tune. We do not want the person that gives the money to call the tune. It can happen; we know what is happening to the Office of the Public Protector – just a few judgements against you and then government will say, hey, we have to reign in the funds that we have granted. I therefore think we really have to move in the direction of true independence.
Hon Minister, you referred to the whole question of infrastructure. If one reads the newspaper, one sees atrocious conditions in the Durban High Court. We must allow our judicial officers and the members of the public who go to these places to be served in a conducive environment - and the Durban High Court is far from conducive.
As I have said, all is not lost. We as the committee can certainly suggest amendments. I think we must put our foot down and use this Act for the first time. No other committee would have used this Act to say to Treasury and to Cabinet that they should allocate more money to this department. That would be true independence of the judiciary and we have to allow them to carry out their work without fear, favour, prejudice and with the full support - as you have given, as government - of the independence of the judiciary. We will support the vote. Thank you, hon Chairperson. [Time expired.]
Mr S C MNCWABE
Mr N SINGH
Mr S C MNCWABE: Hon Chairperson, members of the House, the hon Chief Justice, hon members of the judiciary present, distinguished guests, the NFP is pleased to participate in an occasion that seldom presents itself during a Budget Vote: welcoming the emergence of a new department, which had thus far existed de jure, but not yet de facto. The presentation of the budget today is a rite of passage, signifying the transition from an abstract theoretical design to a fullyfledged government entity and we wish the new Office well for the future.
The establishment of the Office of the Chief Justice and Judicial Administration is a further step in cementing the independence of the judiciary in our democracy. Our Constitution clearly sets out our collective and institutional commitment to the doctrine of the separation of powers. The budget we are voting on today represents a positive and proactive paradigm shift in the ongoing development of our democracy.
We have a clean slate in front of us. When a new department is established with little or no baseline information on which to comment or commend, one has to rely on presentation. The NFP thus comments on the Budget Vote, based solely on presentation.
The projected breakdown of the allocation for the three programmes, totaling R742,4 million, indicates that the Office has done thorough planning. It is encouraging to notice that the allocation for administration of the Office has been restricted to R69,4 million, which represents 9% of the total budget allocation, excluding the remuneration of justices and judges.
The R640,4 million allocated for judicial support and court administration, and which represents 86% of the budget, shows that the Office is committing the bulk of the funds available to the furtherance of the core function of the Office. We commend the Office for this commitment.
The R32,6 million allocated to the Judicial Education and Research programme is, in our opinion, not sufficient. As our judiciary continuously transforms and as our indigenous law increasingly needs to be incorporated, research and training will become more and more important. Our justices and judges will need all the support they can get to dispense justice and legal knowledge, based on quality research and imparted through quality educational programmes, will benefit not only our legal system but contribute to the continuous development and strengthening of our democracy.
To conclude, the NFP is of the view that the allocated amount of R1,6 billion, which is inclusive of the remuneration of justices and judges, is barely adequate to establish the Office and place it in a position to function optimally. The projected shortfall of R75,8 million is a matter of concern for it will impact negatively on the administration of the Office, the Judicial Support and Court Administration programme, as well as the Judicial Education and Research programme. These three core components are vital for the successful launch of the Office into a fully operational entity.
USIHLALO WENDLU (Nks A T Didiza): Ungabheka eceleni kwakho; isikhathi sakho sesiphelile.
Having expressed the above concern, the NFP supports this Budget Vote.
THE DEPUTY MINISTER OF JUSTICE AND CORRECTIONAL SERVICES RESPONSIBLE FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT (Mr J H JEFFERY)
Mr S C MNCWABE
THE DEPUTY MINISTER OF JUSTICE AND CORRECTIONAL SERVICES RESPONSIBLE FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT: Chairperson, hon Minister, members of the judiciary, hon members, guests in the gallery, the Minister has outlined in his speech the process of the establishment of the Office of the Chief Justice and the process that will be followed to reach consensus on a judicial-led court administration - a process suitable to our constitutional dispensation.
While not pre-empting the research and debate, I feel I must address the perception that there is unwillingness on the part of the executive to support the institutional independence of the judiciary or the Office of the Chief Justice.
The Constitution, as recently amended, is clear. It is a recent amendment. The Chief Justice is the head of the judiciary and exercises responsibility over the establishment and monitoring of norms and standards for the exercise of the judicial functions of all courts. Organs of state, through legislative and other measures, must assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts.
However, judicial functions are not the same as administrative functions. Remember that the Constitution refers to a member of Cabinet responsible for the administration of justice. We have had debates on the issue. You will remember that an earlier draft of the Constitution Fourteenth Amendment Bill of 2005 wanted to amend the Constitution by inserting a new provision, which would have provided that, and I quote: ”The Cabinet member responsible for the administration of justice exercises authority over the administration and budget of the courts.” This clause was abandoned and we then moved to the model that we have now, which is the shared model.
The Minister does appoint court managers, registrars, officers and staff for Superior Courts but does so in consultation with the head of the court concerned. In other words, the head of the court must agree to the appointments.
If the intention is, as members here are raising, in future for such staff to be appointed by the Chief Justice, it would lead to a rather untenable position in the case of labour disputes, where an applicant would then have to sue the Chief Justice.
On the issue of accountability, hon Singh, the secretary-general, as the Minister’s proxy, accounts to Parliament. Every single body that makes use of public funds must account to Parliament. Chapter 9 bodies account to Parliament and the Auditor-General scrutinises their financial management and expenditure.
Surely, it would not be correct for the Chief Justice to be called to Parliament to account for fruitless and wasteful expenditure. Is that the kind of accountability that would uphold the dignity and stature of the court?
When members of the public have problems with the administration of a particular court, who should they complain to? It surely cannot be appropriate to complain to the Chief Justice, as he or she is not accountable to the public, as judges are independent. Surely, the best person for this is the Minister. So, what exactly is judicial independence?
As the court also held in the Van Rooyen judgment, and I quote: “Judicial independence is an evolving concept.” There is no exact and perfect model; it has many permutations and it differs from legal system to legal system.
The basic tenets thereof have been encapsulated in the United Nation’s Basic Principles on the Independence of the Judiciary. Nowhere does it state that the head of the judiciary is solely responsible for court administration. It does state that it is the duty of all governmental and other institutions to respect and observe the independence of the judiciary and that it is the duty of each member state to provide adequate resources to enable the judiciary to properly perform its functions. This is exactly what we are doing.
Mention has been made of Namibia, where a very recent constitutional amendment was passed last year to provide for, among others, an accounting officer to be designated who shall, subject to the direction and control of the Chief Justice, perform the functions of an accounting officer as head of the administration of the judiciary. However, from what we could establish, there was not much consultation on this aspect of the Amendment Bill and the amendment dealt more with the enlarging of Parliament and the Cabinet in Namibia. It is too early to examine just how this would work in practice. The questions of accountability are not addressed in the Namibian amendment.
There are many countries in the world that make use of the so-called shared responsibility model in the administration of courts, without infringing on the independence of the judiciary.
The concept of judicial independence mainly entails issues of the appointment and removal of judicial officers, security of tenure and remuneration of judges and judicial officers, the process of budgetary provisions and individual and institutional freedom from unwarranted interference with the judicial process. These are all accounted for in our Constitution and our law.
This new, separate Vote, which we are debating here today, is a further building block in further enhancing the independence of the judiciary. Just for the members who have raised concerns about the funding - the funding for the department was taken from the baseline over the Medium-Term Expenditure Framework period. So, I am surprised that you are now complaining that there is not enough money, whereas last year, when it was the same baseline, you were not complaining.
To hon Singh, through you, Chairperson, regarding the Auditor-General’s model of funding, the Auditor-General funds the Office themselves; it is not from Parliament. I do not think you would want the judiciary to fund itself from fines issued. So, that is not an appropriate model.
On the issue of court performance, we are unfortunately not meeting the Medium-Term Strategic Framework target of increasing the number of cases finalized with a verdict by 2% per annum. Furthermore, the figures show us that between March 2014 and March 2015, the District Court backlog cases decreased by about 10%, which is good, but the Regional Court backlog cases increased by 32%. This has contributed to the fact that at April this year, we have 1 874 remand detainees that have been in our correctional facilities for longer than two years.
The norms and standards for the exercise of judicial functions in all courts issued by the Office of the Chief Justice, relevant to the backlog court project, states:
The Judicial officer must ensure that every person pleads to the charge within three months of the date of appearance in the Magistrate’s Court. To this end, judicial officers shall strive to finalise criminal matters within six months after the accused has pleaded to the charge.
The National Efficiency Enhancement Committee and the Provincial Efficiency Enhancement Committees, which were established by the Chief Justice to enhance the efficiency of the courts, are positive steps in addressing some of these matters.
The Code of Judicial Conduct, adopted by Parliament in 2012, states that a judge must deliver all reserved judgments before the end of the term in which the hearing of the matter was completed. It also provides that if the reserved judgment is of a complex matter, or for any other cogent and sound reason, the judge may get the consent of the head of court for an extension to be delivered in the next term.
Unfortunately, one hears of a number of complaints from practitioners of judgments being outstanding for longer periods, sometimes over a year. Practitioners are often reluctant to raise the matter directly with the judge concerned, for fear that it will prejudice their client. This is something that we trust the Chief Justice will take up with the members of the judiciary who do not comply. This code was drafted by the judiciary themselves, sent to Parliament, it was approved and it must be complied with. If judges cannot deliver their judgments on time, they must get, as the code requires, permission from their heads of court to take longer. And even then, they must deliver it in the next term.
We have made great strides in making the magistracy broadly more representative. Of permanently appointed magistrates, 61% are black and 39% white. Males account for 59% and females for 41%.Of the 57 regional magistrates appointed by the Minister earlier this year, 86% are black and 14% are white. Females account for 60%, which are 34 of said 57 appointments.
In conclusion, I know that work in the justice sector can be frustrating at times. It could even feel like one is part of a large and at times somewhat dysfunctional family. There are so many role-players — the judiciary, the executive, court administrators, the prosecutors, court interpreters, legal aid representatives, attorneys and advocates, not to mention police and Correctional Service officials and, of course, the ever-popular Public Works.
Role-players simply must engage each other in a spirit of co-operation. We should all look at what we can do to solve a problem, rather than blaming each other for the problem occurring in the first place.
I would like to end quoting the dictum of Chief Justice Chaskalson in the famous Van Rooyen judgment:
In a constitutional democracy such as ours, in which the Constitution is the supreme law of the Republic, substantial power has been given to the judiciary to uphold the Constitution. In exercising such powers, obedience to the doctrine of the separation of powers requires that the judiciary, in its comments about the other arms of the state, show respect and courtesy, in the same way that these other arms are obliged to show respect for and courtesy to the judiciary and one another. They should avoid gratuitous reflections on the integrity of one another.
I thank you. [Applause.]
Mr M G P LEKOTA
The DEPUTY MINISTER OF JUSTICE AND CORRECTIONAL SERVICES RESPONSIBLE FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT (Mr J H JEFFERY)
Mr M G P LEKOTA: Chairperson, may I start off by saying that ours is still a very young democracy and the Constitution is new. Apart from anything else, a lot of the concepts we are dealing with - as has been correctly stated from here- are evolving concepts. What is quite clear is that we are going to have these running debates for a long time to come.
The judiciary is one of the three legs of our government - and it is not a department. In fact, it is wrong to call it a department; it is a misnomer. Calling it a department suggests that it is not one of the three legs. If these three legs are independent, it must be, as the Constitution says, an authority in its area, and it must enjoy equal status with the legislature and the executive. To say now that it is a department, for somebody else to do this and that one will do that and so on, is nor really dealing with that.
This can be seen in the Constitutions of different countries and the treatment the judiciary gets. We must not regard this as final. It may be a start, but it is just a start, because as soon as anybody is accountable to another leg; as soon as that leg has no say or very little say in what its budget should be, then that independence is tampered with. Nobody tells the executive what its budget will be, and then the legislature says what its budget ought to be and tables that. The budget of the judiciary should be afforded similar treatment. Then we can say that these men and women who have to take decisions on the court cases that come before them have no undue pressure coming from somewhere. As long as they have to go begging, cap in hand, for something from somebody, then that independence is tampered with.
We must take a look at who appoints. For example, the process of appointing the Chief Justice: Should that be with the executive, should that be with the judiciary, or with whom should it be so that we are all satisfied? That authority should not have the capacity to impose its will on who is appointed.
So, these issues raise a long and enduring debate, which we must engage in as we move through history. We may not complete it in our time. Generations of South Africans to come will have to resolve this issue. It cannot by any means be resolved at this stage. Nevertheless, let us express our gratitude that at this point we are taking the first tentative step to establish this authority that will ultimately crown our ambition with glory.
You know, as things stand at the present time, if we had moved this way quicker, perhaps George Luca might not have died without us knowing who really killed Lolly Jackson. We have to deal with these issues and understand the urgency of making these achievements as quickly as possible so that we do not deny the present generation the justice they deserve. Thank you very much. [Time expired.]
Adv B T BONGO
Mr M G P LEKOTA
Adv B T BONGO: Hon Chair, hon Minister, hon Deputy Ministers present here today, government officials, comrades and compatriots, it is an honour today for us to have the chance to have an interaction with the South African public about this Budget Vote.
Hon Chief Whip of the Majority Party, I think we must accept this burden that before we can reach our people, we must start educating all members this side about the progress and the work that we are doing as a ruling party. We must advise the electorate not to vote for them anymore, so that we can move faster in dealing with these issues. [Laughter.][Applause.] You see, the ANC-led government is ... [Interjections.]
The HOUSE CHAIRPERSON (Ms A T Didiza): Order, hon members!
Adv B T BONGO: ... committed itself to making sure that the judiciary is fully independent. It is us; we have made that commitment and we have done it today. We are happy to report the South African public today that we are debating this Budget Vote for the first time. We are debating it for the first time because of the initiative of the ANC-led government. [Applause.]
So, it is important for hon members to know this – maybe we should be giving answers instead of debating what we have written here, because we must start educating these members of the opposition. Somebody said, he who calls the piper calls the tune. This is just not correct.[Interjections.]
The ANC has created three arms of state, that is, the legislature, the executive and the judiciary, and we respect that. That is whytoday we are debating this Budget Vote for the first time.[Interjections.]
The HOUSE CHAIRPERSON (Ms A T Didiza): Order!
Adv B T BONGO: Be that as it may, hon Lekota comes here and says the judiciary must have its own budget. How would it have its own budget? The only way it can have its own budget is that we have created a department for court administration. This department is not for the judiciary; it is a department for court administration. So, I think we need to be very clear about those kinds of issues.
Hon Horn raises an issue today. I wonder why he is raising those issues because today in the committee he said, you know, what you are doing is very good; it is just that our caucus in the DA has said we must reject everything. [Applause.][Interjections.] That is what was said today in the committee. So, there is an acknowledgement from all the sectors that we are doing a very good job.
Siyaqhuba. [We are moving forward.]
It took the ANC 82 years to fight a system based on racial segregation, but after 21 years we are reporting serious progress; progress that can be seen. The Office of the Chief Justice will be a separate department. [Applause.]
Siyaqhuba, Ndlozi. [We are moving forward, Ndlozi.]
[Interjections.]You must come back to this side. [Laughter.][Applause.]
In 1959, the Supreme Court Act, together with a host of apartheid legislation, including the reprehensible Natives Land Act of 1913 and the Group Areas Act of 1950, formed the bedrock of a separate administration based on racial segregation. A decisive break from this painful legacy came in 2013, when the ANC-led government introduced the Superior Courts Act that replaced the 1959 Act, and this marked a new chapter in the constitutional democracy that we have.
The Act provides for constitutionally mandated rationalised courts and paved the way for a new judiciary-led administration. In the words of former Minister of Justice, Jeff Radebe, in the second reading debate of the Superior Courts Bill in November 2012:
The Bill places the administration of Superior Courts under the Office of the Chief Justice, thereby providing a holding mechanism through which these courts can be managed and funded separately from the Department of Justice and Constitutional Development.
So, what is important is that this provides - and the Chief Justice himself has alluded to this - a platform for the implementation of the initiative design to improve the culture of nonperformance that has sneaked into the judiciary over the years.
The objective of the Office of the Chief Justice is to render effective and efficient administrative and technical support to courts. Judicial case-flow management is meant to increase access to justice by increasing the finalisation of these matters.
A matter that was critical and was raised by the Secretary-General in the committee was the issue of the budget. I heard others raising it too. The Office of the Chief Justice must be able to fulfill its mandate in terms of the Superior Courts Act, especially now that the transfer of the function has taken place. While we acknowledge the current challenges facing the fiscus, we need to make sure that we do everything that is reasonably possible to make sure that this new department does not fail in its mandate.
As we do that, I think we need to remember today the contribution that was provided by the esteemed Chief Justice Chaskalson and Chief Justice Langa, as they were then. We should also acknowledge the dedication shown by former Chief Justice Ngcobo and thank the current Chief Justice. As the committee we have met with the current Chief Justice. We want to say this: We do not take lightly the work that you are doing in that office. As the ANC, we are fully behind the work that is being done there. We have seen the commitment that you have shown. We have seen a serious commitment to the progress that must be made by that office. We will support this Budget Vote as the ANC. Thank you very much. [Applause.]
Mr S N SWART
Adv B T BONGO
Mr S N SWART: Chairperson, the ACDP wishes to congratulate the Office of the Chief Justice for becoming fully operational as a new department with its own budget as of 1 April 2015.
As far as judicial independence is concerned, judicial officers have generally been able to discharge their judicial functions without undue influence from the political arms of state or any other forces. However, as pointed out in a hard-hitting speech by the Chief Justice on 25 November last year:
The area of court operations hitherto neglected and resisted has been the institutional independence of the judiciary.
It was a recognition of this need and the inability of the Department of Justice to serve the courts well over the years – and those are his words – that a national department, known as the Office of the Chief Justice, was established. The clear rationale was to enable the Chief Justice and the judiciary to take charge of those administrative functions that are intimate to court operations. It was meant to be a decisive break from executive control, as represented by the Department of Justice. Functions, personnel and budget had to be transferred by the Justice Department to the Office of the Chief Justice. There was a common understanding between the executive and the common arms of state that the national departmental mode of court administration, as we see at the moment, was a stop-gap measure.
The Chief Justice mentions that the judiciary pressed hard for its institutional independence to become a reality, and he says: “There has been unbelievable resistance from the executive.”
Now, we know this was in November last year. The transfer of functions took place on 1 October and, in his words: “It is as a direct result of the pressure from the judiciary and much-appreciated, occasional intervention by the President.”
So, we now see that the transfer of functions has taken place. We appreciate, Minister, that further discussion needs to take place about the stop-gap, interim measure – where we are going - to fulfil what the Chief Justice is seeing and what the executive is seeing. Clearly, as Parliament, we need to play our role in this institutional independence. We must ensure that the judiciary enjoys full institutional independence, as envisaged in section 165 of the Constitution.
We, as the ACDP, also share concerns over the budgetary constraints that the Office of the Chief Justice has to suffer under, and I want to reiterate what the hon Mr Singh from the IFP said: The power lies with us. We, as Parliament, pass the budget – it is not the executive – and we can make use of the Monetary Amendments Bill to approach the Standing Committee on Appropriations for this. We are all in agreement that this budget is not sufficient. So, why do we not, for the first time, approach the committees on Appropriations and Finance for additional funds?
Lastly, I would like to just raise an issue that arose in the committee. For the first time, Parliament applied to the Constitutional Court for the extension of a deadline. This deadline was in the Sexual Offences Bill that was granted last week. What is interesting is that the court criticised Parliament for taking so long - I understand that, and I share those frustrations. However, I would like to say that the executive sat on that Bill for 14 months. We need to have a mechanism where Parliament is advised as soon as the Constitutional Court instructs Parliament to amend the Bill, in order to avoid further delays. Thank you very much.
Adv G BREYTENBACH
Mr S N SWART
Adv G BREYTENBACH: Madam Chairperson, hon members, the independence of the judiciary in South Africa is important, inter alia because it is enshrined in our Constitution. In the same case of State and Others v Van Rooyen mentioned by the hon Deputy Minister, the Constitutional Court also found that it is such an important principle in our Constitution that the independence of the judiciary may not be limited by way of legislation.
Generally, constitutionalism refers to a system of government based on a constitution and a government that adheres to the principles of the constitution. The concept of constitutionalism therefore encapsulates the idea of limited, open, transparent and accountable government. Constitutionalism is there to tame wayward governments that see no limits to their powers or simply ignore such limits in the guise of pursuing a common, or greater, good. Constitutionalism ensures that governmental powers are limited beyond theory, and, in fact, in practice.
The independence of the judiciary is of paramount importance, because it is tasked to act as the ultimate guardian of our Constitution. This entails that it must, from time to time, strike down government action if found not to be within the confines of the Constitution. The role of our judiciary is therefore to establish a culture of constitutionalism and the rule of law.
This task of the judiciary is not an easy one, especially while the judiciary is faced with what Justice Rezine Mzikamanda of Malawi, a constitutional law expert held in high esteem worldwide, has termed “half-hearted democrats”. In referring to Southern Africa, he points out that there continues to be a debate in relation to the constitutions of most of the Southern African states, which debate borders on questioning the validity of the constitutions themselves.
This debate is engaged in despite the fact that these constitutions have been widely acclaimed to be good and progressive democratic constitutions, such as in our own case. Justice Mzikamanda illustrates that a half-hearted democrat will not practise constitutionalism. In fact, half-hearted democrats will seek to find fault even with the very best democratic constitution. A half-hearted democrat will suggest that the constitution mostly contained Western notions and values of democracy and good governance with little or nothing of African cultural values and the idea of African democracy. Finally, Justice Mzikamanda adds that, in some countries, there appear to be deliberate efforts to discredit and alienate the judiciary from society, with a view to rendering the judiciary ineffective or compliant.
Unfortunately, we have many half-hearted democrats among us today. [Interjections.] Despite the fact that our Constitution clearly states that in South Africa we have one system of law comprising both the common law and customary law, the hon/mʌtʃeəɣʌ/incessantly rants about the need to interpret ...
Ms T V TOBIAS:/mʌtseəɣʌ/
Adv G BREYTENBACH: Oh, thank you so much: /mʌtseəɣʌ/
Ms T V TOBIAS: /mʌtseəɣʌ/
Adv G BREYTENBACH: You are terribly kind. Thank you so much. The hon Motshekga incessantly rants about the need to interpret our Constitution in order to what he calls “indigenise our legal system” – and he did not disappoint. He did it again today in the Justice Budget Vote debate. To this half-hearted democrat, the fact that all laws are subject to our Constitution and its underlying values is clearly a source of great irritation.
Then one has the hon the Minister of Justice, who demonstrated his half-heartedness by boldly declaring that if he were to decide the matter of order in this House, he would, without hesitation, call in the army to ensure that hon members acted in the subservient manner he would like them to. This half-hearted democrat clearly is not fully committed to either constitutional rights, like freedom of speech, or constitutional principles, like the separation of powers.
The ultimate half-hearted democrat is, of course, our very own President, who, apart from describing our Constitution as merely a guideline, has demonstrated his half-heartedness as a democrat as recently as January this year, calling for the transformation of the mind-set of those members of the judiciary who dare find against the government.
The half-hearted democrats are busy with a full-on war on institutions crucial to the success of our constitutional order. In all likelihood, the judiciary will be one of their next targets, especially as it stands squarely in the way of half-hearted democrats.
Now is the time for full-blooded constitutionalists and whole-hearted democrats to stand up and be counted, even if you sit on that side of the House. Thank you. [Applause.]
HON MEMBERS: Hear! Hear!
Mr L K B MPUMLWANA
Adv G BREYTENBACH
Mr L K B MPUMLWANA: Hon Chair, I again want to greet the hon Minister and the hon Deputy Minister, as well as the committee and people in the gallery. It is a very interesting thing when you say, “I oppose”, because one party just plays the tune and everybody sings the same way – very interesting. [Interjections.] I am talking about democracy. Luckily the DA has decided not to support this budget. I want to tell Chief Justice Mogoeng Mogoeng that they really support the ... [Interjections.]
An HON MEMBER: ... democracy.[Laughter.][Interjections.]
Mr L K B MPUMLWANA: You never said you supported it. [Laughter.] In the committee, you said you would wait for the caucus. [Interjections.] Now the caucus has instructed you to keep quiet. Anyway, … [Interjections.]
The HOUSE CHAIRPERSON (Ms A T Didiza): Order, hon members!
Mr L K B MPUMLWANA: The transformation of our judicial system forms part of the government’s broad agenda of transformation. I want to quote Chief Justice Mogoeng Mogoeng, who said:
The dawn of constitutional democracy in South Africa announced the imperative to transform our legal institutions, the Judiciary in particular, urgently and in a more robust and meaningful way.
In 2009, two gentlemen by the name of Dr Wesson and Prof Max du Plessis asked the following question: “What does the transformation of the judiciary mean?” I just want to quote them so that you can hear it. Firstly, judiciary transformation must incorporate change in the manner in which judges are appointed. Secondly, it is necessary to change the demographics of the judiciary. Thirdly, the underlying attitudes of the judiciary must change and it must embrace and enforce the principles of a fundamentally new legal order.
In 2015 we can state that progress in the transformation project has been significant, especially in the areas of appointments and demographics - except in respect of gender. There is little transformation in that area. However, siyaghuba [we are moving forward]. It is 21 years into our constitutional democracy and the transformation project has culminated in the establishment of the national department and the separate Budget Vote for the Office of the Chief Justice.
Some people feel, and they have said it here, that they should be independent. I am not sure, this word independent – maybe it is because English is not my language, but independent from what?
Mr D W MACPHERSON: [Inaudible.]
Mr L K B MPUMLWANA: Thank you. I think you are right. I don’t know what you mean by independent. We give you the money - who is independent?
Chapter 14 of the National Development Plan stipulates four focus areas for strengthening judicial governance and the rule of law: judicial selection and appointment, judicial ethics, leadership and management of the judiciary and the administration of the courts; the training of judicial officers; access to justice; and speeder resolution of court cases.
The judiciary now has greater control over its own resources and judges are able to determine their policies and strategic priorities, as well as how funds are to be allocated to pursue those priorities. This supports the call of the NDP to strengthen judicial governance and the rule of law through reforms leading to a court administration that is judiciary led.
This transformation project is in line with the constitutional obligation set out in item 16(6)(a) of Schedule 6 of the Constitution, which refers to the need to rationalise the courts with a view to establishing the judicial system suited with the requirements of the Constitution. Management of this process is assigned to the Justice Minister in consultation with the Judicial Service Commission. Some may ask, why establish a national department? The Justice Minister has answered this question as follows:
In the absence of both tailored legislation for such an office and a self-standing regulatory framework for the judicial branch of state, the proposal to establish a national department has, of necessity, been crafted in line with current legislation governing the executive branch of state.
The creation of this department with its own budget establishes, for now, permanent capacity for the Chief Justice to perform his existing judicial and administrative functions as mandated in the Constitution and other legislation.
The Justice Department’s 2012 Discussion Document on the Transformation of the Judiciary System and the Role of the Judiciary in the Developmental South African State indicates that this is an interim measure, pending the completion of broader reform processes. While highlighting the principle of the separation of powers, the discussion document also proposes that the relationship between the three branches of state is an “interdependent relation of autonomy, but also reciprocity”. At any time, “there is a dialogue or negotiation with the other branches about the budget, jurisdiction, size, procedures and administration”.
The Constitutional Court has held in the First Certification judgment that there is, however, “no universal model of separation of powers, and in democratic systems of government, in which checks and balances result in the imposition of restraints by one branch of government upon another, there is no separation of powers that is absolute”.
The Justice Minister has made it clear that this is not the final stage of the process. In fact, there will be a third phase - the development of an Alternative Judiciary Administration Framework.
Ultimately there is a need for a process of consultation and debate around critical questions of striking the best balance between independence, accountability and the resourcing needs of the judicial sector, and determining which institutional structure would contribute to maintaining the desired balance.
In the interim, however, lessons can be learned from the practical implementation of this transitional model. In 2010 the Office of the Chief Justice was proclaimed by the President as a national department. This was with a view to enabling the judiciary to regulate itself. A memorandum of understanding was signed with the Justice Department and the secretary-general of Office of the Chief Justice was appointed. This, to me, is the practical thing that we can give at this moment to the Office of the Chief Justice.
Other parties want the Office of the Chief Justice to behave like politicians; to come to Parliament and be questioned like politicians; perhaps to go to Cabinet and defend its work. There is a Minister to do this. That person is appointed - not elected by the people of South Africa. He cannot, therefore, be accountable directly to the public. The Minister is here, he is accountable to Parliament, and he can be asked questions about the Office of the Chief Justice and can agree and accept. I think that we should all understand that and accept it. I thank you.
Adv H C SCHMIDT
Mr L K B MPUMLWANA
Adv H C SCHMIDT: Hon Chairperson, I am not sure where the previous speaker was when this matter was debated because the DA has not taken any decision whether to support or oppose. We take that decision in caucus. [Interjections.]
HON MEMBERS: Hear, hear!
Adv H C SCHMIDT: It is an imperative requirement for an independent judiciary that a separate budget for the Office of the Chief Justice exists. It is indeed a welcome development in line with the basic tenets of our Constitution. It is, however, the degree to which all parties ensure that compliance to this principle is adhered to and enforced. As has been said here earlier today, the judiciary has no army, no police service, nor any other enforcement agency upon which it can rely to enforce their judgments. It relies on society’s adherence to the rule of law to do so. How strongly society is prepared to do so determines the strength of the judiciary to enforce their judgments - one of the most important tenets of a true and substantive democracy.
It is important to note that the Office of the Chief Justice is to a certain measure reliant on other departments to ensure that the budget receives value for money. The Departments of Justice and Constitutional Development and of Public Works play an important role in the effective functioning of the courts, its responsibility and the effective implementation of the budget. With approximately 240 judges serving on the various High Court, Supreme Court of Appeal and Constitutional Court benches, it is concerning to see the circumstances within which judges are expected to work.
These circumstances range from unacceptable conditions, such as –embarrassingly - basics such as lights and air conditioners not working and the general appearance of the courts not befitting the nature and importance of the work they are expected to do. Then there is the situation where judges are not appointed due to the fact that there are no chambers available in certain of the High Court chambers. This also creates the situation in court where existing judges have to deal with very high case workloads in instances where no offices or chambers are available.
This is not breaking news. The state of affairs has been reported repeatedly in the media, but to little avail. I must mention, for fear of misleading the House, that the hon Minister of Justice and Constitutional Development recently undertook visits to certain courts, such as the Kwazulu-Natal High Court in Pietermaritzburg, where some progress has been made with regard to the basic cleaning of the building and a few other issues.
However, this is not enough as the intrinsic problem lies with officials from the Department of Public Works and Justice. We cannot expect judges to work in degrading conditions merely because officials of the Department of Public Works did not display enough interest in their work or that the Department of Public Works ostensibly does not care enough to ensure that the working conditions of judges receive the necessary attention.
It is difficult to understand why the department can afford to give so much attention to our wonderful parliamentary precinct, where walls are painted annually before the opening of Parliament, while our court buildings, in particular the High Court buildings, are left to operate under less than ideal if not unpleasant circumstances.
Furthermore, it is concerning that judges, in particular Judge Presidents and Deputy Judge Presidents of certain High Court divisions, have been involved with attempts to ensure that administrative support staff at High Court function effectively and in terms of their responsibilities. High Courts require effective, efficient and committed administrative personnel to ensure that judges focus on their primary task of hearing court cases that result in the handing down of judgments. I thank you. [Applause.]
Adv H C SCHMIDT
Dr M S MOTSHEKGA: Chair, members of the judiciary, hon members, a knowledge of history could have helped those on my left understand that this doctrine of the separation of powers goes back to the 18th century. It was formulated by a French philosopher, but as the ANC we are proud to say that our understanding of this doctrine and how it should be implemented is even deeper than that of the French and the British. [Interjections.]
Where we are today, we are implementing, deepening and entrenching a doctrine that arose as a result of the need to prevent absolutism and the concentration of power in a few hands. Now, those who do not know history think that transformation is an event. What we are seeing today is the result of the ANC’s understanding of transformation as a process and not as an event. [Applause.][Interjections.]
We are at a stage where we want to demonstrate to this country and to the world that separation of the executive, the legislature and the judiciary is not just something that we pay lip service to, but something we believe in and something that we want to implement through the participation of the judiciary itself and the people of South Africa to ensure that none of the three arms of state is dependent on another.
What is being said here about the budget and under budgeting is just grandstanding because, as the Deputy Minister and the Minister clearly outlined, this process involves the creation of structures - for instance, the Office of the Secretary-General - the transfer of functions, etc, and all this work requires a careful understanding of what is being done. However, if you listen to what the hon members from my left are saying, you can see that they do not even understand where this country comes from in as far as this separation of powers is concerned. [Interjections.]
We know that under apartheid everything that was said in this Parliament by the legislature constituted the will of the legislature, but today we expect that we, this government, must behave like the apartheid government. We are not going to do that. We want a participatory transformation and that is what we are busy with. The hon Minister has said that he is going to organise a colloquium, after consultation with the judiciary and other stakeholders. That shows you that there is a process that is going on; one that is participatory; one that will deliver a product that everybody, including yourself, will be proud of.
We also need to say that we had a long process of making the Constitution and we had a long process of coming up with the 17th amendment. And that 17th amendment was followed by the structures that have been referred to. So, we actually do not know what you are looking for, except that maybe you need to do something to earn your salary, but unfortunately you are going about it the wrong way.
There was a reference to the indigenization or Africanisation of the law. Indeed, transformation is not only a change of institutions. Transformation goes to the heart of the justice system. That is the substance. Now, you cannot have a justice system in a country where more than 75% of the population is African and does not speak the English that you want them to speak, and then you say we should not indigenize and we should not introduce indigenous African languages.
That means that for you, justice is a mechanical thing. For us, justice is about substance. Justice is something that must be certain. Justice is something that must be understood and be accessible to all. However, we will not give up because we are not only transforming. We also have a duty to re-educate those who come from the terrible past. We will help you to catch up because you are part of the new South Africa. We cannot leave you behind. We need you in this new South Africa, but also we need to educate you so that you move with us. [Interjections.] Of course it is painful to be reminded that you need to be educated or re-educated. [Applause.]
Our friends from the EFF – I think they understand now. You can see they are relaxed. They are not shouting because I think they can learn faster than some of the older people on my left.
I conclude by saying that we are happy that this transformation of the judiciary is on course and that it is in the capable hands of our Minister and Deputy Minister. So, all that we can say as the ANC is that we are going to support them in this good work that they are doing and hope that you will catch up with them. Thank you very much. [Applause.]
THE MINISTER OF JUSTICE AND CORRECTIONAL SERVICES
Dr M S MOTSHEKGA
The MINISTER OF JUSTICE AND CORRECTIONAL SERVICES: Chairperson, it has been a long day and I do not intend to bore this House by regurgitating much of what has already been articulated on both sides of the House. Safe to say, I would once again like to appreciate the vibrancy and, I think, the enriching engagement that took place this afternoon.
In responding to some of the issues that the opposition raised this afternoon, I think we need to start with Constitutional Law and Democracy 101. You see, if South Africa were to be considered a going concern, we would say that the shareholders of that entity are the taxpayers who are also the voters and who ultimately own this going concern called the Republic of South Africa to which all of us account in our capacity as public representatives. We do so through being subjected to a general election every five years under a system of universal suffrage where we are called to account to the people that put us in these positions. Equally so, we have the responsibility to ensure that we are accountable and responsible for the use of the resources that they entrust to us in pursuit of the various programmes and in the discharging of our respective mandates.
This august House becomes the elected and preferred body constituted by the tribunes of our people. Its first task is to elect a President who must then resign from this House and form a government to discharge most of these programmes. Of course, this House takes the responsibility of holding everybody else to account with regard to their use of the resources. That is the reason why all Chapter 9 institutions, like all other government entities, have to come here to account for the use of those resources.
If we are to say that we amend chapter 8 of the Constitution as it currently stands and place on the judiciary the onerous task of taking direct control over the resources that are set aside for the administration of courts, the big question - which I did not find any clear and unequivocal response to from the opposition - is this: How do we then ensure that the judiciary accounts to the people of the Republic and to the taxpayers on the appropriate use of those resources, not only administratively but also in terms of executive accountability?
The Auditor-General comes to a committee, for example the Standing Committee on the Auditor-General – which is a standing committee of this House and which I on occasion was privileged enough to chair – and accounts – over and above having been audited themselves by independent auditors – for every cent that, firstly, they have collected from auditors and, secondly, that they have used in the performance and execution of their mandate.
Are we expecting the judiciary to leave the bench, come here, sit before this august House to account for every cent that would have been placed in their direct control? And must they be exposed to the fray that you have noticed this afternoon with regard to the robust engagement around the accountability of Chapter 9 institutions such as the Public Protector? Do you want the same kind of robustness and engagement to be directed at our judiciary? Would that not create doubt regarding its independence? Should we not insulate that institution from the risk of being accused of bowing to political pressure in the discharge of its judicial functions?
The principle in the Constitution is that we need an independent judiciary that is able to discharge its judicial functions without fear, favour and prejudice. In my view the best way that we can preserve those values in the judiciary is to keep it away from the kind of political rigour that takes place here when institutions such as ourselves are called on to account.
A lot has been said about this and clarification was given by my colleagues on the right. I am yet to hear a clear response from the opposition that gives guidance to the nation as to how we proceed. Chapter 8 of the Constitution has put us in good stead as a nation to navigate through the many political and other challenges that we have so far successfully overcome in the short 21-year stint of democracy that we have been through. Do we want to go into unchartered waters? How many other countries in the world have gone that route?
You know, South Africans love to be the first in everything and sometimes we love to punch above our weight. Sometimes it works but I think a bit of caution can be drawn from the English expression “Fools rush in where angels fear to tread”. So, let’s be cautious about the choices that we make and let’s think carefully before we leap. I thank you. [Applause.]
The Committee rose at 18:25.
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