Madam Chair, Ministers, Deputy Ministers, members of this House, Justice Yacoob, acting Deputy Chief Justice and esteemed members of the judiciary, including the president of the Supreme Court of Appeal, heads of the constitutional commissions and statutory institutions, heads of professional law bodies, distinguished guests, comrades and friends, ladies and gentlemen, it is an honour and privilege to present the budget of the Department of Justice and Constitutional Development to this House and to South Africans at large. As members are aware, the Vote includes budget allocations earmarked for constitutional and statutory institutions that are part of the extended justice family. This year marks the 15th anniversary of the Constitution, which President Nelson Mandela signed into law on 4 February 1997. This Constitution remains our foremost guiding torch. It lights our nation's long and difficult walk from the legacy of colonialism and apartheid, which was characterised by inequality and injustice, to a future founded on equality, human rights and social justice.
I will now focus on the business of the department, which is mainly about providing a conducive and enabling environment for the proper administration of justice in our country.
I would like to thank hon members of this House, academics, public opinion makers, scholars, jurists and all other commentators who took part in the dialogue that ensued after the release of the discussion document on the transformation of the judicial system and the role of the judiciary in a South African developmental state. I would also like to convey my profound appreciation to the media for creating space, through various avenues, for the continuous dialogue on the principles discussed in the document.
The comments we have received thus far are intriguing and provide balanced perspectives on topical subjects, such as the doctrine of the separation of powers and the institutional arrangements geared to safeguard the rule of law and the independence of the judiciary, which are the bedrock of our constitutional democracy. Some of the comments not only attest to the equal status of the three arms of the state, but also to how they are glued together by our democratic Constitution. This is also the view that was eloquently reiterated by the former Chief Justice, Sandile Ngcobo, when he delivered a keynote address during the Chief Albert Luthuli Memorial Lecture early this year:
Each arm of the government must observe the constitutional limits on its own power and authority. There is no branch that is superior to the others in its service of the constitutional mission of the Republic.
We note that some commentators have lamented the terms of reference we announced subsequent to the release of the document calling for the review of the court decisions, while commentary that made the headlines of a leading newspaper this past Sunday - and which was attributed to the Deputy Chief Justice - blames policies of this government for the increasing poverty and inequality. Let me categorically make it clear that we neither sought, nor have the competency, to review court decisions. Our assessment is aimed at maximising our concerted efforts, as branches of the state, to rid this country of its ugly past and to use our evolving jurisprudence as a navigational guide towards the ideal society envisaged by the Constitution. The views expressed in the newspaper article concerned misrepresent the progressive laws, policies and decisions of government that have cumulatively contributed to the reconstruction of society and the improvement of the quality of life of many of South Africa's people.
The provision of houses, access to health care, electricity, water, greater enrolment in basic and higher education, various other social security measures such as the child grants, legal aid for the indigent and the massive investment in infrastructure - which has been intensified, following the announcement made by the President - all bear testament to the strides that our government continues to make towards the establishment of an equal and prosperous society envisaged by the Constitution.
Key among the initiatives aimed at enhancing the administration of justice is the framework on the transformation of state legal services, which I will release on Monday next week. We aim to revolutionise the public legal sector to be able to provide legal services that are of the highest standard, protect and safeguard the interest of the state and advance access to justice for all our people.
The envisaged reforms are aimed at addressing some of the shortcomings in the current system that result in government losing court cases it ought not to have lost, or embarking on ill-fated litigation where it ought to have considered alternative forms of redress to litigation, which results in huge costs to the fiscus.
The intended reforms are also aimed at broadening the pool of legal practitioners who are briefed by the state to ensure that in itself it reflects a fair representation of black and women practitioners consistent with the race and gender demographics of South African society.
The scarcity of black and women practitioners in the pool of practitioners who continue to dominate constitutional and other high-profile litigations has a consequential effect on the slow pace of transformation of the judiciary, because this profession is the main feeder to the judiciary.
The Justice, Crime Prevention and Security, or JCPS, cluster has made strides regarding the integration of information and communications technology systems, enabling an electronic flow of information between the Police, the National Prosecuting Authority and the Department of Justice and Constitutional Development. The ICT integration is being extended to other JCPS cluster departments.
In line with the delivery agreement that my colleagues in the cluster and I have signed with the President, we continue to strengthen the integration of the programmes of law enforcement agencies, with a view to maximising our fight against crime and corruption.
In view of the ongoing court action regarding the appointment of Adv Simelane, the appointment of Adv Jiba as acting National Director of Public Prosecutions has stabilised the leadership and management of the National Prosecution Authority.
The Asset Forfeiture Unit continues with its ruthless approach to crime and corruption that deprives the majority of our people of the enjoyment of the fruits of democracy. A total of 150 officials were convicted of corruption in the past year. The conviction rate on the corruption cases stood at 73%. The value of assets seized by the AFU during the past financial year is R533,4 million and the total assets confiscated over the past 13 years is nearing R5 billion. About R150 million recovered by the AFU has been allocated from the Criminal Assets Recovery Account, known as Cara, to build capacity in the Anticorruption Task Team to intensify its investigative capacity.
During the 2011-12 financial year, courts finalised 216 cases of cybercrime, with a conviction rate of 87,5%. Similarly, the Special Investigating Unit is making strides in the investigation of serious incidents of corruption arising from the numerous proclamations promulgated by President Zuma in 2011 alone.
Further proclamations of large-scale investigations included that of alleged irregularities in the fishing industry, which Minister Joemat- Pettersson announced when she tabled her Budget Vote recently.
Key to the work of the JCPS cluster is the finalisation rate of cases that are brought before the courts. The performance of our courts is measured in terms of time, cost and quality, namely, the time within which cases are processed through each stage of the proceedings, from beginning to end. The statistics of cases finalised by the lower courts in the 2011-12 financial year show a decline when compared to the outputs realised in the previous financial year. The number of criminal court cases finalised by all courts during 2011-12, namely 448 760, is slightly down from 460 791 in the 2010- 11 financial year. However, the average conviction rate in our courts for the past financial year remains high and has increased from 88,3% in 2010 to 88,8% in the past financial year.
The judicial practice directives, which were developed by the judiciary pursuant to the resolutions of the successful Access to Justice Conference held last year, will go a long way in addressing the case-flow management challenges and ensuring that judges take charge of their courts. This will reduce the unnecessary postponement of cases and reserved judgments, some of which take years to be delivered.
Similarly, the court-based mediation rules, which I received from the Rules Board for Courts of Law this week, will reduce the time and cost of litigation immensely and thereby enhance access to justice. I will announce the date of the implementation of these rules on a pilot basis after I have engaged with the Chief Justice and heads of court in this regard.
One aspect that continues to rear its ugly head is the scourge of rape and other forms of sexual offences which have shown an upswing in recent times. I will soon be convening a multidisciplinary task team of the JCPS cluster departments to conduct an urgent investigation for purposes of the re- establishment of sexual offences courts, which proved to be successful in the past. The task team will investigate the steps that ought to be taken to ensure that sexual offences courts benefit all communities across our land and not only selected areas, as was the position regarding the 62 sexual offences courts that were piloted during 2007-08 financial year. This task team will submit its report and recommendations by the end of August this year to guide the cluster on how to tackle these horrendous crimes.
While on this matter, I studied the judgment delivered last Friday, 11 May 2012, by the Western Cape High Court, when it found that certain sections of the Sexual Offences Act did not prescribe sanctions for certain offences prescribed by the Act, and the consequences that may arise from this judgment. We are considering appealing the decision to the Supreme Court of Appeal to seek clarity, as we urgently need to address this matter and manage the potential repercussions that could result from this judgment, where persons who have been convicted and are serving sentences could approach the courts to squash their conviction and sentence. I am grateful for the proactive measures that the Portfolio Committee on Justice is considering to address this urgent matter.
We are also taking strong measures to deal with the interests of the lesbian, gay, bisexual, transsexual and intrasexual, or LGBTI, community, with a view to eliminating sexual offences perpetrated as a result of sexual orientation. I must laud the communities of Cape Town for being in the frontline against this scourge, and I wish to encourage all communities in our country to report cases of homophobic hatred and rape to law enforcement agencies. Both must be rooted out from the social fabric of South African society. [Applause.]
Despite the challenges I have mentioned above, our cluster is dealing decisively with all issues. The milestones the JCPS cluster has achieved in preserving a safe and secure environment, in line with our goal of ensuring that all South Africans are and feel safe, continue to put our country on the world map as a secure destination of choice.
I wish to express my gratitude to the Portfolio Committee on Justice for paying visits to the Supreme Court of Appeal and the Constitutional Court, and engaging with the judges of these courts to glean their views on the provisions of the Constitution Seventeenth Amendment Bill and the Superior Courts Bill. We are moving steadfastly in creating the necessary infrastructure in anticipation of the enactment of these important Bills.
The conversions under way at the interim accommodation for the Mpumalanga High Court will be completed by July this year, while the completion of the construction of the High Court in Limpopo is envisaged by March 2013. The enactment of the eagerly awaited Superior Courts Act will therefore bring an end to the hardships endured by the communities of these provinces, who have to travel to the distant High Court in Pretoria to seek justice, at high cost and intolerable inconvenience. [Applause.]
Other courts that we have completed and are earmarked to be opened this year include the Ashton Magistrate's Court, which I opened on Tuesday this week, Ntuzuma Magistrate's Court in KwaZulu-Natal, and Tsakane and Palm Ridge Magistrate's Courts in Gauteng. The Palm Ridge Magistrate's Court will be proclaimed a circuit court of the South Gauteng High Court, the seat of the Gauteng Regional Division, and the local district court.
Six branch courts, namely Atteridgeville, Tsakane and Sebokeng in Gauteng, Secunda in Mpumalanga and Orkney and Stilfontein in the North West, will be proclaimed full-service courts by the end of this year.
I am also pleased to announce that the long-awaited Legal Practice Bill has finally been certified by the Chief State Law Adviser.
The Judicial Service Commission continues to make progress in the transformation of the judiciary. Of 243 judges, 25 are women, while blacks are just above the 50% mark. Recently some people expressed the view that the JSC tended to overlook quality and competence and that its decisions were influenced by political agendas. These sentiments are devoid of any truth and undermine the integrity of the JSC's esteemed members, the majority of whom are derived from all three branches of state. The intense and robust debate by members of the commission and the manner in which it arrives at its decisions are reflective of our evolving democracy, which we must all accept. [Applause.]
To implement our programmes, a total budget of R15,4 billion has been allocated to the department for the 2012-13 financial year. This is more than R600 million less than the previous year. Of this budget allocation, R5,2 billion is allocated to court services, R2,8 billion is for the NPA and R1,8 billion for public entities and Chapter 9 institutions. Growth in 2012-13 is driven by increased provision for the appointment of judges and magistrates, the carry-through cost of salary increases, planned IT upgrades and funding for the building of the two high courts that I have mentioned.
In 2012-13 the department envisages that it will spend R2 billion on public prosecutions, R158 million on witness protection, R130 million on asset forfeiture, R307 million on the SIU and R1,2 billion on Legal Aid SA. In support of constitutional institutions, the department will transfer R101 million to the Human Rights Commission and R174 million to the Public Protector.
Over the next three years, the department will spend R3,3 billion on the construction of courts and other infrastructure projects to enhance access to justice. A further R92 million will be spent on day-to-day maintenance and R279 million will be spent on the rehabilitation of court facilities over the next three years.
I also want to assure this House that we remain on course to achieve an unqualified audit report at the end of this financial year. [Applause.] We are indebted to the guidance and assistance of the Auditor-General, the Standing Committee on Public Accounts and our own Portfolio Committee on Justice.
In concluding, allow me also to thank Chief Justice Mogoeng and the entire leadership of the judiciary for their sterling leadership. I also thank the distinguished members of the judiciary for serving the cause of justice in our country. I thank my Deputy Minister, Mr Andries Nel, for his comradeship and unwavering support in leading the programmes in the administration of the justice portfolio. I also thank my colleagues in the JCPS cluster, as well as the chairperson of the portfolio committee, Mr Landers, and his fellow members of the Portfolio Committee on Justice for their guidance. My gratitude also goes to heads and chairpersons of statutory bodies, distinguished members of the legal profession and all our social partners.
A special word of thanks goes to the director-general, Ms Nonkululeko Sindane, the acting secretary in the Office of the Chief Justice, Dr Khotso de Wee, their respective management teams and the entire staff in the justice family for their tireless efforts.
Lastly and most importantly, I would like to thank my beautiful wife Bridgette, who is here, and my family. You are my source of strength through the many challenges I encounter in the execution of my duties and responsibilities. I have stayed within my 20 minutes, so I will say thank you. [Applause.]
Hon Chairperson, hon Minister, hon Deputy Minister, Justice Yacoob, Justice Lex Mpati, Justice Nkabinde, Justice Mlambo, fellow justices, the Public Protector, Adv Thuli Madonsela, and all members of the justice family present here today, it is my privilege to follow the hon Minister's stirring introductory speech.
On page 13, paragraph 1.5 of the ANC's Policy Discussion document, stands the following:
The independence of the judiciary and the rule of law are the pillars on which the constitutional order is anchored. The separation of powers embodied in our Constitution provides checks and balances to safeguard these values.
Section 165 of our Constitution confirms that the executive may not interfere with the functioning of the courts. Consequently, although the Minister of Justice bears political responsibility for the administration of justice, the Minister may not unilaterally impose norms and standards on the judiciary or act in any other way that could be perceived as interfering with the institutional independence of the judiciary or the impartiality of judges.
What section 165 of the Constitution means is that the Minister of Justice may neither manage court rolls, nor tell individual judges that they need to work longer hours or deliver judgments within a particular time period, because to do so would constitute interference with their independence. However, when judges take months or even years to deliver written judgments, the administration of justice is fundamentally compromised. We are reliably informed that the record for the nonproduction or nondelivery of a judgment is six years. Clearly, this is a violation of the rights of all those affected by such a delay. What was needed therefore was a radical transformation of our system of justice. At its 52nd National Conference, the ANC resolved, among other things, that:
The Chief Justice, as the head of the judicial authority, should exercise authority and responsibility over the development and implementation of norms and standards for the exercise of judicial functions such as the allocation of judges, cases and courtrooms within all courts in the court system.
One of the first steps in this transformation was the President's signing of a proclamation that brought into being the Office of the Chief Justice as a national department. At present, the Portfolio Committee on Justice is seized with the Constitution Seventeenth Amendment Bill and the Superior Courts Bill, which are related to that initiative.
The Constitution Seventeenth Amendment Bill seeks to amend section 165 of our Constitution by, among other things, further defining the role of the Chief Justice as head of the judiciary, thereby seeking to safeguard the independence of the judiciary by clarifying the roles of the head of the judiciary and the Minister of Justice regarding the administration of justice. The Superior Courts Bill seeks to, among other things, rationalise, consolidate and amend the laws relating to the Constitutional Court, the Supreme Court of Appeal and the High Court of SA, and to make provision for administrative and budgetary matters relating to our superior courts.
Essentially, therefore, read together, these two Bills will bestow extensive powers on the Chief Justice insofar as the administration of our courts is concerned. During the committee's recent visit to the South Gauteng High Court, we were faced with the embarrassing situation where the Deputy Judge President of that court could not access court records and case files. It was a totally embarrassing and shameful situation.
In the meantime, the Director-General of Justice has been tasked with seeing to it that the Office of the Chief Justice is capacitated so that it can function once these legislative amendments are effective. In terms of the Budget, the Office was allocated R12 million in 2010-11 and R117 million in 2011-12. It has requested an additional R60 million for the cost of the implementation of these two Bills.
Moreover, the Department of Justice has seconded staff to the OCJ and 60% of the funded posts had been filled by 2011-12. Protocols on the transfer of responsibilities are also being established which, when finalised, will result in the OCJ having its own Budget Vote here in Parliament. To this end, Treasury has been taken on board to ensure a proper, smooth and seamless transfer of responsibilities.
Needless to say, we are excited by these developments in the Office of the Chief Justice and what it means for the transformation of our justice system. We are pleased at the progress made in capacitating the Office of the Chief Justice. We are pleased that during this financial year the Office is assuming responsibility for the Constitutional Court, the Supreme Court of Appeal, the SA Judicial Education Institute, the Rules Board and the Secretariat of the Magistrates Commission.
Last year, we were informed that the judiciary would assume responsibility for case-flow management and has agreed to the introduction of performance targets in courts, including magistrate courts. However, as a committee and Members of Parliament, we remain seriously concerned that case backlogs remain at an unacceptably high level. Case backlogs are hindering service delivery in our courts. Unfortunately, the impact of case backlogs goes far beyond just our court system. In fact, it is one of the major causes of overcrowding in our correctional facilities. Currently, correctional facilities are indicated to be filled to 135% of their capacity.
In an effort to address this, the integrated case management system was rolled out in 2010-11 to 478 lower courts, against a target of 250 cases, and to 12 high courts, against a target of three cases. In addition, this system was rolled out to all 14 Master's Offices and 402 service points. Despite this, the number of case backlogs remains a constant 37 000. Moreover, the NPA statistics also show a disappointing decline in cases completed or finalised in 2011-12.
We note the fact that the department has been allocated R77 million to help resolve this. This amount must be used effectively to reduce these backlogs. This must be done in consultation and co-operation with other stakeholders, particularly the NPA.
As part of our oversight responsibility, the Portfolio Committee on Justice is seriously considering fitting into its programme a joint oversight visit with the Portfolio Committee on Correctional Services to correctional facilities in Gauteng, with special emphasis on awaiting-trial prisoners. We want to see for ourselves the impact that case backlogs have on our prison system. Only in this way can we assist in ensuring that all people in South Africa are safe and feel safe. [Applause.]
Chairperson, Judge Yacoob, representing the Constitutional Court, Judge-President Mpathi from the Supreme Court of Appeal, all our esteemed judges, and all members of the justice family stretching around the room, and hon Minister: This hon Minister is the Minister of everything. Not only is he in charge of the Justice, Crime Prevention and Security cluster, but he is his party's head of policy. I have no doubt that he is therefore seized with the problems of a very great many Ministries. However, with respect, sir, that is no excuse for the state of the courts and some other justice entities.
We still observe the doctrine of ministerial responsibility. Under the present system, he is responsible not for judicial functions, but for ordinary, old-fashioned administration, as well as justice policy. Regarding policy, he tables the right justice laws and he says the right things, even when that requires the repudiation of his colleagues on questions like the separation of powers. He therefore appears to be on the side of the constitutionalists in the ruling party - except at the Judicial Service Commission, to which I will return. However, he must also answer for administration.
It is my view that there are two causes for the failure of administration in South Africa in general, and in justice in particular. The brutal budget cuts - R600 million, cumulatively - will make it worse, but they are not the root cause. These two reasons are the real root cause: The first is the appointment of the wrong people and the second is the miserable inadequacy of the IT systems. I regret the JCPS cluster has not made the strides just claimed by the hon Minister. It has barely started stumbling along. I want to illustrate both root causes - appointments and the IT systems - by using examples from two entities.
Regarding the first factor, the appointment of the wrong people, the entity I address today is not the National Prosecuting Authority, for obvious reasons. Nevertheless, let me say that the proposals I made in the 2010 Budget Vote about a new appointment procedure for the National Director of Public Prosecutions still stand. Section 179 needs to be amended.
The entity I do wish to address is the South Gauteng High Court in Johannesburg, to which my colleague briefly referred. There, Deputy Judge President Mojapelo warned the department in 2011, following warnings in 2010 and repeated to the portfolio committee in 2012, that the total collapse of discipline among staff members, who were committing offences - including crimes - would lead to the collapse of services. He warned that corruption in the Registrar's Office, including the issuing of fraudulent court orders, was rampant. Yet, by February 2011 there had not been a single conviction at criminal level, and no disciplinary action had been taken in 10 years! Indeed, suspects - even those caught red-handed and arrested - were back on duty and in the court corridors within a few days.
How is this possible? It is possible in a city where jobs in justice are sold. They are sold. The going rate is R7 000. Indeed, the situation then becomes predictable. When you hire on the basis of corruption, you will see further corruption. I have furnished details to the director-general, in whom I have confidence, of what whistle-blowers have told me about job- selling at the level of the magistrates' courts in Johannesburg, but with protection from higher administrative levels. It is therefore possible - probably plausible, but let us say it is possible - that the same occurs at the High Court level. All I can say to the hon Minister is that we need to clean up.
I now come to the second reason for the failure of service delivery in South Africa. The Auditor-General, in a general report on audit outcomes until last March, pointed out that government departments generally were heavily reliant on IT systems for, inter alia, their administrative functions - also financial and reporting, but administrative. However, around 80% of them did not have governance frameworks or security systems fully in place. The basic problem is now clear to me, sir, and to all of us, I think. It can be summed up in four letters: Sita. The SA State Information Technology Agency itself has said that its services are expensive, non-value-adding and a burden. It said so when the latest turnaround strategy was adopted in 2010. It has had 14 CEOs in 10 years, yet all departments have to use Sita.
Judges from the Supreme Court of Appeal downwards struggle with intolerably slow computers, when they have computers at all, and when the Sita networks are available at all and have not, once again, been crippled by server crashes. At the Johannesburg High Court, the registrar's staff for civil trials suffered the failure of the computerised High Court system, which was supposed to send notification of trial dates automatically. So, fax and e-mail was then used, but by last February the fax machine had broken and was not replaced for months.
At that stage the registrar of civil trials was writing notifications in long hand, sometimes relying on attorneys' messengers to come and collect them! Often, dates allocated for trial came and went before parties were notified. At this rate of progress, we should be looking at carrier pigeons instead of the integrated IT systems postulated for the criminal justice system under the seven-point plan adopted in 2007.
By welcome contrast - and here is the other entity - Legal Aid South Africa took the straightforward decision soon after Judge Dunstan Mlambo took over its board to acquire and maintain its own IT system and it has worked "wonderfully", to quote him. The only pressure is bandwidth, because so many people have come onto their system.
Lasa is successful in every way because it is run by an impressive executive team of people and staff. Judges Mlambo and Mojapelo will make a wonderful team in Gauteng with, I think, influence in the northern provinces beyond, from which they both hail. Lasa has asked only to join Sita's procurement system, and I think that is what Sita was originally created for. It demonstrably cannot run platforms.
It is now a matter of urgency that the hon Minister should ensure that both of the above problems are resolved. The only answer is to create the proposed Independent Administrative Agency, which the judges want for the institutionally independent judicial branch and which is being drafted. The Minister is going to give them the independent agency, but here is the problem, sir: that agency will not be able to make a truly fresh start, because the whole programme of court services will move across and the independent agency, with new management appointed by the judges, will inherit the problem personnel along with the good staff.
As for IT, the courts' integrated case management system - the thing that is now starting to stumble along - is supposed to link electronically with the NPA's electronic case management system, as are the police and the prisons. Now, it stands to reason that they will all have to work off one platform, and I think it is necessary to say now that it cannot be a Sita platform. So, Minister, please make the change now. In fact, you need to make it for all government departments. In addition, by the way, do not give IT governance frameworks to the intelligence services, as you have proposed. [Interjections.] It is a bad idea. The hon Burgess will disagree with me, but it is a bad idea. It should sit under the Department for Public Service and Administration.
Lastly, the hon Minister must take direct responsibility also for all appointments. That applies not only to the bottom, but also to the top. Sir, I am the last person to wish to erode the standing of any of our independent bodies. However, the JSC is in crisis when qualified candidates no longer come forward. There is just no argument. In a statement on 24 April, the JSC itself begged people to come forward. It could shortlist only three people for the six vacancies in Gauteng. We know what has happened at the Constitutional Court - four aspirants to shortlist could not be found.
When I asked the hon Minister in committee whether he or the hon Ramatlhodi was in charge of the political voting bloc at the JSC, he said that he was not aware of such a bloc and that commissioners voted by secret ballot after deliberation. I have taken note of what he has repeated today, and I have respect for the hon Minister. However, I am afraid that no one will be persuaded that there is no such bloc. So, therefore, forgive me if I say that if the usual suspects at party headquarters are dictating ANC choices for the JSC from the NA and the National Council of Provinces, why is the hon Burgess no longer on the JSC?
If it is the case that the usual suspects at Luthuli House are dictating the choices made here and also dictating the choices of judges made there at the JSC, then the hon Minister of Everything is the Minister of Nothing. [Interjections.] It is one thing to create the right form for an independent judicial branch, and it will be his monument. The Constitutional Seventeenth Amendment Bill, the Superior Court Bill, the Judicial Council Bill and the Independent Administrative Agency Bill will be his monument. They all emanate from the judiciary, but he has tabled them. We will legislate them, and they will be, in the end, his monument and that, I hope, of the judicial branch.
It is one thing to create the right form for a truly institutionally independent judicial branch, but if the form has no substance because the wrong people are appointed from the top to the bottom, then it is an empty exercise. [Applause.]
HON MEMBERS: Hear, hear!
Hon Chairperson, Minister and Deputy Minister of Justice and Constitutional Development, members of Parliament, all distinguished guests, the authors of the Constitution 1996 ensured that the picture of transformation and the advancement of human rights were clearly imagined or understood once a person read our Constitution. With that transformative vision at the back of our minds and with this Minister at the head of this department, as well as at the head of the Justice and Crime Prevention cluster, Cope had hoped that this department would exceed our expectations. However, cracks within the department soon surfaced.
Before I deal with these cracks, one cannot help but wonder what the content of the service agreement is that the Minister entered into in April 2010, given the fact that this has never been made public. Perhaps this is the ideal time to make this document available.
This department gives reasons and more reasons why it simply cannot get a clean audit. I do acknowledge the hard work of all the senior officials in the department, but for how long should we listen to these reasons? Noncompliance, when it comes to taxpayers' money, is a grave concern. South Africans want to know that their monies are well spent and accounted for. Cope looks forward to the next audit report.
One also reads too many articles about postponed court cases. This is a democratic shame. One case of rape and murder was postponed 50 times, while another rape case was postponed 48 times. In another Western Cape High Court case, the husband allegedly killed his wife and the case only commenced three years after the event. The current systems in this department have absolutely no regard for the victims of crime.
I could not believe my ears when Judge Mojapelo informed the Portfolio Committee of Justice that judges had to wait for 18 months for their stolen computers to be replaced. All this is happening under the reign of this Minister. A whole year and a half went by and this department was still "attending to it".
Properly resourced court libraries are, as they say in Afrikaans, "so skaars soos hoendertande" [as rare as hen's teeth]. How can that be?
The portfolio committee also heard elaborate reasons why missing court records were still a phenomenon in the year 2012. We cannot even keep track of technological development. Missing court records should simply never occur.
I want to highlight another crack, in the words of Judge Mojapelo. He writes as follows:
Prisoners must be provided with a separate point of entry to the court building. In the judges' parking area in the basement of the court building, prisoners, whether shackled or not, often walk past judges. This includes judges who are either about to sentence or have just sentenced such prisoners for long periods in jail.
Cope states that it is only a miracle that none of the judges have been physically attacked by one of these prisoners. This department cannot afford to compromise on the security of the judges.
The young black face of poverty demands access to justice. It is this lack of access and the granting of bail in a manner that people don't understand, as well as the never-ending postponement of court cases that lead to mob justice in our society. Cope is anxiously waiting to hear what concrete educational programmes the department intends to conduct through the media to ensure that South Africans understand, firstly, why accused people get bail and that this does not mean the accused is not guilty; secondly, what measures are put in place so that victims of crime are attended to immediately; and thirdly, why mob justice is not a solution. The list goes on. It is important that this department speaks to South Africans, since this society has already been labelled "an angry society".
Let me attend to another issue. It is correct that section 16(6) in schedule 6 of the Constitution talks about the rationalisation of courts with a view to establishing a judicial system suited to the requirements of the Constitution. We are glad that that is only about the structure of the court and not about court judgments. The Minister has confirmed that it is just about the structure.
Indeed, our judicial system is lacking in a number of ways. Cope welcomes the fact that the Judicial Services Commission and its alleged transformative role will form part of this debate. We all know that transformation is a far cry from the results obtained from this commission. As part of transformation of the judiciary, it is imperative that all members of the JSC know and understand the criteria that constitute an ideal judge. Cope is not so sure whether this is indeed the case.
Further to this, a number of media articles have surfaced that claimed that excellent candidates are refusing to accept nomination. According to Ms Mamphela Ramphele in today's Business Day, some candidates say they simply do not want to subject themselves to an appointment process they no longer trust or regard as credible or decent. As much as this is worrisome, the worst assertion made in this article, and according to facts, is that potential nominees say bluntly that they do not want to be members of a court led by Chief Justice Mogoeng Mogoeng. If this is true, then we are sitting with a serious problem. Cope supports the restructuring of the JSC in order to ensure that we do not end up with judges who are regarded as having been shooed-in or overpromoted.
In conclusion, Cope supports this department only to the extent that it promotes and protects the Constitution of the country. [Applause.]
Chairman, I also wish to extend my appreciation to and recognition of the many judges and justices who grace us with their presence today.
This is quite an extraordinary committee. I think all parties in this committee are moving in the same direction and even though our emphasis on certain aspects is different, there is a commonality of intent. This makes it unnecessary for me to repeat what has been said, or in any way distance myself from anything that has been said so far.
I shall therefore identify only a few points, arising from what the Minister said, regarding which I can perhaps make a specific contribution. It gave me hope and left me feeling enthusiastic that the Minister made reference to the amendment of the Court Rules and of regulations and legislation relating to the legal profession.
The core of this department is justice. It is all about "making justice". Justice is not being made and justice is not affordable. The cost of justice has made justice in this country a privilege for the rich. I personally don't advise anyone to go to court with a doubtful case unless there is at least R1 million at stake.
The costs in the legal profession are prohibitive. The cost of the legal profession impacts on the cost of legal aid and on the cost of government functions subsidising that. We have a system where we have three lawyers doing the work that is done by one person in other countries. The cost of lawyers in South Africa, in Johannesburg or Cape Town, is higher than the cost of lawyers in Washington DC and New York. This does not make justice affordable. We must have the courage to reform the legal profession. We have reformed everything else. These are not high priests or untouchables whom we, as Parliament, cannot look at. The split bar no longer makes any sense. It is a vestige of the past and we must distance ourselves from it.
Another aspect is the reform of the judicial process. I have written to the Minister and I have published on this topic. There are ways and means to reduce the cost of engaging in the system of justice. If we adopt a system based on the American system, in which discovery becomes the centre of the process, activities are moved from courtrooms into lawyers' offices. It reduces the cost of lawyers. It dramatically reduces the number of hours required of judges in courtrooms. It simplifies what is brought before a judge. It reduces the skills required to give a judgment. Fewer issues are brought to trial. A three-month trial becomes a three-day trial. This has been tried and tested for about 200 years in the most litigious society in the world, where everyone goes about suing one another happily. That is on the civil side.
On the criminal side, in this committee, and in any of the committees I have attended, the word that is spoken about the most is "corruption". Corruption, corruption, corruption - it is the root of all evil. We are not going to succeed in this battle unless we do the most difficult of all the things that need to be done, namely to draw a line in the sand and start all over again.
I have spoken about this before: I think we must consider, no matter how painful it is, the need for a general amnesty on corruption. It is the only possibility we have for turning the page and having a "clean hands" policy in which the backlog is not dealt with and we send out the message that from this point on we mean business. Let's write it off as the cost of transformation, or of the revolution, or of change in South Africa, but let's turn the page. Corruption within the judicial system has become so rooted - how are we otherwise going to deal with it, also within the other three spheres of government and the rest of society?
The last aspect I wish to address - again, I don't want to repeat what has been said - is the concern about the Judicial Service Commission. I accept, Minister, that from where you sit, you need to present an institutional defence of the system, but the system is not working. The hon Smuts is right: If we do not attract the best of the best, if they do not feel enticed to becoming a judge, the system of justice is weakened at its very root. We need to be able to address the problems that exist and that you, hon Minister, are well aware of. Block voting does exist - it is an open secret. Let's have the courage to dare moving beyond the page that has been written. This went on for the first stage, and we can now move on. With these qualifications, we are pleased to support your budget, Minister. [Time expired.] [Applause.]
Hon Chairperson, hon Minister and Deputy Minister, hon members, justice does not take place in a social or political vacuum. It is deeply affected by the difficulties of daily survival. In South Africa, access to justice for the majority of the poor and marginalised remains a challenge. For poor and vulnerable communities, the cost of accessing justice remains extremely high. At times, it feels as if justice is fast becoming a privilege for the select few, to the detriment of social stability and social cohesion.
Access to justice does not only mean access to institutions, but also access to fair laws and affordable and appropriate remedies in terms that conform to our constitutional values. In this regard, we welcome the department's plan to convert periodical courts into full-service magistrates' courts by 2012-13 in a bid to ensure that areas that had limited access to limited magisterial services enjoy full access.
The building of High Courts in Polokwane and Nelspruit is also a step in the right direction. However, these new institutions require management. They need people with experience to run them. We call on the department to conduct recruitment and selection in a manner that takes the transformation agenda into account. Transformation in the judiciary seems to be proceeding at a snail's pace.
While very complex in nature, the issue of the transformation of the judiciary itself is a constitutional imperative. We must build a judiciary in a way that is a response to the needs of our people. It is time for our judiciary to reflect the demographics of our country.
This is not to say that we condone the appointment of people who are not suitable for positions. We know that the naysayers will point to some of these controversial appointments as reasons for abandoning the transformation agenda. Yes, we agree that some of the appointments made recently have the potential to rock the entire judicial and constitutional dispensation to its core. The more we allow such things to happen, the deeper the damage that is being done to the image of the judiciary as independent, respectable and rational. However, the UDM has always been unequivocal in calling for transformation to be done in a manner that allows the best among us and those who have the potential to lead to rise to the top.
Another key issue besetting the department is one of the major policy challenges. Not enough resources are allocated to increase the rate at which cases are finalised and reduce case backlogs. While we are acutely aware of the fact that there has been a slight decrease in the number of case backlogs annually from 2008-09 to 2011-12, much more must be done to achieve further reductions in case backlogs. As the chairperson of the committee, hon Landers, indicated, this is the crux of the problem. It leads to the poor delivery of justice and the massive overcrowding of prisons caused by awaiting-trial prisoners.
In conclusion, the rate of conviction for serious crimes such as rape is cause for national shame. Thousands of women are raped every year, yet our courts convict only a tiny fraction of the perpetrators. The UDM supports this Budget Vote.
Ngithokoze Sihlalo, ngisikima nokunilotjhisa noke, ngamakoro ngamakoro. Nangitjho njalo ngitjhobona ngenhlalo ngokulandelana kwazo. [Thank you, Chairperson. Greetings to all of you. When I say that, I mean all of you according to your portfolios.]
With protocol observed, I first and foremost want to say that I stand in support of this Budget Vote.
The history of Nazi Germany is similar to the South African history of apartheid. Germany transformed from the Nazi regime, a very sad history, to the present-day Germany and this transformation has been used as a model for transforming the South African legal system. South Africa had to move away from the conservative apartheid to democracy. The current political and social order of the Republic of Germany is founded on a constitution known as the Basic Law of 1949. Article 20(1) says, "The Federal Republic of Germany is a democratic and social federal state". Section 1 of Chapter 1 of our Constitution states:
The Republic of South Africa is one, sovereign, democratic state founded on the following values: Human dignity, the achievement of equality and the advancement of human rights and freedoms; nonracialism and nonsexism; supremacy of the constitution and the rule of law.
Germany thought it wise to establish a federal court, the Bundesverfassungsgericht, to be the guardian of its federal constitution. This was also the model for South Africa's establishment of the Constitutional Court as the watchdog of its Constitution. Symbolically, it was decided that this court should be situated at Constitutional Hill. I read the visitors' brochure, which had this to say about Constitutional Hill:
Nowhere can the story of South Africa's turbulent past and its extraordinary transition to democracy be told as it is at Constitution Hill. This national heritage site has witnessed a century of South Africa's history. From British soldiers who fought with the Boers at the turn of the century, to the youth caught up in the Soweto Uprising, to the dawn of democracy and the building of South Africa's Constitutional Court, Constitution Hill has witnessed it all.
In explaining the Constitutional Court, the brochure stated:
The Constitutional Court is the home of the Constitution, the highest law of the land. Like the Constitution itself, the court was designed to be open, accessible and transparent. The court is built around the remaining stairwells of the old Awaiting Trial Block. The foyer of the court is a light-filled area populated by slanting columns, an architectural metaphor for trees under which African villagers traditionally congregated to discuss with elders the matters of social importance. Any member of the public may attend court hearings or may enter the building to view the many individually commissioned artworks on display.
It is the duty of all three arms of state, namely the legislature - that is Parliament; the executive - that is Cabinet; and the judiciary to transform South African society. During its 51st National Congress, held at Stellenbosch on 20 December 2002, the ANC resolved as follows:
That the early implementation of the Promotion of Equality and the Prohibition of Unfair Discrimination Act of 2000 for the effective campaigns against racism in all areas of life and the implementation of all legislation which have a transformative element or agenda be expedited.
Clause 28 of the Stellenbosch resolution provides as follows:
... to expedite the transformation of the judiciary, to create a more representative, competent, sensitive, humane and responsive judiciary.
During the apartheid era, it was the process that created a lily-white, male judiciary. The democratic Constitution made provision for the establishment of the Judicial Service Commission to implement the provisions of a section providing for the appointment of judicial officers. Section 174, subsection 1, reads as follows:
Any appropriately qualified woman or man who is a fit and proper person may be appointed as a judicial officer. Any person to be appointed to the Constitutional Court must also be a South African citizen.
Subsection 2 says:
The need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed.
We are grateful for the progress that has been made so far. The hon Minister referred to the statistics.
Hon Minister, on 21 February 2012, in response to question 18, you said the following:
Section 174, subsection 5 of the Constitution creates an opportunity for the Constitutional Court to draw expertise and experience from outside the judiciary, thereby ensuring that the highest court in the land is able to attract the best legal minds to blend with the expertise already existing on the bench. Our evolving, progressive constitutional jurisprudence, which continues to build on the foundation of the first Constitutional Court judges who were drawn from diverse sectors, has proven the importance of maintaining and sustaining this principle.
Interviews before the JSC are open to members of the public, as well as to both print and electronic media. Similarly, the composition of the selection committee or short-listing committee should be transparent. Aspirant candidates should know beforehand the criteria that will be used in short-listing persons for interviews to enable them to decide whether or not to apply. The ANC commends the sterling work that the JSC is doing in transforming the judiciary. [Applause.]
Regarding the role of civil society, before the advent of democracy and in the absence of the transformative Constitution and a Bill of Rights, some non-governmental organisations, community-based organisations and other community structures were the voice of the voiceless. We commend the role played by the Black Sash, which started as a tea club of ladies and ended up fighting against influx control regulations. One also has in mind organisations like the National Institute for Public Interest Law and Research, Legal Resources Centre, Lawyers for Human Rights, Black Lawyers Association and National Association of Democratic Lawyers, to mention a few. Some of these organisations are no longer operative because overseas donor funding stopped with the advent of democracy. Although South Africa did not have a Bill of Right then, these organisations and formations busied themselves with socioeconomic and cultural rights - the "second generation rights".
Research shows that progressive governments fund those organisations whose aims and objectives are to advance the realisation of basic human rights. The ANC supports this Budget Vote. [Time expired.] [Applause.]
Hon Chairperson, Ministers, members, the Acting Chief Justice and President of the Supreme Court of Appeal, Public Protector, members of the judiciary, members of the justice family, distinguished guests, comrades and friends, the mandate of the Department of Justice and Constitutional Development, funded by Vote 24, is to uphold and protect the Constitution and the rule of law, and to render accessible, fair, speedy and cost-effective justice to all in South Africa. It is also to ensure that, as part of the Justice Crime Prevention and Security cluster, everyone in South Africa is and feels safe.
This debate coincides with a number of very significant dates. Seventeen years ago, on 17 May 1995, the legislation establishing the Truth and Reconciliation Commission was passed by this Parliament. Today is also International Day Against Homophobia. Three and a half centuries ago, on 19 May 1659, the Khoi and San united in a military coalition against the Dutch in one of the very first acts of united anticolonial resistance.
The reverberations of this act of resistance would, in time, join with others to form the ANC, which this year celebrates a centenary of united struggle to create the kind of society described in our Constitution. This struggle was led by the likes of Walter Sisulu, who was born on 19 May 1912, not long after the formation of the ANC on 8 January 1912. On 18 May 1959, the Separate Representation of Voters Amendment Act came into effect to remove Coloureds from the common voters' roll in the Cape. The Act had been declared invalid by the Supreme Court but the NP enlarged the Senate to obtain the required majority to re-enact it.
These dates remind us, in various ways, of why we have the transformative Constitution that we do. Some might regard these reminders as superfluous. However, we have the former Executive Deputy President from the Largest Minority Party and co-recipient of the Nobel Peace Prize, Mr F W de Klerk, to thank for reminding us that such reminders are, in fact, necessary. Much of the transformative work of the Department of Justice is aimed at overcoming the legacy that, he suggests, was a well-intentioned sociology experiment that escaped from its laboratory. Perhaps the challenge experienced by the former Executive Deputy President from the Largest Minority Party and co-recipient of the Nobel Peace Prize is best described by Milan Kundera in his novel Ignorance, where he says of one of his characters:
He knew very well that his memory detested him, that it did nothing but slander him; therefore he tried not to believe it and to be more lenient toward his own life. But that didn't help: he took no pleasure in looking back, and he did it as seldom as possible.
Or perhaps rather that:
... people who do not spend time with their compatriots are inevitably stricken with amnesia. The stronger their nostalgia, the emptier of recollections it becomes.
Apartheid was not, to use Schalk Pienaar's words, "'n ligte mistykie" for which a quick and qualified "Sorrie!" or "'Skuus, man!" can suffice. It requires a concerted national effort to overcome.
After the World Conference Against Racism in Durban in 2001, the department, together with the other departments, civil society and the Human Rights Commission, developed a National Action Plan to address racism, racial discrimination, xenophobia and other related intolerances, which will soon be submitted to Cabinet for approval to embark on a national public-participation process. The department has also developed a draft Policy Framework on Hate Speech, which has been submitted to the JCPS cluster for consideration.
Equality Courts continue to play a crucial role in the prevention and prohibition of unfair discrimination and harassment. Through the Access to Justice and Promotion of Constitutional Rights programme, workshops were held in all provinces to promote the effective use of Equality Courts and to provide guidelines and practical training to civil society and court officials on the Prevention of Unfair Discrimination Act, including training material and booklets, some of which have been translated into Braille.
We thank Ms Yasmin Sooka and the Foundation for Human Rights, as well as the European Union for their partnership in this programme. We urge organisations that are active in the areas of human rights, and women's rights in particular, to apply for grants from the programme before the closing date on 15 June 2012.
The Equality Review Committee, established to advise on the operation of the Promotion of Equality and the Prevention of Unfair Discrimination Act, is now fully functional and being chaired by Adv Lawrence Mushwana.
In order to give effect to its constitutional development mandate, the department has established a Branch: Constitutional Development and Participatory Democracy, to be headed by a deputy director-general.
Someone once remarked, "Justice is open to everyone in the same way as the Ritz Hotel." It is also said that "The houses of lawyers are roofed with the skins of litigants." During 2011-12, 118 889 litigants did not want their skins to be used in this way and chose to use Small Claims Courts to settle their disputes. There are now Small Claims Courts in 248 magisterial districts, 66 more than in 2009. We are working hard to ensure that the remaining 139 magisterial districts also benefit from using these simple, speedy, cost-effective courts to resolve civil disputes involving claims of less than R12 000.
A major breakthrough will come in June, when Gauteng becomes the first province to achieve "wall-to-wall" Small Claims Court coverage in each of its 28 magisterial districts. Significantly, most of the 23 Small Claims Courts established during the past year are in rural areas, located in the former homelands - the areas some suggest were "a well-intentioned mistake". Courts were established in, among other places, Botshabelo, Nongoma, Ingwavuma, Ubombo, Ganyesa, Bloemhof, Balfour, Mamelodi, Matatiele and Cala.
We thank Legal Aid South Africa for the fact that 79 of their practitioners have already joined the ranks of the 1 370 Small Claims Court commissioners. A further 25 will follow. It is heartening that many candidates interviewed by the Judicial Service Commission - the much- maligned JSC - have extensive experience as commissioners of Small Claims Courts. We also thank the Small Claims Court steering committee, whose members are present in the gallery today, advisory boards, clerks, interpreters, Justice College lecturers and the Swiss Development Agency, as well as Members of Parliament who have popularised Small Claims Courts among their constituents.
We thank the Chief Justice for his ongoing and very public support for Small Claims Courts. We trust that the review of the civil justice system, under the leadership of the Chief Justice and the Minister of Justice, will consider incorporating elements of the Small Claims Court system into other areas of our civil justice system.
Legal Aid SA's budget now stands at R1,286 billion. It is government's primary source of delivery of access to justice through its 1 790 full-time legal staff stationed at 64 justice centres, 13 High Court units and 64 satellite offices country-wide. During the past financial year, Legal Aid SA delivered quality legal services in about 429 000 new legal matters, both civil and criminal, and established a client call centre that assisted 46 000 people with first-level legal assistance.
Strong governance and management systems have ensured unqualified audits every year for the past decade. We thank Judge President Dunstan Mlambo for his sterling leadership of an excellent collective and for the central role he played recently in the adoption of the UN Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems. We wish him the best as he assumes leadership of the High Court in Gauteng. [Applause.]
It is said that we make our decisions and then our decisions turn around and make us. One of the decisions that we made as a nation at the dawn of our democracy was to establish institutions supporting constitutional democracy, including the Public Protector and the Human Rights Commission. We did so, being very aware that we were not writing a constitution for a choir of angels, but for real human beings, living in a society with a history and legacy that the former Executive Deputy President for the Largest Minority Party and co-recipient of the Nobel Peace Prize assures us is the result of a well-intended mistake. We thank Adv Lawrence Mushwana and members of the SA Human Rights Commission, as well as Adv Thuli Madonsela, the Public Protector, for their work.
The Office of the Public Protector investigated 20 219 complaints during 2011-12, as well as 5 609 complaints carried over from the previous financial year, of which 16 509 were finalised. Someone once remarked, "A real patriot is the fellow who gets a parking ticket and rejoices that the system works." [Laughter.] Our patriotism, as evinced by our commitment to the vision and values of our Constitution, cannot allow us to rejoice at the exposure of wrong-doing by others, however expedient this might be in pursuance of our partisan interests, nor can it allow such exposure to drive us to despair. What it must do is make us rejoice that our system is working.
It is a matter of concern, though, that on every occasion in the recent past that the Public Protector or the Human Rights Commission have made findings adverse to administrations run by certain parties, these have been met with aggression, rumblings of resistance and unfulfilled promises of resignation in Twitter space. [Interjections.] It is worrying that this phenomenon has been greeted with deafening silence from the latter-day Don Quixotes who are ever forward in looking backward to tilt at the windmills they imagine to be ANC dragons threatening the Constitution. [Interjections.] The SA Judicial Education Institute commenced with training of judges and magistrates in January and has so far trained 666 judges and magistrates on various aspects of judicial work.
In the past year, Parliament finalised the State Liability Amendment Bill and Protection from Harassment Bill. The Protection of Personal Information Bill is nearly finalised. The 2012 legislative programme is dominated by Bills intended to improve the application of existing legislation, for example, the National Prosecuting Authority Amendment Bill, the SA Human Rights Commission Bill and the new Legal Aid Bill.
Under subordinate legislation, we must highlight that 11 proclamations were prepared, authorising the Special Investigating Unit to investigate allegations of impropriety in state institutions. A further five were under consideration by the end of March 2012, underscoring our commitment to fight corruption.
The SA Law Reform Commission continues to make an invaluable contribution to the development, improvement, modernisation and reform of our law through their research and recommendations.
The Magistrates' Commission continues to play an important role in the transformation of the lower court judiciary. We are considering legislative measures to harmonise the work of the commission and the Judicial Service Commission in advancing a unified judiciary. We thank Judge Frans Legodi and other members of the commission for their work.
We congratulate Ms Charmaine Mabuza and other newly appointed members of the SA Board for Sheriffs. We have introduced the Sheriffs Amendment Bill to improve the functioning of the board. The Minister will be announcing the filling of vacancies in 240 positions in the near future. We are confident that this will go a long way to promoting transformation of the profession.
We must all work together to ensure that we build a system of justice, not only of law, so that when we are asked the question whether it was unjust for former President Nelson Mandela to be imprisoned for 27 years, we do not respond, as his co-recipient of the Nobel Peace Prize recently responded in an interview - he was quoting himself out of context - by saying:
He [Mandela] was properly tried in front of a properly constituted court. He was represented by the best lawyers. And he was found guilty of what is a crime in the United States, of what is a crime in all developed countries, of treason. He had planned, as a young man, to overthrow the government.
I thank Mr Luwellyn Landers and all members of the portfolio committee. I also express my deep appreciation to the ever-supportive and committed master of multitasking, the director-general, Ms Nonkululeko Sindane, and the officials in the department and the Ministry.
At the risk of revealing protected state information, I can inform members of this House that colleagues in the executive have come to refer to the Minister and me as Senior Counsel and Junior Counsel respectively. [Interjections.] [Laughter.] So, to the Minister I say, Bhungane, SC, thank you very much for who you are, for your decisive leadership, guidance, good humour and commitment to develop and reproduce leadership.
A special word of thanks goes to the special lawyer in my life, my wife, Kim Robinson, who is not able to be here because, true to her A-plus-type personality, she is walking our talk here today by conducting a constitutional law and human rights education workshop - as a volunteer - in Alexandra township in Johannesburg. [Applause.]
Hon Chairperson, hon Minister, Deputy Minister, hon Members of Parliament, Justice Mpati, representing the Supreme Court of Appeal, Justice Bess Nkabinde and Justice Zak Yacoob, representing the Constitutional Court, Judge President of the Gauteng South High Court, Justice Mlambo, and esteemed guests in the gallery, the Portfolio Committee on Justice and Constitutional Development continues to support Chapter 9 institutions that are within the Budget Vote of the Department of Justice and Constitutional Development and are vehicles for access to justice. In this regard, reference is being made to the Public Protector and the SA Human Rights Commission.
In his state of the nation address, President Zuma reiterated the importance of providing support to institutions protecting democracy. Section 181(2) of the Constitution is clear and unambiguous that these institutions need to be impartial, independent and subject only to the Constitution and the laws of the country, and that they must exercise their powers and functions without fear or favour. Indeed, if these institutions are to effectively function towards the protection, strengthening and promotion of human rights, it is necessary for their independence to be beyond reproach, especially from the state apparatus, considering the fact that in the previous regime it was the state itself that oppressed its own people.
Over the past 18 years, in our pursuit to realise a free and democratic South Africa, Parliament has developed a very progressive legislative framework, based on equality principles, to guide and promote access to justice. May I remind hon members that as a people we come from a very difficult past of oppression and discrimination. It is for this reason that Chapter 9 institutions were established to jealously guard the Constitution through monitoring, redress mechanisms and the facilitation of transformation.
In October 2006, Parliament established an ad hoc committee to investigate the Chapter 9 bodies with regard to employment procedures and institutional governance. This ad hoc committee investigated funding and spending on the institutions and their lack of mandate to operate outside of the country in terms of submissions made to the Constitutional Review Committee. The ad hoc committee recommended the establishment of a directorate, under the Office of the Speaker, to liaise with the institutions. A number of concerns registered by Chapter 9 institutions have since been addressed through the Office of the Speaker. The committee is concerned that the SAHRC appears to be experiencing challenges in its interactions with the Office of the Speaker. The Public Protector informed the committee that it is working well with the office.
The committee is concerned about poor co-operation from some of the government departments when called upon by the SAHRC to provide information for the compilation of its socioeconomic rights report.
The committee supports the initiative to re-establish a forum for constitutional institutions, chaired by the SAHRC. The Chapter 9 institutions are encouraged to continue to co-operate in areas where the mandates are overlapping to promote cost-saving operations. The same principle may be applied to all institutions supporting democracy within the JCPS cluster.
There is also a need to put the funding of Chapter 9 institutions on par. The SAHRC has been allocated Rl00,1 million, while the Public Protector has been allocated R174 million for the financial year 2012-13. The increase in the Public Protector's budget from Rl54 million in 2011-12 is partly to fund additional investigative personnel, improvement of conditions of service and municipal and accommodation costs. The bulk of the Public Protector's budget, namely 65%, goes to personnel costs.
The committee noted that the provincial allocations for the Public Protector has become more equitable, although it remains of the view that the allocation of the North West office of the Public Protector is still too large and will continue to be monitored. Both institutions have managed to get unqualified audited financial reports, and we applaud them for it.
The SAHRC has expressed concern over departments that do not provide the commission with information requested, especially in respect of its reports on the Promotion of Access to Information Act and socioeconomic rights. These departments are actually in contempt of the Constitution in doing so, which is why the portfolio committee has decided to take it upon itself to call these departments to account. The committee has noted that the commission has taken up its recommendation that it presents its Promotion of Access to Information Act report separately in future, to allow for effective engagement on the contents of the report. The Chapter 9 institutions, especially the SAHRC, should continue to promote respect for the rule of law by monitoring the protection of the Constitution, as well as compliance with and the domestication of subregional, regional and international human rights treaties and instruments. This effort should be complemented by the development of the necessary enforcement mechanisms.
We continue to wish to determine if all the efforts of the Chapter 9 institutions are helping South African society, in all its diversity, to transform. This was alluded to due to the latest racial slurs experienced in the electronic media. There appears to be a need for an audit that should clearly articulate how these institutions are impacting on the lives of South Africans in a manner that embraces the basic principles of a developmental state, to reverse the past imbalances, creating a better life for all. It is important to understand the extent to which the mandates of the Chapter 9 institutions influence processes that lead to the realisation of national priorities, such as poverty eradication and job creation, in terms of South Africa's Millennium Development Goals plan for 2014.
The Public Protector is mandated to support and strengthen constitutional democracy by investigating any conduct in state affairs or in public administration in any sphere of government that is alleged or suspected to be improper or as a result of any impropriety. The committee has suggested to the Public Protector to compile a report, indicating which departments or Ministries had not responded to its recommendations.
In conclusion, we wish to call upon the two institutions to use their allocated budgets to reach out to rural areas, where there is still a great need to educate people about access to justice. This can be realised through partnering with civil society and advice offices.
The real threats to the freedoms enshrined in the Constitution of South Africa are poverty and economic and social inequalities, which need to be eradicated. The ANC supports the Budget Vote. [Time expired.] [Applause.]
Hon Chairperson, hon Minister and Deputy Minister, the judiciary, Public Protector and legal fraternity present, members of this august House and distinguished guests, I will confine myself to two topics, namely the resuscitation of the sexual offences courts and the transformation of the state legal services, and in this sense I will confirm the transformational issues and steps mentioned by our Minister today. In my view, and as the Minister mentioned, these steps are part of the cleaning-up process.
Equality, human dignity and freedom are the values that underpin our constitutional democracy. Accordingly, all teleological or purposive interpretations of our Constitution have to meet the section 36 standard of an open and democratic society based on human dignity, equality and freedom. These values of our Constitution flow directly from the Freedom Charter's declaration, "All shall enjoy equal human rights."
I hasten to add that the right to human dignity, as per section 10, is a non-derogable right. Though the right to equality can be limited, subject to section 36 of the Constitution, it is absolute with respect to "unfair discrimination solely on the grounds of race, colour, ethnic or social origin, sex, religion or language".
Our history of racial oppression, economic exclusion and gender discrimination has caused us to put a high price on human dignity and equality as fundamental human rights, unlike others in this House, who put the highest premium on freedom of expression.
According to the Harksen test for unfair discrimination, where discrimination is on grounds analogous to those listed in section 9(3), the background of the victim of the alleged unfair discrimination becomes an issue. Unfairness is often deduced when the victim is of the thin-skull or egg-shell type, who is more vulnerable because of her past history of discrimination.
It is a common cause that colonialism of a special type victimised black women the most. These most treasured members of our society suffered from racial oppression, class exclusion and gender discrimination. It is therefore apposite that discrimination on the basis of sex is not only one of the listed grounds but a negative right protected absolutely. It is accordingly beholden on the state to protect women from any form of violation of any of their fundamental human rights. This was confirmed by C J Mohamed in the case State v Chapman, when he contended:
Rape is a very serious offence, constituting as it does a humiliating, degrading and brutal invasion of the privacy, the dignity and the person of the victim. The rights to dignity, to privacy and the integrity of every person are basic to the ethos of the Constitution and to any defensible civilisation.
Women in this country are entitled to the protection of these rights. Arguably, therefore, the case of Carmichele v the Minister of Safety and Security and the Minister of Justice and Constitutional Development stands out as a sharp admonition of the state pertaining to its obligation to protect women. In that case in Knysna, a certain Francois Coetzee had on two occasions perpetrated crimes of a sexual nature accompanied by brutal violence on women. Furthermore, Coetzee acknowledged that he had great difficulty in controlling his sexual impulses. However, the investigating officer and the prosecutor failed to bring this abnormality to the magistrate's attention during Coetzee's bail hearing and did not oppose bail, leading to Coetzee being released on his own recognisance. While Coetzee was out on bail, he assaulted and attempted to rape a certain Ms Alix Carmichele, his neighbour. Appearing as amicus curie in that case, the Centre for Applied Legal Studies asserted:
Sexual violence and the threat of sexual violence go to the core of women subordination in society. It is the single greatest threat to the self- determination of South African women. The courts are under a duty to send a clear message to the accused, to other potential rapists and to the community. We are determined to protect the equality, dignity and freedom of all women, and we shall show no mercy to those who seek to invade those rights.
In the recent past, we have seen sporadic incidences of brutal sexual violence against women, such as, to mention a few, the despicable, inhuman acts of the Modimolle monster, the rape of a mentally unstable minor and the rape and eye-gouging of an eight-year-old girl. We want to send a sharp warning to perpetrators and potential perpetrators of sexual offences that we are resolute and will stop the invasion of women's dignity. We will stop at nothing and will do everything legally possible in a democratic dispensation to achieve that goal.
In that regard, we congratulate the Minister for resuscitating sexual offences courts. We firmly believe, Minister, that it is critical to roll out and strengthen these special courts to ensure that perpetrators face the full might of the law and victims do not suffer from secondary victimisation at the hands of poorly trained police officers, who demonstrate a poor sense of empathy with the victims.
In 2009, the Minister of Justice and Constitutional Development said:
Bearing in mind that the state is the largest consumer of legal services in the country, there is merit in recognising that the procurement of government litigation services be seen to be a vehicle and effective driver for this transformation imperative. In order to give effect to this goal, the department is considering ways in which it can ensure an equitable distribution of its legal work to the benefit of the previously disadvantaged practitioners.
I will leave out the following paragraph and conclude by quoting the words of Aristotle in The Sage of Athens:
The Just then is this proportionate, and the Unjust that which violates the proportionate; and so there comes to be the greater and the less: which in fact is the case in actual transactions, because he who acts unjustly has the greater share and he who is treated unjustly has the less of what is good: but in the case of what is bad this is reversed: for the less evil compared with the greater comes to be reckoned for good, because the less evil is more choiceworthy than the greater, and what is choiceworthy is good, and the more so the greater good. This then is the one species of the Just.
I support the Budget Vote. [Applause.]
Hon Chairperson, Senior Counsel, Minister, justices and guests, at the outset the ACDP would like to join other speakers in expressing our grave concern about the R600 million budget cut experienced by the Department of Justice and Constitutional Development. This is totally unacceptable, and we need to serve notice today to the National Treasury that we intend pursuing this matter further during the budget review process later this year. We subjected this director-general and her officials to a severe grilling over a number of days on core performance and service delivery. However, how can we expect to improve service delivery levels when the department's budget is drastically cut? We need to address this issue.
We look forward to the effective implementation of the seven-point plan in an attempt to ensure that all South Africans are and feel safe. In this regard, we are concerned that the number of criminal cases finalised - 331 000 - is down from the previous year, when it was 350 000, and all indications are that it will be even lower this year. This is a matter for grave concern, although we do appreciate that more cases were disposed off by alternative dispute resolution.
Clearly, our courts are stretched to the maximum and require further capacity. Our prosecutors also need assistance and we cannot afford to lose any experienced staff. In this regard, as far as the National Prosecuting Authority is concerned, the ACDP has expressed grave concerns about sustained campaigns of intimidation against prosecutors. I would like to highlight the issue surrounding Adv Glynnis Breytenbach in particular. Her case includes being shot at, almost being driven off the road and being followed. This is clearly linked to her being involved in high-profile cases, such as her resistance to the dropping of charges against Lt-Gen Richard Mdluli.
Furthermore, without commenting on the validity of any disciplinary action against Breytenbach, how is it possible that such a senior prosecutor is suspended, allegedly following a letter complaining about her conduct in an ICT matter, while Richard Mdluli, who is alleged to have committed murder and abused state funds, remains in office? Something is seriously wrong. Even police commissioners have been suspended for lesser charges. We need to express a sense of outrage about this whole issue.
We also raised our concerns about the Chief State Law Adviser heading a new investigation into the Mdluli matter. Considering the various investigations already pending, is it not time for a judicial inquiry into all allegations surrounding Lt-Gen Richard Mdluli and other high-ranking police officials. This is something we would call for and support.
As far as the proposed court assessment is concerned, we note that the discussion document was released after a number of Constitutional Court and Supreme Court of Appeal decisions went against the government. The crisp question is what government will do with the report once it is completed. Will it be used in an attempt to rein in or intimidate the courts, or to motivate for constitutional amendments that may infringe upon the independence of the judiciary?
We are already dealing with the Constitutional Seventeenth Amendment Bill, which seeks to extend the jurisdiction of the Constitutional Court. One would have expected a bona fide assessment of court judgments to have preceded this Bill. This gives credence to concerns expressed by civil society organisations, political parties and other commentators, who remain suspicious of government's motives, particularly in light of the alarming statement on page 20 of the discussion document:
There have been some instances where certain court decisions are perceived not to fully advance the transformative purpose of the Constitution.
This is an area of grave concern.
In conclusion, we appreciate that the department is facing many and varied challenges. However, we believe that these challenges can be overcome. The Legal Aid Board, for example, was in a chaotic state a few years ago. Through perseverance and hard work it has been transformed into a world leader in the provision of legal aid.
Lastly, the ACDP would like to thank all those dedicated members of the judiciary, prosecutors and court officials who tirelessly seek to uphold the Constitution and the rule of law by providing justice on a day-to-day basis. The ACDP will support this Budget Vote. [Applause.]
Hon Chairperson, Minister, Deputy Minister and the leadership of the judiciary, I have been ordered by the ANC to come and support this budget. This is what I'm doing now. [Interjections.] [Applause.]
We remember that on 16 December 1943, the ANC, in a landmark document titled Africans' Claims, demanded the granting of full citizenship rights to the African people in South Africa and the abolition of all discrimination based on race.
Today, 18 years into democracy, access to justice is still a nightmare for rural women. It is the privilege of the rich, the learned and the historically empowered. Rural women are crying for access to justice in their own land. Listen to the voices of patriotic South Africans, not to backseat drivers.
Gee vet en hou die stuurwiel vas. [Step on it and hold onto the steering wheel.]
You are going in the right direction. You don't have to watch your back because there are enough rural women to support you. [Applause.] [Interjections.]
Today we are talking about money, and I will address my speech to the director-general specifically. I will give you, DG, some sisterly advice, so that you can reach the promised land of clean audits that you want to reach. I will give you a road map that you should follow.
Firstly, you have to provide effective leadership based on a culture of honesty, ethical business practice and good governance. Protect and enhance the best interests of the department and all Chapter 9 institutions and entities under the department.
Secondly, employ a qualified accountant for the position of chief financial officer. Accounting is a science. It's not something that a person can learn in a workshop. [Laughter.] It does not end there. Exercise your oversight responsibility over the work of the CFO, with regard to financial and performance reporting and compliance with related legislation.
Thirdly, implement effective human resource management, to ensure that each section has adequate and sufficiently skilled people, that they are working and that their performance is monitored constantly.
Fourthly, establish and communicate policies and procedures to enable and support the understanding and execution of internal control objectives, processes and responsibilities.
Fifthly, develop and monitor the implementation of action plans to address internal control deficiencies.
Lastly, establish an information technology governance framework that supports and enables the department to deliver value for money and improve performance.
The following message is for the CFO: Firstly, implement proper record keeping and report on time, in a manner that ensures that complete, relevant and accurate information is accessible and available to support financial statements and performance reporting.
Secondly, implement controls over daily - I repeat daily - and monthly processing and reconciling of transactions. Let me use the example that the Auditor-General usually gives. At Checkers and Pick n Pay, the cashier does not leave work before she reconciles. I think we should adopt that attitude in government. People should not leave work to stand over for the next day. The problem with financial records is that once they pile up, one will never reconcile them.
Thirdly, prepare regular, accurate and complete financial performance reports that are supported and evidenced by reliable information.
Fourthly, review and monitor compliance with applicable legislation and regulations. I'm referring to the Public Finance Management Act, the Intergovernmental Fiscal Relations Act, the Constitution and other legislation.
Fifthly, design and implement formal controls over IT systems, to ensure reliability, availability, accuracy and protection of information.
Sixthly, implement appropriate risk-management activities to ensure regular risk assessment, including IT risk, and fraud prevention. Ensure that risk strategies are developed and monitored. It's not enough just to develop it; it must be monitored.
Lastly, ensure that there is an adequately resourced and functioning internal audit unit that identifies internal control deficiencies and recommends corrective action effectively.
A R600 million cut is not advantageous to the department. As a committee, we are going to approach Treasury to ensure that you are able to improve this department so that rural women can have access to justice. [Interjections.]
Hon Minister, more than 50% of South Africa's population are women. More than 90% of those women are not educated, rich or historically advantaged. I want you to listen to their voices, and not to the voices of your detractors. [Interjections.] I thank you very much. [Applause.]
Before I call upon the next speaker, may I address you, Mr Farrow? Since we started this debate, there has been a constant stream of statements from you. I suggest that if you really want to participate in this debate, please ask your party to put you on the ... [Interjections.]
Madam, on a point of order ... I'm rising on a point of order!
Mr Watson, I'm not addressing you. I'm talking to Mr Farrow. Please sit down and let me finish. Can I finish, please? All I'm asking is that if would like to speak in the debate, ask the Chief Whip to put you in the programme. What you are saying comes directly to me and makes it difficult for me to hear what the speaker is saying. I would appreciate your assistance in this matter.
Chair, please let me respond, as I would like to. I appreciate what you are saying to me. I believe that any rapport that takes place in debates is a matter of parliamentary process. I'm not interrupting anybody. I am commenting, which I'm entitled to do. If you want to muzzle me, by all means, go ahead, because the Secrecy Bill has not been ... [Interjections.]
It has nothing to do with that. I haven't recognised you, hon Watson.
I have only just risen!
I'm still speaking to Mr Farrow. Can you please sit down? Can you please sit down? Mr Farrow, I am asking for your assistance because I cannot hear the speaker in the front. That is what I'm asking, alright? Thank you. Can I ask the next ... [Interjections.]
Madam, on a point of order ... Recognise me, Madam, I want to address you. You made the statement that ever since the start of the debate, the hon ... [Interjections.]
Which is quite true!
But you were not here all the time! How do you know, because you were away for part of the debate?
I know, but since I started the debate ... [Interjections.]
No, you said in your statement that for the entire debate ... [Interjections.]
Mr Watson, that is not a point of order. Will you please sit down? Take your seat, please. I call the next speaker, the hon Schfer. [Applause.]
Madam Chair, Minister, Deputy Minister, fellow members and guests, owing to time constraints I shall just state very briefly that we are pleased we finally have a Chief Master; that the Public Protector is getting another R15 million; that an effort is being made to improve the maintenance court process; and that the National Prosecuting Authority got an unqualified audit. For this I would like to congratulate the Director- General, Nonkululeko Sindane, in particular. Her tireless efforts are not going unnoticed.
The specialised sexual offences courts need to be reinstated and we welcome the Minister's announcement of a multidisciplinary committee and action regarding the Sexual Offences Act.
However, while some progress is being made in the running of the department in respect of the broader issues involving the Justice Ministry, this year marks perhaps the most critical point in the justice system of South Africa since the advent of democracy. The reason for this is the blatant undermining of institutions that are supposed to be independent or at least function independently. It is clearer than ever that the dominant faction in the governing alliance sees control of these institutions as essential for self-preservation within their own organisation, regardless of the consequences for our country. The Justice cluster, in particular, is suffering from a severe case of Mangaungitis.
We are all aware of the chorus from members of the tripartite alliance, indicating unhappiness with the judiciary, certain judgments and even the Constitution. Much of the criticism revolves around the perception, which they are deliberately manufacturing, that the Constitution and/or the courts are somehow a stumbling block to achieving transformation and fulfilling socioeconomic rights. This, of course, is completely untrue. It is an attempt to deflect peoples' attention from the real issue, which is that the ANC in government has failed to deliver.
Instead of using every available cent to deliver services to the poor, the ANC has wasted money on factional battles and/or stood idly by while billions disappear into the bottomless pit of corruption. It is essential for the proper functioning of a constitutional democracy that the justice system and judiciary are strong and independent. If people do not have confidence in the justice system, we will not achieve the investor confidence we so desperately need for economic growth.
However, instead of inspiring confidence in the system, the Minister has been largely silent and/or evasive. In other cases, he has actively participated in undermining independent institutions and thus the spirit of the Constitution. One such example is the Special Investigating Unit.
It is widely acknowledged that corruption needs urgent attention in our country. Surely the most logical thing to do, then, is to assist in every way possible any organisation that is combating it. Instead, with the active assistance of the Minister, as confirmed by answers to questions in our committee over the last few weeks, Willie Hofmeyr, who last year had his most successful year to date as head of the SIU, was removed from this position towards the end of last year. He was replaced for two weeks by Adv Heath, famous for ensuring the President did not have to face corruption charges before the 2009 elections; then Adv Jiba, for one week; and then Adv Mokhatla, who is still acting in that position after five months. So, I am informed that the SIU has been turned from a highly successful and efficient corruption-busting institution into an increasingly dysfunctional unit with a leadership vacuum. Some vital investigations are now in jeopardy. [Interjections.] For what?
The President has still not given reasons for the removal of Hofmeyr, despite his legal obligation to do so and the DA's request for reasons to be supplied. Such is the President's regard for the law of our country. We are told that Hofmeyr was informed by the Minister that he could not hold two positions - then why can Adv Mokhatla? And why was Hofmeyr not been given the choice of which position he wanted to stay in? [Interjections.]
Clearly, in the run-up to Mangaung, it is necessary to have Hofmeyr - who has, as far as we know, acted without fear or favour - ultimately accountable to Acting National Director of Public Prosecutions, Nomgcobo Jiba, rather than to leave him as head of the more independent SIU, where he can be free to investigate whatever and whoever he wishes, once in receipt of a presidential proclamation. [Interjections.] Jiba, of course, must be eternally grateful to the President for pardoning her husband from his conviction for stealing trust monies. [Interjections.]
As if it was not enough that these important bodies are being denuded of their independence, the executive is now quite unashamedly gunning for the courts as well. [Interjections.] The executive's recent announcement that it plans to review the decisions of the courts - and it is a plan to analyse the decisions of the courts because the Minister said so in the document - is an unprecedented move and a shameless assault on the separation of powers. An essential element of the democracy that was agreed to by the vast majority of South Africans is that the ultimate arbiter of the legality of actions of the executive and of laws passed by the legislature is the Constitutional Court.
The Minister's attempts to explain that there is nothing unusual about court decisions being analysed is disingenuous. There is nothing wrong with them being studied and analysed by institutions of learning. There is everything wrong with the study of the courts' jurisprudence being commissioned by the executive, particularly in the context of the hostile comments that have been made by members of the alliance and the President himself stating that he wants to review the powers of the Constitutional Court.
The Minister may give as many assurances as he likes, but actions speak louder than words. The terms of reference, like the Minister, say many good things about observing the separation of powers and rule of law. However, on a close analysis of them both, the only thing that is clear is that it is an attempt at the obfuscation of the true intention of this exercise.
Firstly, what is going to be done with the research once it is complete? If the executive decides that the courts have not, in their view, played the role they envisage in our democracy, what are they going to do with it? There is little, if anything, that can be done that does not involve interfering with the courts' independence.
Secondly, why is it that in the discussion document only Constitutional Court decisions were to form part of this study, yet when the terms of reference were released, the Supreme Court of Appeal was also included? [Interjections.] The fact that the terms of reference were released six days after the Supreme Court of Appeal ruled against the President in the Simelane matter does not escape notice. The Minister tried to say that it was as a result of comments received on the discussion document, yet refused in the committee to answer whom the comments were made by, given that the date for comments has not even expired yet. [Interjections.] [Laughter.] One cannot help but wonder whether the High Courts will now also be included after the e-tolling ruling.
Thirdly, what transformation is being referred to? The terms "transformation" and "rationalisation" are being used interchangeably, which is clearly wrong. The main transformation of the legal system is going to take place with the passing of the Constitution Seventeenth Amendment and Superior Courts Bills, which are currently before Parliament, and the Legal Practice Bill, which is about to be tabled. Why, then, does the discussion document say that the so-called research will be able to inform debates, such as whether the Concourt should be that apex court, when this research will only be completed after the Bills have already been finalised?
Regarding race and gender transformation, the facts are that in 1994, there were 3 black and 9 female judges. There are now 142 black and 65 female judges out of 233 judges. Some improvement is still needed, but there is no way that even the ANC can reasonably argue that there has not been transformation in this regard. It certainly does not require a study.
Fourthly, not one example has been given of a decision that has prevented the advancement of socioeconomic rights, nor can there be, because there is none. Neither has any provision of the Constitution been identified as standing in the way of transformation, nor in any way preventing access to socioeconomic rights, because there is none. The only thing that has been prevented by the courts or the Constitution is the President and the governing party acting in accordance with their misguided perception that they can do as they please and act in an unconstitutional manner. You don't need a study about that - just act within the law and you will have nothing to worry about from the courts. [Interjections.]
That's right!
The numerous references to terms such as "co-operation", "synergy" and "complementing the executive" in fact reveal the true intention of the government in conducting this study. There is one arm of state that the ANC does not control and that is the courts.
The governing party resents the fact that there is a legitimate check on their power and the only way that they can be free to continue plundering what is left of our country's resources and protect the friends of the dominant faction of the governing party is to ensure that the courts are not able to act independently.
The justice system is the vanguard of our constitutional democracy. The Minister's role in jealously guarding it is pivotal. Minister, if you are a constitutionalist, as my colleague believes, it is time to show it quickly and decisively by upholding both the letter and the spirit of the Constitution before we lose all the gains we have made since 1994. [Applause.]
Hon House Chairperson, hon Minister and Deputy Minister, hon members and esteemed guests, speaking at the end of the debate allows one the opportunity to reflect better on what has been said and to make some broad comments.
Generally, the Portfolio Committee on Justice is known for its members working very well together on a nonpartisan basis. It's a pity that, in this debate, some members chose to beat the party drum and appeal to the party bosses. [Interjections.]
I beg your pardon, Chair. Could you please call members to order? They are suggesting that I'm running away. [Laughter.] Presumably they have bricks in their handbags. [Laughter.] [Interjections.]
Chair, if that was a point of order ... [Interjections.]
That is not a point of order. If you had any decency, you would have waited for my reply. Can you continue?
Thanks. It is a pity that certain members have chosen to grandstand, but I suppose that is to be expected, particularly when the party bosses may be listening. [Interjections.]
To draw on some of the points that Ms Schfer raised, one of the frustrations in what certain elements of the DA raised seems to be that there are certain areas we cannot debate and discuss. I don't know why they want to project that we cannot discuss issues such as court judgments, the relationship between arms of government ... [Interjections.] ... or even amendments to the Constitution. I find it interesting that only two amendments to the Constitution were proposed in this debate and they both came from members of the DA. These referred to amendments in the appointment of the National Director of Public Prosecutions ... [Interjections.] ... amendments to the process of appointing judges and, in particular, the composition of the Judicial Services Commission.
We should definitely debate the Constitution. It is not cast in stone. As the head of the Constitutional Assembly, Cyril Ramaphosa, said in an article, the Constitution was not brought down from Table Mountain on stone tablets. The Constitution itself provides for an annual review, so we need to review it. Regarding the appointment of judges, we should also remember that before 1994, it was the State President who appointed them, without any consultation. [Applause.] [Interjections.]
Regarding the JSC, it was an international innovation, which some other countries have since followed. [Interjections.] Even in Western democracies, like Germany - which we are told we should be following - Constitutional Court judges are elected by Parliament, and sometimes they are former Members of Parliament and former politicians. We need to look at and debate all those systems. Let's not grandstand over this. [Interjections.]
The other issue I want to raise is that of budget cuts. [Interjections.] This is something the committee is united on.
Hon Jeffery, can you hold on a moment? Your colleague over there, the second person right in front, sitting on the right ...
Who, me?
No, the person next to you. [Laughter.] [Interjections.] Yes. Will you calm down, please, hon member? [Interjections.] We need to observe the decorum of this House, instead of shouting across the floor. Thank you.
Thank you, Chair. I am dealing with the issue of budget cuts. It is of concern to the committee as a whole. We do appreciate that all departments have been asked to tighten their belts, as the Minister of Finance has explained. However, the issue we are worried about is that everybody sees the importance for the country of the criminal justice system, in particular, working. If it's not able to work sufficiently because of inadequate funds, this will be a problem for the country as a whole. This is something the committee will be watching very carefully.
Another problem in the justice system that I wanted to deal with is the many actors in it. Outside of this Budget Vote, one has the police, correctional services, social development and social workers, as well as the Department of Public Works, which plays a key role in the upkeep of the courts. This is often an area where there are a number of problems. Within the Vote itself, one already has a number of actors, including judicial officers, prosecutors, court administrators and department officials. It is almost symptomatic that, because one has so many actors, things will go wrong. I want to appeal to all those actors - both those falling under this Budget Vote and those in other departments - to consider the importance of working together. Consider the end product also, particularly the people who are involved, whether it be the accused, victims of crime or litigants in civil disputes. Their needs must be respected and looked at.
I think it was the chairperson who mentioned that there appeared to be a problem of too many awaiting-trial prisoners sitting in custody, in prisons or police stations, when they should not be there. They should either have been released on their own recognisance - because the bail amount was not particularly high - or they should have been placed and some other arrangement made for them. As the chairperson said, we will be visiting prisons with the correctional services committee, particularly in Gauteng, to see for ourselves what exactly is happening.
Another aspect to which I really want to draw your attention also relates to the issue of the people in the system. I do so with reference to the case that the hon Minister also referred to, namely Director of Public Prosecutions for the Western Cape v Prins. The judgment was delivered last Friday by J Blignault.
The concern when you read the judgment, and the effect of the judgment, appears to be that 29 sexual offences are no longer offences that you can be punished for. This may have been as a result of an omission on the part of the legislature, but to suddenly rule that one can commit sexual offences and not be punished is really quite absurd. [Interjections.] There have been other judgments - including State v Booi, from 2010 in the Free State, and State v Mchunu, from 2011 in KwaZulu-Natal, which dealt with the same problem and didn't go to that extent.
Reading the judgment by J Blignault, I was reminded of a quote by Charles Dickens, "If the law supposes that, then the law is an ass." [Interjections.] I want to appeal to everybody involved in the justice system, particularly in the criminal justice system but also in the system of civil litigation, that the actors in the system and their needs are considered, rather than high academic views and Latin phrases.
In conclusion, the ANC obviously supports the Budget Vote of the Department of Justice and Constitutional Development and I want to thank everybody from the committee for participating in this debate. [Applause.]
Chair, before I respond to some of the issues, I just want to inform the House about an issue regarding the Truth and Reconciliation Commission. To date, we have ensured that 16 837 beneficiaries have received reparations, to the value of R541 million, from the President's Fund, and further, that regulations to provide medical and educational benefits and other forms of social assistance will be finalised before the end of this year. [Applause.]
Several members raised the issue of the department's vision, or target, to reach an unqualified audit. We are committed to reaching this in the current financial year. I have been having a lot of meetings with the Auditor-General, and the director-general is also in contact with the Auditor-General. We are currently drafting the financial statements, especially around third-party funds, which has not happened over the past few years.
We have also employed a lot of staff in the third-party area - directors, deputy-directors and a range of other officials - to increase our capacity to deal with this issue. At the same time, we have also employed administrators, managers and administrative staff, and there is a lot of talk and dialogue with the Accountant-General and the Auditor-General, as well as National Treasury on the accounting framework. That is why the points made by the hon Sithole are highly appreciated. Maybe she should be recruited to the department. [Laughter.] Regarding missing court records, we concede that it is an issue. However, there is a five-year project in the department to digitise all court records. We have already implemented this digitisation in the Johannesburg Magistrate's Court, Durban Magistrate's Court, Cape High Court, South Gauteng High Court and North Gauteng High Court. In the next few months, we will be rolling it out to many other areas. One of the challenges was funding, but those teething problems are almost over, despite the fact that we have a R6 million deficit, as members are aware.
Regarding ICT, that is probably one area where I agree with my colleague on my right. The State Information Technology Agency ...
Hhayi, nami angisithandi isiKhungo sikaHulumeni soLwazi lwezobuChwepheshe, Sita. [I also don't like the State Information Technology Agency, Sita.]
Sita doesn't rock at all. [Applause.] Before my colleague, Mr Padayachie, died, I had also raised very serious concerns about the inability of Sita to serve government, in particular our department. I will just quote one example. We are told that we have to do things through Sita. They do the specifications, and then they put those out to tender. They, as Sita, tender or bid to the same specifications that they have prepared. [Interjections.] It's indeed outrageous. I do agree with what you are saying, but I am sure I'm becoming a political commissar. I will mobilise my colleagues that we deal with Sita effectively.
Regarding the JSC, there's nothing more to add. There is no political agenda behind it. The JSC is chaired by the Chief Justice and it consists of the President of the Supreme Court of Appeal, other judges of court, Members of Parliament and legal practitioners. It is ridiculous to think that all those people could be led by the nose to vote in the way that is being suggested. Even the notion that we do not choose competent people is actually an insult to the judges who have been appointed. For example, I read in the Mail & Guardian about two weeks ago that certain Senior Counsel members complained that when we recommended people for the Constitutional Court, we overlooked highly competent people. Does that suggest that Judge Froneman, who has been a judge in the Eastern Cape for many years, is less than qualified? [Interjections.] That's what you are suggesting.
Regarding the issue of South Gauteng High Court, it is true that there have been issues there, but we are dealing with them. For example, in the Johannesburg Court a court manager and two administrative staff members were fired. If hon Smuts had been attending meetings of the portfolio committee, she would have been informed because this had been reported. [Interjections.]
I have an attendance record of 100%!
Regarding the security of judges, yes, it has been an issue. However, the good news is that we are installing cameras in many courts, especially in Southern Gauteng. Right now, we have done such installations in about 50 courts, including cameras, access control, boom gates, perimeter fencing and guarding services. As a result, we have reduced incidents of security breaches. I am sure that Mr D J P Mojapelo, who is part of the steering committee, will have the opportunity to report to you that there is no crisis.
Regarding the issue of the appointment of the wrong people, as I've indicated, investigations are taking place and some have ended with people being fired.
All in all, I am very happy about this Budget Vote and I hope that the unity that is being exhibited in the portfolio committee will continue in the future. We are looking forward to working with you in order to ensure that justice prevails in South Africa. Lastly, to the hon Sithole, we will not disappoint the 50%-plus women of this country. They are the barometer by which we guide ourselves as we go into the future. [Applause.]
Debate concluded.