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.]