Hon Chairperson, we join the hon Minister in extending our condolences on the passing of Judge Mohammed Jajbhay to his family, to the Muslim community, and also to the judicial community. I may once have taken an issue with him on a free speech judgment, but I ended up saying, "Hurray!" for Judge Jajbhay in so many words for the courageous Sunday Times judgment for which he would be, among many other achievements, remembered.
Sheena Duncan was a shining light to all who serve and seek justice. We note her passing and extend our condolences to all her people, too. My colleagues, today, will join me in wishing Natasha Michael, who is a Member of Parliament, good luck as she writes her exams towards her Bachelor of Law, LLB, in Pretoria. She will not be with us.
Sir, it is not every day that the Minister puts before Parliament a suite of constitutional changes and Bills of the scope and import of those announced today. I congratulate him and his Deputy; firstly, on restoring the proper relationship between the executive and the judiciary after the damage that followed the 2004 election; and I also congratulate him on proposing reforms which will give our courts the institutional independence that they deserve as of right.
The Chief Justice has our particular support for the Bills yet to come. A rule-setting Judicial Council or authority will enhance judicial independence and an Administrative Agency to run the courts will hopefully bring an end to the malfunctions currently encountered, especially in the lower courts.
It goes without saying, I hope, that we will be vigilant in legislating these reforms to ensure that our courts are truly independent, subject only to the Constitution and the law, as the Constitution requires and that no person or organ of state can interfere with their functioning.
Once those principles are given full effect in the law, the seven-point plan adopted under the Criminal Justice Review by the previous Cabinet can be implemented with greater confidence. Its one weakness always was the proposition that there should be co-ordination stretching from "Cabinet to court", to be conducted at one point, most disconcertingly, from a departmental war room under the command of our then former combative Deputy Minister. Once these laws are in place, the seven-point plan already in implementation can be implemented with full confidence.
We will support, therefore, the R3,8 billion set aside for the court services, and we do so with pleasure in view of the proposed legislative changes. The amount of R2,4 billion proposed for the National Prosecuting Authority, NPA, is, however, a different matter. The Treasury's proposals are in order. It is precisely a mismatch between the appropriation per subprogramme and the National Directorate of Public Prosecutions, NDPP, strategic plan that I pointed out to the hon Minister in the Justice committee.
Now that he has put some sort of stop to advocate Simelane's plans we need, however, to see a new strategic plan in my view before we vote on 26 May 2010. We need also to ask ourselves how it can be tolerated that the person entrusted with prosecuting people who break the law, can himself ignore - in my view on my analysis -sections of the law that structures the NPA Act as the Constitution requires as well as the separate law governing the forfeiture of the proceeds of crime. He also acted in breach of the Criminal Procedure Act when he instructed the Chief Prosecutor of the Protea Court not to oppose bail for Mr Maarohanye.
It is time, now, to amend the Constitution to provide for a better appointment procedure for South Africa's National Director of Public Prosecution. Section 179(1) gives the President the power outright and unencumbered by the requirements of recommendation or consultation of any kind to appoint the NDPP.
Now, as I understand, the 19th Constitutional Amendment Bill is likely to introduce amendments to almost every section of Chapter 8, but not to section 179 - and, if my understanding is correct, we may, as a committee, after discussion, want to consider gazetting for public comments under section 74 of the Constitution an additional set of amendments to that section.
These should not be seen as Simelane amendments, though he is the gentleman who triggers this proposal. They would just as much be a set of Vusi Pikoli amendments, because it was the fate of the former NDPP which prompted the first suggestions of review, many of them from leading ANC members, including the hon Enver Surty. I'm very happy that he is attending, today.
What should such an appointment amendment say? The previous President, President Motlanthe, proposed, while in office, that the NDPP should be recommended by the Judicial Service Commission. The previous Minister of Justice, Mr Enver Surty, suggested that Parliament should look at its own role. The previous justice Members of Parliament, our predecessors sitting in the ad hoc committee charged with deciding the removal or the reinstatement of Advocate Vusi Pikoli, formally reported that they found it anomalous that Parliament has no role in the appointment of the NDPP and, yet, it has the final say on his or her removal.
We agreed then, and we are likely as a new caucus to agree now, that the President should have only the formal signing power to appoint the person recommended by Parliament after a public nomination process and that we could add other mechanisms into such a process, if we so wished.
The second amendment that we should be looking at should state clearly that the prosecuting authority is independent. The Constitution intends prosecutorial independence, and the Constitutional Court has so certified. But to say, as section 179(4) does, that national legislation must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice is to say it softly.
It is out of character for our Constitution to be so half-hearted about independence when a whole set of independent institutions in Chapter 9 enjoy the classic formulation that applies also to the courts; they are independent subject only to the Constitution and the law; and they must work without fear, favour, etc. Like the Chapter 9 institutions, but unlike the courts, the NPA should be accountable to Parliament as, indeed, it already is under the NPA Act.
Thirdly, I suggest that we amend the final responsibility given to the Minister of Justice in section 179(6). It stands in contradiction to prosecutorial independence in subsection (4). It is uncharacteristically olde worlde when we have led the world on all other constitutional counts; and when the soft law emanating now from the United Nations, inter alia, asks for fuller independence. Both the then Minister Surty and the Pikoli ad hoc committee said earlier in 2009, notwithstanding section 33 of the NPA Act, that final responsibility needed clarification. The ANC members, in particular of that ad hoc committee, recorded their view that both the Constitution and the Act needed to be reviewed on this point.
It had, after all, by then contributed to the fantastic and unlawful misconstruction of the scope of the executive powers, which led Minister Mabandla and the then Director-General for Justice to thunder at Advocate Pikoli and the notorious letter of September 2007: "You shall not pursue the route you have taken steps to pursue in respect of Mr Jackie Selebi". Mr Selebi is, currently, in court following just such steps.
It also led to Advocate Simelane's misconception "of his authority over the NPA", as Frene Ginwala described it, when he used his role as accounting officer to undermine the independence of the NPA from without. Now, he is trying to diminish it from within, not least by transferring its corporate services to the department while decapitating all the specialised units and sending packing senior prosecutors of the junior courts.
May I say that I, as the hon Minister's shadow, am pleased to have spotted the plot and to have revealed it, because that is Parliament's role; that, and the voting or the withholding of the taxpayers' money until satisfied. I don't see what powers the Minister needs beyond the concurrent determination of prosecution policy in subsection (5). I, therefore, believe that we should simply delete the final responsibility, because prosecutorial independence can't be qualified; it can't. How can you qualify it; you can't be a little bit independent in respect of a function. It belongs to the NPA. The final responsibility for the nuts and bolts of the institution itself should take the form of accountability to Parliament, which after all passes its laws.
There is one last section of Chapter 8 that requires our attention. There is a view taking root now in favour of the reconstitution of the Judicial Service Commission, following the exclusion of Advocate Jeremy Gauntlett from eligibility to the Bench. The ANC-led bloc in that body has done the JSC and its reputation greater injury than it may realise by excluding him from an appointment even to the Cape Bench, and yes, it was exclusion, not just a failure to select.
It is perfectly obvious, secret vote notwithstanding, that he had the support of the country's top judges. He has the support of judges outside also, and little wonder. Judge Ramodibedi, who is the President of the Lesotho Court of Appeal, thought fit last year to quote his predecessor Judge Jan Steyn in bidding farewell to Advocate Gauntlett, after his 12 years of service as a judge on that Bench, in describing him "simply unique"; simply unique both for his intellect, his judgment, and the way he ran his courts. That is 12 years of full appointment, apart from the four or five acting appointments on the Cape Bench, apart from the ground- breaking work in the Southern African Development Community, SADC, region, and apart from the fact that he is our foremost constitutional lawyer, but the ANC bloc will not appoint him. Do they know what they have done? They have proved that they are not qualified to select judges. We will not go with the argument that judges only retired or otherwise should select, but we do ask ourselves whether a better balance is not required.
Now, let us discuss, on mature reflection when representatives of the magistracy are added to the JSC on the 19th, whether only one representative judge president really suffices. The judge presidents are unarguably best placed to judge the potential of lawyers from their provincial divisions. They will have seen them in action in court. They will have real knowledge of the character and the constitutional commitment of a candidate. That commitment is really what transformation means. The rest is smoke and mirrors.
Underneath the smokescreen routinely thrown up by the spokesperson from the JSC, that body is clearly, in my view, trying to reverse inappropriate earlier selection trends, just as this Ministry is reversing its predecessor's assault on judicial independence. All the doubts about the JSC have been revived, the doubts created last year when it ducked the duty of dealing with he whose name we may not speak. We cannot discuss him here, because we have given our primary powers concerning judicial conduct away to the JSC. We cannot discuss him, because we remain the final impeaching authority, should the JSC after proper enquiry make such a recommendation. The exclusion of Advocate Gauntlett occurred to avoid conflict with him too, didn't it?
How is it that one man can render several institutions paralysed and powerless? To me, there are striking similarities with the current on- again, off-again attempts by the ANC to conduct an enquiry into another such man, a younger one; but you really cannot treat a judge as if he were the Julius Malema of the judiciary. Therefore I leave a question with the hon Minister: How long, hon Minister? You must surely realise that the jury remains resolutely out on you, sir, because of him in spite of your excellent work in almost every other respect. [Applause.]