Chairperson, hon members of the House, the Minister and the Deputy Minister, I greet you all. I can't resist the temptation, before I go to my speech, to respond to a few issues, especially with due respect to the thinking by hon member Dene Smuts, who I've got a lot of respect for. Her understanding of transformation is either emanating from a cynical base, opposition to transformation or ignorance of it. [Interjections.] I want to say, if she doesn't understand the relevance of colour in transformation, she does not live in South Africa.
The attitudes of society are a product of socialisation, and socialisation emanates from the manner in which you have lived. South Africa is compartmentalised on the basis of colour, projected racial attitudes, and administration of the justice system calls for trust in the conditions under which it is being administered. So, the question of transformation in that context renders colour relevant. I'm sure you will agree with me. I also want to say that judicial inefficiency remains inefficiency; judicial poor competence remains poor competence. It doesn't get a new name in the dictionary because it takes place in the judicial system. That is why I want to agree with member Michaels when she says "incompetence cannot be tolerated even in the judicial system".
I was listening to the hon member of the UDM and other members. There is this fear, through the Bill, of interfering with the judicial system. I think the biggest question that we must all ask ourselves is to what extent this intervention is undermining the separation of power as enunciated by the Constitution. Because the principal custodian of policy-making in this separation. Is Parliament, therefore, this Bill emanate, even for competency, cannot come from anywhere other than Parliament.
In addressing the critical matter of criminal capacity, Judge Tracy had this to say in 1724:
A man deprived of understanding and memory and not knowing what he is doing, is not more than an infant; he is not more than a brute, a wild beast. Such one is never the object of punishment.
What are the determinants of this memory, knowing and understanding? It is the condition of the accused in court, where he or she lives; the situation of the affected campaigning on his behalf, justice has been administered; the distance between that individual and the court; the language that is being used in court, its effectiveness; and the attitude of the people who are administering that justice becomes key, because if they are not key, this memory, understanding and knowledge of what is going on, renders that person not an object for punishment and renders that institution not a dependable institution to execute justice on behalf of those who are affected.
It is my contention that a person whose case is conducted in a language which he or she cannot comprehend in court, is deprived of understanding and knowing what he or she is doing and is not more than an infant and to subject such a person to punishment is tantamount to a travesty of justice. The truth, hon members, is that in law no one can be found guilty of any crime, without first establishing his or her criminal capacity, criminal intention, and, in the absence of criminal intention, then negligence.
Universal equality before the law would be a mirage without commensurate access to justice by all South Africans, irrespective of their race, creed, colour or culture, socioeconomic circumstances and conditions. Simplification of court language and procedures, recognition and regulation of community and customary courts and the establishment of a legal aid fund for women to test their rights in court should be operationalised to ensure equal access to justice by all.
The 52nd National Conference of the ANC further consolidated and deepened the imperative of universal access to justice in line with the list of non- negotiables, as enunciated in the Reconstruction and Development Programme, RDP. More resources should be allocated to lower courts to improve their capacity and accessibility, as the majority of South Africans interact with the judicial system in lower courts.
The department should make sure that our people have easy access to the Supreme Court of Appeals in all provinces through the establishment of High Courts in all provinces. Access to justice will also be enhanced through the usage of all official languages in the courts; the department should, thus, drive the process of making sure this intent is realised. The review of the criminal justice system document highlights accessible justice as one of its headline targets.
Accessible justice, according to the criminal justice system, is supported by the pillars of proximity and quality of service. Proximity and service quality are, therefore, the yardstick by which the quantity and quality of access to justice should be tested. Proximity should refer, but not be limited, to the nearness of physical infrastructure to the majority of the people.
The department mentions, as one of its goals, the provision of justicial services in the communities in indigenous languages and in Braille and sign language. The department further commits itself to extending the use of indigenous languages to at least two courts per province. The department has been running a two-year learnership programme for 100 interpreters since 18 February 2008. The University of the Free State has been appointed as the service provider and the learnership evaluated an NQF level five with 240 credits.
Section 35(3)(k) of the Constitution provides for the accused person to be tried in the language that he or she understands or to have proceedings interpreted into that language. Thus, in that regard, the department, in partnership with the Department of Arts and Culture, is soliciting linguistic services and expertise to help create internal capacity in the courts.
Other interventions are also in place, which include development of legal terminology in indigenous languages, relocating the training of interpreters to language practitioners and establishing a language unit in the department. What the department intends doing and what it has done already are laudable. However, meaningful access can only be achieved if the court officers, not interpreters, make use of indigenous languages. One method of achieving that is advocating for every LLB student to take an indigenous language as a compulsory requirement for qualification. This is one of the scenarios that I'm proposing to be considered.
It is of concern, as well, that the department does not seem to have either objectives or programmes to render justice more accessible by simplifying court procedures. The courts continue to alienate those affected by the law by using complex jargon, which is inaccessible to the very people they seek to adjudicate justly on their behalf. I am also reminded about the fact that sometimes in junior law degrees some languages were compulsory, in particular Afrikaans, and I think that was not a bad intention. It was to promote effective communication, and this applies to all other languages.
The department aims to build courts, with necessary jurisdictional adjustments, in disenfranchised communities, especially townships and rural areas. The department is currently adapting the branch courts to the status of magisterial districts, accordingly. I want to go back and repeat what I said in that context, in line with Judge Tracy's phrasing in 1724, that:
A man deprived of understanding and memory and not knowing what he is doing, is not more than an infant a brute, a wild beast. Such one cannot be an object of punishment.
Thus referring to the conditions under which people are prosecuted. On that point, I want to support the direction taken by the department, with implied support for their Budget. Thank you very much. [Applause.]