Chairperson, hon members, Chief Justice and members of the judiciary, heads of constitutional institutions, distinguished guests, comrades, friends, ladies and gentlemen, it is an honour and a privilege to be afforded this opportunity to present to you the budget of the Department of Justice and Constitutional Development for the coming year.
But, firstly, allow me to pay tribute to one of the heroines of the liberation struggle. The sudden and very sad passing of ANC struggle veteran uMama uNontsikelelo Albertina Sisulu took all of us by surprise - just weeks after she had cast her vote during the recent local government elections. May her selfless fighting spirit inspire all of us in our endeavours to ensure access to justice for all our people.
As a department charged with the mandate to entrench and protect the Constitution for the common good of society, we can say without fear of contradiction that the recent local government elections have further strengthened our work in consolidating our constitutionally driven democratic dispensation.
Allow me also to make mention of the fact that this Budget Vote is presented during national Youth Month, when we as the nation pay even greater attention to the integration of the youth into the various programmes of our development.
We, in the department and the justice family, are indebted to the able and guided oversight of the justice portfolio committee and this House, without which we would not have been able to make any visible strides in our performance outcomes, or overcome some of the difficult challenges we encounter in executing our constitutional and legislative mandate. The focus of the department's financial turnaround strategy is to improve internal controls and performance towards an unqualified audit report by the 2012-13 financial year and, ultimately, clean audits completely.
The qualified audit reports that the department has suffered over the years is therefore a matter of grave concern to me. I have had meetings with the Auditor-General in order to understand the magnitude of the problem, and the department's officials have also appeared before the portfolio committee and the Standing Committee on Public Accounts, Scopa. Both committees have provided guidance on the path towards an unqualified audit.
The elements of this turnaround strategy I am talking about entail the implementation of accounting systems to enable the department to produce credible financial statements; the implementation of policies, processes and procedures to improve controls across the department; the implementation of internal audit processes to provide early warning systems and carefully monitor high-risk areas; the full use of the support offered by National Treasury to improve the financial maturity of the department; and building internal capacity in strategic areas, such as finance, internal audit, strategy and risk management.
This budget also reflects progress that we have made with regard to the transformation of the judicial system and the legislation relating thereto, and initiatives and interventions undertaken to improve access to justice. This is done through the expansion of infrastructure and services, particularly in rural areas.
We have made visible progress regarding the transformation of our judicial system and the legal sector, which are at the apex of our transformation- orientated projects.
I take this opportunity to convey our gratitude to the Chief Justice and all heads of courts for their constructive views on the Bills, and to commentators from the judicial and legal fraternity, broadly speaking, as well as to provincial legislatures and other sectors of society for their invaluable submissions on the Constitution Seventeenth Amendment Bill and the Superior Courts Bill after they were approved by Cabinet. Both these Bills have been tabled in Parliament, and I do trust that the submissions made in respect of these Bills will further enhance the final product.
The Constitution Seventeenth Amendment Bill provides a constitutional framework for the judiciary to take charge of its own court administration. It affirms the Chief Justice as the head of the judiciary, and entrusts the incumbent of this highest office in the judiciary with the authority to develop norms and standards for all courts. Flowing from the envisaged constitutional amendments, a court administration framework that is commensurate with the model of the separation of powers in our Constitution will be developed.
I will seek the guidance of Cabinet and this House at an appropriate time once we have come up with firm proposals from both our research and those undertaken by the Chief Justice and his office. In the interim, as we all know, the President has, by proclamation, enhanced the status of the Office of the Chief Justice to that of a national department. This has enabled his office to recruit competent professionals who will assist in developing an appropriate model of court administration.
Similarly, the revised Legal Practice Bill was approved by Cabinet, following continued engagement with the legal profession. A ground-breaking compromise which enjoys the support of many in the profession relates to the legislative mandate proposed for the Transitional Legal Practice Council to deal with all outstanding areas of contention in the Bill within a period of the next 18 months.
These areas of contention are, among other things, the type of regulatory structures for the profession, the appointment mechanism for the members of the regulatory structures, disciplinary mechanisms, and assets and financial arrangements relating to the profession.
I am pleased to inform this House that the department and the state law advisers are addressing all the concerns that would have likely obstructed the certification of the Bill. I am confident that this Bill will soon be ready for introduction to Parliament.
A new legislative framework is needed to manage litigation against and on behalf of the state. The transformation of the State Legal Services forms an integral part of the transformation of the legal profession and the administration of justice. We have initiated a process that will culminate in the overhaul of the state attorney's dispensation and provide an alternative legislative framework informed by the ethos and values of our Constitution for effective institutional efficiency.
I will soon submit to Cabinet a framework for the reform of the State Legal Services to initiate a debate that will lead to a new piece of legislation that will, in turn, provide for the establishment of a unified, development- orientated public-sector legal practice that is founded on our common vision, and which is underpinned by co-operative governance principles embodied in the Constitution. All these measures will enable government to address the challenges in the management of the legal services of government.
The Rules Board for Courts of Law is also considering rules to facilitate the use of court-connected mediation and court-connected arbitration programmes, which have proven to be a huge success in other jurisdictions. We plan to pilot these programmes in a few selected courts before the end of this year as part of the Civil Justice Reform Project that has already been sanctioned by Cabinet.
With regards to the gender and racial composition of the judiciary, of the total of 230 judges in all the Superior Courts, there are only 60 women judges, of whom 22 are African. These figures include the recent appointments made by the President after the Judicial Service Commission's sitting in April this year.
The integrated interventions of the justice, crime prevention and security cluster to fight crime and corruption have begun to bear fruit. The programmes of the various cluster departments respond to the eight outputs that constitute the priority interventions in the fight against crime and corruption. In designing the programmes and legislative measures to fight this scourge, the cluster is guided by Outcome 3, namely that all people in South Africa are and feel safe. The delivery agreement in this regard sets out the joint performance targets we have set for ourselves for the cluster, and we continue to measure our outcomes against the set targets.
The cluster adopted, amongst other things, these outputs: reducing the overall levels of serious crime - in this respect the number of serious crimes, particularly trio crimes, has decreased considerably in recent times; an effective criminal justice system to fight corruption even amongst our ranks; perceptions of crime among the population in order to ensure that we reduce the levels of crime in our country; and levels of corruption have been reduced, thus improving investor perception, trust and willingness to invest in our economy - the Asset Forfeiture Unit, as of quarter four, seized assets in excess of R468 million in 13 cases, demonstrating our government's determination to fight corruption.
One of the major challenges facing the criminal justice system is the case finalisation rate which undermines the right to a fair trial. This constitutional right is expressed in the well-known adage "Justice delayed is justice denied".
I am hopeful that the Access to Justice Conference, initiated by the judiciary and which will take place in July this year, will go a long way in addressing the challenges facing the courts in dispensing justice. This conference, unlike past conferences, which involved judges only, will also involve all three branches of the state: the legislature, the executive and, of course, the judiciary itself.
In respect of the lower courts backlog, between April 2010 and March this year, the 56 regional courts disposed of 8 111 cases, of which 5 272 were finalised, 2 444 withdrawn and 395 transferred. The district courts disposed of 8 915 backlog cases in the same period, of which 5 813 were finalised, 2 943 withdrawn and 159 transferred.
Since November 2006 until the end of March this year, 46 127 cases in total were disposed of by the backlog courts. The lower and High Courts were able to dispose of more cases than the total number of new cases enrolled. A total of 962 317 new cases were enrolled, and 988 451 cases were disposed of. A total of 26 134 more cases were therefore disposed of than received. This is a sign of very commendable progress in this regard.
We have established a national task team consisting of the relevant role- players from the government and nongovernmental organisations, NGOs, to develop and implement an integrated intervention strategy to address the rights of the lesbian, gay, bisexual, transgender and intersex, LGBTI, community. I expect the report of the task team very soon, and will engage the public on all of its recommendations.
As part of implementing the criminal justice system's seven-point plan, our cluster is rolling out the audio video remand, AVR, system for awaiting- trial detainees. We launched the AVR system only yesterday in Mitchells Plain. The AVR initiative was launched after noting that more than 80% of awaiting-trial detainees were transported to court for the mere purpose of postponements. The chain duties of signing them out from correctional centres and their transportation to court and back to correctional centres is not only time consuming, thereby delaying court hearings owing to late arrivals, but also takes up many of the human resources, which could be optimally used otherwise.
The courts and Master's offices are the department's service delivery points that consume the bigger slice of our budget allocation. There are nine ongoing capital projects, which have been carried forward from the 2010 Medium-Term Expenditure Framework, MTEF, namely the construction of new courts and the rehabilitation of existing courts to meet the increasing demands for court and office accommodation. Three new courts have been completed, namely the Galeshewe Court, which we launched in Kimberley only last week. The expansion of the Supreme Court of Appeal in Bloemfontein has also been completed, which will be inaugurated by the President in September of 2011.
We are also continuing with our programme of the redesignation of branch courts as proper full services courts. I am pleased to announce that the conversion into fully fledged courts of Atteridgeville, Mamelodi, Northam and Ntuzuma, which had to be delayed due to financial constraints, will be effected from 1 August 2011. All magistrates' courts in the 384 magisterial districts have now been designated as equality courts, as part of ensuring access to justice for all our people.
In respect of the High Courts, the principle of a "Division of the High Court for every province" applies equally. It is in this context that the principle has been applied to Limpopo, where we are building a new High Court in Polokwane.
We have identified maintenance and Master's services as areas that will receive our priority focus in this financial year. An effective maintenance recovery and payment system has the effect of reducing the dependence of children on social security, as more and more parents will be compelled to support their children. We are also putting more efforts into turning around the Master's offices to improve services relating to the winding up of deceased estates, the administration of insolvent estates and payments from the Guardian Fund.
Our emphasis on the electronic fund transfer payment system for maintenance and the Guardian Fund, in terms of which payments are made directly into beneficiaries' bank accounts, seeks to increase efficiency while reducing fraud and corruption in the handling of third-party funds.
Three sets of Truth and Reconciliation Commission, TRC, regulations to effect reparations to the victims and communities of apartheid atrocities and gross human rights violations have been drafted and were published in the Government Gazette in May 2011 for public comment.
Regarding the Regulation of Interception of Communications and Provision of Communication-related Information Act, Rica, let us be very clear that there will not be an extension of the deadline after 30 June of this year.
The department has also prioritised implementation of key legislation to enhance efficiency of the administration of justice. Amongst the pieces of legislation are the Judicial Service Commission Amendment Act, the Child Justice Act and the Children's Act of 2005.
Consultations on the Muslim Marriages Bill is also ongoing, and we do hope that the consultations will recognise Muslim marriages, the absence of which gives rise to countless instances of hardship, particularly in the case of women and children who find themselves in distressing situations when these marriages fail and are terminated.
Hon members, allow me to provide you with the budget allocation relative to the programmes and commitments that have been made. A total budget of R13,5 billion has been allocated to the department for the 2011-12 financial year. Of this budget allocation, R4,3 billion is allocated to court services, R2,6 billion for the National Prosecuting Authority and R1,6 billion for public entities and Chapter 9 institutions.
The 2011 budget also sets out additional allocations of R477 million for this financial year, R1,2 million for 2012-13, and R1,4 million for 2013- 14: for increasing regional capacity, R490 million for building new courts, R175 million for implementing legislation concerning vulnerable groups, R210 million for renewing our information and communications technology infrastructure, R45 million for the United in Diversity presidential initiative, R938,4 million for improving conditions of service and implementing the second phase of the occupation-specific dispensation for legally qualified professionals, R240 million for increasing the department's baseline for accommodation charges, R437,5 million for appointing more judges and magistrates, including secretarial support, and R405 million for adding capacity for Legal Aid SA, the Special Investigating Unit, the SA Human Rights Commission and the Office of the Public Protector. Over the next three years, the department will spend R2, 5 billion constructing new courts, and so on.
Before I conclude, allow me to convey my gratitude to Chief Justice Ngcobo for his profound leadership. We also congratulate him on the extension of his tenure as Chief Justice for a further five years. Allow me also to thank my Deputy, Mr Nel, the Justice, Crime Prevention and Security cluster, the Director-General, Ms Sindane, and the whole management team, heads and chairpersons of statutory bodies, heads of courts and members of the judiciary as a whole, and the entire staff of the justice family.
Lastly and most importantly, I would like to thank my wife, Bridgette, who is here today, and my family, who are always at my side throughout the many challenges that I face in the execution of my responsibilities. Thank you. [Applause.]
Hon Chairperson, hon Minister and Deputy Minister, hon members, distinguished guests, we join in the outpouring of tributes to Mama Albertina Sisulu. May her values and achievements long be remembered.
In his speech at the Joint Sitting of Parliament that was called to bid farewell to former Chief Justice Pius Langa and to welcome new Chief Justice Sandile Ngcobo, our hon President said, and I quote:
Our government must ensure that even the poorest of the poor have access to the courts, that they receive quality justice, and that they attain relief speedily. The task of the women and men on the bench is to ensure that the supremacy of the Constitution and the rule of law prevail at all times.
In his keynote address to the second judicial conference for South African judges at Kievits Kroon Conference Centre in Pretoria, our hon President further pronounced:
Let me from the onset state that the transformation of the judiciary should be advanced and undertaken without interference with the principle of judicial independence. An independent judiciary is one of the cornerstones of any democracy. As the executive, we respect without reservation the principle of judicial independence and the rule of law.
Flowing from these cardinal principles outlined by our hon President, the Department of Justice and Constitutional Development appropriately elected as its vision and mission the delivery of accessible and transformed judicial services. Accordingly, such services would be the outcome of the nexus between access to justice for all, especially the poor and vulnerable in our townships and rural areas; enhancing organisational efficiency and the integration of quality justice services to make them simpler, efficient, faster and cost-effective; and transforming justice, state and society in line with the democratic values of our Constitution.
Chairperson, hon Minister, it remains our goal to fulfil the mandate of the ANC's 52nd National Conference, which is to establish a single, integrated, accessible and affordable court system; to position the Constitutional Court as the country's apex court for all matters, constitutional and nonconstitutional; to rationalise the High Court system into a single High Court; and to align our traditional courts with our new constitutional dispensation and pay particular attention to the incorporation and development of our indigenous law. The department's budget must speak to all these matters. During the Budget Review, the Justice and Constitutional Development portfolio committee had recommended that the department receive additional funds. In its budget report, the portfolio committee noted with appreciation the additional funds that were allocated to the Department of Justice and Constitutional Development for accommodation, specifically to build a High Court in Nelspruit, Mpumalanga, and to address related infrastructure needs such as the maintenance of courts and other buildings.
The department had reported to the portfolio committee that it needed R224 million for the building of new courts and for additional accommodation. To this end, additional amounts of R240 million in the 2012-13 financial year and R250 million in the 2013-14 financial year are allocated for the construction of new courts.
Moreover, the department had also sought R150 million for the replacement of obsolete ICT equipment and for the expansion of its network. To this end, additional amounts of R100 million in 2012-13 and R110 million in 2013- 14 have been allocated.
Whilst the department and the portfolio committee did not receive all they had asked for, the portfolio committee welcomes these additional allocations because they will go towards improving the effectiveness and efficiency of our justice system.
The Justice and Constitutional Development portfolio committee has taken careful note of challenges relating to financial management, internal processes and controls, and customer and people-related issues. However, we remain optimistic that the department will succeed in addressing and resolving these challenges through its three-pronged strategy, which seeks to achieve a no-audit qualification in the year 2013, service turnaround in child maintenance services and service turnaround in the Master's branch, as alluded to by the hon Minister in his introductory speech.
Poor court performance continues to be a source of concern despite the department's many initiatives to improve the situation. However, we are encouraged by the judiciary's agreeing to the introduction of performance targets in our courts. We are spurred on by the fact that our Chief Justice has taken on the responsibility of performance monitoring in all courts, including magistrates' courts.
Hon Chairperson, hon Minister, we must register our disappointment at the ongoing delays in giving effect to the recommendations of the Truth and Reconciliation Commission. The gravity of this matter obtains from the fact that, after the system of apartheid had brutalised our people, we consciously chose the path of restorative justice over retribution.
We concerned ourselves less with punishment and more with the spirit of ubuntu and with the healing of breaches, the redressing of imbalances, and the restoration of broken relationships. We dare not forget that the effect of amnesty is as if the offence, the crime, the brutality never happened, since the perpetrator's court record relating to that offence becomes tabula rasa. This means that the victim loses the right to sue the perpetrator for civil damages in compensation.
We have all agreed that this is a high price to ask the victims of apartheid crimes to pay, but it is a price that those who negotiated our relatively peaceful transition believed our people had to ask of victims. So these delays merely add insult to the injuries already suffered by the victims.
There is an imperative to transform our country's legal practice and render it more accommodative, contextual and accountable. And so we welcome the hon Minister's announcement with regard to the Legal Practices Bill and its proposed tabling in Parliament. Hon Minister, we need not remind you that this Bill emanates from a long-standing resolution of the ANC. The Bill's provision will greatly strengthen our justice system and we appeal to you to hasten its introduction to this Parliament.
We would be remiss if we did not refer to progress made by the Minister and his staff in ensuring a revamped and truly integrated criminal justice system. His achievements so far are the following: the White Paper on Awaiting-trial Detainees is being drafted; a regional court screening protocol that specifically deals with screening mechanisms and trial readiness of cases has been finalised and is currently being piloted in the Western Cape; bail protocol has been drafted and is being consulted on; a protocol on service requirements and procedures to be followed in utilising the Department of Health's forensic chemistry laboratories has been developed; and a protocol on the classification of offenders is being drafted.
In the light of these and other achievements referred to by the hon Minister, we must also congratulate him and the justice, crime prevention and security, JCPS, cluster in general on the successful launch of the audio-visual remand system that took place at the Mitchells Plain magistrate's court yesterday. I had the privilege and honour to be present and observed the official launch of this system. It will be cost-effective and efficient and seek to eliminate security risks.
In conclusion, the transformation of our judiciary remains a challenge. Since 1924, the ANC has called for the right to equal justice in our courts of law. In 1989, the Harare Declaration stated:
South Africa shall have a new legal system which shall guarantee equality of all before the law; South Africa shall have an independent and nonracial judiciary.
We are convinced that the Justice department is on track in realising these noble aspirations of our forebears and therefore we support this Budget Vote. I thank you. [Applause.]
Mr Chairman, hon Minister, hon Deputy Minister, our esteemed heads of court, and all of the justice family, we express our pleasure as Members of Parliament that the Constitutional Amendment and the Superior Courts Bills have finally been formally tabled in Parliament.
I could, quite frankly, make the exact same speech in praise of the separation of powers on these Bills today which I made last year. I think it was the hon Minister himself who made the remarks that everything in justice seems to take 10 years.
There are many good reasons for taking time over the laws and policies that emanate from justice, but some things are a little slow. We must express our displeasure at the four portraits we found still hanging in the entrance of the Western Cape High Court yesterday when we were all there for the opening of the Public Works new wing.
We mean no disrespect to the hon Minister and the hon Deputy Minister or the Presidency, but it is the Chief Justice's portrait that ought to be hanging in the Western Cape High Court, as the symbol of the separation of powers. That is especially the case when we are about to make him the formal head of the judiciary.
Our sitting Chief Justice has driven the separation of powers in a way not seen before. I have for some time actively supported the extension of his term of office, because he will ensure institutional independence and, in time, even the proper management of the courts.
But I have always asked that his term be extended by an Act of Parliament, as section 176 requires. It is perhaps a pity that the "Arthur Act", the one written for Judge Chaskalson, has been used, although we will in due course hear the argument. And it is perhaps a pity that there is now a challenge, but we have to adhere to our Constitution.
I return to the Bills and I point to another problem. You would think, hon Minister, that the changes proposed to be made by especially the constitutional amendment are well ventilated and understood after all these years, but that is not so. Our problem is this: Although the concept of an apex court, for example, has been extensively debated over the years in colloquia, in the judiciary's fora - although Judge Arthur Chaskalson said around 2006 that there had been broad agreement since at least 2000 that there should be an apex court - there are, nevertheless, significant legal sectors, not to mention public, who feel that it has not been debated.
I have encountered law lecturers, and many of them, who have not heard of this development at all. When a person as eminent and esteemed as Judge Ian Farlam writes that no reasons have been advanced for extending the jurisdiction of the Constitutional Court to nonconstitutional issues, nor has anything happened to suggest that the present model is wrong, then there is a real communication problem.
He argues that there is a heavy burden of persuasion on those who wish to effect the amendment. I guess that that marketing job should properly have been performed by the hon Minister, even if he is the third Minister in a row to espouse this proposal. But it will now fall to us in Parliament, and this is where we may play our usual useful role. It will fall to us to make sure that everyone who wants to argue for or against an apex court is heard.
It is perhaps useful to start that process by noting, as Judge Farlam reminds us, that the Constitutional Assembly expressly chose a specialist sociopolitical Constitutional Court based on the Western European model, rather than an apex court like the US Supreme Court. But then we must add that the reasons why it did so included the following, and I quote Judge Carole Lewis, whose Oliver Schreiner lecture in 2005 is still the reference document on this issue: In 1994 we adopted a new legal order, with a supreme law, under which the courts are to develop the common law. It was during negotiations the unspoken assumption that old-order judges could not so give effect to the fundamental rights and that the Appeal Court lacked legitimacy. It was also strongly argued that the demography of the country should be represented at the highest adjudicative level and so the Constitutional Court, where only four out of 11 judges were required to be judges at all, before their elevation, came into being with limited jurisdiction.
So let's be honest; it was a sociopolitical court of a special type, and I think that there is therefore room to look at the creation of an apex court.
Its judges are long since appointed from other benches. By 2005, the heads of court were almost all black. Therefore, Judge Lewis argued even in 2005 that the creation of an apex court was urgent.
The truth is that there is a certain amount of straining to find the constitutional dimension to bring matters before that court - a certain artificiality when any distinction between constitutional matters and other matters is undesirable and does not, in fact, exist.
We take no final position on this, because we want to listen to our colleagues and to the public submissions that will serve before the committee before we do so. But should the apex court win through, we have one big proviso: that the sitting judges were not appointed with full jurisdiction in mind. We would need the full range of legal knowledge. The apex court would require perhaps a postponed, perhaps a phased-in, date of inception. And on this, we don't feel inclined to compromise.
I repeat one part of last year's speech - and I regret having to do so - on the Judicial Service Commission, the JSC, because things have gotten worse. But I will cut straight to the constitutional point. We really need to reconsider the composition of the JSC, not only for disciplinary matters, but also for appointments, in order to reduce the particular political element which one must assume is led by the hon Minister.
The Western Cape has suffered, once again, the deprivation of the services of one of its best and brightest - last year Jeremy Gauntlett, now Owen Rogers. How does the JSC justify a position that so-and-so is head and shoulders above the other candidates, but he cannot be appointed because the bench is not transformed, even when his transformation track record is uncontested? I think we should be clear about section 9 of the Constitution. There is no way under the equality provision that you can exclude any of us from eligibility for a post to serve our country on the grounds of race or gender. And if we are all eligible, but positions are left empty for bean-counting affirmative action, that is unconstitutional. The judiciary is not the Public Service and soon the magistracy will not be the Public Service either.
Section 174(2) of the Constitution does not say the judiciary must be broadly representative. Only the Public Service, in section 195, has to be broadly representative and even then broad does not mean bean-counting. The need for broad representation - and not mirror-image demographic representivity - only needs to be considered when judges are appointed.
What "considered" means has been thrashed out over the years; it is not a mystery. We are in favour of the racial and gender transformation of the Bench. But, sir, when places are left empty and there are good South Africans available to serve, there is something wrong and that is not constitutional. It is the JSC that needs to be transformed to conform to constitutional thinking, not the judiciary. And, it is, hon Minister, certainly your responsibility, but I fear it is also your fault. [Applause.]
Hon Chairperson, hon Minister and Deputy Minister of Justice and Constitutional Development, hon Members of Parliament and all esteemed guests, the Budget Vote debate for this department takes place at a time when South Africa celebrates Youth Month and commemorates the 1976 youth uprising. It is a time when we focus on the upliftment of our youth and when we want to ensure that our youth can proudly declare that they are good products of our democratic dispensation.
But this debate also takes place at a time when this Ministry deemed it fit to sustain a judge of the High Court on special leave after four years of no work; a time when the wife of the Minister of State Security was found guilty of drug trafficking; a time when farm killings remain only farm killings; a time when the utterances of hate speech become a reason for legal litigation; and a time when Chapter 9 institutions are used simply for paper trails.
But even further, this debate takes place at a time when the President of this country quite recently divided South Africans into the group that loves Jesus and the group that loves "the man that carries a fork and cooks people" - and at a time when Julius Malema, without the President's rebuke, told the nation that white people are criminals who stole the land. [Interjections.]
According to Prof De Vos:
It is in the long-term interest of the ANC, its leaders and all citizens of this country that a perception does not take hold amongst the majority of people that the system is so rotten and riddled with nepotism and corruption that the only way to address it is to lead a peaceful popular revolution against the incumbent government and the governing party. The ruling party, starting with the President of this country, and through this department, is seen as the leaders teaching the citizens about the rights enshrined in the Constitution of 1996. These rights include nonracialism, equality, and the right to religion. Now, if the ruling party, through its President, shows no regard for the rights as mentioned, one cannot help but wonder whether this department is equipped enough, through its political leaders, to be at the forefront of teaching our South Africans about their rights as stated in the Constitution.
The Public Protector's report on the unlawful lease of new police headquarters in Pretoria made headlines and now this Ministry is all quiet about it. Hon Minister and Deputy Minister, even though it is a Chapter 9 institution, the Public Protector's Office falls, to some extent, under this department. Wouldn't it have served this country better if you were at the forefront defending that report and ensuring that the recommendations within it were attended to?
We, as South Africans, want to believe that corruption is dealt with. We do not want explanation after explanation about "studying reports" and "studying judgments" when all that is necessary is decisive action from the executive.
Our court venues have become new playgrounds for the elite and the leaders in this country. Instead of being a place where justice must be served, courts are now slowly becoming "the place to be", to flaunt your designer clothes, and a place for your monetary power to be on display. But the courts have now also become a laughing stock, owing to a certain advocate in the Western Cape who made utterances to a presiding judge that can only be defined as disrespectful.
In addition to this, another judge decided to publicly defend these disrespectful utterances. Now, thanks to media cartoons, the joke is on the courts. One cartoon even depicted two homeless persons in which one of the persons uses the same words as those used in the court proceedings and in which the other person responds by saying, "Don't talk to me like that. I'm not a judge." Today, the judge is infamously known as "jou ma se judge". [Your mother's judge].
Whether we like it or not, our youth are being presented with a mental picture of our courts that is far removed from respect for authority and a sense of discipline. This department should take the lead and change that perception. This department should take the lead and ensure that the youth know that to appear in court as either a witness or an alleged criminal - or even as a representative - is a serious matter.
We expand our court venues to hear more cases. We increase the numbers of our prosecutors and lawyers to hear more cases. We increase the number of our judges to hear more cases. We develop systems to maintain more cases. Yet, the sense of confidence in our justice system still remains one of chasing rainbows. We live in a society where our justice system expects from South Africans to be patient, yet our people are violent, unemployed, poor and unequal.
This department, through its swift court processes, must create the impression that something is being done fast to ensure that justice is not only being heard to be done, but being experienced within our communities. This department, through the Chapter 9 institutions, must start to educate communities on bail, sentencing and the whole court process.
Of course, we can have all the legitimate answers for the delays. But the question that we then have to ask ourselves is whether the operators of our justice system are appropriate for the current South African society, a society that is plagued by poverty, inequality, unemployment and unresolved racial tendencies.
If this department is of the view that the operators of our justice system are adequate and equipped enough for our South African citizens, then we need to ensure that we all understand and can explain the meaning of justice when our people call for it, because unless South Africa understands the meaning of justice, South Africa cannot determine justice. Thank you. [Applause.]
Mr Chairman, first and foremost, I would like to apologise for my intermittent attendance of this important debate. I am also participating in the deliberations on the Intellectual Property Amendment Bill.
Preliminarily, I wish to extend a word of appreciation for the wise, cordial and gentleman-like leadership of our chairman, the hon Landers, who has aptly replaced the hon Ramatlhodi. It is a pleasure serving on this Portfolio Committee on Justice and Constitutional Development, which has proven to work in a very constructive manner, irrespective of political affiliations.
Secondly, the core business of this department is to provide justice. The cost of justice, the affordability of justice, the accessibility of justice is one of the greatest challenges confronting us, and it remains a challenge far from being fully addressed. I appreciate that there are constitutional difficulties in that respect, because rightly or wrongly, wisely or unwisely, we have left the reform of the judicial system to the courts themselves in terms of section 173 of the Constitution. But from the IFP's side, we have placed that issue at the forefront of the debate for about 10 years now. The first time, it was done by my leader in Parliament, Prince Mangosuthu Buthelezi.
The judicial system itself must be reformed. It is not affordable for the majority of our families who do not qualify for state assistance. It is not affordable for them to even defend themselves in criminal procedures. Civil proceedings and civil litigation is a privilege for the rich. The entire judicial process is antiquated, obsolete. It should be relegated to the age of dinosaurs.
We have made specific proposals for this to be changed. In my five and half minutes I cannot present them to you, but you can read them in the copy of De Rebus, which will be distributed to your pigeonholes in a couple of days, and I urge you to look at them. The same proposals were made to the then Minister Maduna and the Deputy Minister Surty at the time and they were referred to the Rules Board. It is essential that we look at the entire structure of the judicial process. It is the last needed reform.
The second concern that we have - because it is topical and the Minister in his remarks made reference to it today - is the role of the department in being the centre of constitutional protection together with constitutional development. We must protect the Constitution. We are very concerned by the manner in which the term of office of the Chief Justice has been extended. There has been no compliance with section 176 of the Constitution.
We are all in agreement that that extension should have taken place. It was desirable. I do not think that there are any political differences on the necessity of doing so, but it should have been done by an Act of Parliament. It is not good enough to do it because we are all in agreement, and not respect the Constitution in the process.
The third aspect I want to raise in this debate, again, making reference to what I will publish, is the issue of corruption. Corruption is the cancer which will destroy this Republic. There comes a time with corruption when the rule of law is set aside and corruption becomes the rule of law. The breach of law becomes normality. We have received reports from the National Prosecuting Authority, NPA, and the Special Investigating Unit, the SIU, that they cannot deal with the past. There is no possibility of forecasting what can be done in the future. As painful as it may be, and I have argued this and will argue it in a more extensive publication, we must consider the need for an amnesty. We need to draw a line to start afresh and be serious. Let us write off the past 16 years of generalised larceny as the cost of the revolution. It happened, historically.
This has been a bloodless revolution, but we need to turn a new page, otherwise we are going to have a parallel system of power fuelled by corruption, akin to what there is in Russia, which will undermine the democratic system of power which we try to uphold within Parliament. This is an issue that I will be carrying forward in further debates. Thank you, Mr Chairman. I see my time has expired.
Sihlalo, ngisikima nokuthokoza, bengiyalotjhisa kuNgqongqotjhe wezoBulungiswa nokuThuthukiswa komThethosisekelo, uMhlonitjhwa uJeff Radebe, kunye nomndenakhe, ngilotjhise kuSekela lakhe uMhlonitjhwa u-Andries Nel, godu namajaji akhona njenganje, namajaji wakade, begodu nakiwo woke amaLunga ahloniphekileko wePalamende akhona namhlanjesi. (Translation of isiNdebele paragraph follows.)
[Mr J B SIBANYONI: Chairperson, I stand to thank and greet the Minister of Justice and Constitutional Development, hon Jeff Radebe, his family, with greetings to his Deputy, hon Andries Nel, and all judges present here, retired judges, and all hon Members of Parliament present today.]
My speech will focus on the transformation of the judiciary. Legal education and the legal profession and so on need to be transformed. This includes community service for newly qualified lawyers. I would like to focus on enhancing access to justice. It is true that justice delayed is justice denied. I want to refer to the use of indigenous languages in court proceedings.
Ngifuna ukuthokoza khulu amagadango lawo asele athethwe mnyango lo. Siyakhumbula bona ikhotho yeNkandla KwaZulu-Natal, kelikaMthaniya, kwabangiyo eyaba sibonelo yaba yi-Pilot Project. Ikhotho leyo ikhombise imiphumela eminengi bona kungasebenza bona namalimi wesintu nanyana amalimi wesikhethu asetjenziswe.
Sihlalo, kunento erarako, uthola umarhastrata aliNdebele, uthole umtjhutjhisi aliNdebele negcwetha nalo liNdebele, kodwana uthole boke abantu laba banetoloki ebatolokelako, begodu lokho kuriyadisa ukutjhutjhiswa komlandu. Abantu laba boke nabakhulumako bazi ilimi ekungaba siNdebele nanyana isiZulu. Yeke-ke, kubayini banga khulumi ngelimelo khona nommangali, nommangalelwa nan yana umsolwa naye akhulume, akwazi ukuzwa bona kuthiwani, ukuze amakhotho wokugwebela angabi yinto yakosobantu kodwana abe yinto yekhayapha. (Translation of isiNdebele paragraphs follows.)
[I would like to thank this department for all the steps it has taken. We will remember that the court of Nkandla in KwaZulu-Natal, in Mthaniya's land, was the one that was used as an example and became a pilot project. The court has demonstrated in many ways that indigenous languages or our African languages can be used.
Chairperson, there is something amazing. You will find that the magistrate, the prosecutor and the lawyer are all Ndebele-speaking people, but they have an interpreter that interprets for them. This yet again delays the process of prosecution of the case. All these people, when they speak, you can tell that they all know isiNdebele or isiZulu. Why don't they talk to the complainant, defendant or a suspect in that specific language? This will enable him to hear what is said. This will make courts of law not to become foreign courts, but to be domestic courts.]
I commend the Department of Justice and Constitutional Development for launching the audio-vision remand, AVR, system. Yesterday, in this province, we commenced with the initial phase in Mitchells Plain Public hearings were conducted in various provinces throughout the country, dealing with the review of the criminal justice system.
Into le ekukhulunywa ngayo ebizwa ngokuthi yi-Audio Vision Remand, AVR, system, zzzzyinto ehle. Njengokuthi umuntu uhlezi e-"New Lock" nge-Pretoria Central Prison, umlandu wakhe ungena ngeKwaggafontein, esiFundeni seMpumalanga. Kusuka ilori le! Mhlambe ilayitjhe babili nanyana bathathu, kube namapholisa asiqhema abalandelako, bakhamba nabo ukuya ngeKwaggafontein, ibanga elingaba makhilomitha alikhulu, bese uyokutjelwa nje kwaphela bona umlandu wakhe awukalungi, yeke ubuyiselwa emva, uyatshwiliswa uzakungena ngelinye ilanga.
Umraro omkhulu kukobana kungenzeka bona umuntu lo unabantu asebenzisana nabo abobogalajana, abangahlala endleleni balindele ukumsiza bona abaleke. Ngalokho-ke, siyazi bona izinga lokubaleka kweenlelesi ngapha ngeSewula Afrika lingangani. Alo-ke, i-Audio Vision Remand system ubuhle bayo kukobana nalokhe iselelesisi sisePitori ngeTshwane, umarhastrata, umtjhutjhisi negcwetha lakhe ulibona esibonibonini ahlezi khona lapho akhona begodu uyabezwa nabakhuluma naye. Nabo bamqalile ngekhotho, bambona ngesathalayidi bebakghone nokukhulumisana naye nabafunako, begodu unelungelo lokucocisana ngokuyifihlo angaziwa ngabanye abantu negcwetha lakhe, njalonjalo.
Ngqongqotjhe, sithokoza khulu kwamambala ngikuzwile, ngikulalele, nokobana uthe ihlelweli angeze lasetjenziselwa ukutshwiliswa kwemilandu kwaphela, kodwana ngokukhamba kwe sikhathi kuzaba nokugwetjwa imilandu ngesathalayidi umuntu ahlezi khona lapho akhona emaseleni. Ngaloko-ke, siyathokoza. (Translation of isiNdebele paragraphs follows.)
[This audio-vision remand, AVR, system that is talked about is something good. For example, a person is imprisoned at "New Lock" in Pretoria Central Prison and his trial is conducted at Kwaggafontein, in Mpumalanga. A lorry with only two or three people and a handful of police officers drive a distance of about 100 kilometres; on arrival then are then told that the case is not ready, and subsequently they are told that the case has been postponed or remanded for another day.
The biggest problem that might happen is that this person might have other people that work with him who are also criminals, who can wait on the way to help him escape. We all know of the rate of criminal escapes in South Africa. So the good thing about the audio-vision remand system is that when a prisoner is in prison in Pretoria Central Prison in Tshwane, he can hear the magistrate, the prosecutor and his lawyer through the monitor, talking to him. They also see him in court via a satellite and they can also talk to him when they want to. He can also talk about other personal issues, not being heard by other people, including his lawyer and so on.
Minister, we thank you so much. I understood you as you were speaking, even when you said the programme will not be used to postpone the cases only, but as time goes by there will be prosecution of cases, through a satellite link-up, of a person sitting in the cells where he is kept. So we thank you.]
With regard to Legal Aid SA, Lasa, led by the honourable Mr Justice Dunstan Mlambo, the report of the Portfolio Committee on Justice and Constitutional Development indicates that, during its presentation, Legal Aid SA indicated that it received additional funds to improve its practitioner-per-court ratio, accommodate occupational-specific dispensation, OSD, funding and increase its civil work. Additional amounts of R44,6 million, R90,8 million and R106,3 million have been allocated to Legal Aid SA to increase capacity, improve conditions of service and implement phase 2 of the OSD for legally qualified professionals.
The Justice and Constitutional Development portfolio committee, as in previous years, has been impressed by Lasa's presentation of its strategic and annual performance plan.
Umsebenzi wenu eniwenzako muhle, Jaji Mlambo, begodu uyakarisa. [Judge Mlambo, the work you are doing is commendable and impressive.]
Lasa should be proactive in seeking out opportunities to promote what it does. The report states that the committee is encouraged by the strong emphasis that emerged on the quality of services that Legal Aid SA provides. The ANC supports Lasa's goal of expanding its civil work and impact litigation, despite the financial constraints that it faces in this regard. Therefore, the ANC supports Lasa's aim to reach the rural poor.
I will be very brief on the matter of the Small Claims Courts. We commend the hon Andries Nel for championing the establishment of Small Claims Courts throughout South Africa. Thank you very much. [Applause.]
The extension of the civil jurisdiction of regional courts has been a resounding success. It is opening up access to justice for the rural poor.
I want to end by reflecting on the concept of freedom of expression versus the sub judice or pendente lite principle. The question is: Does the media respect the sub judice or pendente lite rule? The Sunday Independent newspaper of 29 May 2011 carried a front-page story with its heading in bold and huge letters. It said: "Hlophe must go: Ramphele". The question is ...
Kanti u-Judge President Hlophe wenzeni? Wona ngani? [What has Judge President Hlophe done? What wrong has he done?]
The newspaper said:
Embattled Western Cape Judge President John Hlophe is facing a new "gross misconduct" complaint - this time from a nonprofit legal advocacy group Freedom Under Law (Ful), which wants Hlophe to be disciplined and possibly removed as a judge for what they have called "scandalous public utterances" about judges of the Constitutional Court. ... In an affidavit, deposed by businesswoman and an academic Mamphela Ramphele, who is a member of Ful's international advisory board of trustees, the group says various statements made by Judge Hlophe, while defending a 2008 complaint by Justices of the Constitutional Court, were "contemptuous, scandalous, intemperate and false".
Izolo lokhu ngikhe ngabanaye u-Judge President Hlophe, pheze ngambuza bona kanti isagila sakhe lesa sayakuphi, ngombana ngathana siyasebenza njenganje, khona nakukhulunywako kwaziwe bonyana wenzeni. (Translation of isiNdebele paragraph follows.)
[Yesterday when I was with Judge President Hlophe, I nearly asked him where his knobkerrie was because it is supposed to be working now. So that when there are talks, it will be known what he has done.]
In conclusion, hon Chair, I would like to say that I also looked at an article written by the author Mr Moya in the City Press of 5 June 2011, which says, "Hlophe deserves fair treatment". The ANC supports the Budget Vote. [Time expired.] [Applause.]
Hon Chairperson, hon Minister, hon members, heads of court and other members of the judiciary, heads of constitutional institutions, distinguished guests, comrades and friends, ladies and gentlemen, 27 years ago, in 1984, the people of South Africa marked the first anniversary of the United Democratic Front, UDF. On this occasion, one of its co- presidents said:
Sons and daughters, to me today I'm a great big mother, for today our multiracial baby is born. For today our baby that will rule this South Africa in future is born. The multiracial baby, the United Democratic Front, which is uniting the people to speak with one voice, which is uniting the people with the truth, which is uniting the people to say no to the Koornhof laws, which is uniting the people to say away with the new Constitution, because it doesn't give us freedom.
These were the words of our hero and stalwart, the late Mama Albertina Sisulu.
Today, because of the selfless struggle that she and so many others waged, we do indeed have a Constitution that seeks to heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights; a Constitution that provides us with both the vision and the institutional framework to guarantee to all South African - united in our diversity - human dignity, the achievement of equality and the advancement of human rights and freedoms. We must continue to work together to unite all in our society with this truth.
Government's five priorities of education, health, creating jobs, rural development and land reform, as well as fighting crime and corruption, are guided by this vision. Everything we do in the Department of Justice and Constitutional Development is done in pursuit of realising the vision mandated by our Constitution of a transformed and accessible justice system, which promotes and protects social justice, fundamental human rights and freedoms by providing transparent, responsive and accountable justice for all. Hon Chairperson, next week we commemorate the 35th anniversary of the 16 June 1976 uprising under the theme, "Youth Action for Economic Freedom in our Lifetime", reminding us of the enormous contribution young people made and continue to make to our struggle for liberation and the need to realise the socioeconomic rights contained in our Constitution.
The legislative programme outlined by the Minister will require careful management and co-ordination by and between the National Assembly and the NCOP. In this regard, we look forward to regular interaction with the relevant portfolio and select committees and would like to thank Mr Luwellyn Landers and members of the portfolio committee.
Significantly, this programme contains the Constitution Seventeenth Amendment Bill - to which the Minister has alluded - which seeks, among other things, to lay the basis for establishing a transformed and united judiciary. This will involve, amongst other things, harmonisation of the work of the Judicial Service Commission and the Magistrates' Commission with a view to establishing uniform norms and standards for the appointment and handling of complaints concerning judicial officers.
I would like to thank Judge President Bernard Ngoepe for his sterling contribution over many years to the work of the Magistrates' Commission. Let me also congratulate Judge Frans Legodi on his appointment as the new chairperson. We are confident that, under his leadership, the commission will travel even further along the transformation highway.
In this regard, it is significant that, of the 80 newly appointed district magistrates during 2010 to 2011, 66 are black and 14 are white. Forty-six of these newly appointed magistrates are women. During the same period, 26 regional magistrates were appointed of which 23 are black and 3 white. Ten of these regional magistrates are women. During this period a total of 2 031 acting appointments of magistrates were made. We are exploring ways of using this process to further accelerate the transformation of our district and regional court benches, including making this process more open, transparent and structured and also enlarging the pool from which appointments are made.
The South African Judicial Education Institute Act of 2008 has already established a single framework for the training of judges and magistrates. With effect from April 2011, the judicial training programme of the Justice College has now been formally integrated into the programme of the SA Judicial Education Institute.
The council of the institute tasked the Chief Justice and the Deputy Chief Justice to direct the work of the institute with the assistance of appropriately qualified administrative staff. The first judicial education programmes will be implemented soon after the important Access to Justice Conference scheduled for 7 July to 11 July 2011.
Guided by the vision contained in the Constitution that Mama Albertina Sisulu struggled for, we continue to provide support to independent institutions supporting constitutional democracy, to ensure their independence, impartiality, dignity and effectiveness. We express our appreciation to Advocate Thuli Madonsela and Advocate Lawrence Mushwana and members of the Human Rights Commission for their excellent work.
We also continue to work with civil society to promote access to justice. The department's Access to Justice and Promotion of Constitutional Rights Programme has moved with speed in utilising more than R200 million to provide a number of grants to civil society organisations through the Foundation for Human Rights. We thank Ms Yasmin Sooka and other members of the foundation.
Priority is being given to the most vulnerable in society - women and children, rural and urban poor communities, farmworkers, people affected by HIV and Aids, child-headed households, people affected by violations of human rights, the aged, persons with disabilities, the youth, including children in prisons, and foreign nationals in need of assistance. We thank the European Union for their support and partnership in this vitally important programme.
Legal Aid SA has been very effective in utilising a budget of more than R1 billion to execute the constitutional imperative of providing legal aid to indigent accused persons and vulnerable litigants. Legal Aid SA now provides legal aid services at all our criminal courts through a national network of 64 justice centres and 64 satellite offices staffed by 1 600 salaried in-house legal representatives and by access to over 4 500 accredited lawyers.
During the 2010-11 financial year, Legal Aid SA provided legal services in 421 365 matters, comprising assistance in 389 914 criminal matters and 31 451 civil legal matters. Through these legal services, 25 586 children were assisted in criminal matters and 2 529 children in civil matters.
The Legal Aid Advice Line was launched in November 2010, facilitating telephonic access to primary legal assistance by persons from across the country and especially from rural areas. Since then, the Legal Aid Advice Line has assisted over 13 926 callers. We thank the Judge President of the Labour Court Judge Dunstan Mlambo, and the chief executive officer Ms Vidhu Vedalankar.
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 focus of the Statutory Law Revision Project is to ensure the constitutionality of the entire Statute Book. The commission will play an important role in the review of the civil justice system, which is one of our flagship projects in the 2011 Medium- Term Expenditure Framework cycle. We thank the chairperson, Judge Yvonne Mokgoro.
In this regard also, the department will, through the Sheriffs' Transformation Programme, strengthen the regulatory framework to address the transformation challenges in the appointment of sheriffs and the service and execution of civil processes. We thank the outgoing chair, Judge Nathan Erasmus, and the acting chairperson, Ms Charmaine Mabuza.
When it comes to access to justice, the Small Claims Courts demonstrate clearly that size does matter - and that small is big. We continue to increase both the number and the capacity of our Small Claims Courts. We have, to date, established 224 Small Claims Courts - 26 during the past year - with the emphasis on rural and remote communities.
In addition, 17 inactive Small Claims Courts were revived and 229 commissioners were appointed during the past year. We are on course to establish a Small Claims Court in each of our 384 magisterial districts. The monetary jurisdiction of Small Claims Courts has been increased from R7 000 to R12 000.
Awareness of the Small Claims Courts has increased. During the past year no fewer than 400 000 cases were dealt with in our Small Claims Courts. We thank the Swiss Agency for Development, all the commissioners and clerks of the Small Claims Courts and also those Members of Parliament who helped to establish Small Claims Courts in their constituencies.
As hon members know, all magistrates' courts are now designated as Equality Courts. This has resulted in an increase in the number of cases enrolled at these courts from 447 in 2008-09 to 508 in 2009-10.
The United Nations Human Rights Council and the General Assembly have adopted a resolution declaring 2011 the International Year for People of African Descent, to mark the 10th Anniversary of the World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance. The department will be working with all sectors in our society to finalise our National Action Plan to Combat Racism, Racial Discrimination, Xenophobia and Related Intolerance.
In a fortnight, we will be celebrating the 30th anniversary of the adoption of the African Charter on Human and Peoples' Rights on 27 June 1981, and later this year, on 21 October, we will celebrate the 25th anniversary of African Human Rights Day, the day in 1986 on which the African Charter came into effect.
During the past year we have, together with the Department of International Relations and Co-operation, participated in a number of international fora relating to justice matters. One of these was the Review Conference of the International Criminal Court held in Kampala in June 2010.
Our support for the International Criminal Court is a principled one that reflects our commitment to the foundational values of our own Constitution as well as to those of the African Union. The AU Constitutive Act affirms the sovereignty of the state as represented by the people, not just governments. It grants participation of African people in the activities of the all and promises never again to be blind, deaf or mute to the evils of war crimes, genocide and crimes against humanity, by granting powers to the Union to intervene in states where these crimes are committed.
Speaking at the Second Conference of African National Institutions for the Promotion and Protection of Human Rights in Durban on 1 July 1998, former President Nelson Mandela said that:
We have sought to ensure that the International Criminal Court is guaranteed independence and bestowed with adequate powers. Our own continent has suffered enough horrors emanating from the inhumanity of human beings towards human beings. Who knows, many of these might not have occurred, or at least been minimised, had there been an effectively functioning International Criminal Court.
African states were amongst the most ardent proponents of the creation of the International Criminal Court during the negotiations leading to the adoption of the Rome Statute. It is also no accident that, with 31 states that are party to the statute, Africa remains the biggest single regional bloc in the Assembly of 115 states party to the Rome Statute.
South Africa views the International Criminal Court not in isolation, but as an important element in a new system of international law and governance. The importance of the International Criminal Court needs to be seen in the context of the need for the fundamental reform of the system of global governance.
As President Jacob Zuma has said:
We argue that the affairs of the world of today cannot continue to be managed by the existing institutions of global governance unless they undergo fundamental reform.
In this regard, and in relation to the International Criminal Court, former UN Secretary-General Kofi Annan, speaking during the opening session of the Review Conference in Kampala, said:
... and questions of credibility will persist so long as three of the five permanent members of the Security Council refuse to reconsider their position and join those who have taken the courageous step to become parties to the Statute. The same is valid for countries that aspire to permanent membership. Indeed, the problem is not limited to the Security Council. Six of the G20 have not ratified the Rome Statute.
It is the lack of transformation of these institutions, the UN Security Council in particular, that is responsible for the perception that the ICC focuses exclusively on Africa. The point has been made by, amongst others, our Chief Justice that this is the wrong perception. Of the five matters before the court, three were referred by African states. This does not mean that the prosecutor should not expedite the investigation of the many other situations elsewhere in the world.
Time does not allow me to address a number of important matters related to the SADC Tribunal.
In conclusion, I would like to express my sincere appreciation to the Minister for his comradeship, support and guidance on a personal level as well as for his principled and decisive leadership of the department and the cluster.
Our deep appreciation also goes to our ever hard-working and even-keeled director-general and the officials of the department, as well as to the long-suffering, ever diligent and sleep-deprived staff in the Ministry.
Lastly, but most importantly, my appreciation goes to my favourite member of the legal profession, the one from whom I receive the most excellent pro bono support, my wife, Kim Robinson. Thank you. [Applause.]
Chairperson, the ACDP shares in expressing our condolences to the family and friends on the passing of Ma Albertina Sisulu. Our prayers are with you at this time.
Chairperson, hon Minister, court performance lies at the heart of this department. The committee has, for some years, expressed its dissatisfaction at ongoing poor court performance despite many initiatives. We are, however, pleased that the Chief Justice has now taken on the responsibility of monitoring performance in all the courts and we look forward to an improvement in this area.
We also support the three prioritised projects, namely to achieve a no- audit qualification by 2012-2013, a service turnaround in maintenance services, and a turnaround in the Master's branch. These are crucial areas in terms of service delivery and financial accountability.
One of the shining stars is clearly Legal Aid SA, whose presentation greatly impressed many members. It shows that a state organ can be turned around and effectively run consistently over a period of years, and serves as an inspiration to other organs and departments that service delivery can be effectively provided. Well done, Judge Mlambo and your team! [Applause.]
Last year, the ACDP raised concerns about the lack of support Chapter 9 institutions received from both state departments and Parliament. We are extremely concerned about events this year at the Public Protector's office.
To begin with, there is the unauthorised visit by members of the crime intelligence unit, and now the Public Protector is expressing serious concerns. Her concerns suggest that some people in positions of significant power in the country believe they are entitled to undermine her mandate by, inter alia, failing to co-operate with enquiries or failing to divulge information promptly or even at all, and ignoring rulings and injunctions for remedial action from her office. The Human Rights Commission has also expressed similar frustrations with departments carrying out its constitutional mandate.
The point is well made that if these Chapter 9 institutions armed with a constitutional mandate struggle to obtain information or compliance from state departments, how much harder will it be for the average citizen to access information should the Protection of Information Bill be passed in its present form - given severe problems already experienced with the Promotion of Access to Information Bill?
The ACDP looks forward to the planned meeting with the unit in the Speaker's office tasked with facilitating a better working relationship between Parliament and the Chapter 9 institutions to address these and other frustrations. We need to come alongside these institutions and assist them.
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. There are many areas of improvement, Minister, as pointed out by the hon Landers, for which we commend you and the department. I thank you. [Applause.]
Hon Chairperson, hon Minister and Deputy Minister, members of the judiciary, the director-general and his delegation, ladies and gentlemen, I would be failing in my duties if I did not spend a moment saluting the late Mama Albertina Sisulu, who was an inspiration especially to us young women who grew up being active in the struggle.
Looking at her, with her excellence that was always combined with humility, it was always felt that it was possible that we too as young people had a chance, the capability and the space to lead, not only in the struggle, but in the future South Africa that we were fighting for then. May her soul rest in peace, and may her family, the ANC and the country at large find solace in remembering that when it came to Mama Sisulu it was possible to be excellent and humble at the same time.
I will spend time addressing two areas here: the issues that emanated from the Auditor-General's report which, among other things, were weaknesses around asset management, disciplinary issues, issues of leave, irregular expenditure and third-party fund payments, as well as legal compliance.
I would like to start with the initiatives that the department is putting in place to attain two things. The first issue is to address the issues of concern that were raised by the Auditor-General's report, but largely to move towards an unqualified audit. The department is currently focusing on building capacity in supply-chain management. To this extent, the department has revised the supply-chain management policy. This follows the problems that were identified by the Auditor-General around the inadequacies of the policy on supply-chain management.
The department has also trained supply-chain personnel throughout the country on how to deal with policies regarding public-private partnerships, PPPs. The department has also quantified the values of irregular expenditure that was associated with noncompliance with the Public Finance Management Act, PFMA, and will be approaching the Standing Committee on Public Accounts for condonation to this extent.
In order to try to achieve this objective, the department is working very closely with its own internal audit committee in the process of verifying the formula and in the testing of transactions against the set formula. The department is strengthening its capacity in terms of internal auditing, and some improvements are already visible in this regard. Strategy and risk management still require a bit of focus and attention, so we would like to call the upper department to pay attention to issues of risk management and their strategy overall.
The department has invested capacity in employee benefits, in particular leave management, and the director-general is now receiving monthly reports on this matter. It has also invested in systems and human capacity in the area of asset management. The portfolio committee will be expecting to hear from the director-general regularly on these areas as he begins to receive monthly reports on these issues.
There is also a need for regular reconciliation of assets and a need for updating the asset register. We will also be looking forward to regular reports from the department on this matter. The department's biggest area of weakness has been in disciplinary matters and in the vetting of employees, particularly those who deal with finances. They are currently seeking the support of the National Intelligence Agency, NIA, to fast-track the vetting process of these officials, especially those who occupy strategic areas. They are currently building compliance capacity to manage contracts.
We have received reports on all these issues and we will be tracking these issues on a quarterly basis to ensure that the departments adhere to their own plans that are being facilitated in order to ensure that they receive unqualified audits and, as a result, address the issues that emanated from the Auditor-General's report.
Third-party payments are administered by the Department of Justice and Constitutional Development, and this is also an important vehicle and contributor to social welfare and poverty alleviation. As part of its mandate and strategic objective, the Department of Justice and Constitutional Development administers third-party trust funds in 470 courts in the country. This is at no cost of transfer and it entails maintenance payments between those who are obliged to pay maintenance and those who are beneficiaries - who are supposed to receive maintenance payments. The system ensures support for vulnerable children, families and households through the monthly collection of maintenance funds and transfers to the recipients.
The department has had to suspend an outsourcing project, which was a public-private partnership project during 2010-11, essentially because of funding constraints, but also to address concerns of possible job losses. After mothballing or suspending this, the department had to invest in internal capacity-building measures to improve controls around third-party fund management. The department is currently talking to the SA Local Government Association, Salga, to ensure that municipalities take over the responsibility of the collection of penalties levied by them, instead of this responsibility being discharged by the Department of Justice and Constitutional Development.
Electronic funds transfers, which are more fully set out below, will assist the department in speeding up the turnaround time for payment of funds to the beneficiaries and, by so doing, also reduce the opportunity of possible fraud and corruption which has been associated with manual payment of these funds to the beneficiaries.
The department has also introduced controls, including daily reconciliations. It has also put in place a manual that directs how maintenance payments should be managed. It has introduced the separation of roles in terms of the authoriser and the person who makes the payment. The department has also strengthened the management of third-party funds, starting by making several appointments, the first being the appointment of the chief director with the full responsibility of accounting for the funds. This person is supported by a director.
The department is now in the process of appointing an additional 30 personnel or staff members at the levels of deputy director and assistant director and at state accountant level throughout all courts where third- party funds are being disbursed.
The strategy for third-party payments will rest on five pillars, which are: one, the people, meaning that there will have to be an investment in dedicated personnel; two, system development and enhancement - the system that facilitates this will have to be enhanced and developed; three, legislative review - the laws that govern this process will have to be reviewed; and pillars four and five, respectively, will be service delivery enhancement and the locking of the systems where authorisation is not granted by the necessary authority. I thank you. [Time expired.]
Hon Chairperson, Minister, Deputy Minister, judges present and Members of Parliament, my remarks will centre around Chapter 9 institutions.
In the epilogue to his autobiography, Let My People Go, Chief Albert Mvumbi Luthuli contends:
If friendships make a man rich, then I am rich indeed. I grieve over the ban which, until May 1964, cut me off from my many friends in all parts of South Africa, but grieve more deeply for the men and women - their number is not known - whose desire for sanity in South Africa, whose insistence on no more than our human dignity, has led to banishment, deportation and jail, while their families suffer acute distress. I have no illusions. Their number will grow.
In the words of indomitable resilience and positive defiance, this icon of our struggle went on to say:
But the struggle goes on, bans, banishments, deportations, gaol or not. The struggle goes on as much in jail as out of it, and every time cruel men injure and kill defenceless ones, they lose ground. The supremacist illusion is that this is a battle of numbers, a battle of race. It is not. It is right against wrong, good against evil, the espousal of what is twisted, distorted and maimed against the yearning for health.
Chief Albert Luthuli was lamenting about human rights. The words above pierce our hearts as we are seated here today in the comfort of the democratic state delivered to us by the ANC in 1994 through the nexus of its four national democratic struggle strategies: underground operations, mass mobilisation, international solidarity, and armed struggle.
The essence of the words presents to us an accurate picture of what apartheid South Africa looked like and we dare not forget nor fail the martyrs of our struggle who never tasted the fruit of the freedom they toiled ceaselessly to attain. It is not assisting us ... [Interjections]
Today our Constitution is value-laden and sovereign because we decided that never again in this beloved country shall human beings be unfairly discriminated against, and never again shall anyone's human dignity be hurt by anyone with impunity. The values in our Constitution are not only implicit in its overall democratic design, but are explicitly set out in the preamble that we all know.
Professor Etienne Mureinik also fittingly observed that the negotiated revolution was like a bridge that we crossed from a culture of authority to a culture of justification. The mandate of the Chapter 9 institutions as guardians of democracy is underpinned by the imperative to determine whether differentiation between people on certain specific grounds amounts to unfair discrimination. In many instances, these institutions are expected to determine whether the state had taken reasonable measures within its available resources to realise the rights in question.
Respect for human dignity is a unifying constitutional principle for a society that is not only diverse, but still extremely unequal, and continues to be unequal. We thank the department for making all these courts equality courts. This is a step in the right direction.
An open and democratic society needs to ensure that citizens enjoy some degree of protection if their rights are breached, in particular in the event of administrative impropriety. However, litigation tends to be formal, expensive and dilatory to the point at which the ordinary man in the street is deterred from using it to assert or enforce his rights. In this instance, Chapter 9 institutions assist in maintaining and establishing efficient and proper public administration as they are able to insist that the administration acts within democratic principles.
The Office of the Public Protector was established, as we all know, for the purpose of ensuring government's accountability and providing remedies for maladministration, the abuse or unjust use of power, corruption, unlawful enrichment and other acts that unlawfully prejudice citizens of the country.
To this end, section 181 of the Constitution lists the Public Protector as a state institution strengthening constitutional democracy and declares it independent and subject only to the Constitution and the law. It also requires the Office of the Public Protector to be impartial and to exercise its powers and perform its functions without fear, favour or prejudice.
The Constitutional Court has set out a general test that can be used to judge the independence of an institution in its judgment in the Van Rooyen case. According to the Constitutional Court, the determining factor is whether, from the objective standpoint of a reasonable and informed person, there will be a perception that the institution enjoys the essential conditions of independence.
In this regard, the court clarified that the perception of a hypersensitive, cynical and suspicious observer cannot be the standard used to determine independence. I put it to this House without fear of contradiction that the Chapter 9 institutions, including the Public Protector, are sufficiently independent according to the perception of a well-informed, thoughtful and an objective observer.
Equally, the Bill of Rights holds out the promise to all South Africans, no matter how poor and marginalised, that their human dignity will be respected and protected against abuse not only by the state, but also by private institutions and citizens. The SA Human Rights Commission, therefore, has a vital role to play in honouring this constitutional imperative. Many poor and marginalised individuals in South Africa do not have easy access to the legal system and therefore do not exercise their rights without assistance from a strong, independent and impartial human rights body.
We are very appreciative of the Human Rights Commission's valuable work in promoting and protecting human rights. We also note the commission's co- operation with similar bodies elsewhere in the world, especially in Africa. We also wish to congratulate the commission on the quality of its plans.
I want to conclude by saying that justice has been portrayed as the blindfolded Roman goddess Justitia holding the scales of justice in one hand and a sword in the other. She is blindfolded because her decision has to be impartial. Her sword symbolises the effective justice supported either by punishment or compensation. Her scales indicate that both sides to a dispute should be heard and balanced against one another. Let us jointly support Chapter 9 institutions and move forward. I thank you. [Applause.]
Madam Chair, hon Ministers, Deputy Minister, fellow members, heads of courts, in considering whether we are going to support the granting of R13,5 billion to the Department of Justice and Constitutional Development, a good starting point is to look at how it has managed its money and general affairs in previous financial years.
The Auditor-General's view is instructive in this regard, having given the department a qualified audit for the past five consecutive years. One of the key issues leading to the audit qualification is the management or, rather, lack thereof, of third-party funds. This matter has also been raised in reports of the Standing Committee on Public Accounts, Scopa, since 2007.
So one would hope and, indeed, expect that the department would tackle this with some degree of urgency - even more so, when the Public Service Commission has found that the most common forms of alleged corruption in the department include fraud and bribery and mismanagement of government funds, and raised concerns about the capacity constraints in the Forensic Audit Unit. The Minister reported in October last year that an estimated R80 million had been stolen from the Guardian's Fund by corrupt officials and syndicates.
Set against this background, we were somewhat surprised when the department appeared before us last year and earlier this year, and it was quite clear that they had absolutely no solution to the problem. There had been a possible solution in place involving a public-private partnership, which was mothballed by the private company because the department could not make a decision.
Then the department had the brainwave of trying to deal with it "in-house". Minister, with all due respect, when we look at the management of the department, it can hardly inspire us with confidence that they can deal with this critical issue "in-house". They have not been able to up until now. What has changed?
It is quite clear that we are on our way to yet another qualified audit this year, and that as long as these issues are not resolved, the way is clear for many more millions to disappear.
Despite some reduction in the general staff vacancy rate, there is still a vacancy rate of 25% in senior management. It is quite clear from reading last year's annual report that the single biggest problem in this department is what I would, in fact, call a crisis of management. When so many senior positions remain unfilled, the climate for corruption and lack of accountability is allowed to flourish. And without this, speedy access to justice will not become a reality.
Numerous references are made in the annual report and parliamentary reports of low staff morale and high staff turnover. This is hardly surprising given the conditions under which they have to work. Again, in the year's annual report the most ludicrous examples of outright incompetence were reported, such as struggling to gather information to compile monthly financial statements, and "the filing of the relevant documentation for employee files remains an ongoing problem". Who appointed people who cannot fulfil the simplest of functions for the department to operate properly? Yet, again, it is management.
Then we have the position of the Chief Master that has remained unfilled since 31 August 2007. The reasons given recently by the Minister in a written reply were, and I quote:
... due to the possible restructuring of the Master's branch. The restructuring process was completed and the department undertook several unsuccessful attempts to fill the position culminating in the last advertisement in October 2010 and the headhunting process in January and February 2011.
So let's unpack this a little. We have a vacancy for nearly four years. It takes this long to consider whether a restructuring should occur, and then to implement it. During this time, Mr Lester Basson has been acting in the position. While he sits in a portfolio committee meeting, the director- general advises us that she has been very disappointed with the quality of the applications received for the position. How is it, Minister, that a man can be good enough to act in a position for almost four years, but his application is "disappointing"? If he is no good, he should not have been there for four years. If he is, he should have been appointed as the Chief Master. The reasons for the lack of morale could not be clearer.
The management and maintenance of the courts is also reaching crisis proportions. Basic needs are not being met, even such basic needs as even flushing toilets in some courts, although admittedly these are often related to infrastructural inadequacies in ANC-run municipalities, which do not set great store by investment in infrastructural maintenance.
But the department generally appears to be fiddling while the courts are burning - unfortunately, quite literally in Pretoria. Why is it that we have to wait for a court building to burn down before we do something about fixing it? When we have only two senior counsel applying to be judges in the South Gauteng High Court, because the building is "uninhabitable" and the working conditions unacceptable, we have a real problem. Once again, it is lack of adequate management.
And is it true, Minister, as I have heard, that in the Pietermaritzburg Magistrate's Court, no default judgments have been granted since March this year, because it has no budget for file covers, has run out of them, and the staff are writing exams?
Minister, I'm sorry to say this, but your department is in chaos, and you are failing to deliver easier access to justice, especially for the poor. There is no use trying to force lawyers to cut their fees, when very often fees are unnecessarily increased because of delays occasioned by inefficiencies in your own department.
Lastly, I would like to raise one issue of particular concern. You may recall an incident in April this year at the South Gauteng High Court, when a certain individual, whose name does not merit mentioning in this august House, arrived at court for a trial with a heavily armed private army, carrying illegally exposed semi-automatic weapons. It is unclear whether they, in fact, went inside the courtroom, but from media reports, it would appear that they did, and that they certainly stood outside the courtroom and inside the court building.
Not one word was uttered by you, Minister. This leads us to one of three conclusions: one, any member of the public can arrive at court with their armed security guards with illegally exposed weapons, thereby placing members of the public potentially at risk, and intimidating innocent people with this heavy-handed behaviour or, even worse, attempting to intimidate the judge; two, you are too scared to take action against this individual, which raises its own questions; and, three, some people are more equal than others under South African law.
Not one of these options, Minister, is acceptable in a constitutional democracy. By failing to act decisively against this type of behaviour, I believe you have committed a grave error of judgment, one which I sincerely hope will not be ignored and which will not ever be repeated.
Finally, we would also like to join in remembering the late Albertina Sisulu and we extend our sincere condolences to her family and friends. [Applause.]
Chairperson, Minister and Deputy Minister, I rise on behalf of the ANC in support of the budget of the Department of Justice and Constitutional Development.
At the outset, let me start by saying that we have had good co-operation from the department and the bodies which the committee performs oversight over, particularly the National Prosecuting Authority. Although there are a number of challenges, we've been able to work well together to try to overcome them.
The issues that I've been asked to speak on are the National Prosecuting Authority, NPA, and the Special Investigating Unit, SIU. With regard to the National Prosecuting Authority, I think the committee's report deals, in some detail, with the main concerns. But maybe I could just highlight one or two of the concerns. Firstly, there is the concern that the budget which the NPA is receiving is approximately 7% less in real terms than it received in previous years. So, that is of concern, given the pressure the NPA is under.
Other colleagues have spoken about the qualified audits and the concern that with the NPA they continue. I would want to urge the director-general of the department and the national directorate to ensure that, at least from the NPA's side, those qualified audits end and we get unqualified ones.
A further issue of concern that the committee noted is the issue of informal mediations, and this is basically a category that seems to have popped up in terms of which matters don't go to trial because of informal mediation. The committee has basically called for a statutory regulation office; much the same has happened with the plea-bargaining process. It can happen, but it needs to be regulated.
That is linked to some of the issues that have been of more popular public interest in subsequent decisions around who to prosecute and who to give immunity from prosecution, in the event of using their evidence against some other person.
With regard to the Brett Kebble case, I know that the current national director inherited this case. But what happened there versus the process being followed with the Anni Dewani murder case is that the Dewani murder case seems much more preferable as suspects were not given immunity, but will actually have to face the full might of the law.
With regard to the SIU, there was a lot of media coverage when the SIU came to the committee to be present for their budget examination. A lot of attention was given particularly to the large extent of the investigation they were conducting in the country and the extent, effectively, of corruption, and that is both worrying and depressing.
What wasn't really given attention was how the commitment of the ANC government to fighting corruption is borne out by the fact that this unit, which is successful, has been receiving a considerable increase in funding. While the NPA's budget has gone down, a point I raised earlier, the SIU will receive an effective 7,99% increase in their budget over last year - R193,62 million. By way of comparison, the figure was only R103,1 million in 2007-08.
The staff has grown from 67 to 600 in nine years. Over the past 12 months, the unit received an unprecedented 20 presidential proclamations of new matters that had to be investigated.
So it is important to highlight that, I think, because if anyone needs to look for an intention on the part of government to fight corruption, this is definitely borne out by the resources being given to the SIU to continue the valuable work they are doing. I want to make a few points regarding the work of the portfolio committee, and I want to thank the chairperson and my colleagues in the committee for the way we are able to work well together, collegially, and I think particularly when it comes to doing oversight over both the department and legislation. We are able to come up with a largely fruitful consensus with a good product. I think the hon Kohler-Barnard would find the committee boring from what I hear about her committee, or the way she behaves in her committee.
Unfortunately, when it comes to plenary debates, people feel the need then to politic a bit more. I would like to respond to some of the issues that some of my colleagues from other parties have raised. A lot of Ms Smuts' speech really resembled what one would expect from the first reading debate on the Superior Courts Bill, rather than on the departmental budget.
Maybe the other comment to make is on the issue of representivity. What else can one expect from a party whose leader continues to appoint an all- male cabinet in the Western Cape? [Interjections.] It's not an issue of "Ag, shame"; it's an issue of representivity. [Interjections.] Well, I wish I could say it's new, but she keeps doing it again and again.
As far as Ms Adams' input is concerned, she made reference to popular revolts, quoting Professor Pierre de Vos. Now, we have just had elections and, unfortunately, for those wanting popular revolts, we are in a democracy. People go to the polls every five years for national elections and every five years for local government elections. We have just had local government elections. Everybody said they were free and fair, yet you, Ms Adams, still want to talk about popular revolts. I think it is important that you really look at the issue of democracy and how the will of the people is expressed through the ballot box.
You then spoke about the importance of educating people about bail, which I agree with, but I wish we could also educate people about the need for due process. You know the public may want somebody who has done something bad to be punished immediately, but there needs to be hearing. And, after that hearing, they will be given an opportunity to appeal.
So regarding your comment about the fact that people are still employed, due process needs to be followed. And then you may make various references to ... You use the term "laughing stock". I think a key comment to make is that when it comes to Parliament and physical parties in Parliament, one could find no better laughing stock than Cope. [Laughter.]
Lastly, I want to deal with the issue that came up of the extension of the term of office of the Chief Justice. A number of speakers made reference to the fact that they thought the President had acted incorrectly. Let me just read the law. Section 176(1) of the Constitution states:
A Constitutional Court judge holds office for a nonrenewable term of 12 years, or until he or she attains the age of 70, whichever occurs first ...
Then, there was an amendment put in - maybe the hon members or those complaining about this haven't seen it; it was in 2001 - which would, except for an Act of Parliament, extend the term of office of a Constitutional Court judge.
In the same year, at the same time in fact, the Judges' Remuneration and Conditions of Employment Act was passed, which said specifically in section 8(a): A Chief Justice who becomes eligible for discharge from active service in terms of section 3(1)(a) or 4(1) or (2), may, at the request of the President, from the date on which he or she becomes so eligible for discharge from active service, continue to perform active service as Chief Justice of South Africa for a period determined by the President, which shall not extend beyond the date on which such Chief Justice attains the age of 75 years. I think it's common knowledge that our current Chief Justice is 58. [Interjections.]
Now, everybody says ...
Hon Jeffery, could you take your seat, please. I heard a comment by a person who had switched on a microphone. That is not allowed in terms of the Rules. If that type of behaviour persists, then we will have to address the matter more formally. Please desist from doing so. Continue, hon member.
Now, everybody that has spoken here that raised the problem has said that they don't disagree with the extension of the term of office of the Chief Justice. And yet, there is talk of bodies taking the matter to or challenging the President's actions in court. I read yesterday in the newspaper that Professor Kiki of the Centre for Applied Legal Studies at the University of Witwatersrand was saying it is taking the matter to court.
I wonder why we have to do so. You take a matter to court if you disagree with the outcome, and you then argue that the process followed was incorrect. Here, nobody is disagreeing with the outcome; it's a dispute about the process. Hon members know that the Superior Courts Bill is before us. It deals with, amongst other things, the issue of Constitutional Court judges and that is really the place where, in the longer term, the issue should be addressed.
I don't know why we have to waste money on litigation when there are many other issues which, I'm sure, are more deserving to litigate about and actually damage the image of the Chief Justice as being a person who was wrongly appointed, or that being the argument that people are making.
Chairperson, I hope that this issue doesn't become a matter that parties politic over. I think the law that I have read out is quite clear, and I would hope that everybody will afford the Chief Justice the respect he deserves. I thank you. [Applause.]
Chair, on a point of order. The hon ... [Interjections.]
Hon member, I have not recognised you yet. Thank you, hon Jeffery. Hon Masutha, what is your point of order?
The hon member who used ... [Interjections.]
Could you rise when you address the Chair, please?
The hon member who used the microphone was the hon Oriani- Ambrosini. I think he must be named.
Hon Masutha, I have dealt with the matter.
I now ask the Minister of Justice and Constitutional Development to close the debate.
Chairperson, and all members who participated in this debate, firstly, regarding all the issues that have been raised about the audit qualification of the department, I did indicate in my opening remarks the turnaround strategy that the department is embarking upon. So, in the next few months we will be reporting to Parliament and the portfolio committee to see the milestones that will be registered in effecting this turnaround strategy.
I indicated earlier in my speech that I had had several discussions with the Auditor-General. We are working very closely with National Treasury in order to bring about capacity in the department to address all the challenges that we face.
I would like to refer to some of the issues that were raised by hon members. The hon Smuts said that our Constitution only talked about a representative Public Service, not the appointment of judicial officers. I just want to refer her to section 174(2) of our Constitution that we all adopted in 1996, which states:
The need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed.
So, the hon Smuts read the Constitution continually.
With regard to the second point, that we need to reconsider the composition of the Judicial Service Commission, I think that the comment is misplaced because the composition of the JSC does not emanate from executive influence. It is a creature of the Constitution. So there is nothing wrong with the composition of the Judicial Service Commission, because it derives its function from the Constitution itself.
In any event, all those who serve on the Judicial Service Commission, even though they come from the legal profession - be it attorneys, advocates or from Parliament - the moment they are there, they don't represent their constituencies. In any event, I don't get my mandate from Cabinet when I sit there. I vote in accordance with my own conscience on the basis of what people themselves have presented before the Judicial Service Commission.
The Constitution also states that the decision of the JSC is based on the majority of its members. So if you do not vote for a particular candidate, there is nothing we can do about that. If the DA is a democratic organisation, it must also accept that other structures of the JSC have to take that decision in accordance with the majority of its members. Mr Smith here knows what I am talking about.
So the complaint about the Western Cape has nothing to do with anything other than that you voted in accordance with your own conscience and the majority of the members of the JSC voted in the manner in which they did. That's all I can say.
With regard to the issue of the apex court and the Constitutional Court, the Constitution Seventeenth Amendment Bill, which is before Parliament as we speak, actually affirmed what already is a de facto situation in which the Constitutional Court is an apex court. In any event, any law in South Africa has to emanate from the Constitution. So it cannot be argued that the judges of the Constitutional Court are junior to other judges. They actually are the ultimate arbiter of all matters that pertain to the Republic of South Africa. I do hope that this debate is finalised when we debate the Constitution Seventeenth Amendment Bill together with the Superior Courts Bill, where it will be affirmed that the Constitutional Court is the apex court on all matters.
Mr Oriani-Ambrosini, I think the hon J H Jeffery has already answered your question. But, to start with the issue of reforming the judicial system, justice reform in South Africa is under way as we speak. So you are allowed to come and make your own proposal as we continue to reform the civil justice system in South Africa.
On the issue of the extension of the term of office of the Chief Justice, I can only emphasise what the hon J H Jeffery said, in that there is nothing procedurally wrong that has been done. It emanates from section 176 of the Constitution in terms of which an Act of Parliament has already been passed here. I am sure Mr Oriani-Ambrosini was not here in 2001 because he was busy ill-advising Home Affairs. [Laughter.]
Therefore, if you read the Hansard of 1 November 2001, you would see the exhaustive support of all Members of Parliament on this Act of Parliament, now called the Judges' Remuneration and Conditions of Employment Act of 2001, which provides for the President to extend the term of office of the most eminent Chief Justice of this great Republic.
Hon Minister, you have another minute left to conclude.
In conclusion, I also want to reiterate what has been said by many colleagues, namely that we will endeavour as best we can so that by the time you come here next year we will have gone a long way in improving the financial fortunes of the Department of Justice and Constitutional Development.
With regard to the issue of the Chief Master, Mr Lester Basson, has not been acting in that position for four years; he's been in that acting capacity for 15 months. I want to announce that we have appointed a Chief Master. So we are going through the Cabinet process because all positions of deputy director-general and director-general have to be approved by Cabinet. I am sure you will be very happy when you hear who we have appointed the Chief Master of the Republic of South Africa.
With regard to the maintenance of courts, sometimes our role in Justice and Constitutional Development is confused with that of the Department of Public Works. Maintenance is the responsibility of the Department of Public Works. We are a client.
On the issue of default judgments, happily the Acting Judge President is here. I will, however, enquire about the issue of default judgments. With regard to the person not named by the hon Schfer, my information is that those guards were not allowed into the courtroom, and we know what the judge on the Bench at that time ruled on this particular matter.
With those words I would like to express appreciation for the comments that have been made by colleagues and their support for this Budget Vote, so that we can bring about access to justice for all the people of South Africa. Thank you. [Applause.]
Debate concluded.